254 F.2d 205 (5th Cir. 1958), 16825, Byers v. Byers

Docket Nº:16825.
Citation:254 F.2d 205
Party Name:Raymond C. BYERS, Appellant, v. Guinevere E. BYERS, Appellee.
Case Date:April 07, 1958
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 205

254 F.2d 205 (5th Cir. 1958)

Raymond C. BYERS, Appellant,

v.

Guinevere E. BYERS, Appellee.

No. 16825.

United States Court of Appeals, Fifth Circuit.

April 7, 1958

Page 206

Wm. Andress, Jr., Dallas, Tex. (Richard B. Humphrey, Dallas, Tex., on the brief), for appellant.

Chas. C. Crenshaw, Sr., Lubbock, Tex. (Crenshaw, Dupree & Milam, Lubbock, Tex., on the brief), for appellee.

Before JONES, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal presents two matters, one procedural-jurisdictional, the other substantive. Both arise from the narrow question of whether, under the one peculiar contingency described in the grandfather's will, and which occurred, the illegitimate grandson (Raymond) is entitled to share with his legitimate half-sister (Guinevere) as remainderman on the termination of the life estate of their aged, but living, father (Clifford).

The procedural-jurisdictional question has been raised by us for the Court below assumed jurisdiction and neither of the parties there or here challenged it. The requisite diversity and amount in controversy is present. Our concern arises from the fact that this suit, brought by Raymond, a citizen of Indiana, against his sister, Guinevere, a citizen of Texas, while their father is still living, seeks a declaration of the rights in property, real and personal, devised under an Indiana testamentary trust, probated and administered there. Three principal questions emerge from this. First, is this a civil suit or controversy, United States Const. Art. III, § 2; 28 U.S.C.A. § 1332, rather than a proscribed probate proceeding? Since the estate in question is the remainder subject to several contingencies 1 none of which may occur, is it, second, an actual controversy in the constitutional sense rather than an academic one; and if so, is it, third, one in which, as a discretionary matter, the requested declaratory relief is appropriate?

As we conclude that the case was not, here and at this time, appropriate for declaratory relief, we do not pass on the substantive merits. We think it helpful, however, to discuss them insofar as they show actually what is involved and demonstrate the presently unpredictable contingencies which make the district court's judgment a mere forecast by a Texas Judge on what Indiana Courts might some day do if certain people die in a certain order.

The will was published in 1928. Testator then had two sons, Orin and his younger brother, Clifford, aged 43. Orin was then, and remained to his death, unmarried. Clifford was then married and living in Texas. He had, by that marriage, two daughters, Guinevere (then aged 1) and a sister (then aged 3) who subsequently died before marriage or issue. Clifford now lives in Indiana as does the Trustee. Prior to this first marriage, however, Clifford through a relationship with a domestic on his father's farm became the father of Raymond who was born in 1919. At the time the will was published, Raymond was nine years old. Paternity 2 has apparently never been denied, but not until twenty years

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later (1949) did Clifford acknowledge that he was Raymond's father. It was here stipulated that 'Raymond was * * * the natural son of Clifford * * * and that the Testator 'knew of the existence of Raymond * * *, and knew that he was the son of Clifford * * *, by statements made to him by Clifford * * *.'

Testator amassed a substantial estate comprising 100 acres of Indiana farm land and, as reflected by this record, at least $70, 000 in securities. It is apparent that he recognized the importance of establishing a definite plan for the disposition of his estate, and, moreover, the specific provision for the welfare of the small group comprising his own immediate family. These desires must have been fully conveyed for the will bears the marks of a careful, articulate, legal draftsman who, except for this one possible situation, used language that is, and has proved to be, a clear direction. The will was in six main items, four of which are immaterial here. Of the remaining two, Item Four, a small educational trust for Guinevere and her sister, subsequently revoked by codicil in 1933, has, for our purposes only an indirect interest. This controversy turns finally on the interpretation of Item Five 3 which established a testamentary trust for the sons, Orin and Clifford, for life with remainder to the surviving children of such sons.

Raymond's argument, put forward with consummate skill, eschews the appearance of resting upon a hypercritical overemphasis of one single word or phrase. On the contrary, the thesis is that because of three instances of specific wording, it is clear that for this one and only contingency-- Clifford surviving Orin with Orin leaving no issue-- the Testator intended to include legitimate as well as illegitimate children of his son Clifford as remaindermen.

In this discussion we use, with no further identification, the numbers we have

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inserted in brackets () as reference to the sentence or paragraph of Item Five set out in full in note 3, supra. The contingency which occurred and on which Raymond's claim rests is covered in (4).

Raymond first points out that in all places other than the last phrase of (4), wherever the children of the sons, Orin and Clifford, are referred to, they are identified as 'children lawfully begotten of their bodies' (3) or 'children lawfully begotten of his body' (4) and (5). Second, in all other places where subsequent reference is made to child or children encompassed within the class 'lawfully begotten of' the body, the term 'child' or 'children' is preceded by a definitive description 'said' child or 'such' child (3), (5). Third, in all other places where distribution is to be made to two persons (1), the word 'between' is used, and properly so, whereas, in the only instance where more than two would exist (4), the word 'among' is, and properly so, used.

Adding these three differences together, Raymond sess in this a mosaic, the pieces of which the Grandfather carefully fashioned for use in this isolated contingency. The claim is that in the last clause of (4) the omission of these words or phrases otherwise used was purposeful to reflect the Testator's intent that 'children of said son' (Clifford) covers legitimate as well as illegitimate issue.

That the mere existence of these differences is not decisive is immediately recognized by Raymond's counsel who put the problem with rhetorical neatness:

'As we have pointed out, there is undeniably a difference in language. Is there significance in the change of language? Is it merely a mannerism of style by an author seeking to hold a reader's interest by variety of expression? Is it an accidental substitution of words caused by a pedantic pride in prolixity? Or is it a deliberate intention by a departure from repeated diction to express a different desire and testamentary disposition without openly condoning the moral wrong which had its inception in his own farm home between his son and his servant?'

To this the District Judge answered that Raymond was not included as a remainderman in (4) or elsewhere in the trust. Our answer is that no answer should have been made.

At the outset we think that with respect to the first of the procedural-jurisdictional inquiries, the action was a civil suit or controversy and was not a proscribed probate proceeding. The suit did not attack the will. It affirmed its validity and sought only a construction of its written terms. To the fact, there present and deemed significant in Looney v. Capital Nat. Bank, 5 Cir., 235 F.2d 436, that Texas had enacted the Uniform Declaratory Judgment Act, Tex.Rev.Civ.Stat.Ann. (Vernon), Art. 2524-1, 1-16, can be added the further one that Indiana 4 likewise has that Act and, again like Texas, lodges jurisdiction for the construction of wills and trusts in the Circuit Courts, its court of general jurisdiction. Were the parties litigating in Indiana, it would, then, be by action in a court of general...

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