Goodrich v. Ferris

• Decision Date: 21 May 1906
• Docket Number: 13,592.
• Citation: 145 F. 844
• Court: U.S. District Court — Northern District of California
• Parties: GOODRICH v. FERRIS et al.

145 F. 844

GOODRICH v. FERRIS et al.

No. 13,592.

United States Circuit Court, N.D. California.

May 21, 1906

Johnson & Johnson (James A. Louttit, Henry Arden, and Monroe &amp Cornwall, of counsel), for complainant.

Henry Ach, William Thomas, and J. W. Dorsey (Fred L. Berry, of counsel), for defendants.

MORROW Circuit Judge.

This is a suit in equity, brought by the complainant, a citizen of the state of New York, against the defendants, citizens of the state of California, for the purpose of obtaining a decree adjudging that a final decree of distribution entered and recorded in the superior court of the city and county of San Francisco, state of California, in the matter of the estate of Thomas H. Williams, deceased, on January 5, 1897 is fraudulent and of no force and effect against the complainant, and that the defendants be decreed to be trustees for the complainant of that part of the real estate of Thomas H. Williams, deceased, which complainant claims he is entitled to receive as heir at law of his deceased wife who, it is alleged, was an heir of Thomas H. Williams, deceased. The court is also asked to appoint a receiver of the said property, to take and hold the same, and to collect the rents and profits thereof during the pendency of this suit, and upon the final decree to make such disposition of the property as in and by the decree directed, and that an accounting be had, under the direction of the court, of the real estate which came into the hands of the defendants under said decree of distribution and the rents and profits thereof; that upon said accounting it be ascertained what portion of said real estate and of the rents and profits thereof the complainant is entitled to receive from the defendants and each of them; and that, as to such portion, they and each of them be ordered and decreed severally to convey and transfer to the complainant such part so found due from each of them, or the value thereof. The bill of complaint was filed May 19, 1904, and an amended bill January 16, 1905.

The questions submitted to the court for determination arise upon a demurrer to the bill of complaint as amended. A brief statement of the facts of the case, as they appear in the bill of complaint and the amended bill, will disclose the matters in controversy. Thomas H. Williams, a resident of the city and county of San Francisco, and a citizen of the state of California, died on the 28th day of February, 1886, seised and possessed of a large amount of real property situated in the state of California. This real property was subsequently appraised at the value of $1,459,445.08 and certain personal property at the value of $6,355. At the time of his death, Thomas H. Williams left no wife surviving him, and his only heirs at law were his children and lawful issue mentioned in the bill of complaint. The children were Sherrod, Thomas H. Jr., Mary Bryant, Percy, and Bryant. At the time of the death of Thomas H. Williams, his daughter Mary Bryant was the wife of Frank S. Johnson, by whom she had issue of the marriage with him, one son, the defendant, Frank Hansford Johnson, who at the time of the filing of the bill of complaint was about 18 years of age. Mary was divorced from Frank S. Johnson December 29, 1888, and on March 11, 1889, Frank S. Johnson was appointed guardian of Frank Hansford Johnson. On December 7, 1889, Mary married the complainant, and on October 3, 1893, Mary died. Percy married Bessie L. Trahern August 1, 1888. A child was born to Percy and Bessie November 12, 1889. This child died on February 16, 1890. Percy died October 3, 1890, leaving no issue. It is alleged in the amended bill of complaint, upon information and belief, that the defendant Thomas H. Williams, Jr., has acquired all the right, title, and interest of the said Bessie in and to the estate of the said Percy, which comprises all of the interest of the latter in the estate of said Thomas H. Williams, deceased. Sherrod died August 2, 1888, leaving no wife or issue. Bryant died May 2, 1893, unmarried and without lawful issue. Thomas H. Williams left two papers purporting, respectively, to be his last will and testament and codicil thereto. Copies of the will and codicil are attached to the bill of complaint. The will and codicil were admitted to probate in the superior court of the city and county of San Francisco, probate division, on the 6th day of April, 1886, and letters testamentary issued by the court to George E. Williams, a brother of the decedent, and the executor and trustee named in the will, who thereupon qualified as such executor and took possession of the estate of Thomas H. Williams, deceased, as such executor and as testamentary trustee under said will, and entered upon the execution of said trust and carried on the business in which said Thomas H. Williams was engaged at the time of his death, and continued so to do until the 5th day of January, 1897, when a decree of distribution was entered in the superior court.

The will of Thomas H. Williams contained the following provisions, among others, relating to the distribution of the estate:

'Item 4. When the term of three years after my death, shall have elapsed, unless the executor, herein named, shall for good cause extend it for two years, or in case there be another executor, three of my children, or representatives shall by writing, extend it for two years, distribution of my estate, shall be made, as herein directed.'

'Item 8. I hereby appoint my brother George E. Williams, executor of this will, and that no bonds, or security, be required of him, for the execution of the trust, or discharge of the office.

'Item 9. That no confusion may arise, in reference to title to any property of my estate, I hereby devise that all of the property of which I die the owner, or which may in any way become part of my estate, vest absolutely in my executor herein appointed, and his successor, successors in office. That the title thereto be held by him, or his said successor, or successors in office, until by death of my said several children the property set aside for each be vested in their respective heirs, as herein provided, said executor, or his successor, or successors, to hold said property, and every part thereof, in trust for the uses and purposes in this will mentioned, and for the use and benefit of my children as herein provided.

'Item 10. To the executor, herein appointed, I give, and grant, the following powers, and authority: (1) To carry on all business, in which I was engaged, at the time of my death. (2) To borrow money for the use of such business, or the benefit of my estate. (3) To bargain, sell and convey, any portion, or part, of the property of my estate, without any order of court, or other proceeding and to execute all mortgages, or conveyances, necessary, or deemed proper, by him. (4) To sell and convey, and part, or parcel, of property, set aside, for any one of my children, after distribution, as herein provided for, that he may reinvest the proceeds, for the distributee. In that case, his conveyance to be valid, may only recite, that he sells for reinvestment, and when he reinvests, it will be only necessary, to show by the conveyance, for whose ultimate benefit, the property is taken. It will be understood, that the term 'conveyance,' as here used, implies transfers of property, real, personal, or mixed. It being understood further, that no action of any court, or consent of any person be necessary to execute these powers, having entire confidence, that he will act for the benefit of my children. I request of said executor to have all income of my estate, or sales of property, invested in property, or government securities, or in notes, bonds, or mortgages, for which property has been sold, at the time of distribution; except the fifty thousand ($50,000) dollars, absolutely given Percy, which may be given in money, or property as desired.'

'Item 12. In the event my brother, executes this will, I direct that the court, having jurisdiction, make him a fair, and liberal allowance, for all services, without reference to statutory, or other fees. In case of another appointment, I direct that the compensation of the executor, so appointed, be fixed before, and at the time of appointment, and that he be paid accordingly, and not otherwise. Will also direct, that the appointment of one of my sons, may not be objectionable, and in conveyance of property, in which he may be distributee, his personal asset may be expressed in the same instrument.

'Item 13. This will is lengthy, but I hope it clearly expresses my purposes thus:

'That with the exception of fifty thousand ($50,000) dollars, the property of my estate, is to be 'set aside' in and for the benefit of my children, Thomas H., Jr.; Mary Bryant; and Percy; and Bryant, at the time of distribution, in the proportions of two hundred thousand ($200,000) dollars to Mary, and one hundred thousand ($100,000) dollars to each of the others, with division between Mary, Tom, and Percy, of the remainder of the estate. That each of said children is to have the net income of the estate 'set aside' for them respectively. That the legal title is to be, and remain in an executor, of the whole estate and each part thereof, until death inflicts her blows. That when a child dies, the estate 'set aside,' for him or her, vests absolutely in his or her heirs as herein provided, except in case of Bryant as hereinbefore mentioned, leaving the title, in remainder, in the executor, until each of the children, herein named, be dead.'

It is alleged that, under the laws of the state of California, and especially under sections 715, 716, 749, and 771 of the Civil Code of California, the trust attempted to be created in and...