Hanley v. Kansas & T. Coal Co.

• Citation: 110 F. 62
• Parties: HANLEY et al. v. KANSAS & T. COAL CO.
• Decision Date: 24 June 1901
• Court: U.S. District Court — Western District of Arkansas

110 F. 62

HANLEY et al. v. KANSAS & T. COAL CO.

United States Circuit Court, W.D. Arkansas, Fort Smith Division.

June 24, 1901

Chas E. Warner, Ira D. Oglesby, and Robert A. Rowe, for plaintiffs.

Hill &amp Brizzolara, for defendant.

The amended bill in this case shows: That on the 11th day of July, 1870, Elijah J. Woolage died in the county of Sebastian and state of Arkansas, seised and possessed of 320 acres of land situated in that county, and leaving the following will which was duly probated on the 12th of September, 1870 'In the Name of God, amen. I, Elijah Woolage, of Sebastian county, state of Arkansas, being of sound mind and disposing memory, and calling to mind the uncertainty of life, and being desirous to dispose of all such worldly estate as it has pleased God to bless me with, I give and bequeath the same as follows; that is to say: First. At my death I desire that my body be decently buried, and that all my funeral expenses and all other of my just debts, if any, be fully paid out of my personal property and estate. Secondly. I give and bequeath to my loving wife, Martha Woolage, all the personal property and effects of which I die seised and possessed, subject to the payment of my funeral expenses and just debts, as her own absolute property, in the event that she is living at my death; and, in case that I should survive my said wife, then all my property, after paying all just debts, shall be divided equally among and between my former slave, Mariah Woolage, colored, and the heirs and children of her body then surviving, share and share alike. Thirdly. I give and bequeath all the real estate which I own and possess, or of which I am seised at the time of my death, subject to the dower of my said wife, Martha, in trust to a trustee hereinafter appointed, for the use and benefit of said Mariah Woolage and the children of her body and their descendants, for the period of two hundred years from the date of my death; that is to say, the trustee hereinafter to be appointed and his successors to have a general supervision and superintendence over the farm or farms and lands herein devised, so as to divide the same annually or biannually, or for a longer time if he should deem it advisable, so as to make equitable distribution of the lands for cultivation according to the number and capacity of the different individual beneficiaries herein provided for, and that the said trustee to collect sufficient of the proceeds of the products of said real estate to-- the taxes paid up and all the lands herein devised to keep the same in good repair. Fourthly. After the expiration of the period of 200 years aforesaid, all real estate herein devised I bequeath and shall vest in and become the property of the county in which the same shall be situated at the time, and for the purposes and uses following; that is to say, the same to be under the direct supervision and control of the county court of the county in which the same may be situated, to be used exclusively for the use and benefit of the paupers of said county, so to be used forever; and, should said lands and real estate be abandoned by the said Mariah Woolage and the children of her body and their descendants at any time before the expiration of the 200 years, then as soon as so abandoned the . . . shall vest in the county in which said . . . may be situated, to be used and controlled as and for the purposes hereinbefore directed. Lastly. I do hereby constitute and appoint my friend Caswell B. Neal trustee and executor of this my last will and testament, hereby revoking all former wills or testaments by me heretofore made, and in case my said trustee die, resign, or for any cause fail, refuse to act, or in case any subsequent trustee fail or refuse to act as trustee and executor, then and in that event the county court of the county in which said real estate may be situated may and shall appoint a trustee and executor to carry this will into effect, according to the tenor thereof, who shall be allowed and paid a reasonable compensation therefor out of the proceeds of said lands; the amount to be fixed and allowed by the probate court of the county in which said lands may be situated. In witness whereof, have hereunto set my hand and affixed my seal this 8th day of January, A.D. 1870. ' That Martha Woolage, his widow, survived him, but died shortly thereafter; that Mariah Woolage also survived him, and afterwards, in 1873, died intestate; and that the plaintiffs in this suit are her children and their descendants. They allege that by virtue of said will they are the owners of an estate in the lands referred to, and are entitled to the rents, profits, and uses accruing and arising from the same, and are entitled to have the possession and enjoyment thereof, and that the said defendant has wrongfully entered into and without right seized possession of said lands for the purpose of digging out and mining coal therefrom, and for a long period of time has continued unlawfully to hold the said lands and mine coal out of the same, and sell and dispose of the same, converting the proceeds arising therefrom to its own use and benefit, and depriving the plaintiffs of the same, and by means of which unlawful acts on the part of the said defendant it is now justly accountable to plaintiffs in a large sum of money, to wit, the sum of $20,000, and, by means of said unlawful acts of the defendant, plaintiffs are deprived of the use and enjoyment of the said lands, and the said defendant is now continuing its wrongful occupancy and possession of the said lands, and is continuing to take out and remove therefrom large quantities of coal, to the plaintiffs' injury and damage. It is also alleged in the complaint that Caswell B. Neal, who was named and appointed as trustee and executor in the said last will and testament, failed and refused, in his lifetime, to accept the appointment as trustee, and has since departed this life, so that in fact there has never been a trustee to carry into effect the terms and provisions of the said last will and testament. The plaintiffs further allege that the defendant claims to own the said lands, but in what manner, or in virtue of what right, they are unable to state; that, because of the long-continued use of the lands in taking out and mining therefrom coal, large sums of money have been expended by the defendant, and much large sums have come to the hands of the defendant as proceeds of the sales of coal, the amounts of receipts and expenses being unknown to plaintiffs, but that the net amount due plaintiffs will not be less than the sum above stated, and that, in order to ascertain the correct amount of receipts and expenses, an accounting is necessary. The prayer in the bill is that 'the rights and title of the plaintiffs to the possession and use of said lands be established, and that they may have a decree against the defendant accordingly; that a trustee be named and appointed by this court, with full power and authority to carry into effect the provisions of the said last will and testament; that an accounting be had of the issues and profits arising from the said land during the time defendant has held possession of the same, and which have been converted by it to its own use and enjoyment, and of the expenses chargeable against the same, and that the correct balance be ascertained, and that plaintiffs have judgment for the amount thereof against the defendant; and, finally, for such other and further relief as may be warranted by the facts and circumstances, and as may be consistent with the rules, and practice in equity, to the same extent as though specially prayed for. ' It does not appear from the bill whether there was ever any administration upon the estate of either Elijah J. Woolage or

Mariah Woolage, nor does it appear from the bill who of the children of Mariah Woolage, or descendants of her body, were living at the death of Elijah J. Woolage. The demurrer to the amended bill is on the following grounds: First. The plaintiffs do not state facts sufficient to constitute a cause of action, and have not stated in said bill a case which entitles them, or any of them, to the relief therein prayed. Second. That no right, title, or interest, either in law or equity, accrued to the plaintiffs, or any of them, under and by virtue of the will set forth in the complaint.

ROGERS, District Judge (after stating the facts).

The intention of the maker of this will seems to me manifest. He and his wife were both old, and they had no children. The beneficiaries under the will were his former slaves. They had, no doubt, been faithful while in slavery, and, attached to him, had remained with him after they were freed. They had doubtless enabled him to accumulate this property, and therefore had a stronger claim on his bounty than any one else. He knew they were unlettered, improvident, and unable to cope with their environments. He wished not only to provide against those whom he thought might overreach them but against their own improvidence. To this end he invoked the aid of a trustee, sought to vest the estate in him for the use and benefit of Mariah Woolage and the children of her body and their descendants, and to make it inalienable for 200 years. The reason for vesting the remainder over in the county in which the land might be located at that time was, no doubt, because there was no person or corporation who could with any degree of certainty be named that would be in existence at that time; and, because he desired to induce the descendants of Mariah Woolage to remain on said place, he inserted a provision in the deed that as soon as they should abandon said land it should vest in the county in which the same was situated, for the use and...