In re Gilchrist's Estate

• Decision Date: 09 June 1936
• Docket Number: 1950
• Citation: 50 Wyo. 153,58 P.2d 431
• Parties: IN RE GILCHRIST'S ESTATE; v. EADIE, ET AL TRUSTEES OF UNIVERSITY OF WYOMING
• Court: Wyoming Supreme Court

58 P.2d 431

50 Wyo. 153

IN RE GILCHRIST'S ESTATE;

TRUSTEES OF UNIVERSITY OF WYOMING v. EADIE, ET AL

No. 1950

Supreme Court of Wyoming

June 9, 1936

Rehearing denied August 6, 1936. See 60 P.2d 364, Reported at: 50 Wyo 153 at 179.

ERROR to the District Court, Laramie County, SAM M. THOMPSON Judge.

In the matter of the estate of Mary Gilchrist, deceased, wherein Margaret Eadie and others filed claims which were objected to by the Trustees of the University of Wyoming as Trustee of the Student Loan Fund of the Student Welfare Foundation of the University of Wyoming. To review a judgment, objector brings error, and claimant moves to dismiss the appeal. Rehearing denied August 6, 1936. See 60 P.2d 364.

Modified and affirmed.

For the plaintiff in error, there was a brief by Corthell, McCollough and Corthell of Laramie and oral argument by N.E. Corthell.

The fundamental question in the case turns upon the effect to be given to the clause in the will which reads as follows "To any of my living blood relations, I give one hundred dollars, each, they are to establish their relationship by filing in court an affidavit to that effect, within one year after my death." The above clause is to be read in connection with other provisions of the will and the intention of the testator is to be gathered from the will as a whole, read in the light of the known conditions and circumstances, having regard to the general scheme devised and expressed by the testator for the disposition of her property. Car v. Bedford, 2 Rep. in Ch. 146, 21 Eng. Repr. 641; Jones v. Beale, 2 Vern 381, 23 Eng. Repr. 843; Roach v. Hammond, Prec. Ch. 401, 24 Eng. Repr. 180; Harding v. Glyn, 1 Atk. 469, 26 Eng. Repr. 299; Edge v. Salisbury, Amb. 70, 27 Eng. Repr. 42; Whithorne v. Harris, 2 Ves. Sen. 527, 28 Eng. Repr. 337; Widmore v. Woodroffe, Amb. 636, 640, 27 Eng. Repr. 413; Bennett v. Honywood, Amb. 708, 27 Eng. Repr. 459; Garth v. Myrick, 1 Bro. C. C. 30, 28 Eng. Repr. 966; Raynor v. Mowbray, 3 Bro. C. C. 234, 29 Eng. Repr. 508; Masters v. Hooper, 4 Bro. C. C. 207, 29 Eng. Repr. 854; Brown v. Higgs, 5 Ves. 495, 31 Eng. Repr. 700; DeVisme v. Mellish, 5 Ves. Sen. 529, 31 Eng. Repr. 718; Hillersden v. Love, 2 Hare 355; Lees v. Massey, 45 Eng. Repr. 821; Salisbury v. Denton, 3 K. & J. 529. A distinction is made by the courts between those testamentary gifts bestowed directly upon relatives and cases in which the testator has established a trust and designated a trustee, or given a power of appointment for the selection of one or more among the relatives of the testator or of others as beneficiaries. The rule has been applied by both English and American courts. Among the American cases are the following: In re Trickett's Estate, (Cal.) 239 P. 406; Wooten's Trustee v. Hardy, (Ky.) 298 S.W. 963; Levi v. Fidelity Trust Company, (Ky.) 88 S.W. 1083; Thompson v. Thornton, (Mass.) 83 N.E. 880; Estey v. Clark, 101 Mass. 36; Handley v. Wrightson, 60 Md. 198; Raunch v. Metz, (Mo.) 212 S.W. 353; In re Bernheim's Estate, (Mont.) 266 P. 378; Varrell v. Wendell, 20 N.H. 431; Clark v. Campbell, (N. H.) 133 A. 166; McGill v. Trust Company, (N. J. E.) 125 A. 108; McNeilledge v. Barclay, 11 S. & R. 103; Gallagher v. Crooks, (N. Y.) 30 N.E. 746; In re Sobel's Estate, 191 N.Y.S. 676; American National Bank v. Meaders, (Tenn.) 30 S.W.2d 246; Cleaver v. Cleaver, 39 Wis. 96; 3 Bouvier's Law Dictionary, 2862. Counsel for the opposition argues that the general rule applies only to a will drawn by a lawyer, and that a will drawn by a layman should receive a different interpretation; also that a power of self-selection, such as counsel finds in the Gilchrist will, in each one of the multitude of the "blood relations," supplies a test, transforms the meaning from uncertainty to certainty, and removes the case from the operation of the general rule. Perhaps the case which comes nearest to the case at bar is Craik v. Lamb, 1 Coll. 489, 63 Eng. Repr. 512, but there it does not seem to have been claimed that the word "relations" comprehended any one beyond the next of kin. The function and significance of the trust provisions of this class are discussed in Brown v. Higgs, 4 Ves. Jun. 708, 31 Eng. Repr. 366; Cole v. Wade, 16 Ves. Jun. 27, 33, Eng. Repr. 894; Snow v. Durgin, 47 A. 89. The earliest of these cases is Carr v. Bedford, 2 Chan. Rep. 146, 21 Eng. Repr. 641; see also Jones v. Beale, 2 Vern. 381, 23 Eng. Repr. 843; Bennett v. Honywood, 27 Eng. Repr. 459. The following are some of the American cases dealing with interpretation: Lane v. Vick, 3 How. 464; German v. Frey Planing Mill Company, (Ky.) 77 S.W.2d 414; Thatcher v. Lewis, (Mo.) 76 S.W.2d 677; Cronan v. Cronan, (Mass.) 190 N.E. 721; Stephens v. Dennis, 72 S.W.2d 630; Kosa v. Boucek, (Kan.) 42 P.2d 596; Livingston v. Ward, (N. Y.) 159 N.E. 875; Johnson v. Haldane, 124 A. 63; Garth v. Myrick, 3 Bro. C. C. 30, 28 Eng. Repr. 966; Finlay v. King's Lessee, 3 Pet. 346; Bischemeyer v. Klein, (Ky.) 129 S.W. 551; Runyan v. Rivers, (Ind.) 192 N.E. 327; Davis v. Harbaugh, (Colo.) 230 P. 103; In re Mizner's Estate, (Pa.) 105 A. 46; In re Singer's Estate, (Pa.) 176 A. 519. Upon full consideration the will is usually found to contain a plain, simple, rational scheme for the distribution of the testator's property. Under the general rules of interpretation which we have referred to as supported by authorities, it must be assumed that the testatrix expected all of these provisions to be substantially effective, and that her estate would be sufficient for this purpose. These legacies were anonymous, grouped together under a class designation, intended by nominal gifts to forestall contests. Charitable dispositions are highly favored in law. Colt v. Comstock, 52 Conn. 352, 377; Riker v. Cromwell, (N. Y.) 20 N.E. 602. Where, through a trust, the means of selection are provided, the word "relations" should be given an expanded meaning. Where these means are not provided in the will, the term "relations" is of necessity treated as the equivalent of "next of kin," a term used to signify the relations of a party who has died intestate. 3 Bouvier's Law Dictionary, 2348. Our statute Section 88-4001 furnishes the controlling criterion. Unless a contrary intention appears the legatees take in analogy to the statute. Dollander v. Dhaemers, (Ill.) 130 N.E. 705. Johnson v. Bodine, (Ia.) 79 N.W. 348; Clark v. Todd, (Ill.) 141 N.E. 758; MacLean v. Williams, (Ga.) 42 S.E. 485; In re Barker, 130 N.E. 579; Ruggles v. Randall, (Conn.) 38 A. 885; In re Roch's Estate, (Pa.) 26 A. 610. By the common law of England, half bloods were excluded as inheritors of ancestral estates. 2 Pollock & Maitland, History of English Law, 302. As to the function and effect of affidavits of identity, no authority is shown for such vicarious filing, and none is presumed. 46 C. J. 1314; Insurance Company v. Volpe, 284 F. 75; Martorell v. Ochoa, 276 F. 99; Paskewie v. East St. L. & S. Ry. Company, (Ill.) 117 N.E. 1035. Heirs must establish their kin by satisfactory evidence. Hall v. State, 30 Wyo. 55; 3 Woerner, American Law of Admr. 3d Ed. Sec. 562 and cases cited. A careful review of the provisions of the will will lead to the conclusion that the legacies to relations were intended to be confined to those who under the Wyoming Statutes, would have taken in case of intestacy; that she meant to limit the legacies to equality among the several stirps or family stock of inheritance, rather than to place all individuals upon a common footing. As to most of the claimants, there is a failure of proof.

For the defendants in error, there was a brief and the cause was argued orally by M. A. Kline of Cheyenne.

Although the final order of the district court was adverse to a large number of persons, of which seven were residuary legatees there is only one residuary legatee who has appealed and only one plaintiff in error in this court. In re Barrett's Estate, 22 Wyo. 281; Weidenhoft v. Primm, 16 Wyo. 340. The Code of Civil Procedure applies to the probate code. Sec. 88-909-911. The rule that an appellant is limited in this court to those issues raised in his pleadings below is so well established that the citation of authorities seems unnecessary. Taylor v. Hall, (Ida.) 71 P. 116; Rothwell v. Knight, 37 Wyo. 11. As far as the evidence and record shows, the Student Welfare Foundation is merely a name of an unincorporated association, incapable of taking or holding real or personal property. 5 C. J. 1343. The designation of "The Students' Loan Fund of the Student Welfare Foundation of the University of Wyoming" does not serve to clear up the uncertainty. The order of the trial court should be affirmed, since it followed the terms of the will. Rench v. Metz, (Mo.) 212 S.W. 353; Bank v. Meaders, (Tenn.) 30 S.W.2d 246; Clark v. Campbell, 133 A. 166. The case of Bennett v. Honywood, 27 Eng. Repr. 459 is very similar to the case at bar; also Jones v. Beale, 2 Vern. 381. The term relative is given a broad interpretation in Henderson v. Henderson, 77 A. 348; 69 C. J. 67; Giles v. Little, 104 U.S. 291; Clarke v. Doorman's Executor, 21 L.Ed. 904; Nye v. Lodge, 36 N.E. 436; Flannery v. Gleason, 133 Ill.App. 398. The blood relations who are entitled to take under the will are each entitled to receive one hundred dollars. Rotmanskey v. Heiss, (Md.) 39 A. 415. The shares must be regulated according to the intent and construction of the will under which they claim. Mooney v. Purpus, (Ohio) 70 N.E. 894; Wooten's Trustees v. Hardy, (Ky.) 298 S.W. 963; Johnson v. Johnson's Admr., (Ky.) 300 S.W. 636; Ramsey v. Stephenson, (Ore.) 56 P. 520. Relatives of the half blood are blood relations. In re Sendero Estate, 105 N.W. 1064; Gardner's Estate v. Gardner, (Utah) 129 P. 360; Stockton v. Frazier, (Ohio) 26 L.R.A. (L.R.A.) 603. As to affidavits...