In re Murphy's Estate

• Decision Date: 23 February 1935
• Docket Number: 7295.
• Citation: 43 P.2d 233,99 Mont. 114
• Parties: In re MURPHY'S ESTATE.
• Court: Montana Supreme Court

43 P.2d 233

99 Mont. 114

In re MURPHY'S ESTATE.

No. 7295.

Supreme Court of Montana

February 23, 1935

Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.

In the matter of the estate of John T. Murphy, deceased. From a judgment approving the report on account of trustees, John T Murphy III and another appeal.

Affirmed.

See also, 43 P.2d 230.

Gunn, Rasch, Hall & Gunn, of Helena, for appellants.

T. B. Weir, Harry P. Bennett, and William Scallon, all of Helena, James Donovan, of Los Angeles, Cal., and Edgar L. Bishop, of Seattle, Wash., for respondents.

MATTHEWS Justice.

John T. Murphy died in 1914, leaving a will in which he, after making provision for his widow, provided that: "I give, devise and bequeath *** the remainder of my estate *** to *** A. L. Smith, *** Rolla P. Heren and Massena Bullard, as Trustees *** to take, hold and manage *** and from the net income thereof" to pay certain small annuities, and as to the remainder to pay "one-third thereof to my daughter Frances D. Murphy; one-third thereof to my daughter Addie M. Murphy; one-sixth thereof to my son John T. Murphy, jr., and one-sixth thereof to the children of my said son." It is provided that, until the net income shall be ascertained, in lieu of net income the trustees shall pay $500 per month to each of the daughters and $150 per month to the son, and a like amount to his children.

Paragraph 10 of the will provides that: "The principal from which the children of my said son are entitled as hereinbefore specified to receive the net income shall be divided into a number of shares equal to the number of said children, and the principal of the share of each child shall be paid to such child when such child shall attain the age of twenty-one years. If any of said children shall die without issue the interest of said child shall go to the survivor or survivors of said children. The principal from which my said son is entitled *** to receive the net income shall, upon the death of my said son be paid to his children in equal shares."

The will was made on November 21, 1912, at which time John T. Murphy, Jr., was married and had two children, John T. Murphy III, born in 1907, and William M., born in 1908, but the husband and wife were separated and living apart. The will was duly admitted to probate in June, 1914, and A. L. Smith duly qualified as executor.

Paragraph 13 of the will provides that, in case of the death, resignation, or incapacity of either of the trustees named, the remaining trustees should select another to act. Massena Bullard died in 1915, and W. B. Tait was appointed to succeed him, at some time subsequent to 1917.

On February 27, 1917, a final decree of distribution was made and entered in the matter of the estate, and therein three-fourths of the property of the estate was distributed to Smith and Heren, as the surviving testamentary trustees, in trust for the uses and purposes specifically set forth in the will.

During the period of ten years subsequent to entering upon the discharge of their duties, the trustees distributed the one-sixth of the income to the guardian of the two sons of John T. Murphy, Jr.; however, it is apparent that, at some time during that period, John T. Murphy, Jr., and the mother of the children were divorced, and the latter became the custodian and guardian of the children, and John T. Murphy, Jr., remarried; to this union was born, on April 8, 1927, a third son of John T. Murphy, Jr.--Jay Clare Murphy. As the eldest son of John T. Murphy, Jr., was born on June 6, 1907, the time for distribution of any part of the principal of the one-sixth part of the trust fund had not arrived at the time of the birth of Jay Clare Murphy.

Early in 1927 the trustees duly made and filed their report and account of their trusteeship covering the period from the beginning of the trust to December 31, 1926, which report and account was duly approved and allowed by the court. In 1933 the trustees made and filed their report covering the period from December 31, 1926, to December 31, 1932. This report shows that John T. Murphy III reached the age of twenty-one years on June 6, 1928, at which time the children of John T. Murphy, Jr., numbered three, and that John T. Murphy, Jr., was still living. At the date of the report the second son, William M. Murphy, had also reached the age of majority. Both John T. Murphy III and William M. Murphy have been declared incompetent and their mother, now Linda B. McGorty, has been duly appointed their guardian. Grace T. Murphy, mother of Jay Clare Murphy, is the duly appointed, qualified, and acting guardian of the person and estate of her child. The trustees' account shows that up to December 31, 1932, there had been paid to the guardian of Jay Clare Murphy from the income of the trust estate $23.128.45, presumably being one-third of the income from one-sixth of the trust estate.

On request of their guardians, the court appointed M. S. Gunn, Esq., of the Helena bar, to represent John T. Murphy III and William M. Murphy, and William Scallon, Esq., of the same bar, to represent Jay Clare Murphy, and granted leave to Messrs. James Donovan and Edgar L. Bishop, foreign attorneys under employment of petitioner Grace T. Murphy, also to appear on behalf of Jay Clare Murphy. On behalf of his clients, Mr. Gunn filed objections to the report and account of the trustees and an answer and cross-petition, wherein it is alleged that Jay Clare Murphy was not, and is not, one of the beneficiaries under the will of John T. Murphy and has no interest in the trust estate, and that it was so decreed and determined by the final decree of distribution in the matter of the estate of John T. Murphy. They protest the payment of the above-named portion of the income of the trust estate to the guardian of Jay Clare Murphy and demand that the trustees receive no credit for such payment.

Issue was joined by answer and cross-complaint on behalf of Jay Clare Murphy, and a hearing was had at which all parties interested were represented by counsel and heard; whereupon the court made and filed its findings of fact and conclusions of law, declaring, among other things, that the distribution of funds from the trust estate, including the payment of the portion of the income to the guardian of Jay Clare Murphy, is in all respects "fair, legal and proper," and in accordance with the will and the decree of final distribution in the Murphy estate. It is then "ordered, adjudged and decreed that the several items of disbursements from the trust estate *** including the payments of income to Jay Clare Murphy, are hereby approved and allowed," and that "the said John T. Murphy III, William M. Murphy and Jay Clare Murphy are each and all within the class of persons described as children of the testator's son John T. Murphy, Jr., in each subdivisions four (4), ten (10) and eleven (11) of clause fifth of the will as incorporated in the Decree of Final Distribution."

John T. Murphy III and William M. Murphy have appealed from the above portions of the judgment, thus raising the question as to whether or not Jay Clare Murphy is, under the terms of the will and the decree of distribution in the Murphy estate, entitled to share in the income and corpus of the trust estate.

Any question as to the validity of the will or the correctness of the decree of final distribution has long since been foreclosed. Sections 10328, 10558, Rev. Codes 1921; In re Estate of Murphy, 57 Mont. 273, 188 P. 146. The question here presented requires a construction of the decree of final distribution, and, as the decree follows and adopts the provisions of the will in defining the trust, such construction will, in effect, constitute a construction of the will; the decree cannot be given a different or broader interpretation than that given to the will. Manning v. Bank of California, 216 Cal. 629, 15 P.2d 746; In re Merchant's Estate, 143 Cal. 537, 77 P. 475.

A will is to be construed according to the intention of the testator (section 7016, Rev. Codes 1921), and that construction must be favored which will reconcile with the testator's intention the several provisions of the will (In re McLure's Estate, 63 Mont. 536, 208 P. 900). Words occurring more than once in a will are presumed to have been used always in the same sense when the context does not show a contrary intention, or when the words are not applied to different subjects (Carr v. Smith, 25 A.D. 214, 49 N.Y.S. 351, affirmed 161 N.Y. 636, 57 N.E. 1106; McMurry v. Stanley, 69 Tex. 227, 6 S.W. 412; Stewart v. Stewart, 61 N. J. Eq. 25, 47 A. 633; In re Goetz's Estate, 13 Cal.App. 198, 109 P. 145), and this rule "applies with double force where the word in question is found in two sentences in immediate succession." (Allen's Appeal, 69 Conn. 702, 38 A. 701, 702).

The provision found in subdivision 4 of the fifth clause othe will directing the trustees to pay one-sixth of the remaining net income of the trust estate "to the children of my said son" constitutes a gift to a class, the shares of each of whom are to be determined by the number of the class. "In legal contemplation, a gift to a class is the gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal shares, or some other definite proportions; the share of each being dependent for its amount upon the ultimate number." 6 Jarman on Wills, § 232, cited in Re Estate of Murphy, 157 Cal. 63, 106 P. 230, 137 Am. St. Rep. 110; In re Henderson's Estate, 161 Cal. 353, 119 P. 496. When the term "children" is used in a will, it is ordinarily given its primary meaning of all legitimate offspring of the first degree, unless...