Johnson v. De Pauw University

• Decision Date: 12 November 1903
• Citation: 76 S.W. 851,116 Ky. 671
• Parties: JOHNSON v. DE PAUW UNIVERSITY.
• Court: Kentucky Court of Appeals

76 S.W. 851

116 Ky. 671

JOHNSON v. DE PAUW UNIVERSITY.

Court of Appeals of Kentucky.

November 12, 1903

Appeal from Circuit Court, Jefferson County, Chancery Division.

"To be officially reported."

Suit by the De Pauw University against Henry M. Johnson. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

C. C Hiatt, for appellant.

Harris & Marshall, for appellee.

NUNN J.

In the year 1867 one William Holman died, a citizen and resident of Jefferson county, Ky. and left a will, which was admitted to probate, and was recorded in the Jefferson county court on the 12th of August, 1867. By his will he made some special devises, and then willed all of his estate to his wife during her life, and then used this language: "And after the death of my wife everything given into the hands of the Trustees of the Greencastle University in the State of Indiana in trust, the proceeds of which may be used only for the purposes of education of the descendants of George Holman and Jacob Meek." It is proper to remark here that the appellee, De Pauw University, is the legal successor to all the rights and privileges of the Greencastle University named in this will. The testator, William Holman, never had any children. George Holman, the person referred to in his will, was his father, and his mother was the daughter and only child of Jacob Meek. Testator's wife died in the year 1887, and in the year 1890 Nicholas Holman, George W Holman, and William V. Holman, who claimed to be descendants of George Holman and Jacob Meek, brought an action in the Jefferson circuit court against this appellee, in which they sought to have that part of William Holman's will above quoted declared void, in which action it was alleged that George Holman and his wife, a daughter of Jacob Meek, left 11 children, all of whom were then dead, and that each of them had left children, and that there were more than 120 of them who were the descendants and heirs of George Holman and Jacob Meek; that they resided in many states and territories of the Union, and the places of residence of most of them were unknown, and that the question sought to be litigated in their action involved a common or general interest of many persons; that it was impracticable to bring all of them before the court within a reasonable time, and therefore the plaintiffs, the three persons named, sued for the benefit of all the descendants of George Holman and Jacob Meek. In this action they described the property of William Holman left after the death of his widow, and asked that they be allowed to prosecute the action for the benefit of all the heirs of Holman and Meek, and that the court declare the provision in the will named void, and that the property be distributed between the descendants of Holman and Meek. A general demurrer was filed to this petition, and the court, construing the provision of the will copied herein, was of the opinion that the devise was for a charitable use or purpose, and sustained the demurrer. The plaintiffs therein objected and excepted, and prayed an appeal to the Court of Appeals which was granted; but no appeal was ever taken from that judgment, which was rendered in the early part of the year 1891. On the 6th of September, 1902, the appellee, De Pauw University, filed its action in the Jefferson circuit court, in which it set forth the will of William Holman, the judgment of the court in the above-described case, and the description of two pieces of real estate which were devised under the will of William Holman, setting forth that this property was out of repair and producing but little income, and asked the court to sell it for the purpose of reinvesting it in other property more remunerative. In this action appellee made Otway C. Sterling and Sidney T. Sterling, who were descendants of George Holman and Jacob Meek, defendants, and alleged that the other descendants of Holman and Meek were numerous, and that it was impracticable to bring them all before the court within a reasonable time, and that the questions involved were of a common and general interest to all of them, and prayed that the defendants named be allowed to defend for all of the descendants of Holman and Meek. In this case the court made an order in conformity with such request, and the defendants answered, admitting the allegation that the descendants of Holman and Meek were numerous, and that their places of residence were to them unknown, and that they had no objections to the sale of the property sought to be sold in this action, and prayed that in the event of a sale the court would sufficiently protect the proceeds, to the end that they be devoted to the purposes named in the will of William Holman, and that their answer be taken as the answer of all the descendants of Holman and Meek. Upon proof being heard as to the necessity of a sale of the property, the court made an order directing a sale of it. The commissioner sold it, and appellant, Henry M. Johnson, became the purchaser. Appellant filed exceptions to the report of sale because the title to the lots...