Marsh v. Marsh

• Decision Date: 18 October 1912
• Docket Number: 16,891
• Citation: 137 N.W. 1122,92 Neb. 189
• Parties: FLORA M. MARSH ET AL., APPELLEES, v. EDITH V. MARSH ET AL., APPELLANTS
• Court: Nebraska Supreme Court

137 N.W. 1122

92 Neb. 189

FLORA M. MARSH ET AL., APPELLEES, v. EDITH V. MARSH ET AL., APPELLANTS

No. 16,891

Supreme Court of Nebraska

October 18, 1912

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Reversed with directions.

REVERSED.

Francis A. Brogan, for appellants.

T. J Mahoney, H. C. Brome and William J. Coad, contra.

SEDGWICK J. FAWCETT, J., took no part. LETTON, J., concurring.

OPINION

SEDGWICK, J.

William W. Marsh of Omaha died April 2, 1901, leaving an estate of about $ 625,000. He left a widow, Flora M. Marsh, and four sons, Charles, Frank, William, and Allan A. Marsh. Charles Marsh died in 1909. The defendant Edith V. Marsh is his widow, and the defendant Gertrude J. Marsh is their minor daughter. About a year before his death William W. Marsh executed a will, in which he appointed his widow and his four sons trustees of his estate, with large powers and discretion in the control and management thereof. The will was duly probated, and the trustees named assumed the trust and took control of and administered the estate. The plaintiffs Flora M. Marsh, Frank Marsh, William Marsh, and Allan A. Marsh, as trustees under the will, brought this action in the district court for Douglas county to obtain a construction of the will. Charles Marsh, at the time of his death, was indebted to the defendant the United States National Bank of Omaha upon several promissory notes, and the bank answered in the action, and alleged that to secure this indebtedness Charles Marsh had assigned to the bank his interest in the estate of his father, and that the defendant Edith V. Marsh had joined in the assignment, and the bank asked that the administratrix of the estate of Charles Marsh be required to pay the claim of the bank out of the estate of Charles Marsh. Edith V. Marsh contested the right of the bank under the assignment, and contended that, as Charles died before January 1, 1910, he had no interest to assign, and that her assignment was void because of her coverture, and because her interest was contingent and not assignable.

The will contained the following provisions:

"Third. All the residue and remainder of my estate, both real and personal, of every kind and nature whatsoever, and not heretofore given and bequeathed to my beloved wife Flora M. Marsh, I hereby give and bequeath in trust in manner and for the purposes, to wit: To my wife Flora M. Marsh, Charles Marsh, Frank Marsh, William Marsh and Allan A. Marsh, my sons, I give and bequeath all of said residue and remainder of my estate, both real and personal, in trust, to be held and managed by them as trustees, until the first day of January, A. D. nineteen hundred and ten (1910), hereby authorizing and empowering them to invest, re-invest and keep said property so that it will produce an annual income, using their best judgment and care in the management thereof, and in the discharge of said trust, I hereby authorize and empower my said trustees, while they shall have and hold said residue and remainder or any part thereof in trust as aforesaid, to sell, convey and dispose of the same or any part thereof at public or private sale, at such times and upon such terms and conditions, and in such a manner as to them shall seem best and proper, and to re-invest the proceeds of such sale or sales in other property or securities to be held by them upon the terms and conditions of said trust, hereby authorizing and empowering my said trustees to make any, all and any deeds, conveyances and transfers, and execute the same, judged by them necessary and proper to carry out the purposes of this trust or their duties as such trustees. And I further direct and authorize that it shall not be essential for said trustees to act unanimously, but a majority of said trustees are authorized and empowered to do any and all acts and to execute any and all powers required to be done in said trust, and in the event that either or any of said trustees shall resign, die, or for any cause fail to accept this trusteeship, then in such case the majority of such of said trustees as are then acting as trustees at the time any act or thing is done or performed, may do or perform said act or thing as fully and legally as all of said trustees could or might do or perform the same unanimously."

"Sixth. After paying all expenses and all taxes and other charges including the payments to be made to my sister Stella M. Champlin, and my beloved wife Flora M. Marsh, I will and direct that the balance of the rents, profits and income annually derived from said property so held in trust, shall be divided equally between my said wife Flora M. Marsh, Charles Marsh, Frank Marsh, William Marsh and Allan A. Marsh, and in the event of the death of either of my said sons, his part shall go to his heirs or legal representatives as provided by the laws of the state, and said balance of said income so to be divided and paid to my said wife and sons under this sixth division of my will shall be paid quarterly."

"Eighth. I will and direct that on the first day of January, A. D. 1910, all of said property held in trust, as aforesaid, shall vest in and be disposed of as follows, to wit: To my sister, Stella M. Champlin, if she shall then be living I give the use of and income of ten thousand dollars during her natural life, the said income to be paid to her annually, and for the purpose of carrying out this gift and provision to my said sister, I direct that my said trustees shall invest the sum of ten thousand dollars ($ 10,000) in some suitable investment the income thereof to be paid annually to her as above directed, and the payments to her of the annual sum of six hundred dollars hereinbefore directed shall cease and be at an end on January 1st, 1910.

"Ninth. I will and direct that all of my estate both real and personal and so held in trust, by my said trustees, shall vest in and go, on the said first day of January, nineteen hundred and ten (1910), subject to the provisions for my sister Stella, in the eighth division of this my last will and testament as follows, to wit: To my beloved wife Flora M. Marsh, I give and bequeath an undivided one-fifth part of said property, absolutely and in her own right; to my beloved son Charles Marsh, I give and bequeath an undivided one-fifth part of said property, absolutely and in his own right; to my beloved son Frank Marsh, I give and bequeath an undivided one-fifth part of said property, absolutely and in his own right; to my beloved son William Marsh, I give and bequeath an undivided one-fifth part of said property, absolutely and in his own right; and to my beloved son Allan A. Marsh, I give and bequeath an undivided one-fifth part of said property, absolutely and in his own right. Should my beloved wife Flora M. Marsh not be living at the time of my death I will and direct that the property given and bequeathed to her in second division of this will shall go to my said trustees to be held in trust upon the terms and conditions of the other property held in trust and shall go at the expiration of said trust to wit, January 1st, 1910, as the other property goes, except such as may be worn out or consumed in the use or become worthless by age, and loss, to my said sons. And I further will and direct that if either or any of my sons shall not be living at my death to take under this will, then I give and bequeath that part of the income going to him or them, to his or their heirs and legal representatives to go as provided by law. And at the death of my sister Stella on or after the first day of January, A. D. 1910, the said ten thousand dollars shall go as follows: I will and direct that said ten thousand dollars shall be equally divided between my wife and sons in the same manner and under the same conditions as the said residue and remainder on the said January 1st, A. D. 1910.

"Tenth. I will and direct that the title and ownership to said property devised in this last will and testament in trust shall not vest in my said wife and sons or either of them, except as trustees, until the 1st day of January, A. D. 1910. And in the event that my said wife or either or any of my said sons shall die prior to the 1st day of January, A. D. 1910, then in such case the property or that part thereof that would have gone to her, him or them shall go to her, his or their heirs and legal representatives according to law as the case may be."

"Twelfth. I will and direct that at the expiration of this trust, January 1st, A. D. 1910, said trustees shall turn over to the parties then entitled thereto the property which such persons are entitled to, and in the discharge of the duties under this trust I direct that no bond be required of either or any of said trustees, as I rely upon the sound discretion and good faith of each and all in the performance of their duties herein."

It is said in the briefs that three principal questions are presented: First, would the bequest to Charles Marsh vest in him an estate in his lifetime and subject to his debts, or was his interest under the will contingent upon his living until the 1st day of January, 1910? Second, if the estate was contingent and, he having died before that time, was not subject to his debts, who took the estate under the terms of the will, his wife and child as his heirs, or the administrator of the estate as his legal representative? Third, if his widow and child took the estate as his heirs, did the interest of the widow, Edith V. Marsh, go to the bank under the assignment which she executed?

The trial court held, under the first proposition, that the estate of Charles Marsh was a contingent one, and, under the second proposition, that under the terms of the will it went to the...