McArthur v. Allen

• Decision Date: 01 July 1880
• Citation: 3 F. 313
• Parties: McARTHUR and others v. ALLEN and others. [1]
• Court: U.S. District Court — Southern District of Ohio

3 F. 313

McARTHUR and others v. ALLEN and others. ^[1]

United States Circuit Court, S.D. Ohio.

July, 1880

King Thompson & Maxwell and Matthews, Ramsey & Matthews, for complainants.

Harrison Olds & Marsh, H. F. Page, John W. Herron and McClintick &amp Smith, for respondents.

SWAYNE C.J.

This bill was formerly before us on demurrer. ^[2] We then expressed our views as to the will to which it relates, under the laws of Ohio, with respect to the subject of perpetuities. The demurrer was overruled. The case is now before us upon the merits. A brief resume of the facts disclosed in the record is necessary to render intelligible what we shall have occasion to say in regard to the controversy in this aspect

Governor Duncan McArthur died on the twelfth of May, 1839. He left a will, which was duly admitted to probate on the sixteenth of that month. By the will his wife, Mary McArthur, was appointed his executrix, and William Key Bond and Presley Morris his executors. The will provided that if either refused to act, or died or resigned, the court of common pleas should fill the vacancy, etc. The powers and duties of the executors are so familiar to those concerned that it is unnecessary here specifically to enumerate them. It is sufficient to say that the lands of the testator in Ross and Pickaway counties, constituting the bulk of the estate, were devised to the executors for the time being, with directions to collect and apply the rents as provided, until his children should all be dead, and the youngest grandchild should have attained to the age of 21 years. The lands in question were thereupon to be conveyed to his then living grandchildren in equal shares per capita; but if any grandchild should have died, leaving children, the share of such grandchild was to go to his or her children per stirpes. The final provision of the will on this subject is as follows:

'And in such final distribution of my lands it is my direction that deeds of partition shall be made to and in the name of those who shall be thus entitled thereto, and in the name and for the use of no other person whatsoever, which deeds shall be executed by my executors for the time being; and to enable my executors the more effectually to execute the powers and duties by this will devolved upon them, and to protect my said children and grandchildren against fraud and imposition, I hereby devise to my said executors, and the successors of them, all my said lands so directed to be leased and finally divided as above, and to their heirs, in trust, for the uses and purposes and objects expressed in this my will, and the performance of which is herein above directed and prescribed, to have and to hold the title till such final division and partition thereof, and no longer.'

Several things are to be observed at this point. The careful hand that drew the will used words of inheritance in defining the estate of the executors. The estate was no larger than the purposes of the trust required. The controlling idea was to prevent the devolution of the title and its vesting in the devisees until they received it by the execution of the deeds of partition at the appointed time. If one of the grandchildren died before that time, though over 21 years of age, he could not devise his interest in the real estate; and if he left no children it would not pass according to the law of inheritance of the state, but was to go to all the other grandchildren per capita.

The estate of the executors was, therefore, as heretofore held in this case, a qualified fee. There was no contingent remainder, because the estate was not shaped with that view. There was, we think, clearly an executory devise. Such was the manifest intent of the testator. Where that is clear it is conclusive, unless contrary to some fixed rule of law or to public policy. Its breath sweeps away, as if they were cobwebs, all technical rules, if any there be, which militate against it. The point is not material, however, in the case as now before us, and we forbear to pursue it further. Devises in trust of certain other specified lands and lots were made to Samuel F. Vinton and Sampson Mason. They are not involved in this controversy, and need not, therefore, be more particularly adverted to. There were also small bequests to several parties not necessary to be named.

On the eighth of July, 1839, Allen C. McArthur, one of the sons of the testator, filed a bill in the court of common pleas of Ross county to set aside the will, upon the ground, among others, that the testator, Duncan McArthur, at the time of making the will, was of unsound mind and had not the requisite testamentary capacity. All those in anywise interested in the will, then living, were made parties and duly served with process. Guardians ad litem were appointed for the infant defendants. The guardians accepted and answered for their wards. Mrs. Effie Coons, who had been appointed executrix upon the decease of her mother, resigned, and her resignation was accepted, after the bill was filed. She gave as the reason for her resignation that the will required the three executors provided for to act jointly, and that persons could not be found who would accept the trust and give the requisite bond. Bond and Morris, the executors, had resigned, and their resignations had been accepted, before the bill was filed. Hence there were no executors before the court as parties to the bill.

Mason and Vinton answered, setting forth that they had never accepted the trusts conferred upon them by the will, and declined to act.

The court ordered an issue to be made up touching the validity of the will. This was done, and it was submitted to a jury. The jury found against the will, and the court entered a decree accordingly. The decree gave the infant defendants until they should respectively attain to the age of 21 years and 6 months thereafter, and to the feme covert defendants respectively until they should become discovert and six months thereafter, to show cause against it. The proceedings were conducted in all respects with remarkable care and regularity.

This bill was filed by the children of Allen C. McArthur, who was the complainant in the bill to set the will aside. They were all born after that event. The husbands of such of them as are covert are also joined as complainants.

The bill is wholly silent as to the decree setting the will aside. It alleges that the complainant, Allen C. McArthur, is the last born of the grandchildren, and that he arrived at the age of 21 on the fourth day of March, 1875, and that the children of the testator are all dead. It alleges further that, upon the death of the testator, his children ignored the will and the rights of the grandchildren under it, and proceeded to appropriate to themselves all the lands in question by a proceeding in partition in the court of common pleas of Ross county. The prayer of the bill is that the defendants be required to account for the rents and profits of the lands; that it be decreed they hold their respective titles in trust for the grand and great grandchildren of the testator, according to the provisions of the will; that partition be made among those parties according to their several rights, and for general relief.

The defendants are very numerous. Eight of them are grandchildren, and four of them are great grandchildren, of the testator. The others are holders, by purchase, of the different portions of the premises described in the bill.

None of those to whom the right was reserved in the decree to come in thereafter and impeach it, ever availed themselves of that privilege. The feme coverts, who were parties, are all dead, and the infants are barred by lapse of time.

The defendants rely upon two defences: First, the validity of the proceeding touching the will; second, the purchasers insist, also, that they are such bona fide, without notice of any infirmity in that proceeding.

The complainants take two objections to the record of the will case. One is that it cannot affect after-born grandchildren. The other is that the proceeding is fatally defective, by reason of the omission of executors as parties. This brings us to the heart of the controversy between the parties. We think neither of the points taken by the complainants is tenable. The twentieth section of the act of February 18, 1831, (3 Chase's St. 1788,) under which the will was set aside, is as follows: 'That if any person interested shall, within two years after probate had, appear, and, by bill in chancery, contest the validity of the will, an issue shall be made up, whether the writing produced be the last will of the testator or testatrix or not, which shall be tried by a jury, whose verdict shall be final between the parties, saving to the court the power of granting a new trial, as in other cases; but if no person appear in that time the probate shall be forever binding; saving also to infants, married women, and persons absent from the state, or of insane mind, or in captivity, the like period after the removing of their respective disabilities.'

The requirement that the proceeding shall be instituted 'within two years after probate had' is imperative and unqualified, except by the savings specified. It is also declared that the verdict 'shall be final between the parties,' subject to the limitations expressed, which have no application here. It is clearly implied that those not then in esse, and who hence cannot be parties, are barred and concluded as effectually as those who are living. What is expressed and what is implied in a statute are alike parts of it. U.S. v. Babbit, 1 Black, 55-61.

There is no saving as to after-born children, and we cannot recognize their right to interfere, as they are seeking to...