McClellan v. Mackenzie

• Decision Date: 19 December 1903
• Docket Number: 1,196.
• Parties: McCLELLAN et al. v. MACKENZIE.
• Court: U.S. Court of Appeals — Sixth Circuit

126 F. 701

McCLELLAN et al. v. MACKENZIE.

No. 1,196.

United States Court of Appeals, Sixth Circuit.

December 19, 1903

R. M Heath, for appellants.

John C Doolan, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

This is a bill to enforce the lien of a mortgage upon realty situated in Christian county, Ky. The mortgagor was Mrs. Mary E McClellan, a widow, who has since died. The defendants are the surviving children and representatives of children and the administrator. The mortgaged property was devised to Mary Evelina Sharp, afterward Mary Evelina McClellan, by the will of her father, Fidelio C. Sharp. The children of Mrs McClellan contend that their mother took only a life estate, and that they take the remainder under the will of their grandfather, and do not take as heir of their mother. If this contention is well founded, the estate of Mrs. McClellan has terminated by her death, and the bill of complaint must be dismissed, since there is no lien upon the remainder.

Judge Evans, sitting in the court below, construed the will, and held that Mrs. McClellan took under that will the absolute estate, and directed a decree in accordance with the prayer of the bill. To this conclusion we agree. The testator was a country lawyer who had acquired a large estate, both real and personal. He left surviving him two sons and five daughters and his widow. The will was written by himself, and is dated Nov. 21, 1844. After devising to his wife, 'during her natural life,' a large part of his estate, the testator says of these devises:

'And all the devises so expressed are intended to be and vest in her a life estate only, and at my death, to pass to my children in the manner hereinafter named and dependent on the conditions hereinafter named upon the event that my wife E. J. Sharp should marry after my death; upon the happening of that contingency, it is my will that all my legacies and bequests left to her in this will for and during her life, shall cease and determine. * * * My wife shall then be assigned dower of one-third out of that portion of my estate only and the proceeds, as is included in those devises for life; which dower be it in real, personal or mixed estate shall be on my estate in her for life only, and at her death to pass to my children as hereinafter directed. * * * '

The next clause is in these words:

'It is my will that all the balance of my land not before devised * * * and all my estate not before devised, be it real, personal or mixed * * * I will to be divided or the same may be sold and the proceeds thereof divided into seven equal potions, one-seventh part thereof I devised to Solomon S. Sharp, my son. One-seventh part to my son Henry J. Sharp; and one-seventh part thereof to each of my daughters namely one equal potion to Eleanor James Templeton. One equal potion to Ann Elizabeth Sharp, one equal potion to Catherine Maxwell Sharp, one equal potion to Mary Evelina Sharp, one equal potion to Caroline Matilda Sharp.

The spelling and punctuation is that of the testator, and his spelling and punctuation will be followed in all quotations from the will.

Having thus disposed of a part of his estate for the life of his wife and of the balance not devised to his wife, the will then proceeds as follows:

'And it is my will that all the estate devised to my wife for and during her life, at her death or upon the event of her marrying such potion as this will provides for the happening of that contingency and the balance at her death is to be divided into seven equal potions and each one of my before named children is to receive one seventh part thereof it is my will that the respective potion of my estate devised to my four youngest daughters who are unmarried shall vest in my son Solomon A. Sharp and be held by him in Special Trust for their several uses and that all the use benefit advantages & profits of their several potions shall be secured to them respectively free from and exempt from the control and free from all liability to the contracts & debts of their husbands if they should marry but that the Trustees with the written assent of the cestue que use may sell dispose of & revest & change & commute any potion of the property of either of the cestue que Trusts still holding the proceeds in like trust & for like uses, and the Trusts is authorized when in full majority of age upon mature reflection with the written assent of my son in law Joseph Templeton and with the written request and desire of the cestue Que Trust a fee simple estate in their respective shares assigned them in this will or such potion of their shares as in his precedence he may think right the object of the trust being to secure to my daughters a competency for their life & if either of my children should die their potion are to pass in fee simple to their brothers & sisters who may survive them or to the lawful heirs of those who may have died leaving children to inherit I devise to my son Solomon S. Sharp my law library & my gold watch; but their value is to be deducted out of his potion of my estate as it is my will that each of my children shall have an equal potion; and in order that it may be so I have attached to this will a paper containing advancements; which is to be accounted for at the prices set down by me, in the equalization of the several potions that all may finally be made equal in their respective potions.'

If there is anything well settled it is that a court will not cut down an estate once granted absolutely in fee by limitations contained in subsequent parts of a will unless the intent to limit the devise is manifested clearly and unmistakably. If the expression relied upon to limit a fee once devised be doubtful, the doubt should be resolved in favor of the absolute estate. Birney V. Richardson, 5 Dana, 424; Trabue V. Terry (Ky.) 9 S.W. 162; Meacham V. Graham, 98 Tenn. 190, 205, 39 S.W. 12; Benson V. Corbin, 145 N.Y. 358, 40 N.E. 11; Washbon V. Cope, 144 N.Y. 287, 297, 39 N.E. 388.

The clause which is supposed to have the effect of cutting down the fee devised to Mrs. McClellan to a mere estate for her life is the one following the devise of the remainder in the property given the...