McClelland v. Rose
| Decision Date | 13 October 1913 |
| Docket Number | 2,461. |
| Citation | 208 F. 503 |
| Parties | McCLELLAND v. ROSE et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rehearing Denied December 1, 1913.
This is a bill in equity by Peter McClelland, Jr., plaintiff, a citizen of California, against John K. Rose, trustee, Mrs. M E. Grismer, and Hugh McClelland, defendants, citizens of Texas. The defendants demurred to the bill, the demurrer was sustained by the District Court and the bill dismissed, and the plaintiff appealed.
The bill alleges that the plaintiff, Peter McClelland, Jr., is the only child, next of kin and sole surviving heir at law of Peter McClelland, Sr., who died in McLennan county, Tex September 24, 1886, and that he (the plaintiff) is the identical person named in item 4 and other items of his father's will; that on October 22, 1881, his father Peter McClelland, Sr., executed with all legal formalities his last will and testament, which has been duly probated. The will and a codicil are copied in the margin. [1] [Entire Page Contains Footnote] [Entire Page Contains Footnote] The following is a condensed statement of the other material averments of the bill:
The testator, Peter McClelland, Sr., was twice married; his first wife died, leaving the plaintiff, her only child; his second wife, Joanna, died after his death, without issue. W. L. Prather qualified on October 10, 1895, as sole and independent executor of the will. The said Joanna, surviving widow of the testator, elected not to take under the will, and on October 10, 1895, the estate was duly partitioned and her community interest was set aside to her, and thereupon all provisions made for her by the will became inoperative. Prather, the executor, died on July 24, 1905, and on March 17, 1906, the district court of the Nineteenth judicial district of the state of Texas appointed the defendant John K. Rose as substitute trustee to act in the place and stead of said Prather, deceased.
The bill then avers that the defendant Rose gave the required bond and qualified as substitute trustee, and that thereupon he took possession of, and ever since has been collecting, the rents and revenues from the estate, and that he is withholding the same from the plaintiff, pretending that the same is in trust and that he has the legal right to withhold the possession thereof from the plaintiff. That the testator did not, either expressly or impliedly, by his said codicil revoke or cut down the clear gift made to plaintiff by item 4 of the will, nor did he by said codicil, either expressly or by necessary implication, change the condition upon which the executory devise, created by item 8 of the will, was to become operative, and that the contingency upon which such executory limitation over was to take effect had become impossible, and that therefore the executory devisees take nothing, and that the plaintiff is entitled to the estate under the will, and, in the alternative, that even though it should be held that the codicil revoked item 4 of the will, yet the plaintiff would take the estate, if not under the will, then by inheritance, because the codicil itself attempted no disposition of the estate, and because the collateral heirs of the testator cannot take under item 8 of the will, as the contingency therein provided for can never happen, and because they cannot take under the statute, as the plaintiff is the sole surviving heir at law of the testator.
The plaintiff averred that the appointment by the district court of the Nineteenth judicial district of Texas, of the defendant Rose, as substitute trustee, was proper, because Prather, the original trustee, died prior to the lapse of 25 years from the death of the testator, and because, at the time of such appointment, to wit, March 17, 1906, the collateral heirs, as executory devisees, had a subsisting contingent interest, and the trust, during that time, was valid, and was not wholly executed at the time of the death of Prather, the original trustee.
The plaintiff averred that he was entitled to the full, quiet, immediate, and undisturbed possession and enjoyment of the estate of the testator, and he prayed for a decree to that effect; and, in the alternative, he prayed that, if, for any reason, he was not now entitled to be let into the possession of the estate, yet that he have a decree adjudging the alleged claims of the collateral heirs or executory devisees, and each of them, void, and that they, and each of them, be decreed not to have any interest whatsoever in the estate or in any part thereof, and, further, that the plaintiff, subject to the trust of the revenues for and during his natural life, should such trust be valid, be decreed to be the owner of the said estate, so that, upon his death, the same should devolve upon his heirs at law, or in accordance with any such testamentary disposition as he may choose to make thereof.
The defendants jointly demurred to the bill, and alleged numerous grounds of demurrer, among others: (a) That the plaintiff has not, by the bill, stated such cause 'as doth or ought to entitle him to any such discovery or relief as is hereby sought and prayed for from or against these defendants'; and (b) 'that said bill shows that the complainant has no right, title, or estate in the property of said Peter McClelland, his only interest therein being the right to the monthly allowance to be paid to him by the trustee, as provided by said will.'
The District Court sustained the demurrer and dismissed the bill. The plaintiff, on appeal, assigns as error, with elaborate and numerous specifications, that the District Court erred in sustaining the demurrer and dismissing the bill.
Francis Marion Etheridge and Joseph Manson McCormick, both of Dallas, Tex., for appellant.
Richard Irby Munroe and James Richard Downs, both of Waco, Tex. (L. C. Penry, of Plainview, Tex., and J. R. Webb, of Waco, Tex., on the brief), for appellees.
Before PARDEE and SHELBY, Circuit Judges, and SHEPPARD, District judge.
SHELBY Circuit Judge (after stating the facts as above).
There is apparently much conflict in the authorities construing wills. This comes from the fact that forms of expressions in wills are often nearly alike, yet varying in minute shades of meaning. But, of all legal instruments, wills are the least to be governed in their construction by the settled use of technical legal terms. Referring to these conflicts and uncertainties, it was said by Mr. Justice Miller that:
'It may well be doubted if any other source of enlightenment in the construction of a will is of much assistance, than the application of natural reason to the language of the instrument under the light which may be thrown upon the intent of the testator by the extrinsic circumstances surrounding its execution, and connecting the parties and the property devised with the testator and with the instrument itself. ' Clarke v. Boorman's Executors, 18 Wall. 493, 502, 503 (21 L.Ed. 904).
The ultimate practical question involved in this controversy is as to the ownership and the right to the possession of the testator's estate. The plaintiff claims it as devisee under the will, and, in the alternative, as sole heir at law. The plaintiff is the testator's only child, and, if the will be not considered, he would be the owner as sole heir. If the will fails to dispose of any interest in the property, that interest would pass to the plaintiff as the testator's sole heir. The defendants-- the testator's collateral kin-- claim the estate under the will and codicil. They claim that, properly construed, the will and codicil gives the estate to them, depriving the plaintiff of any right to it.
There is a dispute as to what interest was devised by the will as originally executed, and also a controversy as to the effect of the codicil on the will as first written. Both the will and the codicil must, of course, be construed as one instrument; but the true meaning can be best ascertained by an examination, first, of the will as originally executed, and, then, by an examination of the codicil to see what changes it effects.
Disregarding the codicil for the present, items 4 and 8 are the parts of the will that would be controlling. They are as follows:
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