McDuffie v. Montgomery

• Citation: 128 F. 105
• Decision Date: 08 February 1904
• Docket Number: 26,885.
• Parties: McDUFFIE et al. v. MONTGOMERY.
• Court: U.S. District Court — Northern District of Illinois

128 F. 105

McDUFFIE et al. v. MONTGOMERY.

No. 26,885.

United States Circuit Court, N.D. Illinois, Northern Division.

February 8, 1904

Frank E. McDuffee and Isham, Lincoln & Beale, for complainants.

E. C Ritsher and Louis E. Hart, for defendant.

KOHLSAAT District Judge.

From the bill filed herein, it appears that Henry E. Sawyer died in the state of Massachusetts on September 12, 1887, leaving a last will and testament, whereby the bequeathed and devised his real and personal estate, valued at about $125,000, as follows, viz.:

'I give and bequeath to my two sisters, to-wit: Mrs. Jane Robie and Lydia Sawyer, each fifteen hundred dollars. I give and bequeath all the balance of my property consisting of bonds, bank stock, notes, demands, real estate and personal to my wife Amanda N. Sawyer absolutely; and request that at her decease or before, if she shall think proper she give to my son, Harry C. Sawyer, the sum of thirty thousand dollars, or any sum she may think best provided he is of good habits and capable of using such monies to good advantage. But unless he is a person of good habits in every respect, he is not to have the control of any of such money.

'I further request that she, my said wife, shall assist any of my brothers or sisters if they should be in need, and at her decease she should divide her property among them as she may think best.' The will was duly admitted to record in the probate court of the county of Middlesex, state of Massachusetts, on or about November 9, 1887, and Amanda N. Sawyer qualified as executrix thereof. In the course of her duties as such executrix she financially assisted her husband's sister Elizabeth H. McDuffie, one of the defendants, and her husband's nephew, Frank E. Sawyer. It does not appear what was done for testator's son, Harry C. Sawyer, nor what has become of him. He is not made a party to the suit. If living, he is, of course, an indispensable party. Afterwards, and about December 31, 1902, Amanda N. Sawyer died at Chicago, Ill., testate. Her will distributed her estate, amounting at that time to about $190,000, between the relatives of herself and her said husband, giving the greater portion thereof to her own relatives. The defendant, Montgomery, was therein named, and afterwards qualified as executor and trustee.

The complainants insist that by the will of said Henry E. Sawyer, a trust was created in favor of his brothers and sisters, i.e., Elizabeth H. McDuffie, Jane J. Robie, Lydia A. Sawyer, Edward C. Sawyer, four of the complainants, and Joseph Sawyer, John H. Sawyer, Mary D. Burroughs, and Emily P. Blanchard, brothers and sisters, who have died since the death of said Henry E. Sawyer. These latter four are represented, among the complainants herein, by their several legal representatives. It is further claimed by the bill, in effect, that the interest of said brothers and sisters vested as of the date of the death of said Henry E. Sawyer, and the court is asked to decree that the defendant proceed to distribute the estate in his possession, to wit, the estate of said Henry E. Sawyer now remaining, and the increment thereof, in accordance with the terms of his will, and execute said trust in favor of his said brothers and sisters. The matter now comes before the court on demurrer, setting up the following special grounds: (1) That the legal representatives of deceased brothers and sisters are not proper parties to the suit, having no interest in the subject-matter; (2) that the allegations of the bill with regard to assistance rendered by Amanda Sawyer to her husband's relatives during her lifetime are impertinent; (3) that the allegations of the bill with reference to Henry E. Sawyer's sentiments toward his wife's family are also impertinent; (4) that no case for the relief sought is presented by the bill.

The point first made must turn upon a construction of the will of Henry E. Sawyer with reference to the time when the interests of the brothers and sisters vested. After giving the wife an estate, absolute in terms, the testator adds, 'and request that at her decease, or before, if she shall think proper, she give to my son Harry C. Sawyer, the sum of thirty thousand dollars, or any sum she may think best. ' In the event his habits were not good, he was to have no part thereof. Fairly construed, this gave the wife the option to give Harry whatever she wished, even to the exhaustion of the whole estate, provided his conduct was good. Had she done so, complainants could have made no claim. Then, too, the wife is requested to assist the brothers and sisters 'in need of help,' and at her decease she should divide her property among them as she may think best. If this clause means anything, it means that she had discretion to divide the estate among the brothers and sisters, or those who needed it, in such proportions as she thought best. This would involve the right to give to some of them nothing, or a nominal amount, and to others the bulk thereof, or she was at liberty to use it all up in her lifetime. Everything considered, it seems evident that, if title in the brothers and sisters vested at all, it must have vested as of the date of the wife's death. Therefore the legal representatives of those who had deceased prior to that date have no interest in the subject-matter, and are not proper parties to this suit. If the estate had vested in the brothers and sisters at the time of Henry E. Sawyer's death, then, as to the real estate involved in this suit, the heirs of those who have died would be necessary parties. If the estate did not vest until the wife's death, then only the surviving brothers and sisters would be concerned.

I think it clear the bill is defective as to parties. Under the view the court takes of this case, and hereinafter stated, the matter covered by the said special grounds of demurrer 2 and 3 are wholly immaterial and need not be passed on.

The point made by defendant, that Frank E. Sawyer, as administrator of Joseph Sawyer, appointed by the probate court of Cook county, Ill., must be held to be a resident of this state, because by the Illinois administration statute a nonresident cannot act as administrator, is not well taken. The residence or citizenship of an administrator is the fact which determines jurisdiction. Rice v. Houston, 13 Wall. 66, 20 L.Ed. 484; New Orleans v. Gaines, etc., 138 U.S. 595, 11 Sup.Ct. 428, 34 L.Ed. 1102. The Illinois statute provides how an administrator who has left the state may be removed. The question cannot be raised in a collateral proceeding for purposes of jurisdiction.

The substantial questions of this case are those raised by the general demurrer set out as ground 4 of said demurrer. It is settled beyond need of citation, in this country, that the courts will, in cases like this, be governed by one never varying rule, i.e., to effectuate the intention of the testator. If this can be reasonably arrived at from the terms of the instrument, that must prevail. Extraneous facts cannot be injected for the purpose of placing a different construction thereon from that which is the plain meaning of the language used. Schouler on Wills, Sec. 568 (2d Ed.); Underhill on Wills, Sec. 913. What, then, is the plain, common-sense meaning, as effected by the decisions, of the language of the will now before the court, since, of course, the language used must be construed with reference to any well-established legal construction thereof, and it will be assumed that the testator used the phrase with knowledge of such construction, unless the contrary appears? The language used, viz., 'I give and bequeath all the balance of my property consisting of bonds,' etc., real estate and personal, 'to my wife Amanda N. Sawyer absolutely,' of itself creates an absolute estate in the widow. It is claimed by the bill that the subsequent language, requesting her, at her decease, to divide her property among 'them as she may think best, ' creates a so-called 'precatory trust,' and that it has the same force as though it had been a command.

In order to maintain the contention of complainants herein, the facts must bring the case within the rule concerning precatory trusts. Tersely stated, that rule requires: (1) That the words used must be such that it shall appear from them that they were intended in an imperative sense. (2) The subject of the recommendation or wish must be certain. (3) The object thereof must be certain.

It is the contention of complainants that all of these elements exist in the clause of the will relied on. In support of their position, complainants cite, among other cases, the case of Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322 decided by Chief Justice Marshall in 1832. The facts were as follows, viz.: The testator gave to his wife all his personal estate 'to and for her own use and benefit and disposal absolutely, the remainder of said estate after her decease, to be for the use of the said Jesse Goodwin,' a son of testator. (In Campbell v. Beaumont, 91 N.Y. 468, 469, and Fox's Appeal, 99 Pa. 382, the doctrine of this case is questioned.) It will be noticed that the wording in this case is not a request or wish, but a plain and strong statement, that the remainder is to be for the use of the son. This claim is just as peremptory as that pertaining to the wife. It would seem that, if there ever was a case where the use of the word 'absolutely' should not be given its strict sense, this is the case. The intention of the testator is apparent. The subject-matter involved consisted of shares, in regard to which the court says it is 'a species of property not consumed by the use, and in regard to which a remainder may be limited after a life estate. ' The court also says: 'The testator unquestionably intended to...