McNeill v. Masterson

• Decision Date: 24 February 1891
• Citation: 15 S.W. 673
• Parties: McNEILL <I>et al.</I> v. MASTERSON <I>et al.</I>
• Court: Texas Supreme Court

Page 673

15 S.W. 673

McNEILL et al. v. MASTERSON et al.

Supreme Court of Texas.

February 24, 1891.

Appeal from district court, Harris county.

Oscar D. Kirkland, for appellants. Jones & Garnett, for appellee H. Masterson.

STAYTON, C. J.

The article of the will of Levi Jordan, through which appellee Masterson claims the one-fourth of the $5,000 therein named, is as follows: "Article 5. I give and bequeath to my grandsons James C. McNeill and Charles P. McNeill (5,000.00) five thousand dollars gold, to hold in trust for the following purposes, to-wit: To be put at interest, the interest thereon to be paid annually in gold to my daughter Emily McNeill during her life-time, and at her death the said sum is to be kept at interest, and the interest is to be applied by said trustees to educating the children of my granddaughter Ann R. Martin during their minority. The said sum of five thousand dollars is to be equally divided between said children, the share of each to be paid to him or her as he or she attains the age of twenty-one years or marries; and in the event of the death of either of said children before majority or marriage, then and in that event the share to which said child would be entitled shall be equally divided between the survivors, or given to the survivor." This direction of the will was complied with in so far as it required the payment of interest to Emily McNeill on $5,000 as long as she lived, but that sum seems not to have been segregated from that part of the testator's estate which passed to his grandsons under the ninth and tenth articles of the will, which were as follows: "Article 9. I give and bequeath to my three grandsons James C. McNeill, Charles P. McNeill, and W. A. C. McNeill all the stock of mules, horses, and cattle that may be on my homestead place at the time of the death of my wife, Sarah Jordan. And I desire and will that all the money, (except the five thousand dollars above disposed of,) and all the notes or other evidences of debt due me, which I may have at the time of my death, be equally divided, share and share alike, between my said three grandsons, and in the event of the death of either of them before majority or marriage, or childless, then the share of the one so dying shall be equally divided between the survivors, or shall be given to the survivor. Article 10. Whereas, I have taken out a policy of insurance on the life of Robert Stanger for one thousand dollars, gold, which I hold as a security for debt now owing me, and which may be owing me on a final settlement with him, which said policy is to be indorsed to said Stanger upon his paying me all he now owes me or may owe me on a full and final settlement; but in the event he should not pay me in full on a final settlement, and in accordance with an agreement in writing executed by him and myself, then and in that event I will that the said policy shall be the joint property of my three abovenamed grandsons, upon the same terms and conditions as the money bequests above made." During the life-time of the testator, as recited in the will, he had given valuable property to the two grandsons first named in article 9, who were made executors of the will, and by a preceding article of the will he had made provision for the grandson last named. Mrs. Ann R. Martin had four children, and one of them, on arriving at his majority, transferred his interest in the fund named in the fifth article of the will to Masterson, the appellee, who brought this action against the trustees to recover one-fourth of the sum named and interest accrued thereon less some small sums paid to the legatee from whom he purchased. That legatee and another of the children of Mrs. Martin, both of whom had guarantied to Masterson the interest in the fund transferred...