Murrell v. STOCK GROWERS'NAT. BANK OF CHEYENNE

• Decision Date: 26 December 1934
• Docket Number: No. 1044.,1044.
• Parties: MURRELL v. STOCK GROWERS' NAT. BANK OF CHEYENNE et al.
• Court: U.S. Court of Appeals — Tenth Circuit

74 F.2d 827 (1934)

MURRELL v. STOCK GROWERS' NAT. BANK OF CHEYENNE et al.

No. 1044.

Circuit Court of Appeals, Tenth Circuit.

December 26, 1934.

Chas. A. Russell, of Washington, D. C. (W. L. Freeland and John M. Murrell, both of Miami, Fla., on the brief), for appellant.

John U. Loomis and C. R. Ellery, both of Cheyenne, Wyo., for appellees.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

John W. Connor died testate on October 21, 1906. He left surviving him a widow Frances B. Connor, a daughter Ethel Connor Mullen formerly Ethel Connor Ernest, and a granddaughter Ethel Ernest Browning, now Murrell. His will and a codicil thereto were duly admitted to probate. On October 2, 1908, the district court of Albany County, Wyoming, exercising its probate jurisdiction, entered a decree of distribution reading in part as follows:

"It is, * * * Decreed by the court that * * * said estate be distributed, paid and delivered over to the devisees hereinafter named in the manner and form following, to-wit:

"Unto the said Fannie B. Connor, widow of said John W. Connor, deceased, and Ethel C. Ernest, daughter of said John W. Connor, deceased, share and share alike, all of the property, real, personal, and mixed of said estate, and the rents, issues and profits thereof, during and so long as they both shall live, and upon the death of said Fannie B. Connor, the whole of said property remaining with the rents, issues and profits thereof unto said Ethel C. Ernest, during her natural life, and upon the death of said Ethel C. Ernest, unto her child or children or heirs or devisees of child or children absolutely, and in the event of the death of said Ethel C. Ernest, before the death of said Fannie B. Connor, the share of said Ethel C. Ernest shall thereupon go in remainder to her child or children, or heirs or devisees of her child or children, absolutely."

The estate included lots 13, 14, and 15, block 190, Laramie, Wyoming. Mrs. Connor and Mrs. Mullen leased such lots to the Connor Hotel Company, a corporation, for a term of 99 years. They own all the stock of the Hotel Company. On January 1, 1912, the Hotel Company executed a mortgage on its leasehold to secure a loan of $40,000. The proceeds of the loan were used to construct a hotel building on the leasehold.

Mrs. Connor and Mrs. Mullen, out of the rents, issues, and profits of such estate, expended $45,000 in the erection of buildings on unimproved lots forming a part of such estate. The expenditures for improvements were made in good faith and increased the annual rental from the property more than $5,000.

On January 26, 1920, the district court of Albany County confirmed a sale of certain land constituting a part of the estate, and appointed a trustee to take charge of the proceeds of the sale, $16,575.25. The trustee invested the trust funds in bonds. Later he sold the bonds and deposited the trust funds in the First National Bank.

The growth of Laramie rendered the facilities of the hotel inadequate and made it advantageous and desirable to construct an addition thereto at a cost of $90,000.

In March, 1925, Mrs. Connor commenced a suit numbered 4634 in the district court of Albany County against Ethel Connor Mullen, Ethel Ernest Browning, John W. Connor, Theresa Connor, Fanny Burk, Agnes Burk, Mary Burk Clark and the unknown heirs of John W. Connor, Theresa Connor, Fanny Burk, Agnes Burk and Mary Burk Clark. In her petition Mrs. Connor set out the will, the codicil, the decree of distribution and the foregoing facts, and alleged that the will provided when Mrs. Mullen should attain the age of 26 years, one-half of all of the estate should vest absolutely in her and the other one-half should remain to the use of Mrs. Connor with all rents, issues and profits thereof during her natural life; that the codicil provided all of testator's property and the rents, issues and profits thereof should go to Mrs. Mullen and Mrs. Connor "during their natural lives" and if Mrs. Mullen should die without issue, one-half of the "estate then remaining" should go to John W. Connor and Theresa Connor, testator's nephew and niece, respectively, and "to the heirs of" such nephew and niece, and to "their heirs share and share alike forever" and the other one-half to Fanny Burk, Agnes Burk, and Mary Burk now Mary Clark, nieces of testator's wife, but in the event Mrs. Mullen should have issue of her body and such child or children should survive her, then upon the death of Mrs. Connor and Mrs. Mullen the "estate then remaining" should go to such child or children, share and share alike "in title absolute forever."

She further alleged "that the defendants or some of them have at all times threatened to contest" the will, that a question had arisen as to the validity of contingent remainders given to such nephew and nieces, that the will had not been construed, and that it was necessary for the court to declare the rights of Mrs. Connor, Mrs. Mullen, and Mrs. Murrell thereunder.

She prayed that the will be construed and the rights, duties, and powers of the beneficiaries therein be determined; that Mrs. Connor and Mrs. Mullen be reimbursed for advances made to improve the property; that Mrs. Connor be authorized to apply the trust funds in payment of the balance due on the existing mortgage and use the remainder in further improving lots 13, 14, and 15, and that she be authorized to make such conveyances, trust deeds, or mortgages as might be necessary to secure the loan of funds to construct such addition to the hotel.

Mrs. Mullen filed an answer in No. 4634 in which she alleged that such will provided when Mrs. Mullen should attain the age of 26 years, if Mrs. Connor should then be living, a distribution of the estate should be made and one-half should vest in Mrs. Mullen, that the other half should remain to the use of Mrs. Connor during her natural life and on her death should vest in Mrs. Mullen if living, and if she had died "leaving issue of her body then to her children share and share alike," and if she had died without issue then to Fanny Burk, Agnes Burk and Mary Burk Clark equally; that such codicil provided that the "use" of all of testator's property and the "rents, issues and profits thereof," should go to Mrs. Connor and Mrs. Mullen "during their natural lives"; that if Mrs. Mullen should die without issue, one-half of the "estate then remaining" should go to John W. Connor and Theresa Connor and the other one-half to Fanny Burk, Agnes Burk and Mary Burk Clark; and that if Mrs. Mullen should die leaving surviving issue, all the estate "then remaining" should go to such issue "in title absolutely forever," and that the codicil closed with these words:

"My intentions in making this codicil to my will is to give to my wife and daughter the use and benefit of my estate and all the rents, issues and profits thereof as long as they both shall live share and share alike and upon the event of the death of my wife that my daughter shall have all said rents, issues and profits and in the event that my daughter die having issue then that her child or children shall have half of said rents, issues and profits and my wife the other half but in the event my daughter die before my wife and without issue then all said rents, issues and profits shall go to her use during her natural life and upon her death to the nephew and nieces as hereinbefore provided."

She further alleged "that under no provision of said will does the title of said estate vest either during the life of a person in being at the death of * * * Connor, nor within twenty-one years thereafter, nor during the life of any one then in being when the said * * * Connor died nor for twenty-one years in any person or persons whomsoever."

She further alleged that the validity of the lease had been called in question.

In such answer Mrs. Mullen stated that she joined with Mrs. Connor "in this action, for a decree and a declaratory judgment defining and fixing the status and rights" of themselves "and of all others interested in the said estate * * * as heirs, legatees or otherwise"; and that she admitted the facts alleged in the petition of Mrs. Connor and joined in the prayer thereof. She also prayed that the Hotel Company be made a party and the validity of the lease determined.

Mrs. Murrell appeared and filed an answer in No. 4634 in which she stated that she was born May 12, 1903, resided in Los Angeles, submitted herself to the jurisdiction of the court, reaffirmed the answer of Ethel Connor Mullen, and joined in the application "for a declaratory judgment in the matter of the construction and determination of the will."

On August 21, 1925, the state court entered a decree in No. 4634 wherein it quieted the title to the real estate of which testator died seized, including the hotel site, against all the defendants except Mrs. Mullen and Mrs. Murrell; and adjudged that Mrs. Connor has a life estate in such property, with full power of sale and disposition and the right to share equally with Mrs. Mullen in the rents, issues and profits thereof, with the remainder over of so much as remained at her death to her grandchild Mrs. Murrell; that Mrs. Mullen has an estate in fee simple to one-half of such property, and the right to share equally with Mrs. Connor in the rents, issues and profits of all of such property; and that Mrs. Connor and Mrs. Mullen have full power and authority to execute deeds to any or all of the estate and to execute, on such terms as they shall deem proper, trust deeds or mortgages thereof to secure such sums as they shall deem expedient; that the lease is valid; and that Mrs. Connor and Mrs. Mullen are entitled to reimbursement for the $45,000 advanced by them for the erection of improvements on lots of the estate.

The Stock Growers' National Bank advanced $92,000 for the construction of the addition to the hotel. The loan was evidenced by negotiable bonds...