Noyes v. Parker

• Decision Date: 23 August 1937
• Docket Number: No. 6900.,6900.
• Citation: 68 App. DC 13,92 F.2d 562
• Parties: NOYES et al. v. PARKER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

68 App. DC 13, 92 F.2d 562 (1937)

NOYES et al. v. PARKER.

No. 6900.

United States Court of Appeals for the District of Columbia.

Decided August 23, 1937.

William Stanley and J. E. Burroughs, both of Washington, D. C., for appellants.

Benjamin S. Minor, E. Cortlandt Parker, and Chauncey G. Parker, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and GRONER, Associate Justices.

MARTIN, Chief Justice.

This case relates to the construction of the last will and testament of John Sherman who died on October 22, 1900, a citizen and resident of the State of Ohio, and a United States Senator from that state.

The will was executed on December 22, 1890, and was duly admitted to probate and record in Ohio on November 15, 1900. At the date of the execution of his will the family of Senator Sherman consisted of his wife, Cecilia Stewart Sherman, and his adopted daughter, Mary Stewart Sherman, who was then unmarried. He was without issue of his own blood.

Senator Sherman died possessed of a large estate consisting in part of real estate located in the District of Columbia; and ancillary letters testamentary were issued to the executors by the Supreme Court of the District of Columbia.

In article one of his will Senator Sherman made various provisions for his wife in case she survived him.

In article second of the will he made the following provisions for his adopted daughter: "Article Second. I give, devise and bequeath to my adopted daughter, Mary Stewart Sherman the sum of One Hundred Thousand Dollars as follows. I hereby direct my executors within six months after my death with the consent and approval of my daughter to set aside, dedicate and designate as Mary's separate property so much of my estate as is equal in cash value to the said sum of One Hundred Thousand Dollars, one-half or more of which shall be productive real estate and the remainder in good income producing stocks, bonds and mortgages and the said property shall be held by my wife as long as she lives, as trustee for Mary, with power to reinvest and change security; the income and rents of said property or so much thereof as is necessary for the support and maintenance of Mary shall be paid to her as needed. Upon the death of my wife the principal, whether in real estate or securities shall be conveyed, transferred and delivered to Mary or to her issue in full ownership. If Mary should die without issue before the death of my wife this devise and bequest shall revert to my estate."

On January 15, 1900, Senator Sherman executed a codicil to his foregoing will. At this time his wife and adopted daughter were still living. The latter had been married to James I. McCallum, and two children had been born to them named John Sherman McCallum and Cecilia S. McCallum. In the codicil Senator Sherman included the following provision, to wit: "* * * My adopted daughter, Mary Stewart Sherman, having married since the execution of said will, to James I. McCallum and two children having been born to them named John Sherman McCallum, and Cecilia S. McCallum, now therefore to secure to my said daughter and to her children and to those born to her hereafter I hereby direct my executors to pay all sums and deliver all property to my said daughter in trust for her and to her children. I give to my daughter and to her children, in addition to the property granted in said will, the house and lot in the block on the north side of K Street, between Thirteenth and Fourteenth Streets, North West, and adjoining the residence in which I live, and I hereby authorize my executors to make a deed to said property."

On February 18, 1901, the executors of the will brought suit in the court of common pleas of Richland county, Ohio, which had jurisdiction over the settlement of the estate, naming Mary Sherman McCallum and her husband, James I. McCallum, together with their infant children, as defendants. The infant defendants were represented by guardians ad litem duly appointed and qualified as such.

The petition of the executors contained in part the following statements:

"The plaintiffs are in doubt about the meaning and true construction to be put on the following clause in the codicil, namely: `My adopted daughter, Mary Stewart Sherman having married since the execution of said will, to James I. McCallum and two children having been born to them named John S. McCallum and Cecilia S. McCallum, now, therefore, to secure to my said daughter and to her children and to those born to her hereafter I hereby direct my executors to pay all sums and deliver all property to my said daughter in trust for her and to her children.'

"The plaintiffs suggest whether the said clause creates a trust, and if so who are the beneficiaries and who is the trustee. And if a trust is thereby created whether the trust is valid under the statute against perpetuity and whether it is sufficiently certain and definite to be legal and capable of execution. They further suggest, that they have determined to pay said specific legacy in the manner following, to-wit: $60,000 in real estate and $40,000 in personal estate consisting of stocks, bonds, mortgages or cash as may be determined, and whether the respective parts which shall be paid in personal and real estate aforesaid shall be transferred and delivered to Mary Sherman McCallum in trust or in full ownership and if in trust on what terms and conditions. They suggest that the portion of the estate which shall go to said Mary Sherman McCallum as residuary legatee will be paid in both real and personal property or estate and if the said provisions of the will create a trust and the Court so construes the will, they ask to be instructed as to the terms and conditions on which the said residuary legacy shall be transferred to her."

On July 18, 1901, the Ohio court rendered a decision reading in part as follows: "2nd. That the provisions of said last will and testament relating to defendant, Mary Sherman McCallum, and the Codicil thereto, do not create a trust of the money and property bequeathed to her, but on the contrary gives her an absolute fee or estate in said money and property and the said Executors are directed to pay to her all money and convey all property, real and personal according to the construction made in this decree."

Thereupon, on July 20, 1901, the executors executed and delivered to Mary Sherman McCallum, designated in the will as Mary Stewart Sherman, a deed of conveyance reciting the terms of the will and codicil and conveying to her in fee simple among others certain parcels of real estate situate in the District of Columbia in conformity with the provisions of the will and codicil as construed by the Ohio court.

Afterwards Cecilia Sherman McCallum, daughter of Mary Sherman McCallum, was married and her married name appears in the record as Cecilia Sherman McCallum Parker. John Sherman McCallum, son of Mary Sherman McCallum, was married to Rosita Hernandez de Texada (Noyes); two children, Irene McCallum and Marie Rose McCallum, were born of this marriage and are parties plaintiff and appellants herein. Their father died intestate on May 11, 1924.

On August 1, 1934, Mary Sherman McCallum died about ten years after the death of her son John Sherman McCallum. By her last will and testament which was duly admitted to probate and record by the Supreme Court of the District of Columbia she bequeathed the sum of $500 each to her granddaughters, Irene McCallum and Marie Rose McCallum, payable with accumulations when they respectively attained the age of 21 years, and save for several minor bequests bequeathed and devised all the rest and residue of her property of every character, wherever situate in fee simple and absolute estate to her daughter, Cecilia Sherman McCallum Parker, provided she should survive the testatrix. The devisee so named survived the testatrix and was made defendant in the present case in the lower court, and is now the appellee herein.

On August 19, 1936 Rosita Hernandez de Texada Noyes, Irene McCallum and Marie Rose McCallum her infant children, by their mother as next friend, filed in the District Court of the District of Columbia an amended bill of complaint against Cecilia Sherman McCallum Parker as defendant. In the bill they recited the facts above set out and claimed that under the will and codicil of Senator Sherman their grandmother, Mary Sherman McCallum, became and was entitled to only a life interest in the property mentioned in said will and codicil with remainder over upon her death to her two children, namely, John Sherman McCallum and Cecilia S. McCallum, now Cecilia Sherman McCallum Parker; and that said Mary Sherman McCallum became and was the trustee of the interest in remainder in said property for the benefit of John Sherman McCallum, and his sister, Cecilia Sherman McCallum Parker. The plaintiffs alleged that despite the ownership of the property as aforesaid, the said Mary Sherman McCallum undertook to possess, control, manage, and deal with all of the said real estate as if the same belonged to her individually in fee simple and sold and disposed of it as such. Among the said parcels of property were the certain lands situate in the District of Columbia and devised as aforesaid by Senator Sherman in his will and codicil.

The plaintiffs prayed that the court should appoint a trustee to make division and partition of the real estate allotted under the will of John Sherman to Mary Sherman McCallum, John Sherman McCallum, and Cecilia Sherman McCallum Parker, now remaining in the possession of Cecilia Sherman McCallum Parker, or otherwise provide for such division and partition; and that the defendant be required to make full and complete discovery of all parcels of real estate which were conveyed to Mary Sherman McCallum pursuant to the will of Senator Sherman and the terms and conditions thereof and the disposition made by her of the proceeds of any...