Stevens v. Smith

• Citation: 126 F. 706
• Decision Date: 19 December 1903
• Docket Number: 1,201.
• Parties: STEVENS v. SMITH et al
• Court: U.S. Court of Appeals — Sixth Circuit

126 F. 706

STEVENS v. SMITH et al

No. 1,201.

United States Court of Appeals, Sixth Circuit.

December 19, 1903

Frank Titus, for appellant.

L. C Mengert and S. H. Tolles, for appellees.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

John C Larwill, of Mansfield, Ohio, died in 1901, leaving an estate (real property of the value of about $240,000, and personal property of the value of about $300,000), and a will in which, after making many bequests, he provided, in the final clause, that the residue of his estate should be divided into 24 shares and distributed among certain named residuary legatees. Larwill left surviving him a widow, Susan M Larwill, and certain brothers, sisters, nephews, and nieces but no children, and no father or mother.

The bill below was filed by Oscar Hampton Stevens, of Missouri, a nephew not mentioned in the will, for the purpose of securing a construction of the will which will exclude the real estate from its operation, invalidate many bequests, strike out the residuary clause, and thus admit the complainant, as an heir at law, to share in the final distribution of the estate at the expense of many legatees and distributees under the will. The suit was instituted against Richmond Smith and Paul Oliver, who are the executors under the will, none of the legatees or distributees being made parties. Because of this omission, a special demurrer to the bill for lack of necessary parties was filed and sustained, and, the complainant declining to amend, the bill was dismissed. From this decree an appeal has been taken.

The bill, after stating the facts respecting the property and the heirs at law which we have already given, sets out the will and codicil in full. The will provides, in the first item, a bequest of $101,000 to the wife, in lieu of her dower in his real estate and of her distributive share of his personal property; and, in the second, that from $20,000 to $25,000 shall be expended by the executor in the construction of a memorial to the testator's son, Arthur. These two bequests are expressly made a charge upon his 'entire estate,' and are to be paid before any other bequests are paid. The will then provides, in items 3 to 15, inclusive, for an annuity to a brother and 14 bequests to relatives, friends, and charities, aggregating nearly $150,000, all of which 'are payable at the option and convenience of my executor. ' By the codicil, the bequest in the will of $5,000 to the Hospital Association of Mansfield is revoked unless $15,000 additional be raised within one year after the testator's death, seven bequests aggregating $15,700 are made, the use of 80 acres for life is devised to a brother, an annuity of $300 given to Mrs. Jenner, a niece, certain powers are vested in the executor, including this, 'that all bequests made in my will and codicil will be payable at the pleasure of my executors,' and the following residuary clause added:

'The residue of my estate I wish divided into twenty-four shares as follows, to wit: To my wife, Susan M. Larwill, four shares, to my brother, Joseph, four shares, to my brother, William, two shares, to my sister, Elizabeth L. Miller, two shares, to my nephew, Paul H. Larwill, four shares to my nephew, Miller Stephens, of Kansas City, Missouri, one share (1), to my niece, Julia Jenner, one-half share, to the First Baptist Church, of Loudenville, one-half share. The residue to be divided equally between my wife and my sister Elizabeth, my brother Joseph and his son Paul.

'I am not unmindful of the fact I have omitted from my will all mention of several relatives of mine, this omission is not accidental or inadvertent or from any unkind feelings on my part, but deliberate and determined and for reasons which seem to me good and sufficient. I have decided to exclude from any participation in my estate any and all persons not mentioned in this my will and codicil.'

The bill alleges that the will was admitted to probate in Richland county, Ohio, and that the respondents, Smith and Oliver, were appointed executors, and have been and are engaged in the discharge of their duties as such, having the custody and possession of all the property owned by the decedent at the time of his death, in Ohio. That, at the time of his death, the decedent was seised in fee simple of certain lands which are described, those in Ohio of the value of $170,000, those in Kansas of the value of $20,000, those in Texas of the value of $10,000, and those in Missouri of the value of $40,000. That the will and codicil should be adjudged invalid as a testamentary disposition of the property left by Larwill, except as to certain specific bequests, for the following reasons: (1) The instrument omits to vest in the executors any title to any of the property; (2) no valid disposition of any of the real property is made; (3) under the laws of Ohio, Texas, Missouri, and Kansas, notwithstanding the will, the title to all the property, real and personal, except the money required to pay the lawful debts and such legacies as may be held valid, vested upon the death of Larwill in the complainant and others, his heirs at law, together with the right of possession; (4) that the residuary clause should be adjudged void for reasons which are set forth in clauses 5 and 6; (7) that no real estate is charged with the payment of any bequests; (8) that no property is set apart for the payment of the annuities; (9) that the bequest of $5,000 to the Hospital Association of Mansfield is void, because it did not vest upon the death of Larwill; (10) that no interest, title, or estate is vested, or trust created, which prevented the vesting of the property in the heirs at law; and (11) that the value of the residue for distribution cannot be ascertained until after the death of Mrs. Jenner, to whom an annuity is given during life. The bill further avers that the respondents are administering and disposing of all the property of the deceased, both real and personal, and wherever situated, as if the will conferred that right; and are proceeding as though all the real estate, both within and without Ohio, were charged with the payment of the specific legacies named in the will; and are selling the real estate in Ohio for the purpose of paying the legacies, although there is personal property, not exhausted, sufficient to pay the same; and that the executors claim they have the power, after paying the lawful debts and valid legacies, to divide all the property, real and personal, in accordance with the residuary clause, and will do so, unless prevented by the court, thus depriving the complainant of any participation in the estate. The bill prays, first, that the meaning of the will and codicil, and the clauses and provisions complained of, be construed and determined; second, that it be adjudged that all the real estate belonging to the decedent at his death descended to his heirs at law, and that as to all such real estate the decedent died intestate; third, that the respondents be enjoined from selling or disposing of any of such real estate, whether in Ohio or elsewhere, until the personal property is exhausted, and that all moneys, the proceeds or revenues of lands, sold or to be sold, in the hands of the respondents, be adjudged real property, and not personalty; fourth, that the item bequeathing $5,000 to the Hospital Association of Mansfield be adjudged null and void; fifth, that all other provisions wherein bequests are made dependent upon the will or pleasure of the executors, or other event or contingency, and which do not forthwith, by the terms of the will, vest in the legatee upon the death of the testator, be adjudged invalid; sixth, that all other bequests or attempted bequests made to persons or corporations not competent in law to take or hold property be adjudged null and void, the complainant alleging that 'the Baptist Church of Loudenville, Ohio,' and 'the First Baptist Church of Loudenville,' are names not describing any lawfully existing corporation competent to take by bequest, and that the words 'to the trustee of the Cemetery Association' do not describe any person competent to take as devisee; and, seventh, for general relief.

A careful examination of the bill makes it plain that the suit is not so much one to construe and determine certain provisions of the will as it is one to cut out and destroy them, render the decedent pro tanto intestate, and admit the complainant to share in the excluded property. The assault is first made upon the residuary clause. With that stricken out or limited to personalty, and the heirs at law substituted for the residuary legatees, the attack has next been directed...