Thomas v. Anderson

• Decision Date: 20 August 1917
• Docket Number: 4729.
• Citation: 245 F. 642
• Parties: THOMAS v. ANDERSON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

245 F. 642

THOMAS v. ANDERSON et al.

No. 4729.

United States Court of Appeals, Eighth Circuit.

August 20, 1917

Rehearing Denied December 3, 1917.

A. N Gossett, of Kansas City, Mo., for appellant.

William C. Michaels, of Kansas City, Mo. (Delbert J. Haff, Edwin C Meservey, and Charles W. German, all of Kansas City, Mo., on the brief), for appellees.

Before SANBORN and HOOK, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

This suit is brought by plaintiffs to compel defendant as executor to account to them for their share of the residuary estate of Mary Thomas Piper, deceased. The defendant in his answer claims that the residuary estate by the will of the testatrix is left to him personally, and not as executor. The suit has been in this court before. 223 F. 41, 138 C.C.A. 405. The defendant whose presence defeated jurisdiction then was dismissed when the case was returned to the lower court. Upon the second trial a decree was entered in favor of plaintiffs and defendant appeals.

The defendant offered parol evidence which he thought tended to support his side of the controversy. The trial court at first received it, but later struck it out, and that ruling is one of the matters complained of. We think the ruling was right, but do not consider the question important. We have examined the evidence and agree with the trial court that it does not furnish substantial aid in the decision of the matters that are controlling.

The controversy turns upon the twenty-ninth article of the will which reads as follows:

'Twenty-Ninth. All the rest, residue and remainder of my property both real and personal that I may own or possess at the time of my death, I give, devise and bequeath to my executor, William E. Thomas, to convey, bargain, sell, distribute or dispose of as he may choose or see fit to do with, following as nearly as may be possible for him to do, any instructions, directions or requests that I may hereafter give, make or request.'

The question to be decided is whether under this paragraph William E. Thomas takes the residuary estate personally for himself, or in trust as executor.

It would not be true to say that the question could be answered clearly, either from reading the will or reading the will in connection with the oral evidence. The real intent of the testatrix is still dark and obscure.

What are the factors from which the inference one way or the other must be drawn? The principal ones are few. Those in favor of the plaintiffs, and which the trial court thought preponderant are these:

1. The testatrix in the seventh paragraph of her will had already given a separate bequest to William E. Thomas of one-tenth of her real property, valued at $100,000. If she meant him to have everything except what she specifically devised to others, why did she not leave this specific bequest to be embraced as a part of the residuary estate? It will be noted that the twenty-ninth paragraph by its language embraces both real and personal property.

2. In making the bequest in the seventh paragraph the author of the will spoke in unmistakable terms. There is no doubt that she intended the one-tenth there referred to to belong to defendant personally. She makes no reference that clouds this meaning. She speaks of him there, not as her executor, but as her nephew. She adds no words in which she attempts to tell what powers William E. Thomas may exercise over that property. She evidently recognized clearly that, if it was to be his private property, he could exercise all the powers with respect to it possessed by any owner.

3. But in the twenty-ninth paragraph she does not speak of William E. Thomas as her nephew. She speaks of him as her executor, and the plaintiffs urge that when she uses that term she uses it not simply to identify William E. Thomas, but uses it to indicate the capacity in which he is to take the residuary estate. It is certainly impressive that when she intends him to take privately, as she clearly does in the seventh paragraph, she refers to him as 'my nephew, William E. Thomas.' If it is her purpose that he shall take privately as to the residuary estate devised in the twenty-ninth paragraph, why does she use the words 'my executor,' which on their face are words of trust? To be sure, it is possible to say that she used them simply as terms to identify the William E. Thomas to whom she was referring. But the fact that she uses a term, when she is giving to him in his private capacity, which implies no trust, and uses the term 'executor,' which does imply a trust, when she is disposing of the residuary estate, is one of the factors which tend to show her purpose that he should take the residuary estate as executor, and not privately.

4. Every word that follows the name William E. Thomas in the twenty-ninth paragraph militates against the inference that the testatrix was giving the residuary estate to Mr. Thomas in his private capacity. If we select the terms 'convey' 'bargain,' 'sell,' 'dispose of as he may choose or see fit,' all of that language becomes mere surplusage, if the residuary estate was given to him as his private property. Every owner of private property has the right to exercise all those powers with respect to it. It is only those who are acting in a trust relationship who need to have such powers specifically granted to them. If we take the other term, 'distribute,' that is clearly a word of trust, indicative of an act to be performed by William E. Thomas as executor, and not as a private individual.

5. If we take the concluding words of the paragraph, 'following as nearly as may be possible for him to do any instructions, directions or requests that I may hereafter give, make or request,' these are unmistakably words of trust inconsistent with a purpose to confer upon William E. Thomas an absolute private ownership of the residuary estate.

6. Finally, it is a cardinal rule, well established by authority, that a devise of property to an executor is presumed to be given to him in trust, and not privately, and in order to justify a...