272 F. 11 | 6th Cir. | 1921
John Joy Halliday resided upon a Southern Ohio farm and there carried on an extensive creamery business, and had become largely indebted, the Delaware National Bank being his chief creditor. His mother, Annie Joy Halliday, lived with him and had indorsed many of his notes. In November, 1916, the mother and son were severally adjudicated bankrupt, and Mr. Slocum was made trustee of each estate. He filed a bill in the court below against the bankrupts, attacking, as a preference, a mortgage covering the farm, which the mother and the son had given to the bank within the four months period. In the same bill he set up that the bankrupts’ title to tlie farm had come from Mr. Halliday’s grandfather, Thomas Joy, and alleged that others of the latter’s descendants or next of kin were claiming title adverse to or supplementary to that of the bankrupts, and prayed not only to set aside the preference, but to have these clouds removed from the title of the bankrupts. He also filed a separate bill in behalf of the mother’s estate against the bank, alleging that a $10,000 cash payment to it and the giving of a pledge of certain
An inquiry into the title to the farm involves the original owner, Thomas F. Joy, his widow, Bettie Ann Joy, who survived him many „years, their .daughter, Annie Joy Halliday, her son, John Joy Halliday, and his three children, Ruth, Anna, and Elizabeth Halliday. To avoid confusion in names, arid for convenience, these parties will be hereafter referred to as the grandfather, the grandmother, the mother, Halliday, and the children. The title comes through, or is affected by, the successive wills of the grandfather and the grandmother. We think it more logical to determine, first, the effect of the grandmother’s will. Whether she was disposing of her own estate or whether executing a power or a trust is not important to this branch of. the inquiry. Her will was executed May 3, 1890, and was admitted to-probate in Delaware county August 28, 1916. The substantial part of the will, including the interlineation and without regard to the alleged erasure, is as follows:
“I. X give and bequeath to my beloved daughter, Anna J. Halliday, all the-personal property of every description which may be in my possession at the-time of my death.
“II. The use & control of the real estate I give & bequeath to my daughter Anna during her natural life.
“III. Should my grandson, Joy Halliday, then be living, I give & bequeath to him in trust for the heirs of his body all the real estate of which I may be-possessed at the time of my decease.
“IV. In case my grandson should die v#ithout issue, I give & bequeath one-half of all my real estate to the Ohio Wesleyan University of Delaware, O. The other half I desire should be divided among the brother and sisters of my beloved husband or their children.”
The question which we must decide, as to what we ought to treat as the contents of the will, arises under paragraph III. When the‘will was first written, the phrase in question read “bequeath to him •& the heirs of his body.” At some time or times the words “in trust for” had been written in the form of an interlineation extending diagonally both below and above the line, and across and largely covering up-the an ink line had been drawn through the words “in trust for,” the line being broken so as to be separate for each word, and a pencil
"Whereupon the court fmils that the aforesaid instrument of writing is the last will and testament of the said Lettie A. Joy, deceased. - * * It is therefore by the court ordered that the said will be admitted to probate, and that it * * * bo entered of record in this court.”
Thereupon the will was entered at length upon the court records; and its condition, as above stated, was in all details reproduced upon the record, except for the and except for the distinction between an ink line and a pencil line; that is to say, the clause was first written “to him in trust for the heirs of his body,” and then an ink line was drawn through the words “in trust for the heirs of his body.” It was doubtless intended thus to find that the will at the testatrix’s death, and as left by her, was in the condition so reproduced; but was it the. intention of the probate proceeding, taken altogether, to declare that these words had been erased before the will was executed and so were no part of it, or rather that these words were then present and thus formed a part of the effective will ? Neither intent is inconsistent with what was done. The drawing of the lines through the specified words as written upon the record tends to show that they were not to be considered as present in the instrument recorded. On the other hand, any reproduction at all of these words upon the record was unnecessary, unless it was intended that they were effective. It was the duty of the court to record only the words and phrases which constituted the will, and the erasing line may well indicate that it was merely in
The remaining change — the drawing of the line through the words “heirs of his body” — must be deemed post execution, for two reasons: The first one is that no testator or scrivener, intending even as much formality as was shown here, would have thought of making an effective change by a pencil mark through some words, while that would be the natural course of some person contemplating revisión. The 'second
Hence we are led to the conclusion that this will, as duly probated, should be deemed to read “in trust for the heirs of his body.” We are aware that this reasoning has the color of ourselves determining the contents of the will, as a court of probate might do; but we see no alternative between this treatment and a conclusion that the will has never been probated, because the probate order is so ambiguous as to be wholly unintelligible and ineffective; and we are not ready to adopt this conclusion.
Such interests as the grandmother had, which she might pass by her will, came through the will of the grandfather. So much of that as is material is as follows:
“I. X give, bequeath & devise to my beloved wife, Lettie Ann Joy, my entire estate of lands, stock, notes and all other property of which X may be possessed or which may De due or coming to-me at the time of my death — to be used & controlled by her; after paying all just claims against my estate, in such manner as she may think prudent and best. I fully & freely confide in her to provide ror & aid such charities as she knows I desire to be aided.
“II. Should the income from our farm not prove sufficient for the comfortable maintenance of my wife, Lettie, I do hereby authorize her to contract, sell & dispose of such parts of the farm as she may think best to provide for her maintenance and the charities before referred to in item I, and deeds to execute & deliver therefor.
“III. Within three months after my decease, I desire my beloved wife Lettie to execute her last will and testament, disposing of the entire estate in accordance with my wishes, well known and understood by her. Should circumstances demand it, she shall execute other and later wills, providing for the disposition of my estate, always, however, keeping in mind my beloved daughter, Annie Joy Halliday, and the issue of her body.
“I.V. Should any devisee or legatee of either myself or my beloved wife institute or cause to be instituted any legal proceeding to set aside or thwart the' purposes or provisions of either this will or the last will & testament of my wife, such devisee or legatee shall be by such action, cut off; & deprived any portion of my estate.”
In determining the meaning of this phrase “keeping in mind,” etc., we are aided by the facts that at the time of the grandfather’s death the mother was 32 years old, that Halliday was then her only child, and that his father was, to some degree, improvident and unsuccessful. The provision that after the mother had once made appointment by will 'she might thereafter make substituted appointments as the circumstances might change shows that the grandfather had no hard and fast plan in mind. We can think of no reason why the testator should have wished to tie up the estate in the hands of his daughter, except that he either distrusted her ability or her husband’s influence, or both, nor any reason why he should have wished it to be free from restriction the moment it reached Halliday rather than to be tied up for his life. The grandmother, who knew his wishes and who executed her will very soon after his, has, by her action, declared that she thought that she was complying with his wishes when she treated the children of Halliday as within the class described by him as the issue of the mother. Her action seems to us fully to satisfy the reasonably probable intent of the grandfather and to be a fair exercise of that discretion and judgment undoubtedly reposed in her.
There is nothing in the language of the devise which prevents this conclusion. “Issue of the body” is commonly used in a less restricted and technical sense than “heirs of the body” (Daniel v. Whartenby, 84 U. S. [7 Wall], 639, 643, 21 L. Ed. 661), and the word “issue” will be construed to include grandchildren unless the circumstances otherwise require (Adams v. Law, 58 U. S. [17 How.] 417, 421, 15 L. Ed. 149; Jackson v. Jackson, 153 Mass. 374, 26 N. E. 1112, 11 L. R. A. 305, 25 Am. St. Rep. 643: Jarman on Wills, vol. 2, p. 33; Page on Wills, § 526).
She was to “keep in mind the interests of” (among others; Halliday. His best interests might require — as the event shows — protection against himself. She had power to consume the estate for herself, to divert it to charities, and to change her once-made disposition. This power of change is almost meaningless, unless it refers to and reaches successive and variant dispositions made while “keeping in mind,” etc., and we think necessarily indicates that she might make discretionary selection and inequality among the class of beneficiaries. Otherwise the grandfather might as well have made direct devise to his granddaughter and the issue of her body. Indeed, the very concession by all parties that the power existed for the grandmother to limit the mother’s interest to a life estate rather than to make it a conditional fee admits the power to make more definite the application of the vague language of the supposed trust. No court can say that when she made Halliday a trustee of the legal title for his children, and therefore entitled to the possession and use of the farm only in their right, she was not “keeping in mind the ini crests of” the issue of her daughter, within the intent of the grandfather.
The mortgage which is attacked as a preference was / given to the bank on September 1, 1916, and was for $20,000. It covered the farm and was signed by Halliday and his mother. Since it affected only her life estate, we pass, without consideration, the claim of the bank that, because the mortgage was to secure money recently loaned to Halliday on the faith of the promise of a- mortgage, the debt secured was not of the same class as others, and so the security could not be preferential, and we come to the claim of the plaintiff, as bankruptcy trustee for Halliday’s mother, that the security was an invalid preference by her as against her estate in bankruptcy. We conclude that her debts and liabilities, on the date of the mortgage, were not such as to call for reasonable apprehension that she was insolvent. She had no liabilities, excepting as accommodation indorser upon about $50,000 of her-son’s notes. Of some of these the bank had no knowledge, and apparently, no notice; but we disregard that matter and take into the computation her entire debts. Her estate consisted of some miscellaneous items of about $2,000, .her life estate in the farm, and an $11,000 claim against the railroad company for the recently sold right of way through the farm. It may be that this $11,000 was not really owing wholly to her. The sale was apparently upon the theory that it was by the grandmother, under the powers in the grandfather’s will, and it was treated by all as having been practically completed before her death. In that event the proceeds were personal property, and passed to Halliday’s mother under the grandmother’s will. There is no reason for now excluding it from the computation of her assets. The evidence indicates that $18,000 was a fair estimate of the present value ■of her life estate in the farm. This should be computed as it would be if the fee was to be sold at judicial sale and-the life estate treated as an incumbrance to be paid off. Treating it as worth only what it might sell for separately would be unfair. Her assets were thus at least $31,000.
This conclusion disposes also of the attack made by her trustee upon the payment of about $10,000 made by her on September 16th. She devoted $10,000 of the money received from the railroad right of way tc retiring that amount of paper in the bank which she had indorsed for her son, and we assume that the taking up of rediscounted paper was equivalent to the payment of direct paper. It is true that this payment reduces her separate assets by the sum of $10,000, but-it reduced by the same amount Halliday’s debts to the bank and any possible deficiency which could come against her on her indorsement. The situation, therefore, as to this alleged preferential payment differs only in degree from that of the mortgage of September 1st, and is covered by the same conclusion.
Since we sustain the mortgage given to the Delaware bank to the extent of the mortgagor’s title, it is not necessary to consider separately the rights of the City National Bank as assignee of the mortgage.
The appellants will recover their costs upon all the appeals. The cases will be remanded for the entry of new decrees and further £>ro-ceedings in accordance with this opinion.
If his debts were §70,000 and tlie indorsed paper §50,000, to bring a de-lieieney of §30,000 on the §50,000 would require a shortage of $42,000 on tlie §70,000, indicating ability to pay only 40 per cent. If his debts were only §60,000, there must be a shortage of $36,000 to carry over §30,000 against the indorser, thus indicating the same dividend.