Landram v. Jordan

25 App. D.C. 291 | D.C. Cir. | 1905

Mr. Chief Justice Shepard

delivered the opinion of the 'Court:

1. The contention' that “the court erred in holding that the ■substituted service on the absent defendants, except Drake, by publication, was valid, and that they were properly before the court for the purpose of making the decree that was entered,” is without foundation.

It does not appear in the record that any such question was -raised or ruled upon in the trial court. The parties appeared in ■answer to the publication of notice and made no objection thereto. The irregularity, if any, in obtaining the order of publication was waived by their general appearance.

2. There was no error in overruling the objection, presented ■on the hearing of the demurrer, that the complainants’ right to maintain the bill of review had been lost by laches.

The bill was filed, and writs of subpoena regularly issued thereon, within the two years from the entry of the decree, required by equity rule 88 of the supreme court of the District of 'Columbia. Alias process was also issued before the expiration of the two years, and served upon Taylor, one of the necessary parties in the District. Others were not found. The suit was thus commenced within any construction that may be given to common-law rule 6, which applies to suits in equity also, and prosecuted in accordance with the provisions of equity rules 7 and 11. See Huysman v. Evening Star Newspaper Co. 12 App. D. C. 586, 594.

It is true that there was considerable delay in prosecuting the notice by publication to the defendants shown to be non-residents. But there is nothing to show that this was unreasonable or attributable to bad faith. Webb v. Pell, 1 Paige, 564; Fairbanks v. Farwell, 141 Ill. 354, 368, 30 N. E. 1056.

Nor does it appear that any prejudice has been caused the defendants by the delay, and there is no question of intervening nights accruing during the interval.

3. The third error that has been assigned is founded on the Tefusal of the court to sustain the appellants’ objection that Mary B. Kearney was a necessary party to the proceeding.

It is essential in a bill of review that all of the parties to the -decree, and their privies, shall be made parties, either plaintiff ■or defendant. Bank of United States v. White, 8 Pet. 262, 268, 8 L. ed. 938, 941. And it appears that this requirement was complied with.

The objection is that Mary B. Kearney, the widow of Edmund Kearney, should have been made a party also because ■since the decree annulling the will a right of dower has accrued to her in the lands in the District of Columbia to the extent of the interest of her deceased husband, Edmund Kearney, as one ■of the heirs at law of Thomas Kearney, deceased.

The objection that she was a necessary party was not raised by plea, answer, or on the face of the demurrer, but by suggestion on the hearing founded solely on the fact recited in the answer ’of Constance K. Yertner to the original bill, filed May 15, 1900, that Edmund Kearney died June 4, 1898, leaving a widow, Mary B. Kearney, and no descendants. No request was then urged that she be made a party to the suit, and the cause proceeded to final .decree without her. It is to be remarked also that there is nothing to show that she was living at the time that the hill of review was filed.

But passing by the question whether a party interested in the subject-matter of the original bill and yet omitted therefrom can be considered a necessary party to review the decree-rendered thereon, and assuming that IVIary B. Kearney is still living, her interest is a contingent one, and not so inseparably connected with the claim of the parties to the suit as to make her an indispensable party to this proceeding. Indispensable parties are said to be “persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.” Shields v. Barrow, 17 How. 130, 139, 15 L. ed. 158, 160; see also Story v. Livingston, 13 Pet. 359, 375, 10 L. ed. 200, 208; Barney v. Baltimore, 6 Wall. 280, 284, 18 L. ed. 825, 826; Williams v. Bankhead, 19 Wall. 563, 571, 22 L. ed. 184, 187.

We are of the opinion, therefore, that the objection made on the hearing came too late. Weightman v. Washington Critic Co. 4 App. D. C. 136, 153 and cases cited. In one of the cases there cited it was said:

“It ought to be observed here, preliminarily, as a matter of practice, that although an objection for want of proper parties may be taken at the hearing, yet the objection ought not to prevail upon the final hearing on appeal, except in very strong cases, and when the court perceives that a necessary and indispensable party is wanting. The objection should be taken at an earlier stage in the proceedings, by which great delay and expense would be avoided. The general rule as to parties undoubtedly is that when a bill is brought for relief all persons materially interested in the subject of the suit ought to be made parties, either as plaintiffs or defendants, in order to prevent a multiplicity of suits, and that there may be a complete and final decree between all parties interested. But this is a rule, established for the convenient administration of justice, and is subject to many exceptions, and is more or less a matter of discretion in the court, and ought to be restricted to parties whose interest is involved in the issue and to be affected by the decree. The relief granted will always be' so modified as not to affect the interests of others.” Mechanics Bank v. Seton, 1 Pet. 299, 306, 7 L. ed. 152, 155.

Whatever interest Mary B. Kearney may have is not concluded by the decree rendered herein, and may be asserted by her hereafter if desired.

4. Having disposed of the foregoing preliminary questions, we come now to the consideration of the merits of the case as presented in the bill. In this we do not find it necessary, or that it would serve any useful purpose, to accept the invitation of counsel and enter upon the consideration of the question whether the general trusts created by the will of Thomas Kearney, as decreed on the original bill, are in fact void because in violation of the rule against perpetuities. In the view that we have taken of the complainant’s case, she has no direct interest in that question which renders its determination necessary, or even proper, under the circumstances. All of the parties whose interests were directly and materially affected by that part of the decree have not only acquiesced in it, but have appeared in this court also in its support.

By the terms of her bill the complainant limits her right of review to so much of tha-t decree only as undertakes to annul the trust for her benefit in lot 611 M street N. W., and in su far as it may affect her contingent right to a monthly income of $40 during life, to be made up from the revenues of other property in the District of Columbia, in the event that the revenues of said lot shall fall short of realizing that sum.

Upon the assumption, then, of the correctness of the original decree, in so far as it declared void the several trusts of the will for the benefit of testator’s daughter and grandchildren, because violative of the rule against perpetuities, the contention is that the trust in favor of Gabriella K. Jordan, contained in item 6-of the will, necessarily fails with the others.

This result depends upon the inseparability of the special intention expressed in item 6 from the general intention expressed throughout in respect of the disposition of the great body of a large estate.

Undoubtedly, if it shall appear that the intention to create a trust for the life of Gabriella K. Jordan is so involved in the-general scheme of the whole will as to be dependent upon it, and not capable of enforcement without doing violence to the general intention of the testator, it must fail along with the remainder of the will. Fosdick v. Fosdick, 6 Allen, 41, 48; Thorndike, v. Loring, 15 Gray, 391, 398; Lovering v. Worthington 106 Mass. 86, 88; Amory v. Lord, 9 N. Y. 403; Knox v. Jones, 47 N. Y. 389, 398.

On the other hand, a trust for general purposes may be void, because unauthorized by law, without necessarily rendering-void a particular trust in the same will, made to subserve another purpose that is authorized. Savage v. Burnham, 17 N. Y. 561, 576. And it is a rule, founded in reason as well as supported by authority, that if under settled principles of law effect-cannot be given to an entire will or to certain entire provisions thereof, any provision may nevertheless be given effect which is-conformable to those principles, and which can be separated' from the residue without doing violence to the testator’s generaL intention. In other words, where an estate has been vested in trustees upon several independent trusts, one of which is legal though others may not be, the estate of the trustees will be upheld to the extent necessary to enable them to execute the valid’ trust though avoided as to the others. Oxley v. Lane, 35 N. Y. 340, 349; Van Schuyver v. Mulford, 59 N. Y. 426, 432; Tiers v. Tiers, 98 N. Y. 568, 572; Burns v. Allen, 89 Hun, 552, 558, 35 N. Y. Supp. 342, Affirmed in 154 N. Y. 741, 49 N. E. 1094; Loring v. Blake, 98 Mass. 253, 262; Lovering v. Worthington, 106 Mass. 86, 88; Graham v. Whitridge, 99 Md. 248, 66 L. R. A. 408, 57 Atl. 609, 58 Atl. 36.

Tested by these principles, we are of the opinion that the trust created for the benefit of Gabriella X. Jordan in item 6 of the will of Thomas Kearney is a valid one, and may be executed without regard to the failure of the remaining trusts, for the benefit of other objects of the testator’s bounty, and that it was manifest error to declare that provision of the will void along with the others, as was done in the original decree. In that provision (item 6) the testator expresses a particular and independent intention to provide an income for Gabriella K. Jordan during her life, and expressly separates lot No. 611 M street N. W. from the residue of his estate in order to effect that intention. This intention to separate that lot from the rest of the estate is further shown in the special exceptions contained in items I and 20, before mentioned. Moreover, item 8 provides that upon the death of the life beneficiary, Gabriella K. Jordan, “the fee-simple title to the house and lot No. 611 M street N. W., shall be and is hereby vested in my grandson Thomas K. Vertner.” This is followed by the words: “Provided my said niece die before the 1st day of January, 1928,, then and in that event said Thomas K. Vertner shall only receive the net rents and revenues derived by my trustees therefrom, and provided further that, should my said niece die before my said grandson shall have attained the age of twenty-two years, then, from the date of the death of my niece until the said Thomas K. Vertner shall have arrived at the age of twenty-two years, the rents and revenues derived from said lot shall be disposed of in the same manner as provided in item I hereof in regard to the rents and revenues derived from other property mentioned therein,” etc.

The first clause of item 8, before quoted, vests a remainder in fee in said lot in the grandson Thomas K. Vertner, to come into possession and enjoyment upon the termination of the trust for life for the benefit of Gabriella K. Jordan created by item 6. Richardson v. Penicks, 1 App. D. C. 261, 264, and cases cited. Conceding, as in the case of the general trusts, that the attempt in the foregoing provisos to postpone the enjoyment of the estate of the grandson may be in contravention of the rule against perpetuities, the result is the avoidance of their restraints without affecting the devise of the remainder. Neither the devise of the equitable life estate of the niece nor the remainder in fee can be rendered void by an unlawful attempt to postpone the enjoyment or restrain the alienation of the fee. Leonard v. Burr, 18 N. Y. 96, 106; Goldsborough v. Martin, 41 Md. 488, 502, 503; Lovering v. Worthington, 106 Mass. 86, 88; 2 Perry, Tr. § 622; Saunders v. Vautier, 4 Beav. 115; Curtis v. Lukin, 5 Beav. 147, 155. Our conclusion is therefore that the provisions of the will relating to Gabriella K. Jordan are separable from and independent of the others, and should have been upheld in the original decree.

The learned justice presiding in the equity court was right in the decree rendered by him modifying the original decree to that extent. If it shall become necessary, the court may, under its general equity jurisdiction, appoint another trustee, for the purpose of giving effect to the execution of the trust, and there is nothing to prevent the complainant from pursuing some appropriate proceeding to enforce the payment of the arrears of the revenues to which she is entitled.

5. We have also been asked on behalf of the appellee to declare the original decree invalid on the ground of a want of jurisdiction of the court to entertain the bill filed by the trustee for the purpose of annulling the entire will under the pretense of seeking a construction of the trusts created thereby. The suit was, indeed, an extraordinary one, and the manner in which it was prosecuted to a final decree vacating each and all of the trusts would seem to warrant the inference, to some extent, that such was the real object sought. But for the reasons given for not passing upon the validity of the will as a whole, we regard it as unimportant to determine any other question than that in which the interests of the complainant are necessarily involved.

Bor the reasons heretofore given the decree will be affirmed, with costs, and it is so ordered. Affirmed.

An appeal to the Supreme Court of the United States was allowed April 13, 1905.