91 Neb. 654 | Neb. | 1912
Lead Opinion
On January 6, 1904, John A. Creighton, a wealthy citizen and well-known philanthropist of Omaha, being then a widower and childless, executed his last will and testament, containing special bequests aggregating
Paragraph 14 revoked all wills theretofore made, and constituted and appointed John A. McShane, James H. McShane, John D. Creighton and John A. Schenk executors without bond. James H. McShane declined to qualify, and Mr. Schenk died prior to the trial of this case in the court below, leaving the other two gentlemen named as the executors of the will. Mr. Creighton died February 7, 1907, leaving an estate of nearly $4,000,000. A number of nephews and nieces, who have been denominated the “unnamed heirs,” were not mentioned in the will. It would appear from the record that they determined to offer no contest to the probating of the will, but to obtain their rights, if any they had thereunder, by a construction of .the same. The will was therefore admitted to probate March 16, 1907. October 1, 1907, the unnamed heirs filed a petition in the county court for the construction of certain clauses of the will, including the tenth and thirteenth clauses, above set out, in which
In their brief and in their oral argument at the bar appellees renew their contention that the district court for Douglas county erred in overruling their motion to strike the petition of intervention of the attorney general, and in allowing him to intervene in said cause in
It is contended by the appellees that neither the state nor the people of the .state nor the attorney general in his official capacity had any such interest in the charity, sought to he established by the tenth paragraph of the will, as would have entitled the attorney general to apilar at any stage of the proceedings; and, further, that, even if he might properly have appeared before trial in the county court, he could not do so after there had been a full and complete trial in that court and the- case taken to the district court on appeal. This, for two reasons: First, that the order of the county court, entered October 4, 1907, for all persons, claiming any interest in the controversy, to appear and answer on or before the 28th of that month, operated as a bar to any right on the part of the attorney general to appear thereafter; and, second, that the intervention, if permissible at all, should have been made in the court of original jurisdiction — the county court. Section 9489, Ann. St. 1911, provides: “The attorney general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and shall also, when requested by the governor, or either branch of the legislature, appear for the state and prosecute and defend in any other court, or before any officer, any cause or matter, civil or criminal, in which the state may be a party, or interested.” Section 4778 provides: “It shall he the duty of the attorney general to appear and defend actions or claims against the state. He may require the assistance
The executors asked for the opinion of the court whether the will should be construed to give the whole estate to the beneficiaries named, including the charity named in the tenth paragraph, or those beneficiaries should take only a portion of the remainder of the estate, leaving a part to be distributed, as an intestate estate, to the legal heirs of the testator. It would seem proper for them to refuse to contend for either side of the controversy, and that made it necessary that the interests of the proposed charity should be represented, since the so-called unnamed heirs were vigorously insisting upon a construction favorable to them. Upon the principles and reasoning of State v. Pacific Express Co., 80 Neb. 823, and State v. Chicago, B. & Q. R. Co., 88 Neb. 669, we think it was the duty of the attorney general to represent the interests of this charity. See, also, Chambers v. Baptist Educational Society, 1 B. Mon. (Ky.) 215; Rolfe and Rumford Asylum v. Lefebre, 69 N. H. 240; Women’s Christian Ass’n v. Kansas City, 147 Mo. 103; Going v. Emery, 16 Pick. (Mass.) 107. In St. James Orphan Asylum v. Shelby, 60 Neb. 796, it was said: “The provisions for the administration of charitable trusts under the statute of 43 Elizabeth held not to be in force in this state. The doctrine of administering trusts for charitable uses cy pres, or under the prerogatives of the king as parens patrice by his sign-manual, is inapplicable
The brief of the so-called unnamed heirs presents unquestioned authorities to support the proposition that the decree of the probate court in the settlement of estates upon matters within the jurisdiction of that court are final, unless appealed from, and cannot be collaterally attacked. It was perhaps unnecessary to cite authorities upon so plain a proposition, but that does not determine the question -of the right to appear in the district court after the case has been appealed. Blatchford v. Newberry, 100 Ill. 484, and other similar cases, are cited, and upon these authorities it is contended that no party could appear in the case in the district court who had not appeared in the probate court. In the Illinois case it is decided that, “if there are interests such as would make it proper for other parties to intervene in the cause, such intervention must begin in the court of original jurisdiction, and cannot be allowed in this court.” What that court decided was that neve parties could not appear and present new issues in the appellate court. This, however, does not decide the question that is before us. The proceeding in the probate court to settle the estate of a decedent is a proceeding in rem. Every one interested is a party in the probate court, whether he is named or not, and this is particularly true as to the question of the dis
The question of the validity of the tenth clause of the will is not as extensively discussed in the briefs as other questions are. It gives the trustees named a sum of money and directs them to purchase a site and build a house which it designates as a charity “for poor, working girls.” It directs that they shall invest a certain specified proportion of the available funds in interest-bearing securities, and that they shall support the “charity,” and si tall use the interest derived from the securities for such support. While it leaves the details to the discretion of the trustees, it- is sufficiently specific to establish the charity intended and place the general management and control in the hands of the trustees. St. James Orphan Asylum v. Shelby, 60 Neb. 796; Chick v. Ives, 2 Neb. (Unof.) 879; St. James Orphan Asylum v. Shelby, 75 Neb. 591; In re Estate of Nilson, 81 Neb. 809.
The principal contention in this case is as to the construction and meaning of the thirteenth clause of the will. It is generally considered that one who makes a will intends to dispose of his property thereby. A will which makes defined bequests and devises to individuals and persons named, and contains a general r-esiduary clause, will, as against collateral heirs, be held to dispose
The thirteenth provision of the will expresses the intention to dispose of the remainder of the estate not included in the specified legacies and devises. It gives this remainder to the “legatees and beneficiaries” mentioned in the will. The testator was aware that he had not included all of his property in the specified amounts. He intended that all of the beneficiaries named should participate in the remainder. How much should each beneficiary take? He had already fixed the proportion that each should take of that part of his estate disposed of by the prior provision of the will. Did he intend that these respective legatees and beneficiaries should take the remainder in the same proportion? In this very clause he gives them the whole of this remainder. He must have used the words, “the bequest herein made,” with that fact in mind. He had given this legatee a specified sum and a share in the remainder, and this gift would bear a certain proportion to the whole estate. He had also given each legatee a specified sum and a share in the remainder which would bear the same proportion to the whole estate. It would, of course, follow that the specified sum given to each legatee would bear the same proportion to the sum'of the legacies specified that the entire gift to each legatee would bear to the whole estate. The amount of the legacies specified in the former provisions of the will was $1,150,000. This legatee had already been given one twenty-third of that amount, and would take the same proportion of the whole estate, and necessarily the same proportion of the remainder. We recognize this is not giving a literal construction to the last few words of this provision. “The proportion of such
The judgment of the district court is reversed and the cause is remanded, with directions to enter a decree distributing the whole estate to the same legatees and in the same proportions that the $1,150,000 of the specified bequests was distributed to the beneficiaries specified in the will, giving to the trustees of the charity named in the tenth clause of the will one twenty-third part of the whole estate.
Reversed.
Dissenting Opinion
dissenting.
I am unable to concur in the majority opinion, for the reason that I do not think any of the parties are entitled to a review by this court of the judgment entered in the district court.
When the unnamed heirs filed their petition in the county court, for a construction of the will, that court entered an order requiring the parties named in the petition “and any and all other person or persons having or claiming to have any right, title or interest, actual or contingent,” in the estate or in the assets of the estate, either as heir, legatee, beneficiary, trustee, or otherwise, to answer and show cause on or before the 28th day of October, 1907, why the prayer of said petition should not be granted; providing that in default of such answer “said parties, and each of them, and all other person or persons shall be forever barred from any and all right, title, interest,” etc., and that notice of the order be pub
This contention, which meets us at the very threshold of the case, is sound and should be sustained. It is contended by the appellees that neither the state nor the people of the state nor the attorney general in his official capacity had any such interest in the charity, sought to be established by the tenth paragraph of the will, as would have entitled the attorney general to appear at any stage of the proceedings; and, further, that, even if he might properly have appeared before trial in the county court, he could not do so after there had been a full and complete trial in that court and the case taken to the district court on appeal. Section 9489, Ann. St. 1911, provides : “The attorney general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and shall also, when requested by the governor, or either branch of the legislature, appear for the state and prosecute and defend in any other court, or before any officer, any cause or matter, civil or criminal, in which the state may be a party, or interested.” Section 4778 provides: “It shall be the duty of the attorney general to appear and defend actions or claims against the state. He may
After a careful examination and consideration of the will and the record of the case as it then stood, together with the amended petition of intervention, upon which the case went to trial in the court below, it seems, clear to me that there was nothing to justify the appearance of the attorney general in that controversy. Upon this point I think:
1. That, under the tenth clause of the will set out. it cannot be held that the charity thereby sought to be
Mr. Creighton was known as a devout Catholic. It is a matter of public notoriety that his benefactions to the institutions of that denomination had been so great, that he had been invested with a title by the Pope. The two gentlemen named as trustees are also well known to be prominent members of that church. His confidence in them Avas such that he named them executors Avithout bond. He imposed only two restrictions upon them as trustees — one that the site and building should not cost more than half of the bequest, and the other that the remainder should be invested for the support of the homo to be established by them. EAreryfhing else in connection AAdth the scheme he had in mind, as to the establishment, and the management of the home Avhen established, Avas left in the hands, and consequently to the judgment, of the trustees. If they, knoAving the testator’s love for his own denomination, and in view of the fact that all of the other charities made beneficiaries by the will AA'ere under the control of various Catholic organizations, saw fit to admit to that home none but poor, working girls of the Catholic church, they clearly would be* within the clause'
2. If the attorney general had a- right to intervene in this controversy, could he wait until the case had been fully tried and decided in the county court, and until the executors had prosecuted their appeal to the district court, and then intervene in that court? Section 50» of the code provides: “Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to an action, or against both, in any action pending or to be brought in any of the courts of the .state of Nebraska, may become a party to an action between any other persons or corporations, either by joining the plaintiff in claiming what is sought by the petition, or by uniting with the defendants in resisting the claim of the plaintiff, or by demanding anything adversely to both the plain!iff and defendant, either before or after issue lias been joined in the action, and before the trial commences.” In Reisohiclc v. Rieger, 68 Neb. 348, we held that the county court has exclusive original jurisdiction of all probate matters, that the construction of a will is a probate matter, and that in such matters the district court has no original jurisdiction. In the light of this holding, the soundness of which cannot be questioned, the district court, in a case of the kind under consideration, is an appellate court; and I do not think the fact that upon such appeal it tries the case de novo in any manner changes the situation. The case in that court must be tried upon the same issues presented and between the same parties who appeared in the court of original jurisdiction — the county court. The attorney ■general, like all others claiming any interest in the construction of the will under consideration, was bound to
3. In addition to what has been said upon this question, I think it clearly appears from the record that there was no necessity for intervention either by or in the name of the attorney general at the time such intervention was made. At every stage of this case, since the will was filed for probate, the executors have been represented by able counsel, who appears to have at all times honestly and ably attempted to have every provision in the will of Mr. Creighton sustained and his large estate distributed as therein directed. It further appears that at all times the executors have followed his advice and acted under his directions. If the executors had been consulting their own financial interests, they would not have appealed from the judgment of the county court, as the decree of that court would have afforded them ample protection in distributing the fund covered by the tenth paragraph of the will. The fact that, after they had appealed, they submitted to the county court a proposition of compromise which had been made to them by the unnamed heirs is no evidence of any intention on their part to further their own private interests at the expense of the trust fund. To my mind, it is the very reverse of that. The questions contended for were far from being clear either way, and the executors would have as much reason
4. The attempted appeal of the attorney general Avas in his name alone, and did not purport to be for the relators McCarthy, Brown and St. Onge. Had it done so, it could not have availed them anything, for the reason that more than six months had elapsed from the entry of the judgment dismissing their intervention and the filing of the appeal in this court. Hence, they could not, under any circumstances, have any standing here. Harman v. Barhydt, 20 Neb. 625; Shold v. Van Treeck, 82 Neb. 99.
5. The cross-appeal filed by the unnamed heirs and the like appeal filed by the executors were both filed more than six months after the entry of the judgment in the district court, and hence have no standing in this court as independent appeals. The only standing either of them ever had was as a cross-appeal. They therefore relied for life and standing in this court upon the original appeal. With that prop removed, eliminated from the case, the cross-appeals have nothing to attach to or rest upon. As. they followed the original appeal into court, they should follow it out of court. The only right of appeal from a judgment of the district court to this court is to be found in section 675 of the code, which provides that a transcript shall be filed in this court within six months after the rendition of the judgment or decree, or AA’ithin six months from the OArerruling of a motion for a neAV trial. In Farrar v. Churchill, 135 U. S. 609, the
The motion of appellees to dismiss the appeal prosecuted in the name of the attorney general should be sustained and the appeal dismissed. The cross-appeals of the executors and of the appellees should likewise be dismissed.
Concurrence Opinion
concurring in dissent.
I concur in this dissent upon the ground that the application to intervene was not made within the time required by the section of the statute quoted in the dissenting opinion, and therefore the attorney general never had any right to be heard. The statute is plain that intervention must begin in the court of original jurisdiction, and cannot be allowed in an appellate court to which, after judgment, the cause has been appealed. Having had no standing in the district court, the intervention has none here.
As to whether it was the purpose of the testator to