49 Ky. 473 | Ky. Ct. App. | 1850
delivered the opinion of the Court
The County Court of Campbell county having at its November term 1848, rejected the will of Gen. James Taylor, a writ of error was, on the 22d day of March following, sued out from the Campbell Circuit Court by G. W. Berry and R. T. Thornton, as trustees named in
The third section of the act of 1842, supra, expressly provides that the judgment of the inferior Court shall not be reversed here because all the persons interested in the will were not made parties to the controversy in that Court. The object of the writ of error being to reverse the decision of the County Court, and to bring before the Circuit Court the question of will or no will, it is doubtless the duty of that Court to take care that the parties interested in maintaining the judgment shall have an opportunity of doing so, and that the contest proposed by the writ of error shall not be a merely pretended controversy. But the provision just referred to, shows that it is not necessary that all persons interested in the question should be actual parties. And even if the provision should be confined to those persons who are interested in sustaining the will, it corroborates the position above stated as to the sufficiency of the writ of error prosecuted by any party interested in maintaining the will, and as to the conclusiveness of the sentence, if such writ be prosecuted by a competent party. Whether any other persons who may be interested in supporting the will, should be summoned upon the writ of error prosecuted by one or more, having such interest, may be a matter within the discretion of the Circuit Court. But if the actual plaintiffs have an interest, and are thus competent to prosecute the writ and present the question, and if the parties appearing to be interested against the will are before the Court, the proceeding would seem to be perfect in point of form, and such as to authorize a decision conclusive upon all persons whether parties to the record or not.
As one writ of error by a competent party brings up to the Circuit Court the whole case, and presents the question entire and not divisible on the ground of parties or their interests, and authorizes a decision which shall be binding upon all interests, it must be considered as if it were prosecuted for and by all parties interested on the same side as the actual plaintiffs, and as, therefore, precluding any subsequent writ by any other of these parties, as completely as it precludes one by the
Our statutory system of probate does not admit of such consequences. If the plaintiffs in both writs were competent to prosecute a writ of error to the judgment of the County Court, they might have been required to unite as plaintiffs in one of the writs, or they might have been consolidated in some form; or if not, as the trial and judgment upon the first writ decided the whole case upon the question of admitting the will to probate, there should have been no trial on the second writ. And if under the doubts entertained as to' the competency of the respective plaintiffs to maintain a writ of error in the case, it might have been prudent to make the final disposition of the second depend upon the final decision of the question of competency arising on the other, so that there might be a future trial on the second writ, if the first were unavailing, this might have been provided for without the expense of an'actual trial. But as the Court was not bound to notice, while one case was before it, what had been or might be done in another, the course to be pursued in the case of two writs, as above supposed, must in a great measure depend upon the movements of the parties,, and the extent to which the proceedings in one case are brought to notice in the proceedings in the other. And in revising the opinions and acts of the Circuit Court, this Court
It appears then that after an ineffectual motion by Wil'liamson and wife to remove the case from the Campbell Circuit Court into the Circuit Court of the United States for the district of Kentucky on the ground that they were non-residents and the plaintiffs in the writ residents and citizens of Kentucky, and after a like ineffectual motion by the contestants to continue the case on the ground of the absence of a witness, and of the absence also of the counsel who had been engaged to appear and manage the case for the same parties, a motion was made in each case by the contesting parties to dismiss both writs of error, and to dismiss each, and on this motion, in each • case, the writ of error in the other case was read, but no other part of the other record, and the motion was, in each case, overruled. It is now contended, on' the authority of the cases of Carr vs Callaghan, (1 Marsh. 22,) and Castleman vs Holmes, (7 Mon. 591,) that this motion should have prevailed. The motion was made solely on the ground that the two writs of error could not both be prosecuted, because the judgment being joint did not admit of several writs of error, and on the further ground that the plaintiffs having improperly sued out several writs, had no right to elect between them, or to amend either at their option, and that consequently both should have been dismissed. The interest of the respective plaintiffs, authorizing them to prosecute a writ of error, is not denied, but is rather admitted in this argument, and was not disproved on the motion. It cannot be assumed, in deciding on this preliminary motion, that none of the plaintiffs were competent. Berry and Thornton are described in their writ, as trustees named in the will, and, prima facie, had an interest under that description. If the plaintiffs in the other writ had no interest, their prosecution of a separate writ, furnished no possible ground for dismissing both writs. And if all the plaintiffs are assumed to have been competent, then as the first writ was maintainable in the name of
If, on the face of each writ of error, it had appeared that the parties plaintiffs therein had no right to prosecute the writ in which they were plaintiffs, it might have been proper to quash or dismiss both writs on motion, unless an amendment had been proposed by which the objection would have been obviated. And so it might have been proper to dismiss either writ separately, if on its face the plaintiffs therein appeared to have no interest which authorized its prosecution. But, as already stated, the writ of Berry and Thornton expressly showed a prima facie interest in the will. And although the writ of Ward, &c., did not state their connection with the will, nor the character or interest claimed "by them, yet as it did not show that they had no interest, and as their allegation that they were injured by the rejection of the will implied a claim under it, we think the Court was not bound on this preliminary motion, and in the absence of all evidence, to assume that they had no interest. It might have been proper, in point of form, to state in the writ of error the nature of the interest claimed, or the character in
•We do not .perceive, .therefore, that under any assumption which the Court was bound to make or could properly make on these preliminary motions, there was any error in overruling eitheir of themotions above referred to. .As to which, we further observe, that if this proceeding be at all subject to the rules applicable to ordinary cases, neither of the .motions, could properly have been made in either case, exceptthe motion to dismiss the particular writ then before the Court for trial, because the parties to that writ alone were before the •Court on the motion, and the mere reading of .the other writ, as between those parties, did not subject it to the power of quashal or dismissal.
It appears, however, that after .the will was in each case fully proved, and without opposing testimony upon any .point involved, and while the will was before the Court showing .the nature of the trust .to Berry and Thornton, and when it had been proved that .the plaintiffs in the second writ of error were the daughters of Mrs. Harris, a daughter and devisee of the decedent,
Before coming to the consideration of this question, which is the real matter of contest between the parties attempting to establish the will and those who oppose it, we remark that the plaintiffs in these writs appear to to have summoned all persons having an apparent interest in opposition to the will, and the omission to summon the children of the contestants or others who have the same interest that the plaintiffs have, was no ground for dismissing either writ, as is evident not only from the provision of the statute already referred to, but also from the nature and effect of the proceeding as before explained. And further, although when this last motion was made as to the second writ of error, there had been a trial on the first and a judgment establishing the will, and thus in effect affirming the right of the first plaintiffs to prosecute their writ, arid although the plaintiffs in the second writ and all others were entitled to the same benefit from this judgment as the actual plaintiffs in the first writ were, still not only was this judgment appealed from, and- its validity dependent upon the final decision of the question of the interest of the plaintiffs therein, but in fact it was not shown in the trial on the second writ, nor on the final motion to dismiss it, that there had been any trial or judgment in the first writ, nor indeed that it was still pending. For these reasons and because the final motions to dismiss- were made expressly on the special
The statute (3 Stat. Law, 586,) does not define the nature or extent of the interest which may be requisite or sufficient, but enacts that any person interested may prosecute a writ of error or appeal from the decision of a County Court refusing or granting probate, &c. It is sufficient if the plaintiffs have any interest. And the Court must use its power over the proceeding to prevent a party, having but little interest, from betraying or sacrificing the rights of other parties having a much greater interest on the same side. We proceed then to enquire, first, as to the plaintiffs in the first writ of error, and then as to the plaintiffs in the second writ, whether they have any interest under or in the will, which authorized them to proceed by writ of error, to have it admitted to probate.
By the seventh clause of the will, a large tract of land is devised to the testator’s three daughters, to be equally divided between them, and they to have the sole and exclusive use and benefit of the same and the rents thereof during their natural lives, and at their decease to go and descend to their heirs forever. If his said daughters desire it, 120 or 150 acres of this land is to be laid off into lots and sold and conveyed in fee or perpetual lease as they may choose, and to effect this object the Circuit Court may appoint a trustee, &c. In the second clause of the second codicil the seventh clause is-referred to, and the testator revoking the power therein given to the Court, appoints W. J. Berry and R. T. Thornton trustees, and directs them to lay off 200 acres on Licking river, adjoining the town of Newport, as an addition to the town — that they shall lease out one half of the property for fifty years or for a different term if they deem it best and most profitable to testator’s heirs — at the expiration of the leases the
It would seem from the direction that the trustees should hold the legal title to the land or lots sold by them until payment of the purchase money, that the testator considered the title to be in them. And as it would be more convenient and more intelligible to purchasers that the title should be in the trustees, who were to sell and convey the lots, than 'that it should be in married daughters of the testator, but to be sold and conveyed by the trustees, we think it highly probable that he intended to put the title in the trustees. It would certainly not be a strained construction of the words “they holding the legal title,” to consider them
They are trustees appointed by the testator to execute and carry out his will in a very important matter. They are to lay off 200 acres of land, presumed to be very valuable, into town lots, one half to be leased by them for long terms, and they are to divide the leases between the three daughters, &c. The other half they are to sell, and the proceeds are to be invested by them in other city or town property, (except so far as the daughters may desire it to be expended in the erection, for rent, of buildings by the trustees on their lots, &c.,) and the trustees are to cause the title to the property, acquired by this fund, to be so made that the three daughters between whom it is to be divided, are to have and to hold the same during their natural lives, and to receive the rents and profits thereof, and at their death the remainder in fee to vest in their heirs forever.
These 200 acres may, it is true, form a small part of the very large estate disposed of by the will, and it would seem that a portion of the 200 acres was, after the date of will, conveyed by the testator to W. J. Berry, one of these trustees, in trust for purposes substantially similar to those in the will. But even the remainder is presumed to be very valuable. But however this may be, and whether the trust extended to the whole or to a part only of the estate devised by the will, the question of interest in the trustees is the same, and it seems to us they have an interest in the will which authorizes them to prove it, if not for their own benefit, for that of others, whose rights and interest it
An interest is also claimed for the trustees on the ground of the direction that they shall be compensated for their services, &c., out of the proceeds of the sales to be made. And this claim seems to be sustained by the decision of Lord Eldon in the case of Ellison vs Airy, (1 Vesey, sr, 115,) where it was determined that such a direction was a legacy to the trustees. But we do not deem it necessary to place the right on this ground, when there is a broader and more satisfactory one in the nature of the trust and in the interest committed to the trustees. And we will not assume that these interests would or could be altogether defeated by the right of the daughters to have houses erected, &c.
We are of opinion, therefore, that the final motion to dismiss the writ of error of the trustees for want of interest, was properly overruled. And the question arises as to the interest of the plaintiffs in the second writ of error. The will contains many devises of land to the three daughters, either separately, or to be equally divided between them, and using the general terms, to have and to hold during their natural lives, or to receive the rents and profits during their natural lives, and at their death, remainder to their heirs forever; or at their death, the title to vest in their heirs for ever or in fee. It is contended that under these devises and others substantially like them, the fee simple vests in the first devisees (the testator’s daughters) by the rule in Shelly’s case, and that their husbands have, therefore, no interest in the will. Or, that if this be not so, and if the remainders can be kept separate so as to vest in the heirs, as purchasers, at the death of their mothers, respectively, still the two- female plain
But there are, in our opinion, certain devises in the will which, either by explaining the other devises, or by their own direct operation, do show that the children of the testator’s daughters have a vested interest in a considerable portion of the estate, or do give such interest in particular parts of it, and if they have such interest in any portion of the estate, that is sufficient. The 29th section of the will, after providing that the testator’s daughters might set off to their sons, on ar
This section is justly relied on as showing clearly the Intention of the testator not only that his daughters should have no greater interest than for life under the devises referred, to, but that his grandchildren the children of each of those daughters should have among them at the death of their respective mothers, equal shares of the estate: that is the property devised to the mother for life. And it is contended that if the section does not itself give an interest to the grandchildren, the explicit declaration of intention contained in it, must control the construction of the devises to which it refers, and that as it shows that by the heirs -of his •daughters, the testator meant their children, these devises should be construed as giving' the estate to the .daughters for life-, remainder t'o their children in fee. And that as they had children at the date of the will, and of the testator’s death, the remainder vested at the •latter period in such of the children as were then living, subject to open and let in those who should after-wards be born.
Such a construction of the devises would repel the application of the rule in Shelly’s case, if it should be otherwise applicable as an existing rule. And we should be of opinion that the devises under this construction
There is no devise of the ferries or the profits thereof to the daughtei's and their heirs, but a devise of the profits (or say of the ferries) to the daughters for life, to vest, at their respective deaths, in their respective children. It cannot be more than a devise to the daughters for life, remainder to their children respectively. Under this devise we are of opinion that the remainder vested in the children of the daughters who were alive at the testator’s death, and in all who might be aftewards born, at the moment of their birth; and that however the remainder in the living children might be affected by subsequent events, as their own death or the birth of other children, it was an interest which authorized the prosecution of the writ by any of them. As to the vesting of the- remainder on the death of the testator, the case of Turner vs Patterson, (5 Dana, 296,) and the authorities there cited, and to which others might be added, are referred to as expressly in point.
There was no error, therefore, in overruling the motion to dismiss this writ for want of interests in the plaintiffs.
As to the other preliminary motions first above stated, but little need be said. The attempt to transfer the case to ,the Federal Court had no plausible ground to sustain it. The 12th section of the act of Congress of 1783, to establish judicial Courts of the United States, does not, in our opinion, authorize the removal of a suit in its progress from the inferior to the superior or appellate tribunals of the State, and we think it has no application to this proceeding for the probate of a will. And if it were applicable to the case, the fact that the plaintiffs in the writ of error were citizens of Kentucky, and that two only of several defendants were citizens of another State, does not bring the case within the act, because all of the defendants are not citizens of another State. The petition seems to apply to the case of the trustees alone, as it contains no statement that the plaintiffs in the other writ were citizens of Kentucky. In any view of the case, the petition was properly denied.
■ The motion for a continuance, so far as it was founded on the absence of a witness was properly overruled, because it does not show that the witness would have proved any thing advantageous to the party asking the continuance, nor does it state what he would prove; and it does not show a sufficient excuse for not having summoned him. He was, moreover, a co-plaintiff in one of the writs, and if present, could not have been made a witness without the consent of himself and co-plaintlff. True, he was a subscribing witnessto the original will. But it was proved by two other subscribing witnesses. And not having been used as a witness in proving the will, the fact that he attested it could not give a right to make him a witness in his own case. But the other reasons are deemed sufficient to justify, in each case, the refusal of the continuance on account of his absence.
As to the absence of one of the counsel, who had been employed to contest the will, or the right of the plaintiffs in the writs of error. It cannot be admitted that when, as in this case, competent counsel practis
Then as in each case the will was fully proved, there seems tobe no ground apparent in either record for reversing the judgment and orders therein. The judgment in each case is, therefore, affirmed. But as it appears to this Court upon the two records submitted and argued together that both judgments, so far as they reverse