McShane v. Cannon

136 N.W. 1001, 91 Neb. 654

• Court: Nebraska Supreme Court
• Decided: June 12, 1912
• Docket: Nos. 16,775, 16,776
• Status: Published

Opinions

Sedgwick, J.

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 $1,150,000. By paragraphs 2 to 6, inclusive, he bequeathed to nephews, nieces and personal friends $250,000. By paragraphs 7 to 12 he bequeathed $900,000 to various charities. Paragraph 13 is what is commonly called the residuary clause. Paragraph 10 reads thus: “I hereby will, devise and bequeath to the executors of this my last will and testament fifty thousand dollars in trust to purchase a site and build thereon a home for poor working girls, expending not more than one-half of said sum for the purchase of said site and erecting a building thereon and investing the balance in interest-bearing securities and applying the interest derived therefrom to the support of the said charity.” Paragraph 13 is as follows: “I hereby will, devise and bequeath all the rest residue and remainder of the estate real and personal of which I may die seized or possessed to the legatees and beneficiaries hereinbefore mentioned, each of them to take and have the projjortion of such remainder as the bequest herein made to him or her bears to the whole of my estate.”

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 petition they made the executors and legatees under' the will defendants. The county court entered an order requiring the parties named in the petition and all persons interested to show cause why the prayer of the petition should not be granted. A decree was entered in the county court construing the will and holding the tenth clause, above set out, to be void and incapable of execution. Tlie executors appealed to the district court. The unnamed heirs filed in the district court their petition praying for a construction of clauses 10 and 13 of the will, above set out. A petition of intervention in the name of the attorney general was filed in the district court on relation, as alleged, of Catherine B. McCarthy, and two others, and on his own behalf as attorney general, and on behalf of the people of the state of Nebraska, alleging that the charity and trust under the tenth clause of the will were of a public nature, in which the people of the state were interested, and that it was the right and duty of the attorney general to appear in the matter, for the purpose of protecting the said charity and trust; and that the relators were poor, working girls, having a right to intervene and appear in the case, as beneficiaries, through the attorney general. A motion was filed by the unnamed heirs to strike the petition of the attorney general from the files, for the reason that neither he nor the state nor the relators were parties to the suit, and had no rights or interest entitling them to intervene in the case pending on app'eal from the county court. An amended petition of intervention was filed in the name of the attorney general, reciting that he appeared as set out in the original petition, and adding that the appearance was by request of the governor of Nebraska. In this amended petition the same claim is made as in the original petition, and it further relates that the executors and trustees “have failed to demur to or answer said petition or the contentions and claims made therein;” that the cause was docketed in that court March 12, 1908, and in the usual course of the business of the court would have been reached and tried more than a year sooner if it bad been pressed with due diligence by the executors. It then sets out the interest of the executors as stated in the original petition, and alleges that the financial interest of the trust and charity and of the beneficiaries thereunder is not in harmony with the financial interest of the executors and trustees, but is opposed thereto; that on October 5, 1909, they filed in the probate court a petition, “representing that a proposition of compromise had been made, proposing to give the executors $75,000 and the heirs $85,000 of the $160,000 in controversy, their counsel advising them that the litigation might be prolonged for several years, preventing or delaying the final closing of the estate, and the establishing and organizing of the home for working girls, and averred that they presented these facts to the court without recommendation, praying the court to advise and instruct them as to what action, if any, they should take as executors with reference to the proposition.” This petition of intervention was signed, “William T. Thompson, Attorney General of the state of Nebraska, by Smyth, Smith & Schall, his attorneys, who are also attorneys for relators.” The petition is verified by Mr. Smyth. On the same day Messrs. Smyth, Smith & Schall filed a separate petition of intervention for the three ladies named as relators in the petition of intervention which they had filed for the attorney general. A motion was filed to strike from the files the amended petition of the attorney general. A demurrer was filed to his amended petition, and a like demurrer to the petition of the three ladies named. The motion and the demurrer to the petition were both overruled. On the same day the motion to strike the petition of intervention of McCarthy, Brown and St. Onge was sustained and their petition stricken from the files. The executors filed an answer to the petition of the unnamed heirs. The case was tried and argued to the Honorable Lee S. Estelle, the Honorable A.' C. Troup and the Honorable W. A. Redick, sitting together as judges of the district court for Douglas county. The three judges of the district court above named, construing the latter part of the thirteenth paragraph literally, entered a decree sustaining the tenth paragraph of the will, and adjudged that under that paragraph and paragraph 13 the executors, as trustees and in trust for the purpose as set out in paragraph 10, were entitled to take $88,426.34 in satisfaction of said legacies and interest, and that the sum of $79,256.83 be paid by the executors to the heirs at law of John A. Creighton, deceased, share and share alike. Two motions for a new trial were filed in the name of the attorney general, two by the executors, and one by the unnamed heirs, and all were overruled. No motion for a new trial was filed by the interveners, McCarthy, Brown and St. Onge. An appeal bond was filed in the district court in the name of the attorney general, and Avithin the time provided by law the attorney general caused a transcript to be filed in this court, and notice of appeal was duly given. The unnamed heirs and the executors filed their cross-appeals. After the appeal had been lodged in this court appellees (the unnamed heirs) moved to dismiss the appeal upon several grounds. The case was heard and an opinion rendered, which will be found reported in 88 Neb. 107, 113. The motion to dismiss was at that time overruled, all of the grounds urged in said motion being cm idcred and decided, except the one that the attorney general had no authority to intervene in the case or to prosecute an appeal to this court. As to that point we said: “The appellces assert that the attorney general has no authority to intervene in the case or to prosecute an appeal to this court. The briefs and arguments upon these propositions are so meager that we shall reserve the question for consideration in disposing of the case upon its merits.”

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 the district court; that tbe district court erred in overruling tlieir demurrer to the petition of intervention of the attorney general; that the attorney general, “hoIc appellant herein, has no interest, direct or indirect, of a beneficial or pecuniary character in the subject matter in litigation herein, and therefore is not, and cannot, be prejudiced by any decree or judgment entered herein in the district court for Douglas county, Nebraska, and lienee possesses no right of appeal therefrom to this court.”

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 of the district or prosecuting attorney of the district or county wherein the action is brought, and in any case of importance or difficulty the governor or chief officer of the department or institution to which it relates may retain and employ a competent attorney to appear on behalf of the state.” The attorney general has not objected to the appearance of these attorneys in his name, and is not now questioning their right to so appear; but. on the other hand, it seems that they are appearing with his approval. It is clear that the objection to their authority to represent the attorney general in this matter is not well taken.

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 and has no part or place in the administration of the courts, either at law or in equity, in this state.” This relates to the manner of administering the trust, and, as is held in the same case, “where a certain and ascertainable trustee or trustees are appointed, with full power to select the beneficiaries or designate the objects of the charity, and devise a plan for the application of the funds bestowed, the court will, through the trustee, execute the charity.” Here the right of this public charity to exist is assailed, and such duties as general executors under the will are imposed upon the trastees as render it embarrassing for them to contend for the claims of either party as against the other. In such case it is the duty of the attorney general to appear in support of the charity.

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 distribution of tbe estate. Under our statute it is not necessary to give any notice of the hearing upon the distribution of the assets of the estate. Everybody interested in that distribution is a party to the proceeding, Avhether he has appeared in the probate court in the proceeding or not, and so, if the state, in behalf of this charity, was interested in the distribution of the assets in the probate court, it was necessarily a party before that court, whether it appeared there or not. The court was acting upon the res of the estate, and not upon the persons interested in it. Therefore, it seems to follow that, when an appeal was taken by the executors to the district court, it removed the whole case to the district court, and all parties interested in the distribution were necessarily par. ties there and entitled to be heard.

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 of all of tbe property of the estate, unless the contrary appears from the language of the will itself. When there are inconsistent and irreconcilable provisions in a will, the latest is generally supposed to express the intention of the testator. This rule, however, does not apply to ambiguous or apparently inconsistent words in., the same sentence or provision.

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 remainder as tbe bequest herein made to him or her bears to the whole of my estate” is not literally equivalent to the proportion of snch remainder as the bequest herein-before made to him .or her bears to the sum of the bequests hereinbefore made. These words of the will, if taken by themselves, would more naturally have the meaning contended for by the unnamed heirs; but, construing .these words with the clause in which they stand and in the light of the whole will, the construction stated presents less difficulty.

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.