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therefore, fell under the enactments embodied in section 1593 of the Revised Statutes, which fixed his pay at one-half that to which he would have been entitled if on leave of absence on the active list. This is the rate at which
he has been paid. It is next said that, conceding that his pay was fixed by section 1593, he should, after his retirement, have received the increase of pay allowed officers on the active list for length of service by section 1556 of the Revised Statutes, p. 267, commonly known as longevity pay, which, after July 1, 1875, would have entitled him to $600 per annum instead of the $500 which he actually received. This last contention has been decided adversely to the view of the appellant by this court, at the present term, in the case of Thornley v. U. S., ante, 491. We are, therefore, of opinion that Brown was paid, in his life-time, all that he was entitled to receive under the laws then in force. The judgment of the court of claims dismissing his petition was therefore right, and is affirmed.
(113 U. S. 340)
MCARTHUR and others v. SCOTT and others.1
(March 2, 1885.)
1. WILL-CONSTRUCTION-LanD TO BE CONVEYED OR DIVIDED AT EXPIRATION OF PABTICULAR ESTATE.
Words in a will, directing land to be conveyed to or divided among remaindermen at the expiration of a particular estate, are to be presumed, unless clearly controlled by other provisions, to relate to the beginning of enjoyment by remaindermen, and not to the vesting of the title in them.
2. SAME REMAINDERS-TITLE OF EXECUTORS.
A testator devised lands and personal property to his executors and their successors, and their heirs, in trust; and directed that the income, until his youngest grandchild, who might live to be 21 years of age, should arrive at that age, should be divided equally among the testator's children, or the issue of any child dying, and among the grandchildren also as they successively came of age; that "after the decease of all my children, and when and as soon as the youngest grandchild shall arrive at the age of twenty-one years," the lands should be "inherited and equally divided between my grandchildren per capita," in fee, and that "in like manner the personal property should "at the same time be equally divided among my said grandchildren, share and share alike, per capita," and that if any grandchild should die before the final division, leaving children, they should take and receive, per stirpes, the share which their parent would have been entitled to have and receive if then living; and provided that any assignment, mortgage, or pledge by any grandchild of his share should be void, and the executors, in the final division and distribution, should convey and pay to the persons entitled under the will. Held, that the executors took the legal title in fee, to hold until the final division; and that the trusts were imposed upon them as executors. Held, also, that all the grandchildren took equitable vested remainders, opening to let in those born after the testator's death, and subject to be divested only as to any grandchild who died before the expiration of the particular estate, leaving issue, by an executory devise over to such issue,
3. SAME OHIO STATUTE OF DECEMBER 17, 1811
DEVISE OF VESTED REMAINDER to
Under the statute of Ohio of December 17, 1811, providing that no estate in lands "shall be given or granted by deed or will to any person or persons, but such as are in being, or to the immediate issue or descendants of such as are in being, at the time of making such deed or will," a devise of a vested remainder to grandchildren of the testator, with an executory devise over of the share of any grandchild, who shall have died, leaving children, before the coming of age of the youngest grandchild, to the children of such deceased grandchild, is valid, so far, at least, as concerns the grandchildren, though born after the testator's death.
4. SAME-PARTIES TO BILL.
All persons interested in a suit in equity, and whose rights will be directly affected by the decree, must be made parties to the suit, unless they are too numerous, or some of them are out of the jurisdiction, or not in being; and in every case there must be such parties before the court as to insure a fair trial of the issue in behalf of all.
'S. C. 3 Fed. Rep. 313.
5. SAME--TRUSTEE AS PARTY.
A trustee having large powers over the trust estate, and important duties to per form with respect to it, is a necessary party to a suit by a stranger to defeat the trust.
6. SAME-DECREE ANNULLING PROBATE-JURISDICTION OF CIRCUIT COURT.
A citizen of Ohio devised lands in that state to his three executors in fee, in trust, to pay the income to his children and grandchildren until the youngest grandchild, who should live to be 21 years of age, should arrive at that age, and then to convey the remainder to his grandchildren in equal shares; and provided that if any executor should die, resign, or refuse to act, a new executor, to act with the others, should be appointed by the court of probate. The will was admitted to probate, upon the testimony of the attesting witnesses, under the statute of Ohio of February 18, 1831, and three executors were appointed and acted as such. Two of them afterwards resigned, and their resignations were accepted by the court of probate. A bill in equity to set aside the will and annul the probate was then filed, under that statute, by one of the children against the other children and all the grandchildren then in being, alleging that they were the only persons specified or interested in the will, and were the only heirs and personal representatives of the deceased. Those grandchildren being infants, one of the children was appointed guardian ad litem of each. The third executor, who was one of the children made defendants in theires own right, and who was not made a party as executor or trustee, and did not answer as such, resigned, and the resignation was accepted by the court of probate, pending that suit, and no other executor, trustee, or administrator, with the will annexed, was made a party. It was found by a jury that the instrument admitted to probate was not the testator's will, and a decree was entered setting aside the will and annulling the probate. Partition was afterwards decreed among the heirs, and they conveyed portions of the lands set off to them to purchasers for value, and without actual notice of any adverse title. Held, that the decree annulling the probate was absolutely void, as against grandchildren afterwards born, and that they were entitled to recover their shares under the will against the heirs and purchasers, and might, if the parties were citizens of different states, bring their suit in the circuit court of the United States. Holt v. Lamb, 17 Ohio St. 374, followed. WAITE, C. J., and HARLAN, J., dissenting.
Appeal from the Circuit Court of the United States for the Southern District of Ohio.
This is a bill in equity by the children of Allen C. McArthur, a son of Gen. Duncan McArthur, to enforce a trust and establish a title in fee in lands in Ohio under the will of their grandfather. The case was heard in the circuit court on the bill and answers, by which it appeared to be as follows:
Duncan McArthur, of the county of Ross and state of Ohio, died on May 12, 1839, leaving an instrument in writing, dated October 30, 1833, purporting to be duly executed and attested as his last will, by which he empowered and directed his executors to sell and convey all his lands not described, devised his home farm to his wife for life, and other lands not now in question to Samson Mason and Samuel F. Vinton, in trust for the benefit of his five surviving children and their heirs, made various bequests, and further provided as follows:
(15) "Item. It is my will and direction that my lands and lots not otherwise herein disposed of, lying and being in the counties of Ross and Pickaway, shall not be sold; but the said lands and lots, together with the lands herein devised to my said wife, after her death, shall be by my executors leased or rented out to the best advantage, for improvements to be made thereon, or for money rents, until the youngest or last grandchild which I now have, or may hereafter have, the lawfully begotten child of either of my said sons Allen C. or James McD., or of my daughters Effie, Eliza Ann, or Mary, who, may live to be twenty-one years of age, shall arrive at that age.
(16) "Item. And it is my further will and direction that, after the several sums of money herein before devised shall have been in all cases first paid and deducted therefrom, as the same shall from time to time become due and payable, the overplus or residue of the rents and profits of the lands so to be rented or let, and of the lots not otherwise disposed of in the counties of Ross and Pickaway, and of the dividends arising from the stock owned by
me at the time of my death, and of such stocks as shall be purchased by my said executrix and executors, shall be annually divided equally among my children and grandchildren who may be the age of twenty-one years when such divisions shall be made, which division shall not be made until the power of my executors to lease said lands shall terminate, viz., until the aforesaid youngest grandchild above designated and described shall arrive at the age of twenty-one years. And said annual division of rents and profits and dividends of stock aforesaid shall be made among and between said Allen C., James McD., Effie, Eliza Ann, and Mary, and their children, share and share alike, per capita, the said children to come in for a share in the annual division when they shall respectively attain the age of twenty-one years, and not before; and in case of the death of either of my said last-named sons or daughters, leaving a lawful child or children under age, the child or children of such deceased parent shall take per stirpes, for their education and maintenance, the dividends in such division which such deceased parent would, if living, have been entitled to receive. And when such child or children of such deceased parent shall respectively come of the age of twenty-one years, he, she, or they shall no longer take per stirpes, but shall then and from thenceforth take in said annual division his, her, or their share per capita; but the coming of one of such children of any such deceased parent to the age of twenty-one years shall not bar or preclude those children of such parent who may be still in their minority, from continuing to take the full share, per stirpes, of such deceased parent. And in said annual division the children of my daughter Margaret Campbell Kercheval, deceased, or the legal issue of such said children as may be deceased, shall annually, for the period of ten years after my death, take and receive, per stirpes, one share as the representatives of their deceased mother, to be equally divided among them; and at the expiration of ten years after my death the said children of my said daughter Margaret Campbell shall not thenceforth take or be entitled to any part of said division; but the said division shall thenceforth be made among my said children, Allen C., James McD., Effie, Eliza Ann, Mary, and their children, exclusively, in the manner herein before directed, intending hereby to exclude altogether from said division the children of my deceased daughter Helen Mar.
(17) "Item. It is my further will and direction that after the decease of all my children now living, and when and as soon as the youngest or last grandchild, in the next preceeding clause but one of this will designated and described, shall arrive at the age of twenty-one years, all my lands and lots not otherwise disposed of in said counties of Ross and Pickaway, and all my other lands, if any shall remain unsold at that time, shall be inherited and equally divided between my grandchildren per capita, the lawful issue of my said sons and daughters, Allen C., James McD., Effie, Eliza Ann, and Mary, for them and their heirs forever, to have and to hold, or to sell and dispose of the same at their will and pleasure; and in like manner all the stocks belonging to my said estate, whether invested before or after my death, shall at the same time be equally divided among my said grandchildren, share and share alike, per capita; but it is to be understood to be my will and direction that if any grandchild aforesaid shall have died before said final division is made, leaving a child or children lawfully begotten, such child or children shall take and receive per stirpes (to be equally divided between them) the share of my said estate, both real and personal, which the parent of such deceased child or children would have been entitled to have and receive if living at the time of such final distribution. In making this last and final division and distribution of my lands and stocks, I have excluded the children of my deceased daughters Helen Mar, late wife of Alexander Bourne, and Margaret Campbell, late wife of Robert Kercheval, deceased, their parents having, in my opinion, received their full share and portion of my estate.
(18) "Item. And it is further my will that my said children or grandchil dren, or any of them, by their own act or in conjunction with the husband of any of them, shall not have power or authority to assign, transfer, pledge, mortgage, or incumber in any way his or her or their share of the annual dividends or profits of my said estate herein above devised; but every such assignment, transfer, pledge, mortgage, or incumbrance, by any instrument or devise whatsoever, shall be wholly null and void, and the proper receipt of such child or grandchild, or his, her, or their lawful authorized guardian, shall alone be a discharge to my said executors; and in like manner every conveyance, assignment, transfer, pledge, mortgage, or incumbrance, by any instrument or device whatsoever, made by any one of my said grandchildren or their legal representatives, by any act or deed of him or her or them, or in conjunction with the husband of any of them, whereby his, her, or their share of said lands and stocks in the final distribution thereof shall be in any way affected or disposed of, shall be wholly null and void. And in such final distribution of my lands, it is my direction that deeds of partition thereof shall be made to and in the names of those who may be thus entitled thereto, and in the name and for the use of no other person whatsoever, which deeds of partition shall be executed by my executors for the time being; and to enable my executors the more effectually to execute the powers and duties by this will devolved upon them, and to protect my said children and grandchildren against fraud and imposition, I hereby devise to my said executrix and executors, and the successors of them, all of said lands so directed to be leased and finally divided as above, and to their heirs, in trust for the uses and purposes and objects expressed in this my will, and the performance of which is herein above directed and prescribed, to have and to hold the title thereof till such final division or partition thereof, and no longer. And it is my further direction that in the final division of the stocks aforesaid the executors in whose name the same may then be vested in trust shall assign and transfer to such grandchild, or his or her legal representatives, the share or portion of such stock belonging and coming to such grandchild or his or her legal representatives, so that the same shall be vested in the name of such grandchild or legal representatives, and the proper receipts of such grandchild or legal representatives, or of his or her or their duly authorized guardian, shall alone discharge the executor or executors in whom the stocks aforesaid shall or may then be vested."
(23) "Item. It is my direction that my executors shall give bond and security for faithful administration, as in other cases.
(24) "Item. And finally, for the purpose of carrying all and singular the provisions of this my last will and testament into effect, I do hereby nominate and appoint my wife, Nancy McArthur, executrix, and my friends, Presley Morris and William Key Bond, Esquires, of Ross county, my executors; and in case any one or more of the above-named executors shall die, resign, or refuse to act and qualify according to law, it is my will and request that the court of common pleas for said county of Ross, for the time being, or such other court as may hereafter be constituted and authorized to do testamentary business, shall nominate and appoint a suitable person or persons, who will qualify and act, to supply the place or places of the person or persons by me herein named and appointed as my executors, and who may not qualify and act as such, or who may, after accepting and qualifying, die, refuse, or neg lect to act; and such person or persons so to be nominated and appointed by said court shall not be administrators de bonis non with the will annexed, but the nomination by the court shall be in execution of this will, as though the same individual had been nominated by this my will to fill a vacancy, or as though a power of nomination had been vested in some person or individual herein named; and such person so nominated shall act and be executor, with my other executors, for the time being, it being my intention that the duties herein
required shall always be performed by at least three executors, that being the number by me herein named and appointed.”
A transcript of a record of the court of common pleas of the county of Ross and state of Ohio (referred to in the bill and annexed to it) showed the following proceedings:
On May 6, 1839, the alleged will of Duncan McArthur was produced to the court, and proved by the oaths of the attesting witnesses, and ordered to be recorded. On the next day the court granted letters testamentary to Morris and Bond, the surviving executors named in the will, and to Effie McArthur Coons, an additional executrix then appointed by the court, pursuant to the will, in the place of the testator's wife, who died before him; and the three executors so appointed were qualified and gave bond with sureties, as required by law. On June 21, 1839, Bond tendered his resignation of the oflice of executor, and it was accepted by an order which recited that the court was of opinion that good cause had been shown for such resignation. On June 25, 1839, Morris likewise resigned, and his resignation was accepted by a similar order. On October 22, 1839, "Effie McA. Coons having this day tendered her resignation to the court of her office of one of the executors of the last will of the late Duncan McArthur, deceased, late of Ross county, it is ordered by the court that the said resignation be, and the same is hereby, accepted, and the said resignation ordered to be recorded." On December 4, 1839, letters of administration on the estate of Duncan McArthur were granted to William McDonald, and he was qualified and gave bond accordingly.
A transcript of a record of the same court, sitting in chancery, (set forth and referred to in the answers,) showed the following proceedings:
On July 8, 1839, Allen C. McArthur, the eldest son of the testator, filed a bill before the judges of the court, sitting in chancery, setting forth the death of Duncan McArthur, the probate of the instrument aforesaid as his will by the oaths of the witnesses, the appointment in that instrument of his wife and Morris and Bond to be executors, the death of the wife before the testator, and the nomination and appointment by the court of Mrs. Coons to act as executrix in her place; and alleging that Morris, Bond, and Mrs. Coons took upon themselves the executorship of the will; that Bond and Morris, at the then present term of the court, had severally resigned, and their resignations had been accepted; and "that by the provisions of the said instrument in writing all acts to be done by the executors require the concurrence of three executors, and that no suitable persons can be found whom the court are willing to appoint executors of the said will, and who are able to give the bonds required by the said instrument or the law of the land."
That bill "further insists and states that the said instrument is void and of none effect, because it is wholly impracticable, and cannot be carried into effect; because many of its provisions are impracticable, and cannot be carried into effect; because it tends to establish perpetuities, and does establish such perpetuities, which are contrary to the genius of our institutions, and the spirit of our people and their laws, and indeed contrary to the common law;" and "that the said instrument in writing is void, because its provisions, or many of thein, are in violation of and contrary to the common and statute law;" and also alleged that Duncan McArthur, at the time of executing it, was of insane memory, and not possessed of a testamentary capacity; and that it was never legally executed as, and was not, his last will and testament.
That bill further alleged that "the only persons who have an interest in the said instrument in writing" were the complainant; Duncan McArthur's other four children, James McD. McArthur, Effie McA. Coons, Eliza Ann Anderson, and Mary Trimble, and the husbands of Mrs. Anderson and Mrs. Trimble, three minor children of James McD. McArthur, a minor son of Mrs. Coons, and a minor son of Mrs. Anderson; a minor son and an adult daughter (with her husband) of Margaret C. Kercheval, a deceased daughter of Duncan Mc