McGinnis v. Condron

JOHNS, J. Under the view which we have taken it is not necessary to decide the motion to dismiss the appeal. This is a peculiar case. The plaintiff Ohma McGinnis, the surviving widow of the deceased, in person and as the guardian ad litem of her minor children, in legal effect seeks to have declared null and void the will of the deceased husband and father, which was ostensibly made by him for the benefit and protection of his minor children, and asks for an order of the court adjudging the will of Thomas McGinnis, deceased, “to be void, unenforceable, and that it be annulled and the probate thereof set aside; that Ivy Condron and James H. Flanagan be removed as executors, guardians and trustees, and required to account to” the plaintiffs. The defendants filed a demurrer to the petition upon the grounds above stated, and it was overruled by the County Court. After the filing of an answer in which it was alleged that the will and codicil were duly executed and that the testator was of sound mind and memory and was not acting under menace, influence, fraud or duress, and that he was competent to make a will, the parties entered into the stipulation above quoted. It was contended that the will was void on its face and could not be enforced, and the case was tried and submitted upon the will only. The defendants questioned the jurisdiction of the County Court. While it is true that under the terms of the will the testator gave, bequeathed and devised to the trustees therein named, “all of my property, real and personal and mixed, of every nature and description whatsoever, of which I may die seised or possessed,” there is no proof or allegation that he died possessed of any real property, and there is nothing in the record [414] which would indicate the amount, nature or description of any property which he might have owned at the time of his death. 1 1. In a well-considered opinion by Mr. Justice Wolverton in In re John’s Will, 30 Or. 494 (47 Pac. 341, 36 L. R. A. 242), it is held that: “A court having power to control the conduct of executors, to settle their accounts, to direct the payment of debts and legacies, and to distribute estates, such as is conferred by sections 895 and 1191 of Hill’s Code of Oregon, has, by necessary implication, the further power to construe wills so far as they dispose of personalty, and, probably, also as to real property, though this is not so certain.” Also that: “A will appointing executors and directing the payment of funeral expenses and the expenses of administration, is entitled to probate, i though its other provisions creating a charitable trust are invalid.” 2. In the instant case the testajtor did “give, bequeath and devise to Ivy Condron and J. W. Bennett any and all of his property, to be held by them in trust,” with power and authority tó manage the estate and marshal its assets, and to use the proceeds thereof “in the support, maintenance and education” of the minor children of the deceased, and the trustees were vested with discretionary power “to mortgage, lease, sell and dispose of any and all the real property of which I may die seised and convert the same into money at any time they see proper” and to invest the proceeds of the estate “as to them shall seem for the best interest of my said minor heirs, and to retain any surplus or any portion of the property not sold by them, until said minor children, each and all of them, reach the age of thirty years, “when all of the remaining property belonging to the estate should be [415] divided between the children then living, share and share alike. The will further provides that the trustees might at any time terminate the trust by “distributing the funds on hand to my children, share and share alike, or the survivor of them in case any of them should be deceased.” In legal effect this was an absolute devise of all of the property of the deceased to the trustees, to be held by them during the period of the trust, and to be managed in their discretion for the use and benefit of his children until such time as the youngest should arrive at the age of thirty years or the trust should be otherwise terminated in the discretion of the trustees. Conceding, as stipulated, that the will was duly executed, that it was the voluntary act of the deceased and that he had mental capacity, it must follow that he had the legal right to dispose of his own property upon the specified terms and conditions. The will does not create a perpetuity, and is definite and certain as to property rights. 3. The remaining provisions apply to the support, education, care and maintenance of the minor children, all of which, in a large measure, are left to the discretion of the trustees; and in the event that the widow of the testator should marry it is provided, “should either of the trustees believe that my wife is not properly caring for my said children or either of them, it is my desire that said trustees take said children from my said wife and place them in the care and custody of some person who to them may seem suitable,” and that if the trustees should deem it unwise to leave the children or either of them in the custody of their mother, “if my estate can afford it, I desire that my children be placed in a convent school at some convenient location which to my trustees shall seem best.” [416] It will be noted that Thomas McGinnis died on October 6,1916; that on October 13th his ¡will was admitted to probate on an ex parte petition of the executors named therein and Ivy Condron and James H. Flanagan were then appointed and qualified as such executors under the terms of the will. On November 23, 1916, the plaintiffs filed their joint petition to set aside and vacate the will, to have it declared void and to remove the executors. There is no allegation that the latter as executors, trustees, guardians or otherwise, have failed or neglected to discharge any of their duties arising from or growing out of their trust. Neither is there any allegation or proof that they have in any manner failed or neglected to support, maintain or educate the children, that they have undertaken to or will remove them from the custody of their mother or that it is their purpose of intent to do so; and this court has no right to assume that the executors who were selected by the deceased will neglect the children or abuse their trust. On that question there is nothing before this court. Should the trustees unlawfully seek to interfere with the' custody of the minor children or unjustly or illegally fail or neglect to maintain and educate them, in a proper case and on a sufficient showing the plaintiffs would then have a remedy and be entitled to relief. The decision of the Circuit Court is affirmed. Aeeibmed. McBeide, C. J., and Bean and Bennett, JJ., concur.