Edgar v. Emerson

VALLIANT, J. — Plaintiff, ¥m. E. Edgar, administrator de bonis non with the will annexed, of the estate of John W. Emerson, deceased, filed this suit for the purpose of obtaining a judicial construction of the will. The defendants named in the petition are the brothers and sisters, the half brothers and sisters, and nieces of the testator, certain legatees named in the will, and the unknown heirs of Hattie Emerson, deceased, who was the widow of George F. Emerson, deceased, who was a brother of the testator. The testator left a considerable estate in Iron county; he had no child and by the terms of his will he . left his whole estate to his wife Sarah M. Emerson for life, remainder in fee to his brother George F. Emerson. Sarah, the widow, qualified as executrix "and assumed the administration of the estate. After the death of the téstator George F. Emerson, the remainderman, died, leaving no child, but leaving his widow, Hattie Emerson, who has since died. After the death of George F. Emerson, Sarah M., the widow of testator — 558 — died, without having made final settlement of the estate, and thereupon the plaintiff Wm. R. Edgar was appointed administrator d. b. n. with the will annexed. After this suit had been pending for a while Arthur Huff filed a petition in the cause showing that he had been appointed by the probate court of Iron county adminstrator of 'the estate of Harriet Emerson (called in the plaintiff’s petition Hattie Emerson) deceased, late widow of George F. Emerson, and asking to be made a party. After that he filed a pleading, which recites on its face that it is filed by permission of the court, in which he states that George F. Emerson died leaving a will, in which all his property, including his interest in the estate of John W. Emerson, was given to his widow Harriet, and that Harriet had since died and the pleader Huff had been duly appointed administrator of her estate by the probate court of Iron county; the pleading concludes with a prayer that all the estate now in the hands of the plaintiff administrator d. b. n., be decreed to belong to Huff administrator and that plaintiff in his final settlement turn the whole estate over to him. All of the defendants were non-residents and were brought in by publication; one of them being a minor, a guardian ad litem was appointed for her, and an answer in the usual form of a minor by her guardian ad litem was filed. The defendant Huida E. Kirby entered her appearance, but filed no answer. The only pleadings filed in the case were the plaintiff’s petition, the pleading of Huff administrator of Harriet Emerson, and the answer of the minor by her guardian ad litem. The cause was submitted to the court on the pleadings, and, as the decree recites, an agreed statement of facts which was signed by attorneys for the plaintiff, the attorney for Huff, and the attorney for one of the defendants, .Mary F. H. Young. The will to be construed was copied in full in the petition and it will be presently set out in this statement. — 559 — The agreed statement as it is copied into the abstract contained facts not stated in the petition, relating to the estate of the testator and the personal relationship of the parties; it contained a list, of the assets belonging to the estate, notes, stocks, etc., showing interest accrued, dividends earned, etc., and the dates thereof, and upon those facts the court based its decree, adjudging the interest accrued on the notes, bonds, etc., and dividends earned up to the death of the testator’s widow, to belong to her estate, and the interest accrued and dividends earned after her death to belong to Huff, administrator of the estate of Harriet Emerson, and (except the specific legacies) the rest of the estate in the hands of the administrator d. b. n. also to belong to Huff administrator. The decree, which is very long and which recites the findings of the court in detail, is based, as it "is expressed on its face, upon “the evidence offered by the plaintiff, and the agreed statement of facts filed in this cause by the plaintiff, and other persons claiming to be interested in this cause, including Arthur Huff, administrator of the estate of Harriet H. Emerson, intervenor herein, and upon the uncontroverted averments in the plaintiff’s petition.” At the trial none of the defendants appeared except Huff the intervenor, and Mary P. H. Young, whose appearance consisted in the signing of the agreed statement of facts, and the minor whose appearance consisted in her answer. After the rendition of the decree, Stephen E. Emerson, who had not previously appeared, filed a motion for a new trial, which was overruled, and time given him to file a bill of exceptions, but no bill was ever filed and no appeal taken; there was no motion for a new trial by either of the other parties, and no action subsequent to the rendition of the final decree, until the writ of error was sued out by Huff, administrator. — 560 — I. Although there is no order of court shown in the abstract admitting Huff to be a party, yet the pleading filed by him recites that it was filed by leave and in the final decree the court recognizes him as a party, he was treated by the court and the plaintiff as a party and his rights as such were adjudged. Besides, the plaintiff’s petition recognizes that the estate of Harriet Emerson is interested in the question in suit, and her unknown heirs are made parties defendant. We hold that under those circumstances Huff as administrator was a party. But granting that he has been properly made a party to the suit, and was entitled to his writ of error, the question arises what does his writ of error bring up for review? He filed no motion for a new trial or in arrest of judgment; and no bill of exceptions. The agreed statement of facts referred to in the final decree is not before us in such form that we can examine it nor is any of the evidence on which the court acted before us. The agreed statement and the evidence could only be brought up by a bill of exceptions. In such condition of the record, in so far as the decree rests on the agreed statement of facts or evidence of facts, we must presume that there was sufficient in both to justify the findings .of fact. Our review of the record therefore must be confined to the plaintiff’s petition and the decree. II. As a rule documents which are mere evidence should be pleaded by their legal effect and Pot copied into the pleading, but that rule does not apply to a suit in equity the purpose of which is to obtain a judicial interpretation of the instrument. In such case the instrument is properly copied into the petition and forms a part of the pleading. The will of John W. Emerson therefore, which is copied in the petition, is before us for construction. That will or so much of it as is necessary for our purpose is as follows: “I devise and bequeath to my beloved wife, Sarah M. Emerson, all of my estate, real personal and mixed, — 561 — wheresoever situated, to have, hold and enjoy during her natural life, with full power to sell and convey the same in fee; but all of my property, real and personal, not sold and conveyed by her before her death, I devise and bequeath as follows: “1. I give to each of my three nieces, Lilly, Grace, and Helen Emerson, two hundred and fifty dollars. And to my niece Lilly Winter, one gold watch to cost one hundred dollars. I give to my nephew, Henry Emerson, five hundred dollars. “2. I give to my-adopted sister, Mrs. E. Butler Johnson, one gold watch with pearl or stone settings, and chain and' ring to cost two hundred and fifty dollars. “3. All the residue of my estate I devise and bequeath to my brother, Dr. George F. Emerson, of Boston, Mass., absolutely; and I hereby appoint him, said George F. Emerson, and my wife, Sarah M. Emerson, executors of this my last will and testament, without bond, as I owe no debts, and there is no occasion for any accounting in or through the probate court.” By this will the testator gives to his wife a life estate-in all his property of every Mnd whatsoever and in addition to the estate so given he bestows on her a power to sell and convey in fee all of the property of which he died seized or possessed. By the exercise of that power the widow could affect the estate in remainder by selling any of the property that she might see fit to sell but whatever was left at her death was to be used, first to pay or discharge the special legacies named, and then to go in fee to the testator’s brother, George F. Emerson. It does not appear however that she ever exercised that power or sold any of the property. The income of the property during the life of the widow belonged to her; it was hers to spend or give away or dispose of as she saw fit, and if at her — 562 — death any of- it had not been spent or disposed of it passed to her personal representatives. She could accumulate an estate for herself by saving or investing the income arising from her life estate; that income was as much her own as if it had arisen out of property of which she owned the fee. “Everything in the nature of income or profits' accruing during the continuance of the life estate belongs to the. life tenant, and at his death, if not otherwise disposed of by him, passes to his representative.” [16 Cyc. 621.] At the death of the fife tenant her interest in the corpus of the estate of her husband ceased, and that estate, together with the income that has arisen out of it since her death, goes to the remainderman; it would have gone to George F. Emerson if he had been living at that time, but being dead it went by his will to his widow Harriet, and on her death it went to her (administrator, who is the plaintiff in error. But the plaintiff in error claims that he is not only entitled to the corpus of the estate and the income that has arisen from it since the death of the life tenant, but also to that portion of the income that arose during the lifetime of the life tenant, which she had allowed to accumulate and was on hand at her death. The trial court held that he was not entitled to that and the trial court was right. That is the sole complaint of the plaintiff in . error. The decree of the trial court gave the plaintiff all that he was entitled to. The judgment is affirmed. All concur.