# McArthur v. Scott

McArthur v. Scott, 113 U.S. 340 (1885), regarded a suit brought to contest a will which directed 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.

## Background

General Duncan McArthur, the former governor of Ohio, established a trust in his will that required that land in Ross County, Ohio be kept in the family. His descendants later wanted to sell the land.
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 twenty-one 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 have died 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.

## Decision

The grandchildren of the testator, the lawful issue of his five enumerated children, formed one class of beneficiaries provided for in the will. As a class, their interests were opposed to the contestants. Those of the class who were in being took the title as well for themselves as for those who should be afterwards born. The interests of those in being and those born afterwards were in all respects the same. It would seem, therefore, that whatever bound those who held the title should bind all those not then in being for whom they held it. Otherwise, as in Ohio no suit can be brought to contest a will except within two years after probate. It is difficult to see how a will can be contested there when the devise is to a class of persons which may not be full until after that period has elapsed. It is no part of the duty of executors to defend a will against a contest. That is left to the devisees or those interested in sustaining the will. As this, in our opinion, disposes of the case, we have deemed it unnecessary to refer specially to any of the other questions which were presented in argument.
Associate justice Stanley Matthews, having been of counsel, did not sit in this case, or take any part in the decision.