# Kain v. Gibboney

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United States Supreme Court
101 U.S. 362
Kain v. Gibboney
APPEAL from the Circuit Court of the United States for the Western District of Virginia.
On Aug. 7, 1853, Malvina Matthews, of Wythe County, Virginia, made her last will and testament, which was duly addmitted to probate, devising a tract of land on which she then lived, to Granville H. Matthews in trust for her two daughters, Malvina and Eliza, and authorizing him to sell it and invest the proceeds at his discretion; one half of the annual interest or dividends accruing therefrom to go to each of them as a fund, for her separate and sole use and benefit, especially in the event of her marriage. The will declared that one moiety of the principal arising from the sale of the land might be disposed of by each, either by deed to take effect after her death, or by will, and not otherwise.
Matthews sold the land, but was removed from the executorship and trusteeship; and Robert Gibboney, who was appointed in his stead, received of the trust fund $7,985.88, of which one-half belonged to said Eliza. The latter died, and her will, bearing date Dec. 9, 1854, was, in 1861, admitted to probate in the county court of Wythe County. Robert Gibboney qualified as her administrator. The will, after making various pecuniary bequests, among them one of $500 to 'Richard V. Wheelan, Roman Catholic Bishop of Wheeling, Virginia, and his successors in that church dignity,' contained the following provision:--
'In the event that I may hereafter become a member of any of the religious communities attached to the Roman Catholic Church, and am such at the time of my death, then it is my will that all the foregoing bequests and legacies be void, and that my executors hereinafter named shall pay over the whole of the property or other thing, after disposing of the same for money, to the aforesaid Richard V. Wheelan, bishop as aforesaid, or his successor in said dignity, who is hereby constituted a trustee for the benefit of the community of which I may be a member, the said property or money to be expended by the said trustee for the use and benefit of said community.'
After making her will, she became a member of an unincorporated religious community attached to the Roman Catholic Church, known as the 'Sisters of Saint Joseph,' and was such at the time of her death.
In 1871, Alexander S. Matthews, her brother, instituted a suit against her legatees and other heirs-at-law in the Circuit Court of said county, to contest the validity of her will. An issue of devisavit vel non was ordered but not tried, as by consent of the counsel of the parties it was decreed that he should be paid from her estate the part thereof to which he would have been entitled had she died intestate; and that the devisee named in the will should proceed to collect the estate, and, after paying the debts and costs of suit, pay to said Alexander the tenth part. The suit was thereupon dismissed, with leave to have the same reinstated if necessary, for the purpose of enforcing the decree.
Some time thereafter, Elizabeth G. Gibboney, the executrix of Robert Gibboney, who had departed this life, delivered to Wheelan, as part of the estate of Eliza, a bond of one Johnson for $500.
Thereupon Wheelan brought this suit, in the court below, against said Elizabeth, to recover the residue of that estate, and alleged that said Robert had never invested the fund which he received as the trustee of Eliza, but had converted it to his own use, except the bond of Johnson.
Wheelan died, and John J. Kain having been duly appointed Bishop of Wheeling, the suit was revived in his name.
The bill was, on demurrer, dismissed, and Kain appealed to this court.
Mr. John W. Johnston for the appellant.
Mr. John A. Campbell, contra.
MR. JUSTICE STRONG delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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