# McArthur v. Scott

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## Dissenting Opinion

    Waite
United States Supreme Court
113 U.S. 340
McArthur v. Scott
[Syllabus from pages 340-342 intentionally omitted]
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 doughters 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 hereinbefore 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 maybe 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 hereinbefore 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 grandchildren, 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 neglect 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 office 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 them, 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 McArthur; Alexander Bourne, husband of Helen M. Bourne, another deceased daughter of Duncan McArthur; one adult and two minor sons of Mrs. Bourne; and Samson Mason, and Samuel F. Vinton, as devisees in trust of lands not now in question.
That bill further alleged 'that the aforesaid persons are the only heirs and personal representatives of the said Duncan McArthur, and that they are also the only persons specified in the said instrument in writing, claimed as the will of said Duncan McArthur;' and made them defendants; and prayed that an issue might be directed to be made up whether that instrument was the last will of Duncan McArthur or not, and that it might be set aside as void, and for further relief. On July 10, 1839, the complainant in that cause had leave to amend his bill, and the cause was continued. On October 7, 1839, he filed a supplemental bill, alleging that a daughter had been born to Mrs. Trimble, and was a granddaughter of Duncan McArthur, and as such entitled to a provision under, and interest in, the supposed will, and praying that she might be made a defendant. Among the defendants named in the bill and supplemental bill in that cause were all the children and grandchildren of Duncan McArthur who were in existence at any time during the pendency of that suit; and due service of process was made on all of them. Mason and Vinton, trustees, were served with process, and severally filed answers, declining to accept the trust conferred upon them by the will, and disclaiming all interest in the lands devised to them.
On October 22, 1839, the following proceedings were had in that cause: The court appointed James McD. McArthur guardian ad litem of his three minor children; Mrs. Coons guardian ad litem of her minor son; Mrs. Trimble's husband guardian ad litem of their minor daughter; Mrs. Anderson's husband guardian ad litem of their minor son, and of Mrs. Bourne's two minor sons; and Mrs. Kercheval's son-in-law guardian ad litem of her minor son; and an acceptance of each appointment was filed. On the same day answers to that bill were filed in behalf of all the defendants. The answers of the four children of the testator, James McD. McArthur, Mrs. Coons, Mrs. Anderson, and Mrs. Trimble, and the husbands of the last two, as well as the answers of Mrs. Kercheval's daughter and son-in-law, and of Alexander Bourne and his adult son, severally stated that they admitted and confessed all the allegations of the bill. The answer of Mrs. Coons further stated that 'since the filing of the same she has, to-wit, at the present term of October, resigned the office and charge of executrix of the said supposed last will and testament of her deceased father, the late Gen. Duncan McArthur, from a conviction of her inability to discharge the duties incumbent on her as such executrix, and the impossibility of procuring suitable associates agreeably to the provisions of the said instrument in writing.' The several answers of the infant defendants by their guardians ad litem stated that they would neither admit nor deny the allegations of the bill, but left the complainant to prove them. On the same day the court ordered 'that an issue at law be made up between the parties to try the validity of said will and to ascertain by the verdict of a jury whether said writing is the valid last will and testament of the said Duncan McArthur or not;' and that in making up that issue the defendants file a declaration affirming it to be his will, and the complainant plead thereto that it is not his will.
On October 27th, the defendants filed a declaration and the complainant a plea accordingly. On October 28th, a jury was impaneled and sworn and returned a verdict that the instrument 'is not the valid last will and testament of the said Duncan McArthur, deceased;' and on the same day the court entered this decree: 'The jury to whom was committed for trial the issue made in pursuance of the order of the court, between the respondents and the complainant, whether the instrument filed and exhibited in this cause, and purporting to be the last will and testament of the late Duncan McArthur, of Ross county, deceased, was or was not the valid last will and testament of the said Duncan McArthur, deceased, having returned their verdict that the said instrument in writing is not the valid last will and testament of the said Duncan McArthur, deceased; and the court, having heard the arguments of counsel and being fully advised in the premises, are of opinion that the law and equity of the case are with the complainant, and do order, adjudge, and decree that the said instrument in writing, filed and exhibited by the complainant, purporting to be the last will and testament of the said Duncan McArthur, deceased, and admitted to probate as such last will and testament in the court of common pleas of this county, be annulled, set aside, and held for naught; and the infant defendants shall respectively have until they severally attain the full age of twenty-one years and six months thereafter, and the femes covert defendants shall respectively have until they are discovert and six months thereafter, to show cause against this decree. And it is further ordered by the court that the defendants pay the costs herein expended, taxed at forty dollars and twenty-five cents. The complainant's costs are taxed at thirty-three dollars and fifty-five cents. The defendants' costs are taxed at six dollars and seventy cents.'
William McDonald, appointed on December 4, 1839, administrator of the estate of Duncan McArthur, as stated in the record annexed to the present bill and above set forth, afterwards administered the entire personal estate of the deceased, and his final account was settled by the court on August 2, 1865. Upon a petition for partition of all the real estate of which Duncan McArthur died seized, filed on April 2, 1840, by his daughter Mrs. Anderson and her husband, against Duncan McArthur's other four children, Allen C. McArthur, James McD. McArthur, Mrs. Coons, and Mrs. T imble and her husband, and against the two children of his deceased daughter, Mrs. Kercheval, the court of common pleas for Ross county, on April 17, 1841, made partition among them, one-sixth part each to said Allen C. McArthur, Mrs. Coons, Mrs. Anderson, and Mrs. Trimble, one-sixth to the heirs of James McD. McArthur, (who had died pending that suit,) and one-twelfth to each of the two children of Mrs. Kercheval. Upon the rendition of the decree in partition, the parties thereto entered into possession of their shares, and afterwards made sales of portions thereof to purchasers for valuable consideration, and without actual notice of any adverse title or claim; and they, and other persons claiming under or through them, respectively occupied and improved the same for the period of 34 years and 11 months, and until the filing of the present bill, and during all that time their use and possession was distinct, continued, exclusive, actual and notorious, under a claim of title in fee-simple, and adverse to the claims of all other persons.
After the decree setting aside the will, and before the filing of this bill, one of James McD. McArthur's children died under nine years of age, and another child was born to him; the son of Mrs. Coons died, unmarried and intestate, and she married William Allen and had a daughter by him; Mrs. Anderson had five more children born, of whom two died under 11 years of age; Mrs. Trimble's daughter married one Madeira, and died, leaving three children; and Allen C. McArthur, Duncan McArthur's eldest son, had five children born to him, four daughters and a son. This son, also named Allen C. McArthur, was the youngest grandchild of Duncan McArthur who arrived at 21 years of age. He arrived at that age on March 4, 1875, after the death of all the children of Duncan McArthur; and he, together with his four sisters and their husbands, all being citizens of Illinois or of Kentucky, are the plaintiffs in the present bill, which was filed on March 17, 1876. An authentic copy of the will of Duncan McArthur, and of the original probate thereof, was recorded by the probate court in Pickaway county, on February 11, 1876. The defendants in this bill were all citizens of Ohio, and were the three surviving children of James McD. McArthur, the surviving daughter of Mrs. Effie McA. Allen, the four surviving children of Mrs. Anderson, the three children of Mrs. Madeira, and numerous purchasers of different parcels of land from the parties to the proceeding for partition. The present bill (without mentioning the proceeding to annul the probate, set forth in the answers) alleged that, immediately after the death of Duncan McArthur, his five children, desiring to obtain for themselves the whole of his real and personal estate, and to deprive his grandchildren of all the provisions intended for them by his will, unlawfully combined and confederated with other persons, and, contriving to defraud the plaintiffs, procured and brought about the tender and acceptance of the resignations of the executors, and appropriated to their own use all his personal property, and, by means of the proceeding in partition above mentioned, divided all his lands among themselves, and conveyed parts of the same to other persons, and, in defense of their fraudulent conspiracy and doings, pretended that he died intestate, and they as his children had inherited his lands. These allegations were denied in the answers.
At the hearing upon bill and answers, the circuit court dismissed the bill, and the plaintiffs appealed to this court.
Wm. M. Ramsey and L. Maxwell, Jr., for appellants.
R. A. Harrison, P. C. Smith, W. T. McClintock, H. F. Page, and John W. Herror, for appellees.
[Argument of Counsel from pages 353-374 intentionally omitted]
GRAY, J.

## 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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