Omaha daily bee., 1897-03-07
CREIGHTON WILL BROKEN
Mrs. Shelby Awarded the Land Decided to
st, James ~0rphanage.
PROVISION OF THE WILL INDEFINITE
Judge Fawcett, in Making the De-
eision, cited the Case of samuel
j. Tiiden's VIII, which Was
Recently Set Aside.

tn. will of the late Joseph Creighton,
(which has been in the district court for the
last two years, was held by Judge Fawcett
yesterday to be null and void and the
property of the deceased, except that portion
ksaueathed to the grandchildren Of the tesla
tur. reverts to Mrs. John p. Shelby, the only
daughter of the ~testator, The bequest OF loV
acres Of land to the bishop of Omaha, which
has been transferred to the st. James orphan
age. is thus declared null and void.
when Joseph Creighton died his Will was
offered for probate in the county court IL
was found that the bulk of the property had
been bequeathed to the children OF MIS-
Shelby, but the daughter herself was cut
of without anything. One of the conditions
of the will provided that 100 acres of land
lying near Florence lake should go to Bishop
O'Connor. provided he should survive the
testator. and in the event that he should
not. the will provided that the property
should go to 'his successor. the bishop OF
Omaha" 1t was further provided that the
land should be devoted to some charitable
purpose. a preference being expressed for an
orphanage.
The probate of the will In the county court
was refused and the case was appealed to
the district court. The first trial resulted
in a verdict by a jury, which FOUND tnat
1ne VIII was luNdilu' lhiS S''iS1 ""s
aside and a second trial was had, resulting
On a disagreement of the jury. After the
second trial the daughter, Mrs. Shelby,
waived all her rights to the property
beoueathed to her children and the
guardian ad litem, appointed to protect the
rights Of the minor heirs, withdrew from
the case. The st. James orphanage. at
Benson, had claimed an interest in the case
on tho ground that Bishop S%cannell, the
successor of Bishop O'Connor, had trans,
ferred to the orphanage the land oequeatheu
In the will to the bishop.
The withdrawal Of the children from the
case left the controversy between the
daughter and the bishop, and a motion was
filed by the attorneys for the daughter 10
dismiss the case on the ground that the ST.
James orphanage had no rights whatever IN
the case and that the clause bequeathing the
land to the bishop was indefinite, and, there
fore, void.
In passing upon this motion Judge Fawoett
reviewed concisely the circumstances OF the
case leading up to the fling Of the motion
He said that a ruling upon this motion meant,
substantially, that the court must construe
the provisions of the will. At the time the
motion was filed. the court said, the case mao
narrowed down to a simple contest over the
construction to be placed upon the clause
making the bequest to the bishop. All other
featues had been eliminated from the contest
and the only point at issue was the clause re-
lating to the $50 acres of land.
CONDlIlONS w WILL
After reading from the will the clause
referred to Judge Fawcett said that the au-
thorities differed very widely as to the
validity of a will containing a clause worded
In the indefinite manner in which the clause
in question was worded. There were a large
number of authorities, he said, ON both
sides of the question and the supreme court
OF .he state, II. this case should ever reach
II, was Just as likely to follow one course as
the other. Judge Fawcett said he would
faEn tho course that seemed to him to bt
the best one and would hold thai
the clause was absolutely void. Con
tlnuing, the court said: I'm the frs
place, the clause conveys the propert,
to Bishop O'Connor, II he survives the
~testator. If 1t had stopped there, there would
have been no doubt as to the meaning, blu
It provided further that in case O'Connol
did not survive him the property was to g
to the bishop Of Omaha. AS Il matter o
fact, O'Connor did not survive the testato
and O'Connor's successor was not known Il
Mr.. Creighton. He did not know whethe
O'Connor's successor was a responsible maj
or not. Further than that, the provision al
to the use Of the land is indefinite as to TIL
kind of charity to be benefited or the piac'
where it shall be located. 1t does not sa.
whether 1t shall be applied to any denomina
tion or at any point. Under the provisions
OF the will the bishop would have the RICH
to apply the proceeds of the land to an,
charitable object any place on the earth
think when a man leaves his propert,
away from his children he ought to specif,
definitely the disposition to be made of 1t
While the authorities differ widely on tn
conditions of Wills, they all agree that tn
provisions must be definite In some particu
lars"
The court cited the instance of the Samue
]. Tilden will, which was Held to be void b,
the New York court OF appeals on accoun
of a similar iLdefniteness in its provisions
and other cases were cited In support o
the position of the court.
In conclls the court remarked tina
the fact that Bishop Scannell had decided tn
property in question to the st. Jane
orphanage had no bearing in the case, as tn
deed had not been made until after Creigh
ton died, and at his death, the will beini
void, the property descended to his daugh