Omaha daily bee., 1909-07-15
LOSES FIRST ROUND
Must DisprOve Charges of Fraud Re-
garding Possession of Home.
HIS DEMURRER Is THROWN OUT
Original Owners OF This Magnificent
Estate Win First Fall in Com
test 40 Recover the
Property.

Judge Troup has overruled the demurrer
in the case OF Clinton JOY Sutphen against
George A.. Joslyn, by which J~oslyn's attor-
ney was trying to get the case out Of court
and Joslyn will have to disprove charges OF
fraud and collision to hold possession Of
his magnificent home at Thirty-ninth and
Davenport, the finest house and grounds
In Omaha.
Clinton Joy Sutphen, his sister, Mrs. Earl
Riplinger, and his younger brother, Earl
%Sutphen, brought suit against Joslyn,
claiming the property because Of the will
Of their grandmother, Mrs. Emily Nj. SUIT
phen, who left the property TO their father
and grandfather in trust for them.
General John c.. Gown, attorney for JOS
lyn. filed a demurrer in which he cited the
rule Of law known as "Shelley's case" by
which the courts have held that property
In trust under certain conditions may be
sold and Joslyn alleged that he had bought
the property in 1898.
BY Judge Troup's decision, however,
"Shelley's case which has tangled so
many Wills, does not apply in the state OF
Nebraska. and Dewitt C. Sutphen and
Charles d. sutphen. husband and son Of
Mrs. Sutphen, had no right to sell the
property. Following this ruling the charges
of fraud and collision in disposing of the
property before they were of age, made
against their father, grandfather and
George A. Joslyn, by the younger genera
ton Of sutphen's will have TO be dis
proved.
VIII Fix Big Point.
The ruling of Judge Troup, IL sustained
by the supreme court. will fix a very
important principle Of law in Nebraska.
In this Joslyn case the property was willed
to the testators husband and son "and
their heirs" which indicates, very clearly,
according to the court, that she expected
them to turn 1t over to the children at
death without in any way disposing OF 1t
In the meantime. "Shelley's law" however,
which is a survival of English feudal law,
states that in such cases It Is necessary
for the testator to name the secondary
heirs, or otherwise designate them exactly,
or her obvious intention OF having them
finally get the property will be overruled
by the court and willing a thing to "a man
and his heirs" would mean simply willing
It to a man entirely, without restriction.
BY "Shelley's case" the intention of the
~testator is overruled because Of a very
slight difference in wording in the will.
Judge Troup declares that the law has
done enough mischief in this state already
and should not be recognized. 1t was
never formally adopted as a part of the
statutes and in t~wenty-seven states Of the
union 1t has been held to be inconsistent
with the constitution. So when Genera
Gown cited 1t as a justification of the sale
of the property in 1898 to Mr., Joslyn. al
though the secondary heirs were children
the court ruled that 1t was not a part o
abe law of Nebraska
Thu property, which was originally onl!
valuable farm land. has in the meantime
become one OF the most valuable estate
In the west, and this decision is a flrs
step toward taking It away from JoslyI
and giving 1t back to the S%utphens, who
under their grandmother's will, were be
queathed IL.
The petitions of the Sutphens will now b
heard to establish whether or not the vii
was made in their favor.