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| 10881 |
[Reports of cases decided in the Appellate Court of the
State of Indiana, Volume 48; by Indiana Appellate Court;
pages 379-383]
May Term, 1911.
Devin v. McCoy--48 Ind. App. 379.
Devin v. Mccoy, Trustee.
[No. 7,743. Filed February 21, 1911. Rehearing denied May
9, 1911. Transfer denied June 30, 1911.]
1. Wills.?Construction.?Purpose.?The object of construing a
will is to determine the testator's intention, p. 381.
2. Wills.?Trusts.?Termination.?A trust created by a will
bequeathing and devising to testator's two grandchildren
the share that their deceased father would have received,
"subject to the conditions hereinafter named," and
providing for a trustee to take and to hold such property
for such children "until the contingencies named in the
next succeeding clause of the will, in the meantime using
of the profits thereof enough only for their education and
economical support," and providing that "if [plaintiff]
dies before he has children born unto him, his share of
[testator's] estate shall go to his sister, * * * if she
survives him," is not a spendthrift trust, and terminates
upon the birth of a child to the plaintiff, pp. 381, 3S2.
3. Wills. ? "Contingencies." ? Meaning of. ? The word
"contingencies," as used in a will providing that the
trustee shall hold certain property "until the
contingencies named," imports some future event that may or
may not occur, p. 3S2.
4. Appeal.?Mandate.?Death.?Where appellant died before his
appeal was decided, the judgment will be made as of the
date of submission, p. 3S3.
From Gibson Circuit Court; Herdis Clements, Judge.
Suit by Elmer G. Devin against John R. McCoy, as trustee of
Elmer G. Devin and others. From a judgment for defendant,
plaintiff appeals. Reversed.
M. M. Bachelder, W. W. Medcalf and John 77. Miller, for
appellant.
John li. McCoy, 0. M. Welborn and J. E. McCullourjh, for
appellee.
Laiey, J.?This suit was brought by appellant against
appellee, for the purpose of obtaining au accounting by
John R. McCoy, trustee under the will of Nancy Devin,
deceased, and praying that said trustee be ordered to turn
over to appellant the property in his hands, upon the
theory that Devin v. McCoy?48 Ind. App. 379.
the trust created by the terms of said will had terminated
before the commencement of the suit.
Items five, six and seven of the will of Nancy Devin create
the trust here under consideration. It is necessary to the
decision of this case that a construction be placed on this
part of the will, and therefore we set out these items in
full.
"Item 5. All the residue of my estate and personal property
shall be divided equally among my children, Susan E.
Ragland and Sallie Devin, and my two grandchildren, Nellie
R. Devin and Elmer G. Devin, to receive the same share that
would have descended to James A. Devin (now deceased), who
was their father, and to take and receive under this will
subject to the conditions hereinafter named.
Item 6. 1 hereby nominate and appoint Henry L. Wallace as
trustee for Nellie and Elmer, and for each of them, who
shall take and hold and manage such of my estate as is
given to said grandchildren, until the contingencies named
in the next succeeding clause of the will, in the meantime
using of the profits thereof enough only for their
education and economical support, having view of the
probable value of their inheritance.
Item 7. If Nellie R. Devin dies before she has children
born unto her, her share of my estate shall go to her
brother, Elmer, if he survives her. If Elmer dies before he
has children born unto him, his share of my estate shall go
to his sister, Nellie, if she survives him, but if they
both die without having children born to them, their shares
shall be distributed to the other beneficiaries of item
five of this will."
The complaint sets out the will, and alleges that it was
duly probated after the death of the testator; that Henry
L. Wallace, who was named as trustee therein, died, and
that John R. McCoy was, by the Gibson Circuit Court,
appointed his successor; that appellant was lawfully
married on October 9, 1909, and that a child was born to
him, by virtue of said marriage, which was still living at
the time the suit was commenced.
A demurrer for want of facts sufficient to state a cause of
action was sustained by the trial court, and this is the
only error relied on for reversal.
Devin v. McCoy?48 Ind. App. 379.
It is contended by the attorneys for appellee that the
ruling of the lower court is correct, for the reason that
the complaint shows that the trust created by the will of
Nancy Devin had not terminated when this suit was
commenced. They take the position that the trust created by
said will was a spendthrift trust, that it was intended to
continue during the life of Elmer Devin, and that it
cannot, by the terms of the will creating it, terminate
before his death. Appellant contends that the trust was
terminated, so far as Elmer Devin was concerned, before the
action was commenced, by the marriage of Elmer Devin and
the birth of a child as shown by the complaint.
When did the testatrix intend that the trust created by her
will should terminate? This is the decisive question in
this case. In construing a will, effect should be given
1. to the intention and purpose of the testator, if this
can be gathered from the terms of the will. Was it
the purpose of the testatrix in creating said trust to
provide for the maintenance of appellant during his life,
2. and at the same time to secure it against his
improvidence and incapacity, and preserve the property
unimpaired to his heirs? If so, the trust would continue
during the life of the cestui que trust, and the position
of appellee should be sustained. We cannot think that the
provisions of the will creating this trust indicate such an
intention. Item six of the will does not expressly provide
that the trustee shall hold the estate given to Nellie
Devin and Elmer Devin during their lives, or the life of
either of them; but it does provide that he shall hold and
manage such estate until the contingencies arise that are
named in the next succeeding clause of this will, in the
meantime, using of the profits thereof enough only for
their education and economical support, having in view the
probable value of their inheritance.
A contingency is some future event that may or may not
occur. It is evident that the testatrix had in mind some
such Devin v. McCoy?48 Ind. App. 379.
event, upon the happening of which the trust was 3. to
terminate. Item seven of the will is not entirely clear as
to the contingency referred to in item six. It provides
that "if Nellie Devin dies before she has children born
unto her, her share of my estate shall go 2. to her
brother, Elmer, if he survives her. If Elmer dies before he
has children born unto him, his share of my estate shall go
to his sister, Nellie, if she survives him, but if they
both die without having children born to them, their shares
shall be distributed to the other beneficiaries of item
five of this will."
If we should hold that the termination of the trust
depended upon the death of the cestui que trust, this would
be to say that the termination of the trust depends upon
the happening of an event that is a certainty and not a
contingency. If we should give the will this construction,
the contingency that appellant might or might not have a
child or children born to him before his death would have
no effect in hastening or delaying the time of the
termination of the trust, as the trust would terminate at
such death, regardless of whether or not he had children
born during his lifetime. .
To our mind the provisions of the will under consideration
do not evince an intention on the part of the testatrix to
create a spendthrift trust. We do not think it was her
intention to tie up the property in the hands of the
trustee during the life of her grandchildren, for the
purpose of providing for their maintenance, and at the same
time securing it against their extravagance or
improvidence. The provisions of item seven seem rather to
indicate that it was her purpose to control the ultimate
disposition of her property, so that it might not go to
strangers or depart from those of her own blood, and that
she created this trust for the purpose of securing this
end. The provisions of this item in her will indicate that
she contemplated that one or both her grandchildren might
marry and die without Dunn «. Means?48 Ind. App. 3S3.
issue, and that the property, if given to them absolutely,
would go to the surviving husband or wife, to the exclusion
of the kindred, who were of the blood of the testatrix. To
prevent this result, she placed the property willed to her
grandchildren in the hands of a trustee, and provided that
he should take, hold and manage it until the happening of a
contingency which would prevent this result. True, the
birth of a child might not absolutely prevent this result,
for such child might die before its parent, and the cestui
que trust thus die childless. This consideration does not,
however, change our opinion as to the purpose of the
testatrix in creating the trust, as she was no doubt
willing to risk the possibility of the child's outliving
the parent. She evidently intended that if either of said
grandchildren married and had a child born, this
contingency should terminate the trust as to him, and he
would be entitled to the property willed to him. We
therefore hold that the complaint shows that the trust, as
far as appellant is concerned, was terminated before this
suit was commenced, by the happening of the contingency
provided for in item seven. The demurrer to the complaint
should have been overruled.
The death of appellant has been suggested, to the 4. court,
and the judgment in this case is reversed as of the date of
submission.
Census:
1850 Gibson Co IN Princeton Twp p 20
1860 Gibson Co IN Princeton-Patoka Twp p 1060 & 1061
1870 Gibson Co IN Patoka Twp p 305A
Mother, Nancy Robb, age 75, b. DC? living w/Nancy Robb
Devin in 1850
Per Tom Hughes: she died in 1884
Possibly born in Hazelton, IN per page 13 of "Ten
Generations of Rev. Alexander Devin"; J. Nell Truitt;
19981101.
!BURIAL:Ten Generations of Rev. Alexander Devin, Ten
Generations of Rev. Alexander Devin, Truitt, Joyce Nell,
dated 19981101; page 13 | Robb, Nancy (I2744)
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| 10882 |
[S215] Colonial Settlers of Maryland and Virginia, http://www.colonial-settlers-md-va.us/getperson.php?personID=I018357&tree=Tree1.
Brocke, Edward, Prince George's County, 5th Mch., 1712; 19th June, 1714,
To granddau. Mary Nicholls and hrs., that part of "Brock," or "'Rock Hall" on E. side Collington branch.
To Grandson Mathew Mogbee and hrs., 100 A., being other part of "Rock Hall" on W. side Collington.
to grandson Brock Mogbee and hrs., dwelling plantation and land adjoining that devised his brother Mathew afsd. Should granddau. Mary Nicholls die, land devised to her to go to her brother Mathew, and he dying without issue, to grandson Brock Mogbee afsd. grandchild. by dau. Offet, viz.,, Edward, William, James and Thos. Offett., sons of William Offett and dau. Mary,,. his wife, residue of "Brock Hall" on N. side Brock branch. Should any of grandsons afsd. die, his portion of sd. land to pass to other grandson, John Offett, and hrs.
Ex.: Son-in-law Wm. Offett afsd. Personal estate to be used for education of grandsons Mogbee afsd.
Overseers: Alexander Beale and Jno. Gerrard.
Test: Mareen Duvall, Sr., Ninian Beall, Jno. Wall.13. 723. | McBee/Magby/Mocobee/Mocaboy/McGehee/McGhee, Mary Brock (I16966)
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| 10883 |
[S273] James Neely.
Children of James Neely, Jr. and Catherine Evans.
1. Sarah b. abt 1771
2. Andrew b. abt 1773, died Feb. 1839. Married Jane b. 1774 and died 7 Oct 1844. Both buried Ebenezer Cem, Maury Co, TN
3. Sophia b. 1776.
4. Samuel b. 1778 married his cousin Sarah Neelly, daughter of William in Williamson Co, TN
5. George W. b. 1780, drowned in MS river in route to AR 1821
6. James b. 1782. When his uncle William died 2 Feb 1827, James was co-executor with William?s son James Neely who had married Eleanor Phillips of Davidson Co, TN and was then living in Henderson Co, TN and Thomas J. Hardeman, William?s grandson of Williamson Co, TN.
7. Pallas b. abt 1785
8. Charles Rufus b. 1787, died 1820 Tuscumbia, AL
9. Rhoda b. 1789. This was Catherine?s mother?s name
10. Jane Love Neelly b. 1789. Were Rhoda and Jane twins?
11. Catherine b. 1791. The youngest of these children were born in Burke Co, NC where James, John and Robert sojourned with their families for several years while making the transition from Botetourt Co, VA to TN and AL. A James and John and their families are listed in the Burke Co, NC 1790 census; James with 5 males with 1 over 16 and 6 females. John listed with 2 males, 1 over 16 and one female. Robert in Halifax Co 1785 tax list. His marriage to Margaret Chissum (2nd wife?) 30 Sep 1790 Halifax Co (signed her own consent).
(JRN notes) #2 ? The Andrew Neelly buried in Maury Co, TN is the ancestor of John W. Neelly and was born in 1763 based on his tombstone inscription, not 1773 which is 7 years before James and Catherine were married. I will make the case later that Andrew was not the son of James and Catherine, but the son of Robert Sr., son of ?old John Neelly?. | Family F8473
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| 10884 |
[The information below is from the Ancestry Boards; I do not believe Elizabeth Archer Osborne is the mother of this Samuel Scott who married Elizabeth H. C. 'Betsy' Bigger. In the DAR Records, William Scott of Prince Edward, is named as the Father of Samuel Scott who married Betsy Bigger. Other parts of this information should be verified.-mfe]
http://boards.ancestry.com/thread.aspx?mv=flat&m=304&p=surnames.vaughn
The Samuel Scott who married Elisabeth H. C. 'Betsy' Bigger is also shown with the parents; James Scott and Elizabeth Osborne. The line from Ancestry for James and Elizabeth Osborne is as follows:
[James is likely the brother of William of Prince Edward-mfe]
14. James Scott, of "Chestnut Hill", born 17 Feb 1752 in Caroline Co., VA; died 05 Feb 1805 in Prince Edward Co., VA. He was the son of Thomas Scott and Martha Williams. He married 15. Elizabeth Archer Osborne 08 Feb 1773.
15. Elizabeth Archer Osborne, born 1754; died Bef. Mar 1795. She was the daughter of William Osborne and Elizabeth Tanner.
Children of James Scott and Elizabeth Osborne are:
i. Col. Thomas Osborne Scott, Col., born 20 Nov 1775; died 27 Dec 1837 in Prince Edward Co., VA; married Jane Haskins 11 Jun 1801 in Prince Edward Co., VA; born 21 Dec 1781; died 26 Jul 1856 in Cumberland Co., VA.
ii. Frances Branch Scott, born Abt. 1777; died 07 May 1843 in "Grampion Hills," Dinwiddie Co., VA; married (1) Archer Jones, "My Homestead" 28 Nov 1793 in Amelia Co., VA; born 1752 in "Deep Creek", Amelia Co., VA; died Bef. 22 Aug 1811 in Amelia Co., VA; married (2) Thomas W. "Dodger" Eppes, of Poplar Hill 01 Sep 1814 in Amelia Co., VA; born Abt. 1765; died Bef. 06 Nov 1817.
iii. William Scott, born 1773; died Bef. 19 Nov 1825 in Prince Edward Co., VA; married Mary C. Wilson 15 Apr 1801; died Bef. 16 Sep 1844 in Prince Edward Co., VA.
iv. Samuel Scott, died Bef. 1854; married Elizabeth H.C. Bigger 18 Nov 1806 in Prince Edward Co. VA.
7 v. Agnes Branch Scott, twin, born 10 Feb 1784; died 1839; married Osborne Lockett 20 Feb 1801 in Prince Edward Co..
vi. Elizabeth Archer Scott, twin, born 10 Feb 1784; died 1825; married Paschal Greenhill Leigh 27 Nov 1800 in Prince Edward Co., VA; born 26 Jan 1769; died 1855 in Prince Edward Co., VA.
vii. James Scott, Jr., born 1786 in Prince Edward Co., VA; died 1859; married (1) Elizabeth H. Mann 1809 in Amelia County, Virginia; born 1789; died 1829; married (2) Julia Ann Stith 17 Nov 1830 in By Rev. Matthew Dance; born Abt. 1810 in Weldon, North Carolina; died 15 Jan 1859. | Scott, Capt. Samuel (I11467)
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| 10885 |
[U.S. Census 1900
Missouri-ClayCounty-FishingRiverTownship-ExcelsiorSprings
Sheet 7; enumerated 06.Jun.1900]
Line 32-33 living on Linnwood street.
[Clay County, Missouri Marriages, 1852-1900
Volume 3]
Marriage Date: 24 Jun 1896
Name: Albert Chambers
Spouse: Nellie R. Deven
Officiator: Orville S. Reed, M. G.
Date: 30 Jul 1896
Comment: Albert Chambers of Excelsior Springs
Marriage License dated 24 Jun 1896. | Family F366
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| 10886 |
[Virginia] 'Virgie' Raines is buried in the DAnville Powell Cemetery Plot at Green Hill Cemetery. She is the d/o Addison G. Powell and his wife, Martha Chandler. | Powell, Addison Graves dna (I8277)
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| 10887 |
{Brackets idicate Mother's maiden name] | Carter, PATRIOT Jesse [Miller] 'of Pittsylvania' (I67765)
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