Gardner v. Weeks

1. Where a testator bequeathed money to his married sister, for her sole and separate use during her life, remainder to her children, and there was nothing in the will showing an intention or desire on the part of the testator that the legacy should be held by the executor as trustee: Held, that upon a bill filed by the husband of the usee for life, showing his appointment as trustee, it is legal and proper for a Court of Equity to decree the payment and delivery of the legacy to him as trustee, upon such just and equitable terms as shall make the estate secure in his hands.

Bill in equity, in Talbot Superior Court, and decision on demurrer, by Judge Worrill, at the March Term, 1861. On the 9th of January, 1859, John H. Weeks made a will in due form of law, which, after his death, was regularly proved and admitted to record, and letters testamentary issued to William J. Weeks, the executor named in the will. By the 3d item of the will the testator gave to his sister, Martha Gardner, $5,000 00, for her sole and separate use, so that the same should not, in any manner, be subject to the debts or contracts of her present, or any future husband, and at her death the same to be equally divided among her children, and representatives of children. By the 10th item of the will, the testator gave to his two sisters, Martha Gardner and Mary C. Weems, all the balance of his property, after paying all his just debts and the specific legacies bequeathed in the will, upon the express condition that they and each of them receive and have all the property bequeathed to them in the will only during their natural life, for their sole use and benefit, so that no part thereof shall be in any manner liable for the debts or contracts of their present or future husbands, and at their death the same to be equally divided among their children. At the death of the testator, Mrs. Gardner was the mother of three living children, namely, Thomas Gardner, Anna Gardner, and Williamina Gardner. The specific legacy of $5,000 00, and one half of the residuum of the estate bequeathed to Mrs. Gardner, amounted to about $20,000 00. On the 27th of June, 1859, Joseph M. Gardner, the husband of Martha Gardner, and the father of her said children, all of whom resided in the county of Clay, applied for and obtained from Hon. David Kiddoo, Judge of the Pataula Circuit, which includes the county of Clay, the appointment of trustee for his wife and children, of the' property bequeathed as aforesaid. Mrs. Gardner freely and voluntarily joined in the application of her husband to be thus appointed trustee. After the appointment, Joseph M. Gardner applied to William J. Weeks, the executor, and demanded payment to him of the legacies given by the testator to his wife and children, but the executor refused to pay the legacies to him, alleging that the said Gardner had no authority to receive the same, and that he, the executor, was bound to hold and keep the principal of said legacies in his own hands during the life of Mrs. Gardner, and to pay the same to her children at her death, as provided in the will. Joseph M. Gardner then filed his bill in Talbot Superior Court, against the said executor, setting forth the facts aforesaid, exhibiting evidence of appointment as trustee, and praying that the executor be decreed to pay the legacies to him upon such terms as the Court, in the exercise of a sound discretion, might see proper to impose, with which terms, he avowed in his bill, his readiness and willingness to comply. The defendant demurred to the bill for want of equity, and after argument, the presiding Judge sustained the demurrer and dismissed the bill, and that ruling is the error complained of.