Miller v. Texas & Pacific Railway Co.

Citations

• 132 U.S. 662
• 10 S. Ct. 206
• 33 L. Ed. 487
• 1890 U.S. LEXIS 1884

Syllabus

<p>R., a citizen of Texas, made his will there June 7, 1848, by which he devised all his property, including the real estate in controversy, (1) to his wife for twenty-onh years after his death; (2) after that to his offspring, child or children by his said wife; (3) in the event of the deatli of his wife without offspring by him, to the children of M. by M’.s then wife, who was a sister of R.’s wife(4) in the event of the death of the offspring which he might have by his wife, to his wife for life. M. was named as executor of the will. R. died January 10, 1850, leaving surviving his wife and an infant son. This son was born after the making of the will and died in 1854. The will was duly proved by the executor shortly after R.’s death. About six months after R.’s death his widow married E., by Whom she had several children. Two years after the probate of tho will E. and his wife commenced proceedings to have the will declared null and void on the ground that the property was communal property. In these proceedings the executor was defendant, and a guardian ad litem was appointed for the infant, and such proceedings were had therein that in October, 1852, a decree was entered, declaring the will to be null and void, and setting it aside; Held,</p> <p>(1) That the devise to the children of M. was a contingent remainder, to vest only in case of the death of the testator’s wife without offspring by him, and limited after the fee which was primarily given to the testator’s child;</p> <p>. (2) That, the executor being a defendant and appearing and answering, and the infant'son being represented by a guardian ad litem, and the executor being interested on behajf of his own children that ' the will should stand, (if that was of any consequence,) all the necessary parties were before the court to sustain the decree;</p> <p>(3) That the decree could not be attacked collaterally, and was binding on the children of M.</p> <p>McArthur v. Scott, 113 U. S. 340, distinguished from