Murphy v. Markham

THOMPSON (IRA F.), J.

This is an appeal from that part of the final decree ordering the distribution to Nannie L. Markham of one-fourth of the rest, residue and remainder of the estate of John Drury Lavin. The facts leading up to and necessary to an understanding of the situation are as follows: John Drury Lavin died testate on February 20, 1923. By his will he nominated Nannie L.

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Markham, William A. Dolan and Wm. J. Siemann to be the executors thereof. Upon the petition of the three so named the Superior Court of Orange County admitted the will to probate on March 16, 1923, appointing the petitioners executors. Within a year from the time of the order, one of the appellants here, Marcella Lewis, filed her petition praying for a revocation of the probate, the grounds of which it is not necessary to state. It is sufficient to note that the petition was dismissed by the Superior Court and that subsequently an appeal therefrom was likewise dismissed. The fiftieth paragraph of decedent’s will reads as follows: “Should any of the beneficiaries under this my will object to the probate thereof, or in any wise, directly or indirectly, contest, or aid in contesting the same, or any of the provisions thereof, or the distribution of my estate thereunder, then and in that event I annul any bequest herein made to such .beneficiary, and it is my will that such beneficiary shall be absolutely barred and cut off from any share in my estate, for I now solemnly declare that all property of which I am now possessed has been accumulated by my own efforts, aided and assisted by the prudent and economical management of my household affairs by my sisters, Sarah J. Lavin, now deceased, and Mrs. Mary E. Downing, and that none of the other beneficiaries herein named, or anyone else, has ever contributed anything towards it, or assisted in its accumulation.” There were three petitions for partial distribution filed by the executors of the last will and testament, which were joined in by Michael C., Joseph T., John L. and Marion C. Markham. In each of these three petitions, as well as in that for final distribution, filed by the executors alone, it was alleged that Marcella Lewis had filed a petition for revocation of the probate of the will, and it was further set forth that John B. Murphy (a brother of Marcella Lewis) had actively assisted and promoted the filing of the contest and had directly and indirectly contested and aided in contesting the will, and all of these petitions asked that no distribution be made to either Mrs. Lewis or the Reverend John B. Murphy on account of the acts so alleged. The court found that Mrs. Lewis was not entitled to the legacy left to her by the will, but declared that the Reverend John B. Murphy had not directly or indirectly contested the will and was, therefore, entitled to have distributed to Mm all sums