Anderson v. Hande

141 P. 723 | Ariz. | 1914

CUNNINGHAM, J.

In describing the character of this instrument in Houck v. Anderson, 14 Ariz. 502, 131 Pac. 975, we said the instrument “is reciprocal in its terms in that each (party thereto) purports to give all his interest in the common property to the other, effective upon his death, with remainder over after the survivor’s death to nearest heirs at law of both the testators.” We held that Peter Anderson revoked the instrument as his will by his marriage with Ruth Wilson Anderson, and therefore held the instrument not subject to probate as the will of Peter Anderson.

In this case the instrument is propounded as the will of Isabella Anderson, and the first question that must be settled is whether it can be admitted to probate as the will of one of the joint makers when it has been revoked by the other.

The instrument, considered as a whole, may be, and it is, both a mutual or reciprocal will of the parties, and a separate will of the survivor. That part of the instrument preceding the “fourth” paragraph of the conditions of trust deals with the community property making testamentary disposition of the said property. That part of the instrument preceding the terms of the trust is in form an absolute deed from the husband to the wife, and from the wife to the husband. The property purported to be conveyed by the husband to the wife is different in description from the property purported to be conveyed by the wife to the husband, but a general description of “all personal property and other real estate owned by” each party at the time of his or her death is added to the specific description of the real property in each instance, and, all property owned being conceded to be community property, the difference in description is immaterial to the disposition of this case. The conveyance is declared to have been made “for the disposition of all their property that they or either of them may own at the date of their death. ’ ’

Following the words of conveyance and description above noticed, the habendum, clause is “To have and to hold unto (as the ease may be) in life rent subject to the terms of the trust hereinafter written.” Then follows this introductory statement, “Now the terms of the before mentioned trust are these.” The first: “Upon the death of either one of the parties hereto the survivor shall set apart” the sum of $1,000 for the use and benefit of G. B. Blom. The second: “Upon the death of one of the parties hereto the survivor shall set apart” $500 for the education of Yiolet Thompson. The residue of both sums shall become the property of such survivor. ° ‘ ‘ These two sums shall be expended by and under control of said survivor to the best interest of the beneficiaries.” The third: “After the payment of all debts owing by the parties hereto, the remainder shall become the sole property of the survivor, who shall have the power to dispose of any or all of said real estate and personal property and grant, bargain, sell and convey the same and enjoy the same during her life or his lifetime.” The necessity of administration is waived and all bonds are waived. Clearly the instrument, up to the fourth paragraph of the so-called terms of the trust, as we have noticed, is the will of both the husband and wife, and makes full disposition of all the property of each and all the community property after the death of one of the spouses. The fourth paragraph of the so-called terms of trust deals with an entirely different property and is a separate and separable matter which we will notice later in this opinion.

The wife, Isabella Anderson, having died, and Peter Anderson having become the survivor, the instrument, so far as it purports to dispose of the wife’s estate in the community property, became subject to probate as the last will and testament of Isabella Anderson. This is the intention to be gathered from the clear terms of the instrument. No other construction can be given the instrument.

If established and admitted to probate as such will, then the question first to arise would be whether, under the terms of the will, Peter Anderson would take the residue of the property, after setting aside the sums to Blom and Violet Thompson and paying all the debts, as a life estate, or would he take the entire estate in fee simple? It is clear that the survivor, Peter Anderson, would take a fee-simple title both under the terms of the will and under the express provisions of the statute (paragraph 723, Ariz. Rev. Stats. 1901). The statute is as follows:

“Every estate in lands which shall hereafter be granted, conveyed or devised to one, although other words heretofore necessary at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.”

This statute was taken from Texas, and, before its adoption, the supreme court of Texas, in Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268, said, as to the common-law rule of construction:

“It is a rule of construction of the common law, independently of the statute, that in every case, where land is charged with a trust which cannot be performed, or where the will directs an act to be done, which cannot be accomplished, unless a greater estate than one for life be taken, it becomes necessary that the devise be enlarged to a-fee. 4 Kent’s Commentaries, 540; Collier v. Walker, 6 Co. (Coke’s Rep.) 16; Doe v. Woodhouse, 4 Term Rep. 87.”

Peter Anderson, the survivor, could not grant, bargain, sell and convey the property during his lifetime, according to the express terms of the will, if he acquired only a life estate. Under the statute, and also under the common-law rule of construction, Peter Anderson would take a fee-simple estate in the lands through the will. The will in terms devises that estate, and the statute would give him that estate. Prom the terms of the will the clear intention of the testator was to transfer a fee-simple estate to the survivor, and that clear intention must prevail, if the instrument is established as the will of Isabella Anderson.

The “fourth” condition has no reference to the community property. That is disposed of in the preceding part of the instrument to the survivor of the community. Such preceding part of the instrument clearly, on the death of his wife, became her will, and the survivor became her devisee, with Blom and Violet Thompson legatees. The “fourth” condition of the so-called trust deals, not with the community property, but solely with the estate of the survivor. The husband and wife jointly and mutually agreed that the whole estate of the survivor, at his or her death, should go to the nearest heirs at law of both parties and to Violet Thompson, share and share alike. Whether Peter Anderson as a fact repudiated the will of Isabella Anderson, and took her estate under the statute, or whether he acquired title through the will, is not a question in this case. That question might arise upon a distribution of the estate. If he took the title under the statute, he would have repudiated the will; and, if he took under the will, he waived the statute; the result, however, is not the same. In either event he took the fee-simple estate. If he took under the will, the estate would be charged with the payment of the legacies and debts; if he took under the statute, the estate would be charged with the payment of the debts alone. Violet Thompson, now Violet Houck, is alleged to be a legatee under the will; therefore she, as such legatee,, is entitled to have the will probated in order to protect her rights.

Ruth Wilson Anderson, as the surviving wife, has such an interest in the estate of Peter Anderson, a devisee under the purported will, as would give her the right to contest its admission to probate.

After probate, if it should appear that Peter Anderson elected to take the estate of his deceased wife under the will, •then such estate, so acquired by him, would be charged with the legacies provided in the will and with the payment of the debts; and Ruth Wilson Anderson, his surviving spouse, would take such property still charged with such burdens, unless Peter Anderson discharged them in his lifetime. In any event, the nearest heirs at law could claim nothing in the estate of Peter Anderson by reason of the instrument. Yiolet Thompson can claim the legacy of $500 provided in Isabella Anderson’s will, and follow the claim against the estate of Peter Anderson, not because of any will of Peter Anderson, but because of the will of Isabella Anderson and Peter Anderson’s implied promise to pay the legacy arising upon his taking the property under the will burdened with the payment of such legacy. If he accepted the benefits, he must stand the burdens. Yiolet Thompson, now Yiolet Houck, can claim no part of Peter Anderson’s estate under the instrument, any more than the “nearest heirs at law” can claim under the instrument, for the reason it was revoked by operation of law on his remarriage as to such devisee.

We have no hesitancy in holding that the order of the court involved in this appeal, admitting the instrument to probate as the last will and testament of Isabella Anderson, deceased, is without error.

The order is affirmed.

FRANXLIN, C. J., and ROSS, J., concur.

Application for rehearing denied.

NOTE.—As to probate of joint wills to operate on survivor’s death, see note in 38 L. E. A. 292.