182 Iowa 37 | Iowa | 1917
Lead Opinion
In a subsequent paragraph is found the following language:
“Six: — I will, desire and direct that at the death of my beloved wife the residue of my estate, both real and personal, be sold and that the proceeds thereof be disposed*39 of as- follows: I direct that out of said proceeds there shall be paid to my grandson, Alva Fall, the sum of one hundred dollars and that the remainder of said proceeds after paying the said sum of one hundred dollars be equally divided between my beloved daughters Mary L. Patterson, Lodema S. Atchison and Eva E. Horn, share and share alike, and in case of the death of each or any of said children aforesaid, said individual share to be paid to the lawful heirs of their body begotten.”
The testator died in the year 1901, and the widow in 1913. The testator was survived by all his three daughters named in the will; but one of them, Mary L. Patterson, died intestate in 1912, or about one year before the death of the life tenant. Mrs. Patterson was survived by her husband, C. B. Patterson, who is the appellant in this case.
Stated briefly, the question is whether, these facts being conceded, appellant, as the surviving husband of Mary L. Patterson, acquired or succeeded to any right or interest in the property of which John W. Atchison died seized.
It is the claim of the appellees that the will provides for no remainder over, either vested or contingent, and that no title or interest of any kind was vested by the will in any of the children until the time arrived for the sale and distribution of the estate after the death of the widow; and that, as Mary L. Patterson died before that time arrived, she never acquired or had any interest therein. On the other hand, it is appellant’s theory that the will does provide for a remainder over, and vests the same in testator’s three named daughters, of whom Mary L. Patterson was one; that her rights as such beneficiary became fixed and vested at once upon the death of John-W. Atchison; and that, upon her dying intestate, appellant acquired a surviving husband’s statutory share in her property, including this which she derived through the will of her father.
There is a class of cases in which legacies are given 'to
construction of gifts of this character. The law always favors the vesting of estates; and, if the construction of the devise is open to any doubt upon the question whether the remainder is vested or contingent, the. former will prevail, and the latter will be rejected. Kellett v. Shepard, 139 Ill. 433, 443; Schouler on Wills (2d Ed.)., Sec. 563; Archer r. Jacobs, 125 Iowa 467; Putbrees v. James, 162 Iowa 618; Ross v. Ayrhart, 138 Iowa 117, 121. It is equally well settled that, where a devise of a remainder or other right or interest in property is accompanied by words of survivorship in , _ the event of the devisee’s death, they will be construed to have reference to the death of such devisee before I he will becomes effective by the death of the testator, unless (he language of the instrument clearly reveals a different intent. Collins v. Collins, 116 Iowa 703; Callison v. Morris, 123 Iowa 297; Tarbell v. Smith,
In the note to Schackley v. Homer, (Neb.) 55 L. R. A. (N. S.) 1050, the annotator, after citation of cases, states the rule as follows:
“If * ■* it appears that the future- gift is only postponed in order to let in some other interest, or as it is commonly expressed, for the benefit of the estate, the interest is vested notwithstanding, although the enjoyment is postponed.”
In Scofield v. Olcott, 120 Ill. 332, 374, the court, in applying the rule, says that estates in remainder vest at the earliest period possible, unless a contrary intention on the part of the testator is clearly shown. Where it is ,a remainder after a life estate, it is regarded as a vested remainder, and the possession only is postponed.
The Pennsylvania court, considering a will which gave a life estate to the widow, and thereafter to be divided among children, says:
“Where the enjoyment of an entire fund is given in fractional parts at successive periods which must eventually arrive, the distinction between time annexed to the payment and time annexed to the gift becomes unimportant. Tn such cases, it is well settled that all interests vest together.” King v. King, 1 Watts & S. (Pa.) 205.
Where a devise provided for. a trustee, with directions to sell the property after the decease of the' widow, and divide the proceeds “between my children,” and, as in the case at bar, one of the children predeceased the widow, it was held that the legacies became vested at once upon the death of the testator. Price v. Watkins, 1 Dallas (U. S.) *8 (1 L. Ed. 14). Where the will provided, among other things, that the remainder in certain property, after the
“Words directing land to be conveyed to or divided among remaindermen after the termination of a particular estate are always presumed, unless clearly controlled by other provisions of the will, to relate to the beginning of enjoyment bv the remaindermen and not to the vesting of the title in them. For instance, under a devise of an estate, legal or equitable, to testator’s children for life, and to be divided upon or after their death among his grandchildren in fee, the grandchildren living at the death of the testator take a vested remainder at once, subject to open and let in afterborn grandchildren, although the number of granddiildren who will take, and consequently the proportional share of each, cannot, of course, be ascertained' until the determination of the particular estate "by the death of their parents (citing cases). So a direction that personal property shall be divided at the expiration of an estate for life creates a vested interest. Shattuck v. Stedman, 2 Pick. (Mass.) 467. * The direction that, if any grandchild shall have died before the final division, leaving children, "they shall take and receive per stirpes the share of the estate both real and personal which their parent would have been entitled to have and receive if then living, was evidently intended merely to provide for children of a deceased grandchild, and not to define the nature, as vested or contingent, of the previous general gift to the grandchildren; and its only effect upon that gift is to divest the share of any grandchild deceased leaving issue, and to vest that share in such, issue.” McArthur v. Scott, 113 U. S. 340 (28 L. Ed. 1015).
“A bequest in the form of a direction to pay at a future period, vests an interest immediately if the postponement be for the convenience of the estate or to let in some other interest. The payment of debts is an instance of the former, and a prior temporary provision for-some other person, as for Elizabeth Cropley in this case, is an instance of the latter. In all such cases it is presumed that the testator postponed the time of enjoyment by the ultimate legatee for the purpose of the prior devise or bequest (citing Halifax v. Wilson, 16 Ves. 171; Leensing v. Sherratt, 2 Hare 14; Packham v. Gregory, 4 Hare 396; Winslow v. Goodwin, 7 Metc. 363; White v. Curtis, 12 Gray 54; Tucker v. Ball, 1 Barb. 94; Barker v. Woods, 1 Sand. Ch. 129; Thomas v. Anderson, 6 C. E. Green 22; McGill's Appeal, 61 Pa. St. 47; Tayloe v. Mosher, 29 Md. 443; Brent v. Washington, 38 Gratt. 526; Fuller v. Fuller, 5 Jones Eq. 223; Roberts v. Brinker, 4 Dana 570; Rawlings v. Landes, 2 Bush. 158). A devise of lands to be sold after the termination of the life estate given by the will, the jn-oceeds to be distributed thereafter to certain persons, is a bequest to those persons, and vests at the death of the testator. Fairly v. Kline, 2 Penning. 322; Reading v. Blackwell, 3 Bald. 166; Rinehart v. Harrison, 1 Bald. 377; Loftis v. Glass, 15 Ark. 680.”
These quotations fairly reflect the holdings in all of the cases to which we have called attention, on this branch of the cases under consideration. Indeed, after a somewhat extended research, we have found no case whatever in which
Nor does this court furnish any exception to the rule of the authorities we have above cited. See Olsen v. Youngerman, 136 Iowa 405; Shafer v. Tereso, 133 Iowa 342; Blain v. Dean, 160 Iowa 708; Beaver v. Ross, 140 Iowa 154; Haviland v. Haviland, 130 Iowa 611; Callison v. Morris, 123 Iowa 297; Ross v. Ayrhart, 138 Iowa 117; Scott v. Scott, 132 Iowa 35; Putbrees v. James, 162 Iowa 618; O’Conner v. Halpin, 166 Iowa 101; Sleeper v. Killion, 182 Iowa 245; Lingo v. Smith, 174 Iowa 161. In each of these cases it will be found that the testator, having first devised a life estate (in one case an estate for years), proceeds to, provide that, after the expiration of such estate, the property shall be divided, or sold and the proceeds divided, between his children or other designated beneficiaries, and in each and every one we have held that the postponement of the division, or sale and division, has no effect to render the devise of the remainder contingent, but that such interest vested at once upon the death of the testator. In principle there is no difference, so far as the vesting of the right is concerned, between a direction to divide the property and a direction to sell the property, and divide the proceeds. A direction to sell and divide does no more than to work an equitable conversion of the real property as of the time of the death of the testator, and the gift, technically speaking, becomes a bequest instead of a devise; but the right of the beneficiary therein vests alike in either case. Unless, then, we are prepared to say that we have been wrong in all our decisions above cited, we must hold that the trial court erred in ruling that.the children of tbe testator, to whom he devised the remainder
To hold those interests vested is not inconsistent with any recognized definition of a vested remainder, nor can there he found any recognized definition under which they can be classed as contingent remainders, it is argued that cases like McClain v. Capper, 98 Iowa 145, Olsen v. Youngerman, 136 Iowa 404, Birdsall v. Birdsall, 157 Iowa 363. Baker v. Hibbs, 167 Iowa 174, Wilhelm v. Calder, 102 Iowa 342, Taylor v. Taylor, 118 Iowa 408, and Kierulff v. Harlan, 150 Iowa 671, 675, support the ruling of the trial court. A little examination of these cases will disclose that not one of them is authority for holding that the remainder provided for in this will is contingent. The Youngerman case is largely relied upon because of its discussion of the “divide and pay-over” rule, but the question there decided had no direct reference to the law of remainders. In that case, tiie appellants sought to terminate a trust which the testator had established for the benefit of a son and the son’s children. The provision was in the nature of a spendthrift trust, and provided that the principal trust fund was to be divided between the children at the death of the son. Home of these named beneficiaries sought to have the trust dissolved and the fund distributed while the son still lived, and it was decided that they acquired no right to such distribution until the time expressly fixed in the •will, — a conclusion which was manifestly right. Such holding did not necessarily turn upon the question whether the children’s rights were vested or contingent, for on neither theory could they demand possession until the time fixed for the termination of the trust arrived. And it should not be overlooked that, in discussing the “divide and pay-over” rule, the court, on page 410 of that opinion, expressly recognizes the rule which we follow in the present case, and in support of which we have cited many precedents, that, “where the
Our attention is called to the recent case of Fulton v. Fulton, 179 Iowa 948, as tending to sustain the opposite conclusion. But a little examination makes it perfectly clear that the devise in that case is materially unlike the
Without any extensive review of the foregoing cases, we quote from a few the rule as formulated by the courts. In Scofield v. Olcott, 120 Ill. 362, the Illinois court states it as follows:
“But, even though there be no other gift than in the direction to pay or distribute in futuro, yet, if said payment or distribution appear to be postponed for the convenience of the fund or property, as where the future gift is post*52 poned to let in some other interest, * * * the gift in remainder vests at once, and will not be deferred until the period in question.”
• In Martin u. Cook, 129 Md. 195 (98 Atl. 489), the Maryland court refuses to apjdy the rule which postpones the vesting of a remainder, to a case where there were no words of gift except in the direction to divide after the death of the life tenant, and states the applicable rule to be that, “if the postponement of the payment is for the purpose of letting in an intermediate estate, then the interest shall be deemed vested at the death of the testator.” In Herbert’s Hear. v. Post, 26 N. J. Eq. 278, and in Post v. Herbert’s Hair. 27 N. J. Eq. 540, the rule is stated in substantially the same terms. ,
And still again, it is held that, where the rule which prevents a vesting until the time of payment arrives would otherwise be applicable if the gift or devise were made to a class, the court will hesitate to apply it if the beneficiaries are described by their individual names. Bryant v. Plummer, 111 Me. 511 (90 Atl. 171, 173) ; Moulton, v. Chapman, 108 Me. 417 (81 Atl. 1007) ; Morse v. Ballou, supra.
The authorities classing such gifts as vested estates are so numerous and so parallel in all essential features to the instant case that it is unnecessary for us here to re-enter the field of debate upon the strict technical definition of vestéd and contingent remainders.
Without pursuing these citations further, it may be said that, in several other jurisdictions, the definition of remainders is fixed by statute in substantially siniilalternas, and between these and the jurisdictions where the common-law rules have been adhered to with more or less fidelity, the distinction between the two classes of remainders, as heretofore stated, has had the approval of substantially every court in the United States; and, if Ih ere be any prox>osition of law which can be said to have become a rule of property, surely this is one. Here and there, a case will occasionally be found where a court has pointed out real or supposed exceptions to the rule, but in most instances they do no more than cast doubt upon its absolute universality, and not its general truth and applicability. Without entering at all upon any discussion of the soundness of the exceptions taken to the rule, and, for the purposes of this opinion, conceding their propriety, it is perfectly clear that this case falls within the general rule, and not within the scope of any of the ex-cep Hons which have been taken thereto.
The will before us shows beyond .all question the purpose of the testator to give his entire estate (except one small legacy of $100) to the immediate natural objects of liis bounty, his Avidow and children.' In so doing, he adopted the very common plan of giving the full use of all his property to his Avife for life, and the remainder to his children. There is nothing shoAvn in the family relations or in the character or capacity of the children to induce him to Avithhold the vesting of the remainder until the widoAv’s death. When the Avill became effective, the fee, or ultimate right of property, subject to the life estate, must have i>assed to someone. It did not, of course, vest in the life tenant. No trust was created calling for a trustee to
It follows that the judgment below will be reversed,,, and the cause remanded to the district court for ai decree in harmony with this opinion. — Reversed and remanded.
Concurrence Opinion
(specially concurring). This opinion holds that the terms of the will created no contingency or uncertainty as to the devisees taking thereunder. The necessary effect of this holding is to treat as surplusage the provision relating to the “heirs” of the devisees. I think this is proper. If such provision had been wholly omitted, the, legal effect of the will would still be. the same, under Code Section 3281. On that ground, I concur in the result.