87 Vt. 376 | Vt. | 1914
This is an action of ejectment, brought by the plaintiff as executrix of the will of Catherine A. Atkins, a devisee under the will of Hiram Atkins late of Montpelier, to recover an undivided half of certain premises in Montpelier known as the Argus & Patriot block.-
The will of Hiram Atkins gave a life use of the testator’s share of the Argus & Patriot realty, and of the personal property used there, to George Atkins and Morris Atkins and the survivor of them, and the reversion thereof to the testator’s children or grandchildren. The will made Alfred Atkins and George Atkins trustees of certain funds, the income of which was to be paid to the testator’s daughters, Catherine A. Atkins and Elizabeth De Witt Clark, and to the survivor of them. Further provisions of the will were as follows: “It is my will that in case my two daughters hereinbefore mentioned or either of them shall come to want said trustees hereinbefore mentioned may pay out for them and their benefit any portion of the principal sums hereinbefore specified and directed to be left in the hands of said trustees, and if after such expenditure they or either of my said daughters shall be still in want then I make their- support and maintenance a charge and lien upon the Argus & Patriot building and real estate and the business carried on there. And the said George and Morris are hereby required to make suitable provision for the support of my said daughters in case my said daughters come to want, and in case of their failure to make such provision under such 'circumstances then said Argus & Patriot property and business including all the real and personal property connected therewith shall at once revert to my said daughters or the survivor of them after the decease of either.” . . •
The case was tried by the court, and the following are among the facts found. Catherine A. Atkins lived in Burling
In November, 1903, Catherine brought a bill in equity against Alfred Atkins, George Atkins and Morris Atkins, setting up her condition of want, and praying for a decree that the Argus & Patriot property, as described, had become the sole property of the- oratrix and her sister Elizabeth De Witt Clark, and that George Atkins and Morris Atkins be foreclosed of all right and title therein under the will. After the bill was served 'there was á conference between Mr. C. G. Austin representing Miss Atkins, and Mr. W. B. C. Stiekney representing the defendants George and Morris, in which Mr. Austin said that Miss Atkins was in needy circumstances and must have some money; and Mr. Stiekney asked him how much was needed. After some consideration Mr. Austin said that if. they could have $200 "it would fix matters up all right then,” and Mr. Stiekney thereupon gave Mr. Austin a check for $200 and this was delivered to Miss Atkins and was used by her. This is the $200 before referred to as received by Miss Atkins a few days before her death. All the sums paid to Catherine by these defendants were paid because the support of Catherine and her sister was made a charge on the Argus & Patriot property.
It is stated in the findings, upon an agreement of counsel, that all the trust funds set apart for the benefit of the daughters have been paid to them by the trustees, and that all the moneys so paid, except such as remained in the hands of Catherine as shown in the findings, were used up several years before Catherine’s death, and that since that time Elizabeth has been supported by the defendants. The rental value of the real estate is placed at $9.68.
The plaintiff argues that her testatrix took an 'estate in fee simple by way of executory devise; that the happening of the contingency at once terminated the life estate of the defendants; that the estate thereupon immediately vested in the plaintiff’s testatrix without the necessity of entry or claim; and that she could not part with her title thereto otherwise than by deed.
The defendants do not designate in terms the interest taken by the favo daughters; but they insist that the claim that the
“An executory devise is a limitation by will of a future estate or interest in land, which cannot, consistently with the rules of law, take effect as a remainder.” If a devise is capable of taking effect as a remainder, under the conditions existing at the death of the testator, it is not to be construed as an executory devise. A remainder is an estate which is so limited as to be immediately expectant on. the natural determination of a particular estate of freehold, limited by the same instrument. “When the event which gives birth to the ulterior limitation abruptly determines and breaks off the preceding estate, the limitation is executory, inasmuch as it is essential to the constitution of a remainder that it wait for the regular expiration of such estate. ’ ’ It follows that every devise of a future interest which is not preceded by an estate of freehold created by the same will, or which, being so preceded, is limited to take effect before or after, and not at, the expiration of such prior estate of freehold, is an executory devise. 2 Jarm. Wills, 5 Am. ed. 483-4; Fearne, Executory Devises, 17 et seq.; 2 Wash. Beal Prop., *344.
The interest given the two daughters could not be a remainder, for it was not limited to take effect on the determination of the preceding estate of freehold. It did not leave the preceding estate to expire by its own limitation, but intervened to supersede and destroy it. It is the manifest purport of the will that the term of the preceding estate shall be determined by. the contingency upon which the future interest depends, if that contingency is suffered to occur; and the provision must therefore be classed as an executory devise. See Randall v. Josselyn, 59 Vt. 557, 563, 10 Atl. 577.
The plaintiff argues that an executory devise is always a contingent limitation, and that this estate vested in the two daughters upon the happening of the contingency without any
No distinction can be made between executory devises and other conditional limitations as regards the passing of the title without entry. Executory devises; shifting uses and conditional limitations -are essentially the same. It is said by Mr. Wash-burn that conditional limitations are in fact shifting or secondary uses, which, when created by will, take the name of executory devises. 2 Wash. Real Prop., *289.
It was said by plaintiff’s counsel in oral argument that the finding that Catherine “came to want” precludes all further discussion. To this we cannot agree. The question was whether Catherine came to want within the requirement of the will, ascertained in accordance with legal rules. The conclusion of the court below involved a construction of the will as well as a finding of fact. McKeough’s Est. v. McKeough, 69 Vt. 41, 37 Atl. 275. A finding which involves a conclusion of law does not relieve this Court from an examination of the facts reported. Walworth’s Est. v. Bartholomew’s Est., 76 Vt. 1, 11, 56 Atl. 101. The fact most prominent in this connection is the setting apart by Catherine of $1,000 as a fund for the benefit of Beulah, her adopted daughter, over-one-third of which was in the hands of its custodian at the time of Catherine’s death. It appears that the greater part was returned to Catherine as her illness progressed. Nothing appears in the exceptions as to Catherine’s right to recall the money, nor as to the willingness of the custo
But the defendants contend that the breach of the condition is not the existence of a state of want, but the failure to make a suitable provision; and that the trial court has not found that there was this failure. It is true that there is no such finding in terms. But we think the findings which show a continued condition of want, made known to the defendants by repeated applications and representations, are a sufficient finding that the defendants failed to furnish Catherine a suitable support on her coming to want.
The defendants rely upon Catherine’s conduct as a defence to the suit, on the grounds both of waiver and estoppel.
The plaintiff claims that her testatrix could not waive or part with her title except by deed, and refers to P. S. 2582, which, provides that no estate or interest in lands shall be assigned, granted or surrendered, unless by a writing signed by the grantor or his attorney, or by operation of law. The plaintiff presents no further argument on matters affecting the title. The defendants, in presenting their brief, orally requested that, if it should be considered that the plaintiff had made out a case, judgment might be suspended to permit proceedings in equity. So the plaintiff assumes that the right of her testatrix is conclusively established by the finding that the condition was broken, while the defendants assume that it is within the power of a court of equity to relieve them from the forfeiture; and we are left without the benefit of an argument upon this question from either side.
It is said in a note in Greenleaf’s Cruise on Real Property, Yol. 2, *37, with reference to estates created by deed, that if upon failure of that on which the estate is made to depend the land is to go to a third person, this is a limitation over and not a condition; that a limitation is imperativé and is determined by the rules of law, while a condition is controlled by equity if an inequitable use of it is attempted; that the performance of a condition is excused by the act of God, or of the law, or of the party for whose benefit it was made; but that a limitation determines the estate absolutely whatever be its nature. Future interests in realty created by will are governed by the same rule. 1 Preston on Estates, *45, 50; 2 Jarm. Wills, 1486 (Ed. 1910); Simpson v. Vickers, 14 Ves. 341; Re Hodges’ Legacy, L. R. 16 Eq. 92. The authorities undoubtedly support the general proposition that where there is a limitation over the title passes upon • a breach of the condition without the possibility of relief in equity. Whether this places the plaintiff in an impregnable, position upon the case presented remains to be seen.
If we assume that the title has passed beyond the reach of equity, it will not necessarily follow that the defendants can have no relief. It is well settled that an executory devise to a person ascertained can be released at any time before the happening of the contingency upon which it depends. Gray, Perpetuities, 242, 274, 281; 2 Wash. Real Prop., *341, 357. If Catherine’s interest was releasable to the defendants, it would seem that she might become estopped by her conduct from asserting her title against any equitable claims of the defendants. The limitation imposed upon the defendants’ estate was created solely for the benefit of the two daughters. If they had declined to accept the support provided for them, the contingency on which the title was to pass could not have occurred. If there had been a further limitation over, the next taker could not have asserted the inadequacy of a support which the beneficiary was willing to accept as adequate.
The provision which terminates the estate of the life tenants on their failure to provide the two daughters with a suitable support, follows a provision which makes their support a lien and charge on the property. As a charge on the property, this matter would have been in the exclusive control of the court of chancery. That court might have enforced the provision by securing an application of the income through the medium of a receiver, or by ordering'a sale of the property and directing the disposition of the avails. The connection of the clause of forfeiture with a provision of this nature is made the basis of an argument as to the testator’s intention. It is urged by defendants that the interest which is to pass to the two daughters
The case calls for some special consideration of the nature of the obligation imposed, and of the defendants’ course in regard to it. The requirement is not absolute, but contingent. The duty arises from a condition of want, and may vary with the circumstances of the beneficiary. The want of means which raises the duty may not be continuous. Its existence may depend upon the fluctuations of an income received from other sources. The obligation may be increased by the demands of sickness, or be reduced by a return to health. The beneficiary was supporting herself from moneys placed in her hands. The regular payments determined upon might be sufficient at times, and at other times prove inadequate. If supplemental payments were resorted to, a different situation might be presented after the making of each. A particular payment might be a provision for the future, or might go .to pay debts resulting from the inadequacy of previous payments. No other means of determining the inception and continuance of a condition of want is provided than the best judgment of the life tenant. If support is
Catherine is found to have come to want on the first day of March, 1902. The statement of facts does not connect this finding with any particular default occurring or culminating on that day. There is no finding of a claim or protest referable to the inadequacy of any particular prior or subsequent payment. The matter rests upon the general statement that while receiving these payments she was making repeated demands for more funds. The plaintiff stands upon the claim that the life estate of the defendants ended on the day named, and that the fee of the property immediately vested in Catherine and has since remained there. So the plaintiff seeks to hold a judgment for damages amounting to $4,158, which presumably includes the mesne profits for the last two years of Catherine’s life,— necessarily recovered on the ground that she was the owner of the property and had been wrongfully kept out of possession, — • while Catherine was in receipt during all that time of monthly payments of $50, which were demanded for her support under the provisions of the will and were paid by the defendants as life tenants in rightful possession of the property. Moreover, the plaintiff’s testatrix, a few days before her death, having brought a bill to foreclose the defendants of any right or title they might have in the premises, accepted $200 from the defendants as a sufficient payment for the time being.
It is not necessary to the relief of the defendants that we find some ground of exception to the rule which declares that in cases of conditional limitation an absolute title passes to the
We proceed to inquire as to the rules governing relief from forfeitures in ordinary cases. As a general rule courts of equity will grant relief from a forfeiture incurred by the non-payment of money, unless the party has debarred himself from relief by inequitable conduct. It is said in Dunklee v. Adams, 20 Vt. 415, 50 Am. Dec. 44, that relief will only be granted where the condition broken is for the payment of money. The fact that this was a dictum, and an erroneous one, seems to be recognized in Henry v. Tupper, 29 Vt. 358, 371. It is so treated in the note to Smith v. Mariner, 68 Am. Dec. 85. But it is said that when the required act is of such a nature that its value cannot be pecuniarily measured as a basis of compensation, or the circumstances are such that the party entitled to its performance has suffered some peculiar injury from the default, relief against the forfeiture will not ordinarily be granted. If, however, one waives or acquiesces in a breach where he would otherwise be entitled to a forfeiture, he will ordinarily be precluded in equity from enforcing the forfeiture, and the defaulting party will be relieved. Note 68 Am. Dec. 85.
Nearly all the cases concerning equitable relief from forfeitures relate to matters of contract. A few cases relate to the breach of conditions in devises, and these are uniform in holding that á court of equity may intervene to relieve from the default of a devisee. Nóte 86 Am. St. Rep. 59. But the provisions in
It will be necessary to pass upon certain exceptions to determine the status of the case. The admissibility of the certified copy of Hiram Atkins’ will and of the letters testamentary; the sufficiency of the evidence to sustain the findings that Catherine came to want, and that the defendants were in possession claiming as life tenants; and its sufficiency to enable the plaintiff to maintain ejectment after a proper demand, and to have the damages for the last two years of Catherine’s life included in the judgment; are matters sufficiently disposed of by what has already been said.
Miss Rice, a professional nurse who attended Miss Atkins some years, was produced by the plaintiff, and testified regarding Miss Atkins’ necessities, and applications made by the witness for further assistance. In the course of her examination she was permitted to testify regarding certain letters, not called
Mr. C. G-. Austin was the attorney of Miss Atkins and had the'sole charge of her affairs for several years prior to her death. While he was on the stand as a witness for the plaintiff his letters to the defendants were called for, and were not produced because not in the hands of defendants’ counsel. The witness was afterwards permitted, in answer to a general inquiry, to give a detailed account of Miss Atkins’ financial affairs, her impoverished condition, and the efforts made from time to time to obtain payments for her support. In the course of this testimony it appeared that many of the applications and representations were made by letter. Nothing further appears in the exceptions, but the transcript is made controlling, and it appears from this that on motion of defendants ’ counsel everything testified to by the witness regarding the contents of the letters was stricken out.
It was not error to permit the witness Austin to testify that the avails of certain sales of real estate belonging to Miss Atkins were used in paying her existing indebtedness.
The bill in equity brought by Miss Atkins against the defendants was properly received to show that the matters therein complained of were brought home to the knowledge of the defendants.
The answer to this bill was received under exception. No copy of it has been furnished. Presumably it disclosed the position taken by the defendants regarding the claim of the orator. No error appears.
The testimony of Miss Atkins’ attending physician that at the time of her death she was owing him a certain sum was admissible in connection with the other evidence as to her financial condition.
Miss Bice, who had been Miss Atkins’ attending nurse, and who took care of her at various times afterwards, testified that she had loaned her money at different times. This came in in connection with her testimony as to Miss Atkins’ condition of destitution at the times in question, and was properly received.
The written demand for possession which was delivered to . the defendants just before the service of the writ, but while' the sheriff was present with the writ in his pocket, was properly received. The commencement of the suit for this purpose was not the issuance of the writ but the service of it.
The defendants excepted to the finding of fact that the plaintiff’s damages are $4,158.84, as not warranted by the evidence. The only claim made under this exception, not previously disposed of, is that deductions should have been made for taxes, insurance and repairs. There is nothing in the case to show the amount of these ’expenditures. These were matters of allowance, which were peculiarly within the knowledge of the defendants, and were for the defendants to show.
We find no ground of reversal, but the judgment of affirmance will be suspeivded to permit proceedings in equity.