89 So. 479 | Ala. | 1921
Lead Opinion
This litigation involves the title to valuable lands in the county of Greene. Appellant, Rosemary Bingham, on the one hand, claims ownership in virtue of the statute of descents as heir at law of Ada Hairston Sumner, deceased; on the other, appellee, Martin T. Sumner, surviving husband of Ada Hairston Sumner and father of her children, deceased, claims by inheritance from said children. Ada Hairston Sumner left a last will and testament, and the question at issue more narrowly stated, is whether the children under the law of the will left an inheritable estate in the lands. The report of the case will show a copy of the will.
Nothing could be clearer than that a legal estate for life was by this will vested in the husband of testatrix. Title and possession were to be held in trust, and in the creation and disposition of the trust it is to be freely conceded that testatrix manifested her primary solicitude for the future of her children. But the trustee was given power to sell any or all of the property devised to him for the payment of debts or the settlement of claims against the estate, and to control, manage, or dispose of the property as he might see fit for the best interest of the estate, and it was the will of testatrix that in managing and controlling the property for the benefit of her children, "and in the expenditure of the rents and profits thereof for the purpose aforesaid," the trustee should use his own judgment and exercise his own discretion, and should not be held to account by the children for his acts and doings during his life. These provisions of the will may be construed fairly, and in full agreement with every purpose discoverable in the language used, as directing that during the life of the trustee the rents and profits to accrue from the management of the estate should be used primarily for the benefit of the children of testatrix, but not, it seems, as excluding the trustee, husband of testatrix, from participation in the benefit of such rents and profits. McLeod v. McDonnel,
Rules of testamentary interpretation with a view to the discovery of intention can never transcend this limit; the intention so determined must be justified by the law and the language of the will. Rules favoring the early vesting of remainders and referring words of survivorship to the death of the testator can never be used to wrest language from its plain meaning, for, as respects these things, testators are free to do as they please with their property. Nor do we find a review of the cases to be of much service in the matter of mere interpretation, though many cases have been consulted in connection with this record. However, we notice briefly *269 some which seem to be considered most nearly in point.
Stress is laid on Acree v. Dabney,
In Foster v. Holland,
Nor do we think Duncan v. De Yampert,
The conclusion reached is the only one which would do no violence to the language of the will. Testatrix did not anticipate, nor did she make provision for, the contingency that has happened, i. e., the death of her children before her husband. The result is that her property, after the life estate given to her husband — whether by the will or by statute is immaterial just now — will descend to her blood — a circumstance usually considered as of some significance in the construction of wills — to appellant. A decree accordingly will be here rendered.
Reversed and rendered.
McCLELLAN, SOMERVILLE, and MILLER, JJ., concur.
THOMAS and GARDNER, JJ., dissent.
ANDERSON, C. J., not participating in the consideration or decision of this case.
Concurrence Opinion
While I concur in the result attained on this appeal, as well as in much that is written in the opinion of Justice SAYRE, I am unable to discover in the will of Mrs. Sumner the slightest, remotest manifestation of a testamentary intent to create in or to devise to her husband, Martin T. Sumner, individually, a life estate in these lands. The only references in this will to Martin T. Sumner are to him as husband and trustee or as executor. The devise in item 1 of the will is to him "in trust nevertheless." Obviously a devise or bequest to one as trustee, "in trust," is not a devise or bequest to the individual named as trustee. The provisions of the will referring to the period "for and during his natural life," and other like phrases, were introduced to define the duration of the trust he was nominated as trustee to administer under the broadest discretionary powers, and so on the theory that her child or children would survive her husband, the trustee. Upon him, as trustee was imposed the duty to serve the interests of the cestuis que trust, viz. the son Percy and any child later born. His exemption from accountability to the beneficiaries of the trust or to any one else for his acts and doings as trustee certainly did not operate — was not intended by testatrix to operate — to create a life or other estate in the property that would or could take precedence over the primary objects of the testatrix's maternal desire, viz. her child or children. Not *270 only is there in the will no sort of expression of an intent to invest Martin T. Sumner with a life estate in her properties, but there is a complete absence of any recognition of right, power, or authority in him to share in or to personally appropriate the rents, incomes, profits, principal, or substance of or arising from her estate. He was given a wide discretion, predicated doubtless of worthy notions of his natural fidelity to their child or children; but to Martin T. Sumner, individually, she did not give or devise anything in her will.
"A construction in favor of a devise or a bequest by implication should be so strong as that a contrary intention to that imported cannot be supposed to have existed in the mind of the testator; and such a construction, it is held, should never be adopted except in cases where, after careful and full consideration of the whole will, the mind of the court is convinced that the testator intended to make the devise or bequest. * * * The implication, as we have said in Sherrod v. Sherrod,
There is no expression or intimation in this will that would justify, under the established rules quoted, an affirmation of a devise or bequest by implication pending the life of Percy or the other child.
Could a creditor of Martin T. Sumner individually have secured the satisfaction of his demand by levy upon Martin T. Sumner's life estate in this land? If so, then the whole design of the testatrix could have been deflected and defeated. Perhaps that possibility inspired Mrs. Sumner's declination to devise or bequeath any precedent estate to her husband individually. There being created by the will no life or other precedent estate upon which to pend a contingent or other remainder, my judgment is that no reversionary estate was created or contemplated by the will; that the child or children of testatrix took no estate in præsenti; and that, since neither of the children survived the trustee, Martin T. Sumner [item 5], and since they left no descendants [item 5], Mrs. Sumner has become intestate, the trust she designed having failed for want of a beneficiary or beneficiaries. Abercrombie v. Abercrombie,
It results from the conclusions here but summarized that upon the death of Percy Sumner, without descendants, and the termination of the trust, Martin T. Sumner became entitled to a life estate in these lands under Code, § 3765.
Dissenting Opinion
The bill is under the statute to quiet title to real estate, and its allegations conform to statutory requirements. Code, § 5443; Davis v. Daniels,
The bill was challenged by the general demurrer which was overruled. Respondent made her answer a cross-bill, claimed an interest in the lands described in the original bill, averred that she was the next of kin of Mrs. Ada Hairston Sumner, deceased, who on July 25, 1894, executed her last will and testament, and died on April 13, 1899. Said will was probated on May 8, 1899. Respondent further said that the testatrix died leaving surviving her two sons and husband, and Mrs. Bingham, who is alleged to be the next of kin and only living heir of Mrs. Sumner; that the two sons died after the mother's death and without issue, and the husband survived testatrix, is still living, and claims title to the property referred to in the bill of complaint to the exclusion of respondent; that Mrs. Sumner is —
"by reason of the death of the said Percy Hairston Sumner, intestate, said intestacy resulting from the failure of the purposes of said trust, * * * and by reason of said intestacy her said husband inherited from her only that share of the personal property which he would be entitled to under the laws of descents and distribution, as recognized and provided for by the laws of Alabama, and to the possession of the real property for his life time, being in an estate by curtesy, the right, title or interest to the other share or part of the personal property being in Mrs. Rosemary Hairston Bingham, the defendant, and the remainder of the estate after the estate for life by curtesy, in Martin T. Sumner, being vested in the defendant Mrs. Rosemary Hairston Bingham."
See Jenkins v. Woodward Iron Co.,
In his answer to the cross-bill Mr. Sumner states his title to the lands as follows:
"That he does in fact own the full and entire fee-simple title in and to the * * * said lands by inheritance from his two sons, viz. Martin T. Sumner, Jr., and Percy H. Sumner, both deceased, who were not only his children, but who were likewise the sole children and heirs at law, and likewise the devisees and legatees named in the aforesaid will of Ada H. Sumner, deceased; * * * that the said Ada H. Sumner, deceased, left her surviving the defendant to said cross-bill, who was her husband, and the said Martin T. Sumner, Jr., and Percy H. Sumner, who were her only children; that neither of her said children were ever married;" that they died intestate on July 21, 1899, and January 27, 1919, respectively, "and left as * * * next of kin and sole heir at law the defendant to said cross-bill, who * * * inherited and became the owner of all the property of every kind and description owned *271 by the said" sons, embracing the property made the subject of this suit.
The will bears evidence as being the result of legal advice. It is in two items. After declaring the trust in all of her properties in the husband, Martin T. Sumner, item 1 is subdivided into five sections: (1) Provided that the trustee was "to keep the same together for and during his natural life," and "to manage, control and use the same for the benefit of" the children of testatrix in the manner and to the extent indicated, and stipulated that he "shall not be held to account by my said children for his actions and doings, or for the manner of expending the rents and profits aforesaid, during his said life, but shall be free from liability to so account during his said life;" (2) authorized the trustee to sell if he "sees proper or necessity arises," any or all of said "personal and real property," and apply the proceeds of such sale to the payment of "her debts, or use the same as he sees proper to the best interest of my said son and any after-born children," without being "held accountable for the same during his life;" (3) gave the trustee the power and authority "to mortgage any or all of the real estate * * * he deems best for the purpose of paying any indebtedness" of testatrix, or for any other purpose he "shall think is for the best interest of" her estate; (4) empowered the trustee to settle and compromise, "as he may deem best, for the benefit of" the children of testatrix, all litigation and suits then pending, or which might thereafter arise, in which her estate might be interested; and (5) "at the death of my said husband and trustee all of my property real, personal, and mixed then left shall be given to my said son, Percy H. Sumner, and other children then living, share and share alike, but if any of said children shall be dead leaving child or children such child or children to take the share that its or their parent should have taken if living." Item 2 nominates and appoints the husband as executor, and directs that he shall not be required to give bond and security "for the performance and discharge of his office and duties as such executor."
The court will put itself, as far as possible, in the position of testatrix, and take into consideration the circumstances surrounding her at the time of the execution of her will, the product of legal advice and preparation; her mode of thought and living; her relations to or associations with the objects of her bounty, their ages, conditions, and dependence; her prospects for other children and provision for them; her relations to the estate of her deceased brother, and that Mrs. Bingham was, aside from the immediate family of testatrix, her next of kin, and note the condition and probable necessity for the preservation of the estate devised or bequeathed to the end or purpose indicated; gather the manifest general scheme of testatrix from the whole instrument, from its spirit rather than its letter, and make of it, if possible, "one consistent whole," in which the primary interest prevails over any secondary interest. Ascertaining the intent of testatrix expressed therein, this will be given effect, if not contrary to law. Pearce v. Pearce,
The manifest general scheme of testatrix was to create a trust for the benefit of her children, and she appointed her husband as trustee, with large powers to manage, control, and use her estate for the benefit of her children, with discretionary powers to sell any and all of her personal and real estate and apply the proceeds to the payment of her debts, or use the same "to the best interest" of her children; to mortgage "any or all of the real estate" for the purpose of securing any indebtedness incurred by testatrix or for any other purpose he might think to be necessary for the best interest of her estate; and to compromise and settle pending litigation and suits, and such to which the estate might thereafter be subject. The provision for final disposition of her properties was:
"At the death of my said husband and trustee all of my property real, personal and mixed, then left shall be given to my said son Percy II. Sumner, and other children then living, share and share alike, but if any of said children shall be dead, leaving child or children, such child or children to take the share that its or their parent should have taken if living." Section 5, item 1.
This was the manner of her devises and bequests. For its extent, this provision must be referred to the first paragraph of item 1, which was:
"I give, devise and bequeath unto my beloved husband. Martin T. Sumner, all of the property, real, personal and mixed, whether in possession, reversion or remainder, all choses in action, and all rights and interests of every sort and description of which I may die possessed, or to which at the time of my death, I may have right, title or claim, either at law or in equity, in trust" *272
— as thereafter specifically declared. It will be observed that no life estate in the property of testatrix, to the exclusion of her children was created in the husband (Gunter v. Townsend, supra), but that the gift, devise, or bequest was to the husband "in trust," as thereafter given specific statement, and was for the "benefit" and "best interest" of her son in esse, and all other children that might thereafter be born to testatrix. In ascertaining the intent of a testator as to the quantum of estate devised or bequeathed, the distinction between "property" and "power" is important; and whether the power of disposition is conferred on an individual as such, or in an executorial or representative capacity. Jemison v. Brasher,
"raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate." Jemison v. Brasher, supra; Duncan v. De Yampert,
Mr. Chief Justice Shaw observed that:
"The words 'give and bequeath,' in a testamentary paper, import a benefit in point of right, to take effect upon the decease of the testator and proof of the will, unless it is made in terms to depend upon some contingency or condition precedent. It may be postponed, there may be no assets to answer it, it may not take effect in possession and enjoyment; but, in the meantime, the right will vest, to take effect according to the terms of the will. When, therefore, words are equivocal, leaving it in some doubt whether words of contingency or condition apply to the gift itself or to the time of payment, courts are inclined to construe them rather as applying to the time of payment, and to hold the gift rather as vested than contingent." Eldridge v. Eldridge, 9 Cush. (Mass.) 516.
Did Mrs. Sumner's will vest an absolute interest, equity, or estate in præsenti in her properties for the benefit, interest, or enjoyment of Percy H. and Martin T. Sumner, Jr.? And, if so, did such interest pass to the father under the statute of descents and distribution, when said sons (not having married) died intestate on the dates indicated?
The evidence is conclusive that at the time Mrs. Sumner executed her will Martin T., Jr., was unborn, her son Percy H. being about five years old; that she realized her financial condition, was concerned of pending or threatened litigation with her niece, Mrs. Bingham, or with her brother's administrator for the benefit of that estate or niece, and believed that some one for her estate should be empowered to compromise and settle the same; knew that money must be had to pay on her debts and incumbrance upon her properties, or that the latter be extended, and that she should provide a way for a testamentary guardian — to stand in loco parentis — to manage and control their estate, with large discretionary powers, and to support, maintain, and educate her children, as well as appoint an executor to manage the estate to free it from debt, litigation, and incumbrance. Pearce v. Pearce, supra,
That such acts of administration might be performed expeditiously and with least costs for the benefit of her children, and by one having their best interests at heart, and with full faith and confidence in her husband, testatrix appointed him their active trustee; imposed upon him the management and control of her estate, and, in the nature of things, this carried the maintenance, support, and education of her infant children, they being given the beneficial interest in her estate in manner indicated therein. A trust is usually created by a provision for, or duty imposed, that requires the support, maintenance or education of others; especially when that duty devolves upon the executor or guardian. Thompson on Wills, § 355; Evans v. Evans,
I may note, in passing, rules of testamentary construction: That when the intention is obscure or doubtful, the law inclines to regard estates as vested rather than contingent (Dozier v. Dozier,
It is established that, where a future time for the payment of a legacy is defined by a will, a legacy is vested or contingent according as it appears whether the testator's intention was to annex time to the payment of the legacy or its gift — whether futurity is annexed to the substance of the gift or to the time of payment only. Gunter v. Townsend, supra,
The question presented by the instant will is somewhat like that decided in Toner v. Collins,
Am.Rep. 346, where the testator devised real estate to his executors in trust for his children, the trustee to have the management and control until the children should marry:
"And when any of my said children shall marry with the consent of said executors any worthy person, then the part or portion of property herein devised, or the proceeds thereof, * * * shall be and become the property of said child so marrying, and my said executors shall make the necessary conveyance thereof, so as to vest absolute title in said legatee."
Held, that the marrying of a child with the consent of the executors was not a condition precedent to the vesting in him or her of an interest in the estate, but only a condition for the termination of the trust as to the one so marrying; and that the children took an immediate vested interest.
Under Mrs. Sumner's will, when Martin T. Sumner, Jr., died without leaving issue, the contingency which might have happened to divest his title could not occur; by the other terms of the will there could be no divestiture of the interest of Martin T., Jr., except in favor of his child or children. Dying while an infant, his interest and estate in the trust property descended to his heirs at law, father and brother. Like observation may be made of the title of Percy H., and of his death intestate (without marriage), leaving his father surviving as his sole and only next of kin.
The will construed in Johnson v. Terry, supra,
"If the fifth and sixth clauses:
" 'Fifth. I direct that my executor trustee shall, upon the happening of the events herein mentioned, divide my estate * * * as my * * * children * * * arrive at the age of twenty-one years. * * *
" 'Sixth. I direct that when my youngest child, Lizzie, shall arrive at the age of twenty-one years, my executor and trustee shall again take an inventory, * * * and divide the same * * * between my said child Lizzie, and my wife * * *'
— were construed by themselves, without reference to the seventh:
" 'That in the event either of my said children die before attaining the age of twenty-one years, or if my wife should die before the majority of my child, Lizzie, then the share of my estate of such deceased, shall be divided in equal parts between the survivors,'
it may be — but we do now decide that question — the estates contended for testator's children would be construed as vested."
It is only by contrasting these provisions of said several sections of Mr. Johnson's will that we appreciate the observation there made, viz.:
"Referring specially to the seventh clause, which controls the preceding ones, and is the one where the intention of the testator as to the character of the legacy under consideration is manifested — whether vested at testator's death or at a future date — it is seen that he employs the words, 'that in the event either of my said children die before attaining the age of twenty-one years, * * * then the share of my estate of such deceased shall be divided in equal parts between the survivors.' These words, as indicating contingency, are as definite and strong as the words 'if' the legatee 'should live to be twenty-one years of age,' as employed in the will construed in Nixon v. Robbins, supra [
The condition precedent to the vesting of the estate or legacy under Mr. Johnson's will was the reaching of the age of 21 years, etc. Under Mrs. Sumner's will, the estate was vested in her children at her death, and the probate of her will, and was subject only to be divested by the happening of a subsequent event, which did not happen.
In Travis v. Morrison,
Next to the existence of words of a gift in præsenti, apart from the direction to pay, convey, or divide at a future time, the strongest circumstance tending to show that the gift, to the substance of which futurity is apparently annexed is not contingent upon surviving the time of payment (L.R.A. 1918E, pp. 1115, 1121), "is a gift of the intermediate use to or for the benefit of the legatee." Of the application of this rule to legacies, I have cited authorities. The rule has, however, been applied by Judge Stone, in a case involving the devises of real estate. Foster v. Holland, supra; Ralls v. Johnson, supra; Campbell v. Weakley, supra; Gunter v. Townsend, supra. Cases of real estate differ from those of personal estate, in that it is immaterial whether the intermediate rents and profits are given for the benefit of the devisee or of some third person, as in the latter case the devise may be considered vested upon other ground. Allen v. Watts,
In Smaw v. Young,
"It is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder." 4 Kent, Comm. 202 (2). "It is not the uncertainty of enjoyment in future, but the uncertainty of the right to that enjoyment, which marks the difference between a vested and contingent remainder." 4 Kent, 206 (3). "That the estate in remainder being fixed in an ascertained person [in Mrs. Sumner's children in the instant case], its capacity of taking effect in possession immediately upon the possession becoming vacant excludes the possibility of contingencies which would prevent a vesting of the estate in right of future enjoyment in such person [that is, in Mrs. Sumner's children, Percy H. and Martin T., Jr.], and this though by reason of his own death prior to that of the tenant for life [that is, by reason of the death of Martin T., Jr., and Percy H. before the death of the trustee], the remainderman might never take in possession and enjoyment at all; or, in other words, the capacity of taking effect in possession if the possession were to become vacant, coupled with the present ascertainment of the person who is designed to take when the possession does become vacant, distinguishes a vested from a contingent remainder; but if there be not only the uncertainty of the future enjoyment, which is incident to all remainders, and has no bearing upon whether they be vested or contingent, but also uncertainty throughout the period of the precedent estate as to who has the present right to such future enjoyment — the uncertainty as to what particular person or persons are intended by the grantor or devisor to take any estate — the estate in remainder is contingent. For whatever capacity the estate may have of taking effect, in possession in the children of B., in the case put, if the possession were to become vacant, it is impossible, so long as A. lives and fills the possession, to say which one or more of these children will survive A.; and no estate of any character is granted to any of them who do not survive A."
Appellant cites Phinizy v. Foster,
"In the event of my son Edgar dying without issue living at his death, I desire his portion, with the accumulations, to be divided equally among the children of Paul J. Watkins and my daughter Elmira; and in the event of my daughter Elmira dying without issue living at her death, I desire the estate left to her and her children, together with the accumulations, to be equally divided among all my grandchildren and great grandchildren, but great-grandchildren, whose parents are living and able to take under this will, not included in this bequest."
Under the facts disclosed, the court properly held that the estate given the children of Paul J. Watkins was subject to a condition precedent — that testator did not intend that such children should take any interest in his estate unless testator's son Edgar should be "without issue living at his death." As to whether Edgar would die without leaving issue was uncertain; and had the will provided that on Edgar's death (without other conditions) his share in testator's estate should be divided among the children of Paul J. Watkins, then the estate in remainder to said children would have been vested, since the death of Edgar was a natural event which must inevitably occur, and the remainderman would be ascertained. Such was not the provision of that will, for the condition was the event of the death of testator's son "without issue living at his death" — an uncertain event that prevented *276 the children of Paul J. Watkins having a vested interest in the grandfather's estate.
The Sumner will was different from the Watkins will (construed in Phinizy v. Foster, supra), in the provisions that were, in effect, gifts and devises by testatrix to her sons of the entire beneficial interest in her estate at her death; and that they should have full, unsupervised possession thereof at the death of the trustee husband. As I have indicated, there was the happening of only one event that could have intervened to change the beneficiaries — that of death, leaving issue, at the time of the trustee's death. This was contrary to the provision in the Watkins will, where it was required that Edgar die without issue living at his death. The stipulated event of "leaving child or children" not having occurred before the death of the respective sons, the respective rights to the possession of the estate were not defeated by their death without issue before the death of the trustee and descended by the statute to the father.
Such was the conclusion announced in Pearce v. Pearce,
"In Hawkins on Wills (225) and Thompson's Wills [1916] (section 253) it is pointed out that, when the gift and the time of its payment are distinct, the direction as to the time of payment does not postpone the vesting. Thus, a bequest to A. at 21 and a bequest payable to A. at 21 do not much differ in expression; yet the one is held to be a vested and the other a contingent gift. For the bequest to A. at 21 is contingent on the fact that A. may not reach that age; and a bequest to A. payable at 21 or to be paid at 21 is vested. If A. dies under the age of 21, such vested gift would be subject to his testamentary disposition, or controlled by the statutes of descent and distribution, as the case may be."
It is unnecessary to discuss in detail the other authorities cited by appellant. In High v. Worley,
"It is my wish and desire that all the lands which I own * * * may be held and retained by my executor, for the use and support of my wife and children, * * * until my daughter Fannie Ann shall arrive at the age of sixteen years: then to be sold, and the proceeds equally divided between my wife and children, share and share alike."
Held to create a vested estate in the children. Judge Stone said:
"There is not a qualifying word or clause, which shows that time was made of the substance of the gift. The whole property was dedicated to the use and support of testator's wife and children, until Fannie Ann should attain the age of sixteen. Then it was to be sold and divided between his wife and children, share and share alike."
That case relies upon the decision in McLeod v. McDonnel, supra, in which the will construed provided that all of testator's property be retained and continued together until his "youngest child may have arrived at lawful age; at which time, all the * * * property * * * to be equally divided among all my lawful heirs." Held, that the widow took an absolute vested interest.
The case of Continental Life Insurance Co. v. Webb,
The fundamental difference we are dealing with is that declared to exist between a testamentary gift in remainder to such of several named persons "as may be living" at the termination of a given trust or life estate, and a gift to such persons, "or as many as may be living" at that time. In the former the gift is regarded as one to persons whose identities are left for future ascertainment and whose existence at such future time, individually or by representative of the group, is also uncertain; such gift does not vest during the continuance of the life estate. In the latter case the gift, made in language of present operation, is to persons then in existence, while the alternative gift is dependent upon "future contingencies which may arise during the continuance of the intervening estates, * * * but only in a substitutionary way;" and therefore the estate vests in point of interest or right at the death of the testator in all the then existing beneficiaries "subject to be divested, as one or more of them may die, in favor of those who survive the life tenant. If none survive him, the contingency in which the estate was to be divested has not occurred, and the interest of the original legatees, having once vested in them, passes on to their respective legal representatives. White v. Smith,
In our case of Acree v. Dabney,
"depend upon whether the element of contingency is incorporated into the description of or into the gift to the remainderman, in which case the remainder is contingent; or whether it is merely annexed to the gift in the character of a condition subsequent, in which case the remainder is vested subject to be devested by the operation of the contingency." Kumpe v. Coons, supra; Acree v. Dabney, supra; Crawford v. Engram, supra; Blakeney v. Du Bose,
That is to say, a devise to one person, with a limitation over upon the death of the first devisee without issue, gives the first devisee a qualified or defeasible estate or determinable fee — a vested estate, however, that is subject to be divested by his death without issue; in which event a limitation over to the second devisee will take effect as an executory devise. The failure of issue must be definite, such as dying without issue before reaching a certain age, or dying without issue prior to the death of some other person or persons indicated. Newsom v. Holesapple,
Analogous authorities are those declaring whether descendants or devisees take a remainder by implication at the death of their ancestor. It is settled in this jurisdiction that a fee given in apt terms by a will, to the primary devisee, will not be cut down to a life estate for the purpose of letting in such a remainder by implication —
"since it would be a violation of the intention of the testator to give the descendants anything as against their progenitor; and because the implication in such case is wholly unnecessary, it being within the power of one who takes absolutely to provide for his descendants."
In Goldsby v. Goldsby, supra, where a testator devised lands and slaves to each of his children, adding:
"All of the above property is given and bequeathed to my children and the heirs of their body, and for their proper benefit and use, and not to be disposed of by the husbands of my said daughters Eliza and Elizabeth, and to revert to my family in all cases where my children may die without issue. This item is merely intended to entail the property given to my sons, as far as can be done consistently with the laws of the county"
— it was held that the provision quoted did not create a remainder in favor of the children of a son; but that the son took a fee qualified as to the executory devise over in the event of his dying without issue, but pure and absolute as to his heirs or the heirs of his body; and that, as he did not die without issue, his death consummated his title discharged of the contingent estate, and gave to his heirs a fee simple absolute, not by virtue of a remainder created by the will, but by inheritance from their ancestor.
In Lee v. Shivers,
"to have and to hold the said described lands to him, the said R. H. Lee, and to his heirs and assigns forever, together with all the appurtenances thereunto belonging."
In a subsequent item of the will he provided:
"It is my will and desire that, if my sons, or either of them, named in this will, should die without children or a child; or if they, or either of them, should die leaving children, or a child, and such children or child should die without a child or children, then, and in that event, the real estate and the slaves given to my said sons by this will, or such of them as may die without children or a child, or having died leaving children or a child, and such children or child shall die without a child or children, shall go to the surviving brothers of said sons, or their children."
It was held that, as the language of the disposing clause, taken alone, would create a fee-simple estate in the son, the effect of the subsequent provision was simply to convert this interest into a qualified or determinable fee, with a limitation over by way of executory devise, and therefore that a child of the son took nothing under the will by implication.
In English v. McCreary,
"Should any of my youngest children die before having or leaving any heir, then their *278 shares to be divided between the remainder or surviving part of said four younger children."
It was held that the latter clause did no more than postpone the vesting of the fee until the having of a child, and therefore that the title taken by the grantee of a daughter was good as against her children. 51 L.R.A. (N.S.) 489; 15 L.R.A. 232, note.
In Newsom v. Holesapple, supra, where a testator gave to his grandson certain property, with the condition that, if the grandson should die leaving no legitimate issue at his death, then the property should go to another named devisee, it was held that the grandson took a conditional fee, defeasible on his dying without issue; and, on his death without issue, the latter devisee, the contingent remainderman, became entitled to the property devised, for the property of which he might maintain an action of ejectment.
Under the influence of controlling authorities, the words "shall be given to my said son Percy H. Sumner and other children then living," as used in section 5 of item 1, when interpreted by the four corners of Mrs. Sumner's will, can only mean that the full possession of the estate or property "shall be delivered," and the word "then" in said section refers, not to the time of the vesting of the interest or estate in the children of testatrix but to the time of its full possession, freed from the control of the trustee, after expiration of the "equitable arrangement" made for them by their mother during their infancy and inexperience of young manhood. Weil v. Hill,
There is ancient and pre-eminent authority for this construction of devises in wills. Lord Eldon, expressing the hope that Duffield v. Duffield (volume 1, Dow Clark's Rep. 268, 311, 312, 318) would "be a leading case," said:
"The judges, from the earliest times, were always inclined to decide that estates devised were vested; and it has long been an established rule for the guidance of the courts of Westminster, in construing devises, that all estates are to be holden to be vested, except estates in the devise of which a condition precedent to the vesting is so clearly expressed that the courts cannot treat them as vested without deciding in direct opposition to the terms of the will. If there be the least doubt, advantage is to be taken of the circumstances occasioning the doubt; and what seems to make a condition, is holden to have only the effect of postponing the right of possession. To accomplish this purpose, a distinction has been made between the adverbs if and when, to which the learned of our language, not in the profession of the law, would perhaps not agree; upon this distinction, however, many equitable arrangements of property have been made; upon this distinction the titles of many estates depend; and it will therefore be the duty of the judges to observe it." Stephens v. Stephens, Cases temp. Talbot (1734-38) 228.
At an early date Mr. Justice Swayne covered much of the law of wills, in the statement as follows:
"It is a rule of law that estates shall be held to vest at the earliest possible period unless there be a clear manifestation of the intention of the testator to the contrary;" that "adverbs of time — as where, thereafter, from, etc. — in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not the time of the vesting in interest." Doe ex dem. Poor v. Considine, supra.
Such rule of construction was applied in Johnson v. Washington Loan Trust Co. (1912)
"the death of my wife [I] will and devise the said estate to my said daughters being single and unmarried and to the survivor and survivors of them so long as they shall be and remain single and unmarried and on the death or marriage of the last of them then I direct that the said estate shall be sold by my executors and the proceeds thereof be distributed by my said executors among my daughters living at my death and their children and descendants (per stirpes), * * * and on such sale as aforesaid by my executors I earnestly enjoin on my sons or some of these sons to purchase the said homestead that it may be kept in the family."
Mr. Justice Hughes said that —
"At the time of the death of the testator, his five daughters were living, and none of them had children or descendants. By the definitive language of the clause, these daughters were then ascertained and identified as those entitled to the immediate enjoyment of the property on the termination of the preceding estates. They, therefore, had a vested remainder in fee." Croxall v. Sherrerd, 5 Wall. 268, 288,
The general authorities are collected and discussed by Mr. Thompson (On Wills, § 254), who says:
"Words or phrases of futurity, such as 'when,' 'then,' and 'from and after,' in a devise of a remainder limited upon a particular estate, determinable on an event which must necessarily *279 happen, are construed to relate to the time of the enjoyment of the estate, and not to the time of its vesting."
So it has been held that —
"A gift of real estate to a devisee 'at' a given age or marriage, 'when' or 'as' he shall attain, or 'upon' or 'from and after' he attains a given age, passes to such devisee an immediate vested estate, not defeasible in the event of his death under the specified age." Austin v. Bristol,
The use of these words with reference to devises of real estate is thus stated by Mr. Thompson:
"A devise of real estate to A. 'if,' or 'when,' he shall arrive at a certain age, with limitation over in the event of his death before attaining that age, the attainment of the given age is held to be a condition subsequent, and not precedent, and A. takes an immediate vested estate, subject to be divested upon his death before arriving at the specified age. Roome v. Phillips, supra; Kelso v. Cuming, 1 Redf. (N.Y.) 392. And if the devise be to A. 'if' or 'when' he shall attain a given age, with a limitation over upon his death or under that age without issue. A. takes a vested estate, defeasible only in the event of his death without issue under the specified age. Phipps v. Ackers, 9 Cl. F. 583; Holtby v. Wilkinson, 28 Grant Ch. (U. C.) 550. If the devise be to A. 'at,' 'upon,' or 'from and after,' attaining a given age, with the gift over, the rule is the same. The provision for the gift over is held to show testator's intention that the gift to A. is to vest at once, subject to be divested upon his death before reaching the specified age."
No one can read the will of Mrs. Sumner without being impressed by every provision thereof that the primary object of her bounty was the support, maintenance, education and general welfare and benefit of her children, under the management and control of the husband and father, who was given large discretionary powers to that end. If it be conceded, for the sake of argument (and which is not decided) that it was a secondary intent of testatrix that her estate be subjected to or charged (by implication) with the support and maintenance of the husband for life, the result would not be different. Fawlkner v. Fawlkner, 1 Vern. 21, 25 Eng. Rul. Cas. 668; Ralph v. Carrick, 11 Ch. Div. (1870) 873; 17 R. C. L. § 14, p. 625; 2 Alexander's Comm. on Wills, p. 1402 et seq.; 1 Underhill on Wills, § 466; Simmons v. Augustin, 3 Port. 69, 91. Whatever may be the nature or effect of the will (by implication as to the husband), its primary object is so clearly expressed as to vest the property or subject it to the use and benefit of the children of testatrix from the time of the due probate of the will, subject to be divested only by the one future contingency provided for. That is to say, it is immaterial whether or not a charge was imposed, in the nature of a joint use and benefit of father and children during the life of Mr. Sumner. Since the "equitable arrangement" made by testatrix in her will and the trust created in her property were for the primary benefit of her children, they were such as to vest the real and personal property of testatrix, and that interest was not thereafter divested by the happening of the contingency against which provision was made.
Conceding, for the sake of argument, that testatrix intended to create a trust for accumulation only, during the life of the trustee, and that her realty was governed by the rule against perpetuities obtaining in Alabama (Code, § 3417), and her personalty by the rule of the common law as modified by Code, § 3410 (Pearce v. Pearce, supra,
"The tendency of the courts being to construe limitations as vested, the arrival of the period fixed for, or needed for, the accumulation will not be deemed a condition precedent to the gift of the accumulated fund, unless the language employed requires such a construction." Gray's Rule against Perpetuities (2d Ed.) § 673.
After all that may be said, when a trust has been created, as here, it should be large enough to enable the trustee to accomplish the objects of its creation, and when it is satisfied the estate of the trustee as such ceases to exist. Potter v. Couch,
The decree of the circuit court, being free from error, should be affirmed.
GARDNER, J., concurs in the foregoing views.