Burnham v. Burnham, 79 Wis. 557

79 Wis. 557 | Wis. | 1891

Cassoday, J.

In construing the will we are to consider the original and the codicil as one instrument in law, and together as constituting the last will and testament of the testator. Ford v. Ford, 70 Wis. 46. In other words, every provision of the original will remains in force, except in so far as it was changed or modified by the codicil.

Subject to the provisions in favor of the widow, the testator by the original will gave, devised, and bequeathed the undivided one-fourth part of his estate to his son, Daniel Gr., with the proviso to the effect that, if he did not survive his mother, then such of his issue as should be living at the time of her death should inherit the share of the testator’s propertythat would otherwise have become Daniel Gr.’s. Without that provision, the law would, in that event, undoubtedly have given Daniel Gr.’s share to his children. Sec. 2289, R. S. The intemperate and extravagant habits of Daniel G. were such as to induce his father, as an act of prudence, to make the codicil. The manifest purpose of the codicil was to preserve Daniel G.’s share of the estate for and to secure the same to his children in the event that he should not reform and become a sober and respectable citizen of good moral character within the time'therein specified. In case he should so reform within five years after the death of his father, then the testator gave, devised, and bequeathed to him, and the executors were thereby ordered to pay over to him; one half of the property and estate so bequeathed to him by the original will; and if he continued so reformed for the further period of five years, then they were ordered and directed to pay over to him the other half of the said devise and bequest, as in the original will provided; subject, however, to the conditions and limitations contained in the codicil. In so far as the codicil in form gave, devised, and bequeathed such share of the estate to Daniel G., it was merely confirmatory of the grant and bequest in the original will, and did not necessarily postpone the vesting of the equitable right to the gifts until the expiration of the time therein specified. Unless he so formed he was not to have or receive any part, parcel, or interest in or to his father’s estate, but the executors were ordered and directed to hold and retain the share so devised and bequeathed to him “ in trust, to be disposed of cmd paid over as ” provided in the codicil, — that is to say, paid out for the education and support of the children of Daniel G.; and finally distributed as and at the times therein prescribed : provided, that until the death of said Daniel G. they retain in their hands sufficient of said estate, not exceeding $350 per year, to comfortably board and support him.

It will be observed that the codicil did not in any way divert any part of Daniel G.’s share of the estate from the line of descent where it would have gone under the statute had no codicil been made, and Daniel G. had preserved the same and not disposed of it by will or otherwise. In other words, the testator did not by his codicil undertake to, immediately upon his death, disinherit Daniel G., but only in case he should first demonstrate his incapacity for taking care of his share of the estate by not reforming as and within the period specified. For the purpose of preventing his share of the estate from being squandered by him, .therefore, the testator by his codicil withheld the possession and control of the same from him until he should first demonstrate his capacity or incapacity for taking care of it. .But the withholding of such possession and control, did not prevent bis right to his share of the estate from vesting in him immediately on the death of his father, subject, however to the conditions named in the codicil. Millard's Appeal, 87 Pa. St. 457.

It is undoubtedly true that “ in the construction of wills the law, in doubtful cases, leans in favor of an absolute, rather than a defeasible, estate; of a vested, rather than a contingent, one; of the primary, rather than the secondary, intent; of the first, rather the second, taker, as the principal object of the testator’s bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible.” Smith's Appeal, 23 Pa. St. 9.

Upon the principles stated and the authorities cited in Baker v. McLeod's Estate, ante, p. 534, we must hold that Daniel G.’s right in equity to his share of the estate vested in him immediately upon the death of his father, subject only to be divested by his failure to perform the conditions subsequent named in the codicil. In other words, the gift over to Daniel G.’s childen was dependent wholly upon his failure to perform such conditions subsequent. As indicated, Daniel G. had five years after the death of his father to perform the first of such conditions, and the further period of five years to perform the second of said conditions. As a matter of fact he died within eleven months after the death of his father, and hence by such death the performance of either of such conditions became wholly impossible.

The question recurs whether such right in equity to his share of the estate thus vested in him became divested, and passed over to his children, by virtue of his death before the expiration of the time for the performance of either of such conditions subsequent. The rule of law is well settled, and in fact elementary, that, “ if a condition subsequent be possible at the time of making it, and becomes afterwards impossible to be complied with, either by the act of God, or of the law, or of the grantor; or if it be impossible at the time of making it, or against law,— the estate of the grantee, being once vested, is not thereby divested, but becomes absolute.” 4 Kent’s Comm. *130; Coke, Litt. 206a; 2 Bl. Comm. *156; 2 Jarm. Wills, 521; Davis v. Gray, 16 Wall. 230; Culin’s Appeal, 20 Pa. St. 243; Merrill v. Emery, 10 Pick. 507; Parker v. Parker, 123 Mass. 584; Morse v. Hayden, 82 Me. 227; Merriam v. Wolcott, 61 How. Pr. 377; Jones v. Bramblet, 1 Scam. 276; Jordan v. Dunn, 13 Ont. 267. The case at bar is clearly within the rule stated. The result is that, the right to the estate in question having become vested in Daniel G., the same was not divested by reason of his death prior to the expiration of the time in which he was required to reform, but upon his death descended to his children and widow, as prescribed by the statutes in case of intestate estates.

The costs and disbursements of both parties in this court and the circuit court are payable out of the estate. The county court will make such allowance for counsel fees to both parties as, in the exercise of a sound discretion, may be just.

By the Court.—The judgment of the circuit court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.