179 S.W. 856 | Tex. | 1915
The appeal prosecuted in the case to the Honorable Court of Civil Appeals was from an order of the District Judge granting a temporary injunction restraining the sale under execution of the interest of Joseph A. Caples in certain real property, a part of the estate of his deceased father, Richard Caples, theretofore levied upon to satisfy a judgment obtained against him by Ward, one of the defendants in error. It is only necessary to determine the question of whether Joseph A. Caples had such an interest in the real property levied upon as was subject to execution. The Honorable Court of Civil Appeals reversed the order of the District Judge and remanded the cause, holding that he had such an interest; and the writ of error was granted on account of probable error in that decision.
The estate of Richard Caples was devised by will, the provisions of the will pertinent to the issue here, being as follows:
"Fourth. I give and bequeath to my said wife, Margaret Ann Caples, the sum of One Thousand ($1000.00) Dollars out of my half interest in the community estate of myself and my said wife Margaret *344 Ann Caples, in trust, however, for the purpose of caring for and keeping in decent order the graves of my father and mother, Thomas and Bridget Caples, in Concordia Cemetery near the City of El Paso in this county, and I direct that the said One Thousand ($1000.00) Dollars be invested or located as in the discretion of the trustee may seem best, and the income therefrom, or so much thereof as may be necessary, devoted to the care of said graves, and should the income therefrom be more than sufficient to properly care for said graves, then such surplus shall be devoted by my trustee to the care of the graves of any other members of my immediate family who may be buried at El Paso or in the vicinity, but should said income be more than sufficient for the purposes aforesaid, then such surplus shall be added to the said One Thousand ($1000.00) Dollars and invested therewith for the purposes aforesaid. I direct that my wife shall designate by will or otherwise one or ____ of our children to execute this trust after her death and such child or children in turn so designated shall designate someone to carry out said trust after their decease, but should my said wife or children fail to make such designation or at any time the trusteeship provided for fail, then it is my will that the Mayor of the City of El Paso become the trustee for said fund and discharge said trust."
"Fifth. All the rest and residue of my estate, real, personal and mixed, consisting of my half of the community property of myself and my said wife, Margaret Ann Caples, and such separate property, if any, of which I may die seized or possessed, or to which I may be entitled, wheresoever the same may be situated, I give and bequeath to my beloved wife, Margaret Ann Caples, for the term of her natural life, with remainder over upon her death to our five children, Edward Thomas Caples, Joseph Caples, William Caples, Richard Caples, Jr., and Margaret Caples, share and share alike."
"Sixth. It is my will and desire that my said property shall be managed by my wife during her life as it has been hitherto controlled by me as nearly as may be. Should my said wife deem it to the best interest of my said estate that any portion of same should be sold, alienated, conveyed, mortgaged or incumbered, it is my will and desire that she with the written consent of the majority of our said children, then living, who are of age or married, shall have full power to sell, alienate, convey, mortgage or incumber such part of same as in her judgment and that of the said majority of said children may seem proper and to the best interest of said estate."
"Seventh. It is my desire that upon the death of my said wife and the termination of the life estate in her hereby created, that all of my estate consisting of my half of the community property of myself and my said wife, real and personal of whatsoever character, as well as all separate property of whatsoever character, if any, and wheresoever situated, of which I may die possessed or be entitled to, or which may have accrued to my estate, shall be divided equally between all of my above named five children then living, or their descendants, *345 share and share alike; that is to say such descendants of any deceased child shall have that portion to which their ancestor, if living, would have been entitled to."
Under the terms of the will the residuary estate of Richard Caples, of which the real estate levied upon to the extent of the interest of Joseph Caples (called in the pleading Joseph A. Caples) is a part, is clearly bequeathed to Margaret A. Caples, the wife of Richard and the mother of Joseph, for life, with remainder over to the five children, by name, including Joseph, share and share alike. Each of the five children was living at the time of the testator's death. Margaret A. Caples is still living, and the life estate in her, therefore, not determined. The real estate levied upon is alleged to be of the market value of $598,500.00, and the value of Joseph Caples' interest — an undivided one-tenth, $59,850.00; Ward's judgment against him with costs, amounting to $3,412.30. The question is whether the remainder created by the will in favor of Joseph Caples is a vested or contingent estate. If a vested remainder, it is subject to execution against Joseph Caples. Freeman on Executions, sec. 178.
A remainder is vested where there is a person in being who would have an immediate right to the possession upon the termination of the intermediate estate. It is an immediate right of present enjoyment, or a present right of future enjoyment; a fixed interest with only the right of possession postponed until the ending of a particular estate. 4 Kent, 202; Bufford v. Holliman,
According to these established rules, the fifth clause of the will plainly gives Joseph Caples a vested remainder in the residuary part of the estate; for, in terms as positive as those applied to the creation of the life estate, it invests him with a present interest and right to its future enjoyment.
We have, then, only to consider whether the remainder is rendered contingent by the subsequent provisions of the will.
The only provisions which may be regarded as having that force are those embodied in the sixth clause, whereby the life tenant is clothed with the power of sale if exercised with the consent of a majority of the remaindermen; and in the seventh, directing that the descendants of a remainderman shall succeed to his portion of the estate in the event of his death before the termination of the life estate.
The law favors the vesting of estates at the earliest possible period, and will not construe a remainder as contingent where it can reasonably be taken as vested. Bufford v. Holliman; Doe v. Considine, 6 Wall. (U.S.), 458.
Whatever the consequence of the grant of property to another generally or indefinitely with the power of disposition, an express limitation *346
of the grant to that of a life estate with such power added, does not raise the estate to a fee. There is merely constituted an estate for life, with the power of disposition annexed. Though the test of a vested remainder is the existence of an ascertained person having an immediate right to the possession on its becoming vacant by the termination of the intervening estate, this does not imply any certainty as to the quantity and value of the remainderman's interest. The remainder is not made contingent by uncertainty as to the amount of the estate remaining undisposed of at the expiration of the life estate, but by uncertainty as to the persons who are to take. Heilman v. Heilman,
Whether there will be any of the estate remaining under the exercise of the power, presents a contingency, it is true. But under the will the vesting of the interest of Joseph Caples, and the other remaindermen is not made dependent upon that contingency. It is not a condition precedent to the vesting of his interest, but only a condition subsequent which may affect the amount of his interest, or defeat its enjoyment. An estate limited upon a contingency, to which the effect of a condition subsequent only is given, vests at once, subject to be divested upon the happening of the contingency. Ducker v. Burnham,
The direction in the seventh clause of the will that the descendants of any remainderman dying before the expiration of the life estate should succeed to his share of the residuary estate, should be construed, we think, as intended to prevent the lapsing of the legacies in favor of the remaindermen. It is to be noted that the devise to Joseph Caples, and the other remaindermen, is not made contingent upon his or their surviving the mother. In the fifth clause his and their interests are devised directly. The only contingency which, under the will, will *347 prevent Joseph Caples from coming into the possession of his interest, is his own death before the expiration of the life estate; and this, it is settled, does not render the remainder contingent. The remainder is vested, defeasible on a condition subsequent — his death before the expiration of the life estate, his share, in such event, passing to his descendants.
In 2 Redfield on Wills, section 17 (12), it is said:
"It is also settled that where a devise is made to one for life, and afterwards to certain other persons by name, and in the event of any such persons entitled in remainder dying during the continuance of the life estate, leaving issue, to go to such issue, it creates a vested interest in all thus entitled in remainder."
The cases of Blanchard v. Blanchard, 1 Allen,
The authorities relied upon by the plaintiffs in error have been considered; but none of the decisions of the courts of this State is opposed to the holding that under this will Joseph Caples took a vested interest in the residuary estate of his father. In Thornton v. Zea, 22 Texas Civ. App. 509[
Lee v. McFarland, 19 Texas Civ. App. 292[
In Chace v. Gregg,
It is apparent from the allegations of the petition respecting the value of the estate, that the execution of the trust created by the fourth clause of the will for the expenditure of $1000.00 and the income from such amount, for the care of the graves of the testator's parents, will not be affected by the levy upon the interest of Joseph Caples, and its sale under execution.
We accordingly hold that Joseph Caples took under the will a vested remainder in the residuary estate. It is capable of sale under execution, subject to the life estate in Margaret A. Caples, and the exercise by her of all the powers conferred upon her under the sixth clause of the will, and to defeasance by his death before the termination of the life estate. The Honorable Court of Civil Appeals has in our opinion correctly determined the case, and its judgment is affirmed. *349