Lead Opinion
delivered the opinion of the court:
The questions arising on the record are: (I) Did the children of the second marriage take a vested interest under the will? (2) Did the children of the first marriage inherit from the deceased children of the second marriage ? (3) Are appellants entitled to an allowance for their improvements ?
First—The law favors the vesting of estates at the earliest possible moment, and estates devised will vest in interest at the death of the testator unless some later time for their vesting is clearly expressed by the words of the will or by necessary implication therefrom. (Scofield v. Olcott,
It is insisted, however, that a consideration of the whole will indicates a manifest intention on the part of the testator that the interests should not vest until the death of his widow; that the only words of gift are contained in the direction for the division of the property after her death; that the property was intended to be distributed among the children of the second wife as a class, and that only such members of the class as were alive at the time of division were entitled to share in the distribution. By the provisions of his will, outside of the paragraph under consideration, the testator devised his other real estate, about 168 acres, to the children of the first marriage and the grandchild in fee, providing for the equalizing of the shares by the payment of money by two of the children who had received small advancements. Their interests vested at once, and in case of the death of any of them the children of the second marriage would have inherited from such deceased child to the same extent that the children of the first marriage now claim to inherit from, those of the second. There was no distinction in the testator’s treatment of the children of his two marriages, except that on account of the necessity of making provision for the second wife he postponed the distribution of the portion of the property destined for the children of the second marriage until the termination of the life estate which he gave his wife therein. We see no indication in the plan of the testator for the distribution of his estate, or in the language of his will, considered in the light of the circumstances of his situation, of any intention that the vesting of the interests of the children of the second marriage should be postponed until after the death of the widow.
The appellants invoke the general rule that where the devisees compose a class and there are no words of devise except a simple direction to divide the property at a specified time, the gift will not vest until the time of division. (McCartney v. Osburn,
It is contended that the testator created a trust by these words in his will: “Should she again marry, it is my will that the rents of the above described lands be appropriated for the support and education of the following heirs, children of the said Mary Jane Carter and myself: Amanda Ann, James Franklin, Solon, Erasmus, Vanando, Lucullus and Elijah, and at the death of the said Mary Jane Carter said lands to be equally divided, either in parcels or value, amongst the above mentioned children,” and that the title did not vest in the children until the time of distribution. Whether a trust was created by the language above quoted or not, the vesting of the estate in remainder is not affected thereby. “Where a testator devises land to trustees until A shall attain the age of twenty-one years, and if or when he shall attain that age then to him in fee, this is construed as conferring on A a vested estate in fee simple, subject to the prior chattel interest given to the trustees, and, consequently, on A’s death under the prescribed age the property descends to his heir-at-law.” (1 Jarman on Wills, 734; Boraston’s case, 3 Coke, 19; Doe v. Ewart, 7 Ad. & El. 636.) A trust for one until he attains twenty-one, then to pay over, with a gift of the income for maintenance meanwhile, is vested. (Ordway v. Dow, 55 N. H. 11.) Other cases to the like effect are Tucker v. Bishop,
According to the contention of appellants, if any of the children of the testator’s second marriage named in his will had died in the lifetime of their mother, leaving children, such children could have taken no benefit from the provision made for the parent. It cannot be supposed that it was the intention of the testator, in providing for his children, to prevent his bounty from extending to his grandchildren, and to disinherit a grandchild whose parent should happen to die before the termination of the widow’s life estate. Such intention, if expressed, must be carried out, • but it will not be presumed; and this consequence, unless there is a different intention expressed, is conclusive in favor of the construction that the estate is vested. Cropley v. Cooper, supra; Carver v. Jackson,
Second—The estate of the four children of the second marriage who died intestate, unmarried and childless, descended under the second clause of section 1 of the Statute of Descent. It is claimed by appellants that the children of the first marriage took nothing because the provision abrogating the distinction between kindred of the whole and the half blood does not apply in cases arising under the second clause of that section, but only in cases arising under the fifth clause, of which that provision is a part. It is said that the provision is in derogation of the common law and to be strictly construed, and being a part of an independent clause modifies that clause only, and not the whole section. The provision that in no case shall there be a distinction between the kindred of the whole and the half blood in the descent of property was incorporated into the law of this State by the Statute of Wills, approved January 23, 1829. Section 43 of that statute consists of a single sentence directing the manner in which intestate estates shall descend, being, in substance, the introductory clause and clauses numbered 1, 2, 3 and 5 of section 1 of the present Statute of Descent, the sentence concluding with the words r “And in no case shall there be a distinction between the kindred of the whole and the half blood, saving to the widow, in all cases, her dower of one-third part of ,the real for life and the one-third of the personal estate forever.” This language abrogated entirely, in all cases, the common law rule that kindred of the half blood could not inherit. The revision of 1845 tnade no material change in the language, though it numbered the section 46 and broke it into two sentences, the first ending with the second clause of the present section. The act of 1872 changed the wording of the section somewhat, numbered the clauses and added clauses 4, 6 and 7, but no act has in any way modified the removal of the disability of the kindred of the half blood by the act of 1829. The case of Oglesby Coal Co. v. Pasco,
Third—The improvements placed upon the lands by the appellants were placed there during the life of their mother, who was entitled to the possession of the land as life tenant. Their possession was not that of co-tenants with the other owners, but was exclusive under the life tenant. Their right was no greater than hers, and the rule is that a life tenant cannot, by placing permanent improvements on land, however much they may enhance its value, create a charge against the remainder-man. Such improvements will be deemed to have been made for his own benefit during the existence of his own estate, and upon its termination, being a part of the realty, they will go, as such, to the remainder-man, who will take them without any liability to re-imburse the life tenant. Hagan v. Varney,
The decree of the circuit court will be affirmed.
Decree affirmed.
Dissenting Opinion
dissenting:
I dissent from that portion of the majority opinion by which re-imbursement is denied to Erasmus and Vanando Carter for the improvements placed by them upon the property in question while they were in possession thereof as tenants in common of their mother, the life tenant.