155 Wis. 558 | Wis. | 1914
Lead Opinion
The sole question presented by the appeal is whether or not under the will set'out'in the statement of facts any estate or interest in the lands vested in Margaret Ross at the death of the testator or before'the death of the life tenant,. Katie Ross. If an estate or interest vested in her, then plaintiff, as her sole heir, is entitled to maintain the action. On the other hand, if.no interest or estate vested in the re-maindermen until the death of the‘life tenant, then plaintiff,, since his wife, Margaret', died before the life tenant, has no-interest in the lands, and cannot maintain partition. Sec.. 3101, Stats. 1913, provides that an action of partition may be .maintained “by any person who has any estate in the lands of which partition is sought.” This means that' he must have some interest in the lands that has vested prior to the commencement of the action. It is not sufficient that such an interest may vest in him in the future. See Greeney v. Greeney, post, p. 621, 145 N. W. 201, and cases cited. The question must be solved, primarily, by the language of the will itself. If the intention of the testator is clear as to when the estate'vests, the statute relating to the vesting of estates cannot affect it. Morans Will, 118 Wis. 177, 193, 96 N. W. 367. The will of testator contains no words of present gift or devise to the children. It creates a life estate in the wife and then directs that upon the termination of such estate, that is, after her death,-the property is to be divided equally between his children. Respecting the pre
“But where there is a precedent life estate, and the devise or bequest is not direct to those who are to take in remainder, leaving the period of enjoyment to commence only after the ¡termination of a precedent life estate, but the bequest or •devise is in the form of a direction or an expressed purpose ¡that at the termination of the precedent estate the property ;shall be divided between certain persons specified, that circumstance is held to effectually displace the presumption as ¡to immediate vesting, and create the presumption, nothing appearing clearly to the contrary, that the intention of the testator was that the estate in remainder should not' vest until the time for division and distribution should arrive.” See pp. 196, 197, and cases cited.
The devise in.t'he instant case meets the conditions of this language. It is not a present devise to the children. It is a direction that after the termination of the life estate the property shall be divided between them, and nothing appears in the will to indicate that any vesting of interest shall precede the right to the enjoyment of the estate.
When property under a will is to be divided at a spebified time in the future among a class, only those thereof who are alive at the time of division can take under the will in the absence of provisions to the contrary. Moran’s Will, 118 Wis. 177, 199, 96 N. W. 367; Matter of Baer, 147 N. Y. 348, 41 N. E. 702. We have no provisions in this will disposing of the share of a remainderman who dies before the life tenant. The devise, therefore, to Margaret Eoss lapsed upon her death prior to that of her mother, and her share went to the other children of the testator who survived and not to her husband. The court properly granted a nonsuit.
By the Court. — Judgment affirmed.
Dissenting Opinion
{dissenting).- The will in question, in the most simple, straightforward way, gave a life estate in the property in question to testator’s widow. This is followed
In Smith v. Smith, 116 Wis. 570, 93 N. W. 452, the will was substantially like that in the instant case; that is, it created a life use and then provided, “and at the time of her death to be equally divided between these four children,” naming them. It was held that the bequest to these four vested in interest at the death of the testator. It is said that
The statute, sec. 2037, says future estates are either vested or contingent. If I understand the decisions they say that such estates may be vested and contingent. Moran's Will, 118 Wis. 177, 96 N. W. 367. The statute (sec. 2037) says estates are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate, while they are contingent (omitting events) only when the person to whom they are limited to take effect remains uncertain. The decisions say sometimes that the estate is vested, that it is not vested, and sometimes that it is vested subject to be divested under such circumstances when the statute declares the estate vested. An estate vested in interest but not in possession remaining after a life estate may be subject to be divested by the happening of a condition subsequent like any other title, but surely this does not affect its vesting under the statute. The Moran Will Case, 118 Wis. 177, 96 N. W. 367, is cited with apparent confidence by the appellant and respondents. It might be well to notice that the opinion there seems_ to argue in one direction and decide in another. There were in that will express words of survivorship, but the question related to the. children, not to Julia Dolan, and was whether the survival there mentioned referred to the death of the testator or to the death of his wife, the life tenant. It is said: “The decision was in favor of the former. The losing parties thereupon appealed to the circuit court, where they prevailed, judgment being rendered accordingly, from which this appeal is taken.” That would make it ap
Without prolonging this dissent I merely wish to say that the will before the court is, in my opinion, in legal substance and effect like the will in Burnham v. Burnham, 79 Wis. 557, 48 N. W. 661; Smith v. Smith, 116 Wis. 570, 93 N. W. 452; and Cowley’s Will, 120 Wis. 263, 97 N. W. 930, 98 N. W. 28; and the word “divide,” when applied to real estate and among the children of testator, has no such natural or usual meaning as is here attempted to be given to it. The rule of this case is highly artificial and neither carries out what appears to me to be the intention of the testator nor conforms to the statute.