9 Mont. 354 | Mont. | 1890
In this action there is no controversy as to the facts. The questions involved which demand our consideration relate to the construction of a will, and the proper distribution to the devisees thereunder, acóording to the terms of the will and the law governing. In September, 1885, Walter F. Chadwick died in the city of Helena, in Montana Territory, where he had long been a resident. The deceased left a last will and testament, bearing date April 6, 1882, whereby he appointed the appellants, Benjamin H. Tatem, John C. Curtin, and William C. Bailey, executors thereof. This will was duly admitted to probate, and the executors entered upon the duties of its execution. By the terms of his will the testator devised to his wife, Norma D. Chadwick, all of the personal estate of testator after paying his debts, and an undivided two thirds of all real estate of which the testator died seised, excepting there
Another contract was made at the same time, and in reference to the same transaction, signed by the testator, Walter F. Chadwick, and said Charles A. Broadwater, which provides as follows : “ That said parties of the first part [Chadwick and wife], for and in consideration of the sum of $33,750 to them in hand paid by the second party, the receipt whereof is hereby acknowledged, and for certain other considerations mentioned and expressed in an escrow agreement deposited with a certain deed of conveyance in the Montana National Bank of Helena, of the following described property, situate in Ten-Mile unorganized mining district, in the county and Territory aforesaid, viz. [here follows a description of the property described in the deed]; all of which property and premises are particularly described in said deed, which bears even date herewith, the same having been as aforesaid executed by said first parties to said Broadwater, and which said deed is to become effective on the compliance with the conditions expressed in said escrow agreement by said second party. ' Now, therefore, the said first parties hereby agree to and with said second party that, upon compliance with and the fulfillment of the conditions named and expressed in said escrow agreement to be done and performed by said second party, the said deed so deposited shall be delivered to said second party, and the title to said property and the premises therein described shall be and become absolute in said second party, his heirs, etc., according to the covenants and provisions in said deed contained.”
The said deed and contracts were placed by the parties thereto in the custody of the said Montana National Bank, to be disposed of according to the conditions set forth in said contracts. The transaction and the papers remained in this condition until near the time for the fulfillment or forfeiture on the part of Broadwater, when, on the 18th of August, 1885, said Walter F.
In the absence of statutory provisions the solution of this question would be attended with much difficulty. There are, however, statutory provisions which have a bearing upon this contention, and these provisions command the first consideration by the court. The statute of this State in reference to the execution and revocation of wills, at sections 461 and 463, Probate Practice Act, provides as follows: “Sec. 461. An agreement made by a testator for the sale or transfer of property disposed of by a will previously made does not revoke such disposal, but the property passes by the will, subject to the same remedies on the testator’s agreement for a specific performance, or otherwise, against the devisees or legatees, as might be had against the tes
The question is, did the transaction amount to a complete divestiture of the title by the testator? We think not. Where was the title to this property while Broadwater had the option to purchase? Can it be said it was vested in Broadwater? The deed lay as a dormant instrument in the custody of the bank, without efficacy as a conveyance, until a certain condition was performed by Broadwater, and a delivery of the deed was made to him by the bank. The conditions were such that, if Broad-water did nothing, the title remained in the testator, and passed by his will to the devisees; but, if he performed the conditions, that is, paid the sum of $22,500 within a certain time, and obtained from the bank a delivery of the deed, then the title thereby passed to him. It is frequently asserted by the decisions of courts, and by eminent authorities, going back as far as Lord Coke, that the general rule is that au instrument delivered in escrow takes effect only on the performance of the conditions and the second delivery, and is not operative until the conditions are performed and the second delivery is made. This doctrine is decisive of the question under consideration. If the deed is inoperative until the performance of the conditions, it follows that the estate is “ not wholly divested,” and passes by the terms of the will.
In answer to this line of reasoning, counsel for appellants invoke the aid of authorities where it is held that to prevent injustice, or to prevent the defeat of the plain intention of the parties, courts of equity will allow the second delivery of the
It is contended, also, by appellants, that if the title remained in the testator until the conditions were performed and the second delivery was made, the testator having died some months before the second delivery, the effect is that the title remained in the deceased until the condition was performed, and then passed from him to Broadwater, which is not consonant with reason, or with the rules of law; that if the testator died seised of said mining property, September 28, 1885, and the title did not pass to Broadwater until the second delivery, December 31, 1885, the title passed from the deceased on the latter date, which could not be, as the title could not remain in the deceased during the period from September 28 to December 31, 1885, and then pass from him to Broadwater. Hence the title had to pass, if at all, from the first delivery. This position will not stand the test of legal rules and reason. When the testator died, his will became operative, and by virtue of the will and the law the title passed to the devisees, subject to such conditions as the testator had placed upon it in his transaction with Broadwater. (Comp. Stats. [Prob. Prac. Act] §§ 461,463.) The testator had not only made a will touching the property in question, but he had placed other conditions upon it, by virtue of which it might or might not pass away from him or his devisees. The law joins these two provisions together, and provides that both shall have effect upon the property. The will passes the property to the devisees, subject to the conditions. The conditions being fulfilled, the act of the testator carries the title away from the devisees to another. This conforms to the statute quoted supra. These provisions were evidently enacted to change a rule of long standing, by which, if real property be devised, and after the execution of the will, the testator makes a contract to sell the
We v/ill now consider the two remaining questions brought up for our determination by this appeal. First. The appellants claim that said “Norma D. Chadwick is entitled, in addition to the legacies and bequests in.her behalf contained in said will, to a dower interest of, in, and to all lands and real property of which the said Walter F. Chadwick died seised, which dower interest should first be carved out of said real estate, prior to the distribution thereof to the devisees in said will.” Second, That all property mentioned in the said will was at the death of the testator “community property,” and by reason thereof said wife, Norma D., was entitled to one half of all of said property, in addition to the property devised to her by said will. Here are two claims put forth, predicated upon the proposition that, under the law as it then existed, the widow is entitled to dower, and in addition thereto is entitled to one half of what is termed “ community property.”
Proceeding in the order stated, first as to dower. In 1876 (Laws 9th Sess. p. 63) the legislative assembly of Montana passed an “ act concerning dower,” which provided what interest in the lands of the husband the wife should be endowed of; when dower should attach; the manner by which it coulcl be claimed and enforced, or relinquished, or superseded by other benefits; and, in general, the act covered and controlled the subject of dower. While it is not directly disputed that this act
The question, then, is, did the repealing clause in the Revised Statutes of Montana of 1879 repeal the “act concerning dower,” approved February 11, 1876, supra? The terms of such repealing clause, when carefully considered, are very clear, and show exactly what was intended to be repealed. “All acts of the legislative assembly passed prior to the twenty-first day of February, 1879, or on said day, any portion of which is embraced in any section of said codification, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof.” So far, the repealing clause has not touched the “act concerning dower.” The subsequent portion of that clause, down to the proviso, is explanatory of what went before, in these words: “All parts of such acts not contained in such codification having been repealed or superseded by subsequent acts, or not being general and permanent in their nature.” A proviso is here inserted in the section, which does not affect said “act concerning dower ”; and the section closes as follows: “ And all acts of the legislative assembly passed prior to or on said last-named day, no part of which are embraced in said codification, shall not be affected or changed by its enactment.” It is clear that no part of the “act concerning dower” is embraced in said codification; and therefoi’e we think it follows, without doubt, that said act is not repealed, but has stood in full force, although from some cause it was not incorporated in said codification. We have nothing upon which to base even an inference that it was the intention of the legislature to repeal this “act concerning dower.” It was the law in full force when said codification was made, and the subject of dower is entirely wanting in the compilation of 1879- Repeals by implication are not favored by the law', and the strong leaning of the courts is against the doctrine. (Potter’s Dwarris on Statutes, 154-160, and eases there cited.)
Sections 6 and 7 of said “act concerning dower” are decisive against the position that said Norma D. is entitled to dower in addition to the devise and bequests under the will. Said sections provide as follows: “Sec. 6. Every devise of land, or
Upon the question of “community property,” we find no difficulty in determining the rights of the appellant, Norma D. Chadwick, under the facts presented in this case. The provision relied upon by the appellants is found in section 551, Probate Practice Act, as follows: “ Upon the death of the husband one half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and, in the absence of such disposition, goes to his descendants equally, if such descendants are in the same degree of kindred to the decedent; otherwise, according to the right of representation.” It is claimed by appellants that the whole