Connor v. Sheridan

116 Wis. 666 | Wis. | 1903

Cassoday, C. J.

Tbe provisions of tbe will quoted, if valid, are binding upon all parties, including tbe defendant. In tbe divorce action tbe court adjudged to tbe defendant, as-tbe wife of Tbomas, April 22, 1889, whatever estate Thomas-then bad in tbe lands described. Subsequently tbe administrator of tbe estate of Arthur Sheridan, deceased, with the-will annexed, sought to recover possession of tbe lands so adjudged to tbe defendant in an action of ejectment, which,, however, was decided in favor of tbe defendant April 30,. 1891; and tbat judgment was affirmed by this court March 22, 1892. 81 Wis. 538, 541, 542, 51 N. W. 1011. In the opinion of the court in that case, written by my Brother WiNsnow, it is said:

“We construe the fourth and fifth paragraphs of the will in question as vesting a present estate in fee in Thomas .Sheridan. Whether that estate be a base fee by reason of the condition attempted to be imposed by the fifth paragraph, or whether such condition be void because too indefinite to •be enforced, is not material to the controversy before us, and is not decided. The condition, if valid, is a condition upon which the estate of the nephews and nieces depends for its inception, and not the estate of Thomas. Thomas thus having a present estate in the land, it was competent for the court in the divorce action to divest him of that •estate, and vest it in the defendant, Kate Sheridan. She therefore now possesses, by virtue of the divorce decree, all the estate which Thomas had.”

It was further held in that case, in effect, that, as there was enough property in the hands of such administrator to pay all debts and legacies, he was not entitled to the possession of the lands described as against the defendant, under sec. 3823, 'Stats. 1898. Manifestly, neither the judgment in the divorce action nor the judgment in the ejectment action gave to the defendant, or could give to the defendant, any greater right, title, or interest in the lands so awarded to her than was possessed by Thomas at the time such decree of divorce was made. The question presented is whether the estate so vested in Thomas by the terms of the will, and then, by the judgment in the divorce action, transferred to and vested in the defend.ant, became extinguished in November, 1898, after the expiration of the ten years mentioned in the will. The language of the will is unambiguous, and very plain. Thomas was the only child of the testator. He had no children, and nearly a year before the execution of the will he had left his wife and father, and gone to parts unknown. The testator was, manifestly, apprehensive tbat be never would be beard from again, and tbat, if be ever should be beard from again, it would be “within ten years from” the day the will was so executed. Accordingly be devised and bequeathed “all the rest and residue and remainder” of bis estate to Thomas, provided tbat, if be should “not be beard from within ten years from” the day of executing the will, then be willed, devised, and bequeathed bis “property, both real and personal,” to “be equally divided between” bis “nephews and nieces,” therein named, and who are the plaintiffs in this action. There is no pretense tbat Thomas has ever been beard of or from since the execution of the will. The county court and the circuit court expressly adjudged tbat be bad never since been beard of or from. The contingency upon which the estate of Thomas was to be divested and the property to become vested in the plaintiffs actually and literally occurred. It is not the case of a condition annexed to the devise, which has become impossible by the act of God ox the law ox the devisor, as in some cases cited by counsel for the defendant. Parker v. Parker, 123 Mass. 584; Burnham v. Burnham, 79 Wis. 557, 566, 48. N. W. 661. There is nothing in the condition annexed to the devise contrary to law or public policy, or good morals, or in terrorem. Thus,'a condition annexed to a bequest for the benefit of a church, “that the black gown shall be worn in the pulpit, unless there shall be any alteration in the law rendering it illegal,” was held, on appeal, in a recent English case, to be valid. In re Robinson—Wright v. Tugwell, 1897, vol. 1, Ch. Div. 85. This court has held that a condition annexed to a bequest to the effect that the person to whom the gift is so made shall learn some useful trade, business, or profession, and is of good moral character, is valid. Webster v. Morris, 66 Wis. 386, 389, 28 N. W. 353. Numerous cases are there cited in support of the validity of such condition. See, also, Fuller v. Wilbur, 170 Mass. 507, 49 N. E. 916, and cases there cited. Thus, in a case cited by counsel for the plaintiffs, it is held:

“If a condition subsequent be followed by a limitation over in case tbe condition is not complied with, or there is a breach of it, it is termed a conditional limitation, and takes effect without any entry or claim, and no act is necessary to vest the estate in the party to whom it is limited.” Stearns v. Godfrey, 16 Me. 158.

Such is the condition in question. The same counsel cites-other cases to the same effect. Whiting v. Whiting, 42 Minn. 548, 44 N. W. 1030; Brattle Square Church v. Grant, 3 Gray, 146, 147; Leonard v. Burr, 18 N. Y. 96; Lougheed v. The Bykeman’s B. Ch. 129 N. Y. 211, 29 N. E. 249. We-must hold that the condition annexed to the devise, with the-limitation over to the plaintiffs, in the case at bar, is binding; and that upon the expiration of the ten years the title to the-land in question vested in the plaintiffs, as tenants in common. This renders it unnecessary to consider the question of res adjudicata.

By the Oourt. — The judgment of the circuit court is affirmed.