112 Mich. 237 | Mich. | 1897
(after stating the facts). 1. The contention of the complainant is that the contingency of issue related solely and exclusively to the event of death before he attained the age of 21 years; that if he died before that age, leaving issue, the issue would take; and that the title became absolute and vested, relieved of any trust or remainder in favor of the defendants, the moment he attained his majority.
The contention of the defendants is that the will disposed of-the real estate as follows:
(1) In trust for complainant in the event of accident or misfortune during minority, at the discretion of the trustee, and that the trust then ceased.
(2) A fee simple in complainant, giving him the use of the property, his title defeasible in the event of his death without issue then living.
(3) A fee simple absolute to the issue of his body, if there were such living at the time of his death.
(4) Upon the failure of issue living at the time of his death, a fee simple in the legatees named in the will as remainder-men.
The rule of construction obtaining in this class of cases is well stated by counsel for complainant as follows: “It is the duty of the court to find, and authoritatively to state, the intent of Marvil Shaw; for his intent, when found, is the cardinal point, if lawful, to which all others must direct.” Barnes v. Marshall, 102 Mich. 255. This, intent must be gathered, if possible, from the four corners of the instrument. We think it clear that his intent was to convey an estate to his grandson for his use and benefit during his life, with the fee to the issue of his body, if such were living at' his death, and, if not, then to his sons and daughters and their heirs and assigns. The devise to Lysander and the others did not depend upon the death of complainant under the age of 21 without issue. No such limitation can be placed upon the language of the will. It
“A contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain their full age.”
The difficulty with this position is that complainant’s estate was not a prior remainder in fee. There is no precedent estate upon which to base the prior remainder. The estate conveyed to the grandson was a present, not a future, estate. The will took effect upon the death of the testator, and must be construed as would a deed containing the same provisions. Upon the death of the testator, the grandson, through his trustee, immediately entered into possession of the estate conveyed, which was an estate tail of the simplest kind at the common law. It is therefore governed by sections 5519, 5520, 2 How. Stat., which read as follows:
“All estates tail are abolished, and every estate which would be adjudged a fee tail according to the laws of the territory of Michigan as it existed before the second day of March, one thousand eight hundred and twenty-one, shall, for all purposes, be adjudged a fee simple, and, if no valid remainder be limited thereon, shall be a fee simple absolute.
“When a remainder in fee shall be limited upon any estate which would be adjudged a fee tail according to*242 the law of the territory of Michigan as it existed previous to the time mentioned in the preceding section, such remainder shall be valid as a contingent limitation upon a fee, and shall vest in possession on the death of the first taker without issue living at the time of such death.”
Similar devises have been construed by this court, and have been held to create estates tail, and the remainder limited thereon valid. Goodell v. Hibbard, 32 Mich. 47; Mullreed v. Clark, 110 Mich. 229. Complainant, upon attaining his majority, was therefore entitled to enter upon and enjoy the estate during his life. If upon his death he shall leave issue of his body, the fee goes to such issue; if not, it goes to the other devisees named. See, also, Anderson v. Jackson, 16 Johns. 382 (8 Am. Dec. 330).
2. What interest has complainant in the increase and accretions of the estate ? The will limited the accumulation of the rents and profits of the real estate to complainant’s minority, when it ceased. This was valid, under 2 How. Stat. § 5553. The accretions came from a mixed fund of land and personalty. The accumulation of such a fund was held valid in this court in Toms v. Williams, 41 Mich. 552. It was clearly intended by the testator that these accretions should constitute a fund of which his grandson should receive the income, and that the principal, at complainant’s death, should go in the same direction as the real estate. It follows that this fund must be invested under the order of the court, and the income paid to the complainant.
The decree of the court below is reversed, and decree entered in accordance with this opinion, and the case remanded for further proceedings. Defendants will re-. cover costs.
