12 S.C. 168 | S.C. | 1879
The opinion of the court was delivered by
Thomas Farrow, by will, devised “ to Dr. Samuel Farrow, in trust for the use and purposes hereinafter mentioned,” certain property, real and personal, “ all of which is to be held by the said Samuel Farrow in trust for the use and benefit of my son, John W. Farrow, during his life, and at his death to be equally divided between his wife, Emma Farrow, and the children he may leave living, share and share alike.” The wife, Emma Farrow, survived the testator, but predeceased her husband. Three children were alive at the death of John W. Farrow. The appellants are legal representatives of Mrs. Emma Farrow. It is held by the Circuit judge that Emma Farrow took in the property no transmissible interest; that the legal estate was in the trustee, and that it was part of the trust, that, at the death of John W. Farrow, the property should be divided among certain persons, of whom Emma Farrow was
We take a different view of the will. We think that the uses and purposes of the trust are confined to the lifetime of John W. Farrow, and are, first, to allow John W. to enjoy the property during his life, and, second, to protect the estate for the remaindermen. It is a well-recognized principle that “ the legal estate, limited to the trustee, shall not be carried further than the complete execution of the trust necessarily requires.” Lewin on Trusts *250. Thus, “ if an estate be devised to A and his heirs, in trust, to pay the rents to B for his life, and, on his death, the testator devises the estate to C in fee, here the legal estate for the life of B is in the trustee, and the legal estate in the remainder is vested in C.” Id. *250.
The only question is whether an estate in remainder vested in Emma Farrow on the death of this testator, or was it contingent upon the event of her surviving John W. Farrow. Where the estate is in trust for one for life, “ and at her death to the use of or in trust for some ascertained individual, and on an event that was certain, it would certainly be a vested remainder.” Williman v. Holmes, 4 Rich. Eq. 481. The rule, as thus expressed, applies strictly to the case before us, even upon the assumption that grammatical construction would permit the expression of trust to extend beyond the lifetime of John. It seems to be thought, however, that the division of the property, after the death of John, is a part of the trust. The language does not ■sustain such a view; but if it did, then the testator has himself done the work by saying “ to be equally divided,” and has thus left nothing for the trustee to do. The same language occurs in the case of Wilson v. McJunkin, 11 Rich. Eq. 527, but there it was not even contended the words “ at her death to be equally divided” made the remainder contingent; the point was made, but upon different grounds. The devise was of real and personal property, in trust for the use of N., “ for and during the term of her natural life, and at her death, to be equally divided amongst her children in fee simple.” It was held that the estate vested in remainder in each child of N., whether living at the death of N. or not. The reasoning applies fully to the case be
The other appeal is not well taken. The marital right of the husband does not attach to the undivided interest coming to his wife. It must have come into possession. Verdier v. Hyrne, 4 Strob. 464. The note held against the husband for the purchase of part of the property sold under order of the court, cannot, therefore, be set off against the claim held by the wife. Robert v. Adams, 2 8. O. 337.
The case is remanded for further proceedings in conformity with the views herein expressed.
Judgment modified.