Fifer v. AllenFifer v. Allen
delivered the opinion of the court:
John H. Fifer, the appellant, filed his bill in equity in the circuit court of McLean county against Melissa E. Allen, John H. Allen and the county treasurer of McLean county, the appellees, alleging that appellant’s father, John Fifer, died in April, 1884, seized of 95½ acres of land in said county, and leaving a last will and testament executed the previous February, by which, after providing for the payment of his just debts and funeral expenses, the residue of his property, both real and personal, was devised and bequeathed as follows: “To my two grandchildren, Melissa E. Allen and John H. Allen, share and share alike; but should either of my grandchildren die without an heir of his or her body living or in being at the time of the death of such grandchild, then it is my will .that the share of such deceased grandchild shall go to my son, John H. Fifer, absolutely; and in case both of my said grandchildren should die without heirs of their bodies living or in being at the time of their death, then it is my will that both shares, or, what is the same thing, the whole of my estate, shall go to my son, John H. Fifer, absolutely.” The further allegations of the bill were, that John H. Allen had not been heard from for many years and was dead; that the complainant was owner, under the will, of an undivided one-half of the premises; that Melissa E. Allen was about forty years old, childless, not in good health and not likely to have a child in the future, so that complainant was the probable owner of the other undivided one-half; that at the time the will was made the testator was seventy-nine years old; that John H. Allen and Melissa E. Allen were son and daughter of a deceased daughter of the testator, the boy being twenty and the girl eighteen years old and neither of them married at the time the will was made; that Melissa E. Allen had occupied the premises since the death of the testator and was cutting off timber and had neglected to pay the taxes; that complainant had redeemed from a sale for taxes on one tract and had paid the taxes on another after publication and before judgment, and that under a judgment of condemnation rendered by the county court of McLean county for the right of way of an electric railroad, $310 had been paid to the county treasurer for the use of those entitled to it. Complainant claimed one-half of the condemnation money and prayed for a decree finding that John H. Allen was dead; that complainant was the. owner of an undivided one-half of the premises; that Melissa E. Allen should be decreed to pay the complainant the amount paid to redeem from the tax sale and to prevent a sale, and should be restrained from waste and from drawing any money from the county treasurer except upon giving a bond to secure the same to the complainant if she should die without issue. John H. Allen was not dead, but appeared and with Melissa E. Allen answered the bill and filed a cross-bill. By their answer and cross-bill they denied that complainant had any interest, under the will, in the premises, and alleged that the provision set forth in the complainant’s bill was merely for substitution in the event that one or both of them should die without leaving issue of his or her body prior to the death of the testator, and that both having survived the testator, they took the whole estate in fee simple. They admitted the payment of $310 to the county treasurer as compensation for the right of way and claimed the money. The cross-bill asked for a construction of the will as contended for in the answer and cross-bill, and prayed for an order directing the county treasurer to pay to the complainants in said cross-bill the said sum of money. The cross-bill was answered and the cause was heard upon the pleadings. The court construed the will as contended for by John H. Allen and Melissa E. Allen, defendants in the original bill and complainants in the cross-bill, and held that, inasmuch as they survived the testator, the complainant, John H. Fifer, had not and never could have any right, title or interest in the land. The original bill was dismissed and the county treasurer'was ordered to pay the sum of $310 to the complainants in the cross-bill. From that decree an appeal was taken to this court, and the question to be determined is, whether the testator, in employing the words of the will relating to the death of either or both of his grandchildren without a child or children living or in being at the time of the death of either or both of them, referred to the death of said grandchildren, or either of them, before his death, or referred to such death at any time before or subsequent to his death.
The purpose of courts in construing a will is to ascertain the intention of the testator, so that such intention may be given effect if not prohibited by law. The object to be attained is to give the will the interpretation and meaning which the testator intended, and his intention will be carried out whenever it can be done without violating some established rule of law or public policy. (Crerar v. Williams,
In the case of Thomas v. Miller,
Mr. Kales, in his work on Future Interests, (sec. 199,) says: “In the case of a gift if the first taker die without issue, ‘without issue’ may mean ‘if the first taker die in the lifetime of the testator without issue, then the second taker shall stand in his place to prevent á lapse.’ This, however, must be an unusual construction and should require direct support from the context of the instrument. The primary and most usual meaning of the phrase ‘die without issue,’ is, ‘if the first taker die without issue either before or after the testator’s death.’ ”
The rule established in the case of O’Mahoney v. Burdett has since been followed in England, and it has been considered that there is a manifest distinction between a devise over, not in case of the death of the first devisee, which is inevitable, but upon the happening of a contingent event, such as the death of the first devisee without issue. In case of a devise simpliciter to one person and if he should die, to another, the courts of England and this country have construed the will upon the theory that the testator must have had some contingency in view, and inasmuch as the death of the first devisee is a certain and not a contingent event, the testator must have contemplated death within some particular .period of time, and to prevent a lapse and in favor of vested rather than contingent interests, they have considered the life of the testator to be that period. In the case of Crane v. Cowell, 2 Curtis, 178, the court, referring to the rule of construction just stated, said: “But it is manifest that the whole basis of this reasoning fails if the will gives the property over, not simply if the legatee die, but if his death is connected with some collateral event, such as dying without issue, which is contingent. In such a case there is no necessity to seek for a contingency or for engrafting on the language of the testator a limit of time during which the event is to happen to render it contingent, for the testator has himself, in terms, announced an event which may or may not happen after his decease, as a contingency upon which the property is to go over.”
In Buchanan v. Buchanan,
In the case of Britten v. Thornton,
The question came before this court in Summers v. Smith,
In the case of Smith v. Kimbell,
In Strain v. Sweeny,
In the case of Lombard v. Witbeck,
In Gannon v. Peterson,
In Thompson v. Becker,
In Bradsby v. Wallace,
Counsel, in contending for a contrary view, relies upon the statement in the American and English Encyclopedia of Law, (vol. 17, 2d ed. 573,) as follows: “Where real estate is devised in terms denoting an intention that the primary devisee should take a fee on the death of the testator, coupled with a devise over in case of his dying without issue, the words refer to a death without issue during the lifetime of the testator, and the primary devisee surviving the testator takes an absolute estate in fee simplé.” That rule requires that the testator should use terms denoting an intention' that the primary “devisee shall take a fee simple absolute at the death of the testator, and, of course, if that is the intention it must be given effect, since all rules of construction yield to the intention of the testator plainly expressed. Following the above statement of a rule is this qualification: “Where it appears from the language and provisions of the instrument that the.testator referred to death either before or after his own, his intention will prevail,” and we have seen that the words used in the will of John Fifer referred to death either before or after his own. That we are correct in our view, and that the statement relied upon by counsel does not apply to a provision like the one under consideration, is shown in volume 30 of the same work, at page 709, as follows: “It may be laid down as a general rule of construction, that where the context is silent, words referring to the death of a prior devisee or legatee, in connection with some collateral event, apply to the contingency happening at any time, as well after as before the death of the testator. The rule is generally the same whether the gift is immediate, as where the bequest is to A and if he die unmarried or without children or issue, to B, or postponed to a life interest,' as to X for life remainder to A, and if A dies unmarried or without children or issue, to B.” The cases of O’Mahoney v. Burdett and Buchanan v. Buchanan are cited, with many others, in support of the text.
There is a very full discussion of the subject in Jarman on Wills. In chapter 48 the author reviews the cases where a bequest is made to a person with a gift over in case of his death, and says: “The difficulty in such cases arises from the testator having applied terms of contingency to an event of all others the most certain and inevitable, and to satisfy which terms it is necessary to connect with death some circumstance in association with which it is contingent. That circumstance naturally is the time of its happening, and such time, where the bequest is immediate, (i. e., in possession,) necessarily is the'death of the testator, there being no other period to which the words can be referred.” He declares it to be an established rule that where the bequest is simply to A, and in case of his death, or if he die, to B, A surviving the testator takes absolutely. He says, however, that although in the case of an immediate gift it is generally true that a bequest over in the event of the death of the preceding legatee refers to that event occurring in the lifetime of the testator, this construction is only made, from the necessity of the case, on account of the absence of any other period to which the words can be referred, and, consequently, where there is another point of time to which they may be referred the rule gives way, as all rules of construction do in any case where the context shows a different intention. In chapter 49 cases are discussed where the testator by his words referred to a contingent event, and the obvious distinction between cases of that kind and those considered in chapter 48 is pointed out. As to the first class it is said: “There it was necessary either to do violence to the testator’s language by reading the words providing against the event of death as applying to the occurrence of death at any time, 'in which sense death is not a contingent event,’ or else to give effect to the words of contingency by construing them as intended to provide against death within a given period.” As to the second class it is said that “the expositor of the will is placed in no> such dilemma, for the testator having himself associated the event of death with a collateral circumstance, full scope may be given to his expression of contingency without seeking for any restriction in regard to time; and accordingly there seems to be no reason (unless it be found in the context of the will) why the gift over should not take effect in the event of the prior legatee’s dying, under the circumstances described, at any period.”
The general rule deduced from the cases is, that where the context is silent, words referring to the death of the prior legatee in connection with some collateral event apply where the contingency happens after as well as before the death of the testator; and this is in accordance with the rule of construction adopted by this court.
It is beyond question that the will of Theodore Harz was correctly construed in the case of Kohtz v. Eldred,
In the case of King v. King,
It is averred in the bill that Melissa E. Allen has cut and sold timber from the property, greatly 'reducing its value. A court of chancery will interfere to enjoin equitable waste by the owner of a base or determinable fee only when the contingency which is to determine the estate is reasonably certain to happen and the waste is of a character to charge the owner with a wanton and unconscientious abuse of his rights. (Gannon v. Peterson, supra.) The facts stated in the bill are not sufficient to justify a court in interfering.
The appellant, John H. Fifer, has no present estate in the land, having nothing but a mere expectancy, not capable of being valued and which may never have any existence. No estate has vested in appellant, and none ever will unless upon the happening of the contingency. (Friedman v. Steiner,
The decree of the circuit court is reversed and the cause is remanded to that court, with directions to enter a decree in accordance with the views expressed in this opinion.
Reversed and remanded, with directions.