| Mich. | Jan 27, 1886
This is a bill filed by the complainant, as trustee of the last will and testament of Elizabeth P. Birney, to obtain a construction of the same.
The first twenty-two paragraphs of the will are devoted to the granting of particular legacies, and directions for their disposition. The will then proceeds as follows:
“ Twenty-third. After payment of the foregoing legacies, and subject to the directions hereinbefore ordained, I will and direct that my trustee, hereinafter named, shall take upon himself the sole management and control of all the rest and residue of my estate, real and personal, in trust, to manage the same, and receive the rents, issues, and profits thereof ; and he shall apply so much of the income, thence arising, as in his judgment is necessary and proper for the suitable support, maintenance, and education of my granddaughter, Elizabeth Fitzhugh Birney, only child of my deceased son, Fitzhugh Birney; and I enjoin it upon him to afford her ample means to obtain a thorough and finished education, at the best Protestant schools, and to allow her a liberal maintenance and support during her minority.
“And I further will and ordain that when she becomes of age, the whole of the accumulated income and profits of my residuary estate be thereupon paid to her, and that all the income, thereafter accruing, shall thenceforth be paid to her semi-annually, during the rest of her natural life. I also will and ordain that she shall be entitled to the use, for her life, of all the articles of silver plate and household utensils hereinafter conditionally bequeathed ; and if, at her decease, she leaves lawful issue surviving her, I devise and bequeath the whole of my said residuary estate to such issue.
“ Twenty-fourth. In the event of the death of my granddaughter, Elizabeth Fitzhugh Birney, without lawful issue surviving her, I give and bequeath to my niece, Bessie Smith, daughter of my brother William, and to my niece, Lizzie Swift, daughter of my sister Isabella, each six large silver spoons, and to the last named of my two nieces aforesaid, my silver soup ladle; to Anna Burns, daughter of my sister, Mary Taiman, and to her sister, Kebecca Taiman, each six silver dessert spoons; to my niece Maria, wife of D. Carroll Fitzhugh, my dozen teaspoons, and my bell-metal preserving kettle, which belonged to my father’s mother; to mj1, nephew, Boberfc Fitzhugh, son of my brother Henry, the silver tea set given to me by my father, with the injunction that it be kept in the Fitzhugh name.
*433 “And I further will and direct that all the rest, residue, and remainder of my property and estate, whatsoever and wheresoever, be equally divided among all my brothers and sisters, and the children of such of them as shall be no longer living, so that the children of each of the deceased shall take the share, to be equally divided among them, if there be more than one, to which the deceased parent would have been entitled if living.”
The will, as completed by its codicil, was executed January 1, 1869. The testatrix died, January 12, 1869, and July 21, 1884, her granddaughter, Elizabeth Fitzhugh Birney, died without lawful issue surviving her.
At the time the will was made, and at the date of the death of the testatrix, some of her brothers and sisters were living, but others were dead; among them Samuel Fitzhugh, who had one son then living, to wit, William Addison Fitzhugh.
When the granddaughter of the testatrix, Elizabeth Fitz. hugh Birney, died, William Addison Fitzhugh was not living, having died without issue. He left a will devising, as it is claimed, his prospective and contingent share under this will of Elizabeth P. Birney, of which will of William Addison Fitzhugh the defendant John J. Townsend is executor.
There were in all, living and dead, with issue surviving, eleven brothers and sisters of Elizabeth Birney at the date of her will, and the defendant Townsend claims, as executor aforesaid, one-eleventh part of her estate. Had the father of William Addison Fitzhugh been living, at the time of the granddaughter’s death, one-eleventh would have been his share. Had William Addison been living, his father being dead, it is conceded he would have taken, under the clear terms of the will, the same portion. Had William Addison Fitzhugh left a son living, it is conceded by the counsel for the complainant, and also for the defendant Townsend, that this son would have taken one-eleventh of the estate. And the court below decreed, that, in the eases where the children of a deceased brother or sister of the testatrix had died, leaving issue at the date of the granddaughter’s death, (these, the grandchildren of the brothers or sisters of the testatrix) would take the share of their parents.
This is the only point in controversy. The court below decreed in accordance with this view of complainants.
The counsel for Townsend, contéud, that William Addison Fitzhugh had, under the will of his aunt, such an interest in the estate devised by her that he could, by his last will and testament, transfer the same to his executor; that his interest was a contingent one, depending upon the death of Elizabeth Fitzhugh Birney without issue, subject to be defeated by her leaving such issue at her death, but subject to this contingency it was a vested estate; and that the title passed to him upon the death of the testatrix, and after that he could alienate or devise it the same as a present estate.
We think the intention of the testatrix should be given effect, if not clearly inconsistent with the provisions of the will itself, or a settled rule of law. It seems to us that her intention is most clearly expressed in this:
1. She intended to vest only a life-estate in her granddaughter.
2. If her granddaughter died with issue surviving her, the estate was to descend absolutely to such issue.
3. If the granddaughter died, as she did, without issue, the estate should be divided between her brothers and sisters living, and the children of those not living.
It is clear that she did not intend that any brother or sister, living when she made her will, but not living when her granddaughter died; should take any interest in her estate that they could dispose of, in the mean time, cutting off their children. The will expressly provides that the children of the dead shall take, which would have been impossible if their parents could have conveyed or devised away their contingent share.
Did she intend that any child of a deceased brother, like William Addison Fitzhugh, should take an interest greater
It is not disputed by defendants’ counsel, that, if the plain letter of the will had provided that William Addison Fitzhugh should take no interest in the estate, unless he was living at the time of the granddaughter’s death, he could not have willed or assigned his contingent estate away, so that his devisee or assignee could have taken, if he had died before the granddaughter. In other words, he could not convey in any way a larger estate than he himself held.
Therefore, if the intent of the testator is the same as if it were so expressed, to be gathered from the terms of the will, it must be conceded that the defendant Townsend has no claim to any portion of this estate, as William Addison Fitzhugh’s executor.
We think the manifest intent of the testatrix, by her will, was, that no estate should vest in any one, outside of her granddaughter and her issue, until the event of the granddaughter’s death; and that, in case she should die without issue, only the living brothers and sisters, and the living issue of the dead brothers and sisters, should inherit. We can find no intimation in the instrument that the testatrix meant to giveWilliam Addison Fitzhugh, or any other person, an estate capable of alienation or devise before the death of her granddaughter.
On the contrary, the whole tenor of the will seems to be strongly against such a construction. TJnder its terms, her granddaughter (who, with her issue, were the especial objects of her bounty), could not alienate or devise the fee; and her issue took no estate unless they were living when the granddaughter died. When the plain terms of this will would have
It is not likely that the testatrix, who so carefully and specifically withheld from her granddaughter, and from the children of the granddaughter, and from her brothers and sisters, the power to dispose of, during the life of the granddaughter, any interest in the property, intended to give this power to a nephew, who only inherited because his father was dead, and whose whole interest in the estate depended, at least, upon the contingency of the death of the granddaughter without issue surviving her.
It is doubtful if William Addison Fitzhuglr intended to dispose of this contingent chance or interest in his aunt’s estate by his last will and testament, under which defendant Townsend claims. He makes no mention of it, but simply devises all the estate of which he may “ die possessed.” If he had supposed that he had taken the estate now claimed for him under his aunt’s will, he would have been apt to have referred to such interest.
The plain intent of the will of Elizabeth P. Birney being, therefore, against the claim of defendant Townsend, it remains to be seen if there is any rule of law that prevents the carrying out of this intent of the testatrix.
We can find none. There was no vested estate until the death of the granddaughter. No interest passed to William Addison Fitzhugh by the terms of the will, except a contingent estate that perished with him, if he died before the granddaughter.
It was argued by the counsel for defendant, Townsend, that, under our statute, such an estate was descendible, devisable and alienable in the same manner as estates in possession. Granted; yet it is equally true that William Addison Fitzhugh could grant or devise no better or greater estate than he himself held; and any alienation or devise made by him
The only effect of the statute is this: It enabled William Addison Fitzhugh, by his will or deed, to put another in his place, so that if the contingency arose by which William Addison would himself have taken had no transfer been made by him, then, in such case, the party standing in his place would take in his stead.
The estate taken by William Addison Fitzhugh was a contingent one, liable to be defeated by the happening of either one of two events, to wit, the death of the granddaughter, Elizabeth Fitzhugh Birney, with issue surviving her, or his own death before the decease of the said granddaughter.
The construction of the will by the court below was correct, and must be affirmed, with costs of this Court in favor of complainant against the defendant John J. Townsend.