39 N.W.2d 650 | Iowa | 1949
This appeal involves the determination of the uniformly troublesome question — under our decisions — of whether a remainder is vested or contingent.
From the facts, as properly pleaded in the amended petition and exhibits attached, it appears that: the testator, Christoph Henkel, was a resident of Lee County, Illinois, at and before his death on November 23, 1895, at the age of fifty-seven years; he was survived by his widow, Maria Anna Henkel, his son, George, and three daughters, Catherine Bauer, Maria Juliana Auchstetter and Elizabeth Auchstetter; at the time of his death *1369 at his home in Lee County, Illinois, his family consisted of himself, his wife, his daughter Maria Juliana and her husband and child; not being well physically, the testator, on March 29, 1895, had a lawyer at Mendota, Illinois, active in the practice, skilled in the drafting of legal instruments, having an extensive probate practice, draft his last will and testament, which he duly executed; at that time, the testator was the owner in fee simple of his homestead farm of one hundred thirty-five acres, and also three acres of timberland, all in said Lee County, and of several hundred acres of farm land in Sioux County, and Ida County, Iowa; at that time his daughter Maria Juliana and her child were living in his home, and he was more intimately associated with them than with his other children and grandchildren, who were all residents of Iowa; at the time the testator's will was executed, each of his four children were married and each of them had living children except Elizabeth Auchstetter, to whom no child was ever born; testator's will was admitted to probate in Lee County, Illinois, on December 6, 1895, and as a foreign will in Sioux County, Iowa, on April 8, 1909; the testator had many times stated that it was his intention to so dispose of his property that after his death it would not go to his in-laws but should be kept within his own family.
Testator's will, set out in exhibit made a part of petition, provided in substance as follows:
1st Directed the payment of his debts and funeral expenses and erection of a monument at his grave;
2d Gave to his son, George, the use and income of eighty acres of land in Sioux County for life, "and after his death the same shall go to his children of his first wife forever".
"3rd I give and bequeath to my beloved wife Maria Anna Henkel the use and income of all the rest of my estate, real and personal or mixed, wheresoever and whatsoever the same may be at the time of my death, during her natural life, all of which shall be in lieu of dower, and after her death all shall be divided as follows:
"4th To my daughter Catharina Bauer [land in Ida County, Iowa, describing it], containing two hundred (200) acres more or less, to have and to hold to herself or her children forever. *1370
"5th To my son George A. Henkel [land in Sioux County, Iowa, describing it], containing two hundred (200) acres more or less, to have and to hold the same for himself or his children forever.
"6th To my daughter Elizabeth Auchstetter [land in Sioux County, Iowa, describing it], containing two hundred (200) acres more or less, to have and to hold to herself or her heirs at law forever.
"7th To my daughter Maria Juliana Auchstetter [land in Lee County, Illinois, describing it], containing one hundred and thirty-five (135) acres more or less, also three acres of timber land * * * to have and to hold to herself and her children forever.
"8th All the balance of my estate if any after my said wife's death, shall be equally divided among my said four children or their heirs at law."
The only real estate involved in this action is that devised to Elizabeth Auchstetter in the "6th" paragraph of the will. The controversy is whether Elizabeth took a vested remainder in the land or whether the remainder was contingent upon her surviving her mother. The life use and income of testator's property, after compliance with the "1st" and "2nd" paragraphs of the will, which was given to his widow in the "3rd" paragraph, terminated with her death on May 29, 1915.
Testator's daughter Elizabeth had married Peter Auchstetter in January 1888. She was childless when the will was made. She did not survive her mother, but died testate on February 2, 1914, survived by her husband, Peter Auchstetter, but with no child born to her. On March 13, 1908, Elizabeth Auchstetter executed her will, appointing her husband, Peter, as executor and devising and bequeathing to him "his heirs and assigns forever * * * all my estate, real, personal, or mixed, whatsoever and wheresoever the same may be at the time of my death." Her will was admitted to probate in LaSalle County, Illinois, on March 12, 1914, and Peter Auchstetter, the qualified executor, alleged that the testatrix died seized of the real estate described in the "6th" paragraph of the Christoph Henkel will. On June 24, 1914, the will of Elizabeth Auchstetter was admitted to probate as a foreign will in Sioux County, Iowa. *1371
After the death of Maria Anna Henkel, the testator's widow, Peter Auchstetter took possession of said land under the belief that Elizabeth Auchstetter had been devised a vested remainder therein by her father's will, which estate had passed to him by the will of Elizabeth. Peter Auchstetter retained the uninterrupted possession and use of said land until 1936. After the death of Elizabeth, Peter Auchstetter married the defendant Katherine Auchstetter and on or about March 24, 1936, in an attempt to make a gift to his wife and to create a joint tenancy in said real estate Peter and Katherine joined in the execution of a deed conveying it to one Lauer, who, on the same day, reconveyed the said land to Peter Auchstetter and Katherine Auchstetter, husband and wife, as joint tenants with right of survivorship. Thereafter they jointly possessed and used the land, through tenants, until the death of Peter Auchstetter in 1948. The defendant Katherine Auchstetter claims title and ownership of the land as the surviving grantee in said deed from Lauer.
On the death of Elizabeth Auchstetter February 2, 1914, her sole heir was her mother, Maria Anna Henkel. When the latter died intestate on May 29, 1915, a resident of Mendota, Illinois, her heirs and the heirs of Elizabeth Auchstetter, determined as of that date, were the same persons, namely, Maria Juliana Auchstetter, Catherina Bauer (who died intestate on June 12, 1935), and the seven children of George A. Henkel (who died August 21, 1907).
The plaintiffs and the three defendants, other that Katherine Auchstetter and Fred Fischer, and Maria Juliana Auchstetter, only living child of the testator, are the living descendants of Catherine Bauer, and of George A. Henkel. In paragraph 3 of their petition, they allege: "That the plaintiffs base their claim to ownership to the real estate * * * on the fact that the will of Christoph Henkel * * * devised only a contingent remainder in the real estate to Elizabeth Auchstetter and, by reason of her death prior to that of the life tenant, no interest ever vested in her, but instead vested in her heirs at law as provided by the will * * *."
The motion to dismiss the petition was based upon three grounds. The court overruled the first and third grounds and sustained ground two which alleged: "That the petition of the *1372 plaintiffs shows * * * that the rights of the parties in and to the real estate * * * depend entirely upon the construction of the last will of Christoph Henkel and particularly as to whether the devise to Elizabeth Auchstetter * * * gave to her a vested or a contingent remainder in and to said * * * real estate. That, as a matter of law, under the statutes and decisions of * * * Iowa, * * * Elizabeth Auchstetter was devised * * * a vested remainder in and to said real estate, and said petition shows * * * that Katherine Auchstetter is the successor to the title and interest of Elizabeth Auchstetter in said premises, and that the plaintiffs have no right, title or interest in and to said real estate whatsoever."
The only error assigned by plaintiffs is the ruling of the court sustaining said ground two of defendants' motion to dismiss the petition. Defendants also assert that the assigned error embraces the only issue and question for determination by this court.
I. Because of some typing errors and faulty punctuation in the transcript of the Illinois probate proceedings filed in the office of the Sioux County clerk of the district court at the time the testator's will was there admitted to probate, and because of the use made of the words "and" and "or" in the paragraphs of the will, the trial court criticized the will as being carelessly drawn. The court expressed the conclusion therefrom, thus: "If we assume that he thus intentionally and understandingly used the words `or' and `and', then we must assume that the testator intended to discriminate between his children; which assumption is not sustained by the provisions of the will as a whole * * *."
Defendants make similar criticisms in their argument. The matters criticized are of little consequence. They are made only as affording some foundation for the appellees' contention that in the "6th" paragraph of the will the testator, or his lawyer, carelessly, inadvertently, or unintentionally, used the word "or" in the last six words of the paragraph, instead of the word "and", which they insist was the word the testator actually intended to use. And defendants ask this court, not to accept and construe the will as executed, but to change it by striking the word "or" and substituting the word "and". They have presented neither facts nor law to sustain their proposition. *1373
The one who drew the will was a lawyer skilled in the work he was doing. We may assume that he accurately and understandingly put into the instrument the instructions he received from the testator. The latter had accumulated a large estate. There is no basis for assuming he was illiterate. The will contained no word that was not plain, simple and easily understood.
[1] In the absence of any showing to the contrary, we are to assume that the testator selected language adapted to express his meaning, and that he knew and appreciated the effect of the language used in the will. Beedy v. Finney,
"The will must be construed as written, all words therein contained being given effect so far as possible." 69 C.J., Wills, section 1126, page 71.
"In the absence of language evidencing a contrary intention, a testator is presumed to use the words in which he expresses himself in his will in their primary or ordinary sense." 69 C.J., Wills, section 1128, page 73.
"It is uniformly presumed that the words of the will are used in their natural, usual, popular and conventional meaning." In re Estate of Syverson,
"It is a universally accepted rule of the construction of wills that the words of the testator will be given effect according to the approved usage of the language * * *. Upon what sound principle of construction shall the court say the testator did not mean precisely what he said?" Anderson v. Wilson,
"A will must be read in the ordinary and grammatical sense of the words employed, unless some obvious absurdity or some repugnance or inconsistency with the declared intention of the testator as extracted from the whole will should follow from so reading it. Riegel et al. v. Oliver et al.,
See also In re Will of Hagan,
[2] It is true we have held that in order to ascertain the intent of a testator and give it effect it is sometimes permissible to disregard superfluous words or to add or transpose words. Layton v. Tucker,
"But we are not permitted to reject clauses, nor arbitrarily to substitute one word for another. This can only be done whenimperatively demanded in order to carry out the intentions of thetestator. [Italics ours.] In Griffith's Lessee v. Woodward, 1 Yeates, 318, it was said: `Courts of justice will transpose the clauses of a will and construe "or" to be "and" and "and" to be "or" only in such cases when it is absolutely necessary so to do to support the evident meaning of the testator. But they cannot arbitrarily expunge or alter words without such apparent necessity.'"
[3] II. Defendants set out brief points containing some rules for construing wills involving controversies over remainders. One of these is the oft-repeated rule that courts are inclined to hold a remainder to be vested rather than contingent if it can be done without manifest violation of the testator's intention. *1375
Plaintiffs do not question the rule but insist that it has no application because to hold that Elizabeth Auchstetter took a vested remainder is plainly contrary to the testator's intention. The favoritism for the vesting of remainders came about in order to nullify the many burdensome technicalities of the feudal system with respect to contingent remainders. Many of the reasons which generated the favoritism have long been nonexistent. It is no longer an important rule of construction, and should not be. As said by Justice Evans in Fulton v. Fulton,
An excellent treatise on the whole subject may be found in volume 3 (Future Interests) William F. Walsh's "Commentaries on the Law of Real Property" (1947). In section 293, pages 98, 99, the author states:
"This presumption in favor of vesting was important while contingent remainders were held to be inalienable and subject to defeat by the destruction or natural termination of the prior life estate which supported the remainder. These rules were highly technical and unreasonable, and therefore to escape them the law was said to `favor' the vesting of estates which was simply a vague way of expressing the presumption in favor of vesting in all cases of doubt, holding that the condition was subsequent and the remainder vested subject to be divested by the happening of the condition, so that it could be conveyed and was not subject to defeat by the termination of the prior life estate. As contingent remainders are no longer destructible except by the happening of the condition to which they are subject and may be conveyed as freely as vested remainders in England, New York and practically all the other states, the reasons for this presumption in favor of vesting under modern law are quite different. In most of the situations in which the question has arisen it has been quite immaterial whether the remainder is contingent because subject to a condition precedent or is vested *1376 subject to be divested by the happening of the same contingency as a condition subsequent, as the results will be the same in either case."
The same author (volume 3, section 303, page 154) states:
"Contingent remainders, in common with contingent future executory interests, may now be conveyed as freely as vested remainders by virtue of statutes enacted in * * * most of the states [over thirty states are listed in the footnote], provided there is a remainderman to make the conveyance." And in section 305, pages 172, 174, it is stated: "The effect of the modern statutes and decisions has been to remove most of the practical differences between vested and contingent remainders in most states. * * * Contingent remainders may be conveyed, devised and inherited as freely as vested estates. In most of the cases cited and discussed in the foregoing sections the question of whether the remainders were vested or contingent was quite immaterial, the courts having discussed at great length and with much labor, questions which had nothing to do with the decision of the matter involved."
Some leading cases are noted as illustrative examples.
The applicable statutes of Iowa are not as broad and inclusive as those of many states. Section
We set out the above matters in this division on the authority of the ancient legal maxim that when the reason for a rule ceases, the rule itself should also cease.
III. As noted above, in the quotation from Fulton v. Fulton, supra,
"Though trite and monotonous reiteration to say so, it must be held constantly in mind that the object of testamentary interpretation is to ascertain the purpose of the testator, and when ascertained, to give it effect, if this can be done without violating any settled rule of law. In the search therefor, the court must, as nearly as it can, take its position in the environment of the testator, and in the light of the facts known to him, and in which he wrote the will."
With reference to this cardinal rule of testator's intent, the court, by Chief Justice Weaver, in Hiller v. Herrick,
[4] There is, of course, no need for construction or rules of construction where there is no uncertainty or ambiguity in a will and its language is plain and unequivocal. In that situation the intention of the testator must be ascertained from the will itself, reading each provision in the light of every other provision, giving effect to each and every part, if reasonably *1378
possible. If the intention is thus clearly and unequivocally expressed or necessarily implied, then all other rules of testamentary construction and interpretation are inapplicable and must yield to that intention. We have so held many times. Ransom v. Mellor,
Defendants agree with the contention of plaintiffs that there is no uncertainty or equivocation in any part of the will, and definitely state in the printed argument that "the language in the will of Christoph Henkel is not ambiguous." The testator's intention is therefore found in "the meaning of the words actually used" in his will.
[5] IV. In brief point "B" defendants define a vested remainderman thus: "When there is a person in being who would have an immediate right to the possession of the lands, should the life tenancy now terminate, such person has a vested remainder." That is the exact definition of a vested remainder which was given in the much discussed case of Archer v. Jacobs,
In the Birdsall case, supra, pages 369-371 of 157 Iowa, page 811 of 132 N.W., the court said:
"The so-called New York rule seems to be that, `when there is a person in being who would have an immediate right to the possession of the land upon the ceasing of the intermediate or precedent estate,' the remainder is vested. 4 Kent, Commentaries (14th Ed.) 202. While it seems to have been assumed when this rule was first announced in New York that the statute on which it was based was simply a brief statement of the common law rule, that idea has now been definitely abandoned in that state and elsewhere. As a common law definition or description of a contingent [vested] remainder it is subject to the qualification that the person in being must be one whose right to ultimately enjoy the remainder is fixed and certain during the pendency of the particular estate. Golladay v. Knock,
In the Fulton case, supra, page 961 of 179 Iowa, page 257 of 162 N.W., the court said: "In this state, the common-law rule presumptively prevails. We have no statute similar to that of New York."
The acceptance of the New York statutory definition of a vested remainder by this court in the Archer case, as coinciding with the common-law definition has resulted in much confusion and inconsistence in the decisions of this court involving remainders in real estate. Defendants rely upon Flanagan v. Spalti, *1380
Under the quoted statement, not only might a vested remainderman have a right to the immediate possession of the lands on the termination of the life tenancy, but so also would a contingent remainderman if the contingency was his survivorship of the life tenant and he survived him. A remainder cannot beboth vested and contingent. In Fulton v. Fulton, supra,
"The common-law definition of remainders may be stated briefly as follows:
`Remainders are either vested or contingent. A vested remainder, whereby the estate passes by the conveyance, but the possession and enjoyment are postponed until the particular estate is determined, is where the estate is invariably fixed toremain to certain determinate persons. Contingent remainders are where the estate in remainder is limited to take effect either to a dubious or uncertain person or upon a dubious or uncertain event, so that the particular estate may be determined and the remainder never take effect.' [Italics ours.]
"In 1830, the legislature of New York adopted a statutory rule as follows:
`Future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the land upon the ceasing of the intermediate or precedent estate. They are contingent whilst the person to whom or the event upon which they are limited to take effect remains uncertain.'" *1381
It may be observed that under both the common law and the New York statute there is no difference in the respective definitions of a contingent remainder, also that under the common law and under the statute remainders are either vested or contingent. But notwithstanding, under the statute, a contingent remainder may qualify as a vested remainder under the statutory definition of the latter, as we have noted above. But this is not true under the common-law definition of a vested remainder. The very important difference between the common-law definition of a vested remainder and the New York statutory definition of it is the absence of the italicized words noted above in the first from the latter. An "estate is invariably fixed to remain to certain determinate persons", according to Webster's New International Dictionary, when it is constant, not given or subject to variation, unchangeably fixed in certain definitely settled persons.
The fallacy of the position of defendants under their said brief point and in their reliance upon the quotation from Flanagan v. Spalti, supra,
Before a person's death he has no heirs. A remainder to his presumptive heirs is subject to the condition precedent that they survive him as life tenant. We so held in Lincoln Joint Stock Land Bank v. Mitchell,
Our decisions have not been harmonious on the matter of the definition of a vested remainder, but since the decisions in Birdsall v. Birdsall, supra,
The recommendation of Justice Evans in Fulton v. Fulton,
"The foregoing is a sufficient indication of the presence in the body of the law of two differing rules or definitions of vested and contingent remainders. These conflicting rules, through oversight of their divergence, have become the occasion of confusion. In order to avoid further confusion, the fact that two rules are running at large among the decisions should be borne in mind; the distinction between them should be observed; and one of them alone should be adopted and consistently followed."
Under the conflicting decisions on the subject matter in our reports the lawyers have no sound guide in advising their clients. This situation is unfair to the legal profession, to the district judges, and to the public. In Skelton v. Cross,
"These definitions have been approved in various recent decisions. See 32 Iowa L. Rev. 743; Lincoln Joint Stock Land Bank v. Mitchell,
There was a dissent to the opinion, but it was on the ground that a fee simple title was devised in paragraph IV of the will *1384 and that it was not defeated by the trust provision in paragraph V of the will.
The proposition urged by defendants' brief point "B" does not rule the decision in this case and for that reason might have been passed over without discussion, but decisions of this court giving support to the brief point were cited and argued by defendants, and they were entitled to answer from us. It is our judgment that the brief point is without merit, and that under the decisions of this court the common-law definition and description of a vested remainder has been accepted and is the law of this state.
V. Plaintiffs contend that the decision in Taylor v. Taylor,
The will in Taylor v. Taylor, supra,
In affirming, this court, through Chief Justice Ladd, said at pages 410 to 414 of 118 Iowa, pages 71 and 72 of 92 N.W.: "Reverting to the instrument under consideration, it will be seen that our conclusion necessarily depends on the effect to be given the words `or their heirs as the law directs.' The last clause evidently means those heirs entitled to inherit under the laws of the state, and, had `and' been written in the place of `or,' there could have been no doubt of the testator's intention of merely creating an estate of inheritance. To treat `or' as `and' in construing the will would render the whole clause meaningless, as without it the fee would have passed to the children. Section 2913, Code [1897, section
After citing a number of supporting authorities, the opinion cites a Kentucky case, Robb v. Belt, 12 B. Mon. 643, in which the will provided that the widow should have the use and income of the estate as long as she remained unmarried, and that on her marriage or death "`the property is equally to be divided among my eight children, or their heirs legally begotten of their bodies.' The court held that the words `or their bodily heirs' were to be taken as the designation of persons who were to take, or as words of purchase, and were equivalent to the words, `or such descendants of any that may be dead or may then be their heirs,' referring to the time of the division of the estate. It was said: `But as the testator does not say "among my living children", but "among my eight children", "or" is proper to show and does show, as to some of them, there is an alternative devise in case of their death before the time referred to, and that in that event the heirs of the bodies of the deceased are to take in place of the deceased.'" The opinion refers to Ebey v. Adams,
"`The words "heir" or "their heirs" are technically words of limitation; but in this and other cases they are used as words of purchase, and always have that operation when it sufficiently appears that the term is used to designate a particular person *1387 or particular persons who may stand in that relation at the happening of a certain event, or at a certain period, and not to the whole line of heirs in succession. No one can have heirs while living. The word "or", therefore, as here used, indicates substitution, and the payment or distribution is to be made at a fixed period; i.e., upon the sale by the executors, after the termination of the immediate estate. It would seem clear, therefore, that the persons who are to take are such of the children as might be living at the time of the distribution, and the heirs of such as might have predeceased.'"
After further citations including McClain v. Capper,
The opinion shows painstaking study and research. It has often been cited by this court. It has never been questioned as to the principles of law stated or its reasoning or the result reached. It has been recognized as a leading authority in other jurisdictions and has been cited and quoted as a sound decision in cases like the one before us. Our decision might be rested upon it, but we call attention to other authority and decisions.
In Delaware County Trust Co. v. Hanby,
"Upon the death of the testator, an interest in remainder vested in his children. It was, however, a defeasible interest, because the bequest was to them `or their heirs.' The disjunctive `or' has the effect of creating a substitutionary bequest, whereby in the event of the death of any child before the period of distribution, the share going to that child would shift over to his or her `heirs.' Fisher, Admr. v. Barcus,
127 A. 53. When the `heirs' take in such case, they take as beneficiaries under the testator's will and not in right of their ancestor. [Citing cases.] It follows, then, that the share bequeathed to each of the three children who predeceased the life beneficiary, constituted no part of the estate of the deceased child."
In Wyman v. Kinney,
"From our examination of the matter it seems clear that the testatrix intended to impose the condition that the named children be living at the death of the life tenant in order that their estates vest in them in interest as well as possession and that otherwise the heirs of such as may have deceased prior to that time would take in possession what their ancestors would have taken if they had survived the life tenant. In other words, it must be considered that the testatrix intended to create as to the named children contingent and not vested remainders for when a condition of survivorship of the life tenant is imposed, the remainder thus created is one of contingency. * * * This is so because in such a case time is of the substance of the devise and the event upon which it is limited to take effect, the survivorship of one over another, is always an uncertain and dubious event. * * *
"It follows from what we have said that the named daughters had, during the life of the life tenant, only contingent remainders. The vesting of the estates in interest, as well as in possession, depended upon their surviving the life tenant. As both Libbie and Hattie died before the termination of the life estate leaving *1389 heirs, it also follows that said daughters took no interest under the will which they could convey or encumber as against their heirs. The persons standing in relation of heirs to them took under the will as purchasers and not by descent the shares that the deceased daughters would have taken had they survived, unencumbered by the mortgages in question."
The opinion quotes at length from Taylor v. Taylor, supra,
In George v. Widemire,
"We are clear to the conclusion * * * that the testator intended to use `or' in its usual disjunctive sense of substitution. It would seem equally clear, therefore, that the persons who are to take are such of the testator's children as might be living at the time of the distribution, and the children of such as might have predeceased. The vesting of the estate in interest, as well as in possession, in the children of the testator, depended upon their surviving the day of distribution. In other words, time is of the substance of the gift, and relates to the vesting of the legacies in interest, as well as in possession.
"It must be considered that the testator intended to create, as to his four children, contingent and not vested remainders, for where time is of the substance of the bequest and the event upon which it is to take effect, the survivorship of one over the other is always an uncertain or dubious event." *1390
The opinion in the case just cited quoted from Taylor v. Taylor,
Hunsley v. Aull,
"The decree appealed from construed the tenth clause of the will as giving the widow of testator a life estate which had terminated by death and that the remainder devised to Olive J. Council was conditional upon her surviving the life tenant and since she died prior to the date of the death of the life tenant her estate took nothing and that `her heirs' were substituted as remaindermen taking a fee-simple title. * * * The rule is that the word `or' when used in a will between the name of the devisee and the words `her heirs' or `heirs of her body' is given its ordinary meaning unless there is something in the context of the will which indicates the testator used it in a different sense. (Boys v. Boys,
The only cases cited by defendants on this appeal in which "or" is given a conjunctive meaning are Fay v. Fay, Thomas v. Stoakes, and Smith v. Dellitt, supra, and all are distinguished from the general rule in the opinion in Hunsley v. Aull, supra,
In Robertson v. Robertson,
A search of the authorities discloses that they uniformly hold a devise of a remainder to a named person or his heirs requires survival to the end of the preceding life estate as a condition precedent to the vesting of the remainder. That is the general rule. In Restatement of the Law, Property, pages 1270, 1271, 1272, it is stated:
"§ 252. Alternative Limitation Employing the Word `or.'
"In a limitation purporting to create a remainder or an executory interest, in `B or his children,' or in `B or his issue,' or in `B or his descendants,' or by other language of similar import, the alternative form tends to establish as to the interest of B that
"(a) a requirement of survival to the end of all preceding interests exists; and
"(b) such survival is a condition precedent of such interest.
"* * * The rule stated in this Section is equally applicable whether `B' is one person or a group of persons. * * *
"Sometimes a limitation of a remainder or an executory interest is worded `to B or his heirs' * * *. Any such limitation constitutes `language of similar import' * * *."
In 3 Walsh, Commentaries Law of Real Property (Future Interests) section 298, "Remainders in the Alternative", the author states at page 137:
"Only one of the two remainders in the alternative can ever vest, and on the vesting of one the others are not divested; they are defeated through the failure of the condition precedent on which they depended. They have always been valid, therefore, as remainders at common law as well as at the present time. They may take any form in which two or more remainders are made to depend on some contingency, only one of which is to become vested on the determining of the contingency, the one which actually vests depending on the way in which the contingency is determined."
[6] It has been the uniform holding of this court that in all cases where survivorship is a condition precedent to the *1393
taking of a remainder as in Wilhelm v. Calder,
[7] VI. There is nothing on the face of the will or in the circumstances or conditions connected with its execution that affords any basis for construing "or" as "and" in the "6th" paragraph of the will. There is no evidence of any intention on the part of the testator to use "and" for "or" or that "or" should be considered or construed as "and." As said in the opinion in Taylor v. Taylor,
There is nothing in any paragraph of the will indicating that he wished any of his property to go to the spouse of any of his children. When he made the will his daughters Catherina and Maria Juliana and his son, George, each had children, and so he made the alternative devise to the children of each, but Elizabeth had been married seven years when he made the will, and no child had been born to her. He may have thought she would never have a child, and for that reason the alternative devise was to her heirs at law. It seems to us that the language of the will instead of indicating carelessness and inadvertence in the drafting clearly points to a definite purpose in each paragraph. *1394
It is a quite natural inclination of one making a testamentary disposition of his property to keep it within the bloodline of his family. This court has mentioned the fact in a number of decisions. See In re Estate of Clifton, supra,
It is our conclusion that Elizabeth Auchstetter took a contingent remainder under the will of her father, and that the district court erred in sustaining the defendants' motion to dismiss plaintiffs' petition.
The ruling, final order and judgment are reversed. — Reversed.
All JUSTICES concur except SMITH, J., who concurs in the result.