75 Colo. 64 | Colo. | 1924
delivered the opinion of the court.
1. John S. Hart died testate. When his will was made, and also at the time of his death, his sole heirs at law were his five children, three sons, Andrew, Nathaniel' and Charles, and two married daughters, Mary Riddle and Gertrude Hignett. The will, after providing in the first clause or item for the payment of claims'against the estate, in clauses or items 2, 3, 4, and 5, contains specific bequests of $1.00 to each of the three sons and to Mrs. Riddle, and the ones relating to Charles and Mrs. Riddle release and cancel the debts they owe their father. In the 6th clause the residuary estate, consisting of real estate, personal and mixed property, was devised and bequeathed to the testator’s executors and trustees, in trust, for the benefit of the daughter Gertrude and her children and the descendants of her children, whether born before or after the death of the testator. At the time of the death of the testator, in December, 1912, all of the children, and the three sons of Gertrude, for whom provision had been made in the will were living. Thereafter in March, 1920, Gertrude died intestate, leaving surviving her, as her sole and only heirs at law, M. P. Hignett, her husband, petitioner in this proceeding, who is still living, and three sons, Ermin, Russell, and Carl. In January, 1922, the three sons met death simultaneously as the result of the same accident. At that time the oldest child was eighteen years of age, the second fifteen and the youngest thirteen. Each child died intestate, unmarried, without issue, and leaving surviving as their only heir at law their father, M. P. Hignett. The will was duly admitted to probate. The sole surviving executor and trustee under the will, John F. Sherman, is ready to make final settlement in the probate proceeding, and distribution of what is left of
The respective contentions of the parties are reproduced here as stated by their own counsel:
“The petitioner contends here, as he did in the Court below, that the right of future enjoyment of said trust estate became vested absolutely in his three children in proportion to their respective interests, upon the death of the testator, subject only to the burden of the life estate held by their mother, with the payment thereof deferred until the youngest child had attained the age of twenty years, and thereby became and was a vested interest, and as such devolved to and became vested in petitioner as the sole heir at law of said children upon their death subsequent to the death of the beneficiary of the life estate and prior to reaching the age of twenty years without surviving issue.”
“The respondents, the other heirs and legatees of the said John S. Hart, contend that upon the death of the three children under such circumstances, the bequest to Gertrude and her children lapsed, the trust failed for want of a cestui que trustant, and that the trust estate immediately became a part of the estate of John S. Hart, deceased, and as such must be distributed among the heirs at law of the said John S. Hart according to the law of descent and distribution of the State of Colorado.”
The trial court sustained the contention of the respondents and ordered the trustee to distribute the trust fund to them. The creation and disposition of this residuary fund, which alone is directly involved here, is made in the 6th item or clause of the will, which, after conferring upon the trustees complete and absolute control and management of the trust estate until the trust terminates, and specifically
“I hereby give, devise and bequeath all the rest, residue and remainder of my estate, real, personal or mixed, wheresoever situate whereof I may be seized or possessed or to which I may in any manner be entitled or in which I may be interested at the time of my death, unto my executors and trustees hereinafter named and to their heirs and assigns forever: In Trust Nevertheless as follows:
I hereby further will and direct that my said executors and trustees may pay out of said Trust Estate or any profits, interest or income therefrom such sums from time to time-as they may determine to be needful or expedient in the maintenance and support of my said daughter Gertrude E. Hart Hignett now of Trinchera, Las Animas County, Colorado, and her family, if my said daughter Gertrude E. Hart Hignett survives me and that said executors and trustees in their discretion may permit from time to time my said daughter Gertrude E. Hart Hignett to use such or all of said Trust Estate then in their hands as they may deem advisable.
And I suggest to my said executors and trustees that it is my desire that my said daughter Gertrude E. Hart Hignett have the sole use of said Trust Estate during her lifetime, however, this suggestion shall not be construed so as to control the actions of said executors and trustees, but they shall exercise and use their best judgment as to such use and possession.
I-further will and direct that in case my said daughter Gertrude E. Hart Hignett does not survive me, said executors and trustees may pay out of said Trust Estate or any profits, interest or income therefrom such sums from time to time as they may determine to be needful or expedient in the education, maintenance or support of any child or children of my said daughter Gertrude E. Hart Hignett or the descendants of such child or children and any such payment shall be considered as an advancement as hereinafter provided.
I further will and direct that whenever the youngest child of my said daughter Gertrude E. Hart Hignett (notwithstanding such child be born before or after my decease) shall attain the age of Twenty (20) years, then my said executors and trustees shall distribute said Trust Estate and the same shall become vested as follows:
If my said daughter Gertrude E. Hart Hignett be then living, one-half (%) in value of said Trust Estate shall be conveyed, turned over and transferred to her, my said daughter Gertrude E. Hart Hignett and one-half (V2) in value of said Trust Estate shall be distributed equally among the children of said Gertrude E. Hart Hignett and the descendants of such children, such descendants taking per stirpes and not per capita. If my said daughter Gertrude E. Hart Hignett be not then (to-wit, at the time the youngest child of said Gertrude E. Hart Hignett shall attain Twenty (20) years of age), living, said Trust Estate shah be distributed equally among the children of said Gertrude E. Hart Hignett and the descendants of such children, such descendants taking per stirpes and not per capita and in estimating the share of any beneficiary hereunder, excepting said Gertrude E. Hart Hignett any advancement or payment made to such beneficiary except said Gertrude E. Hart Hignett by said executors and trustees shall be deducted and if such beneficiary was at the time of the receipt by him or her of such payment or advancement of the age of Twenty-one (21) years or more, then interest upon said advancement or payment, at six (6) per cent per
I further direct that in case the law of any jurisdiction in which any of said property is situate does not or will not permit said executors or trustees to postpone the date of distribution of said Trust Estate as hereinbefore provided, or if the provisions or directions of the first two paragraphs of page four of this instrument should for any reason be invalidated or become inoperative as to any or all of said Trust property, then as to' any such parcel or parcels, or all of said Trust Estate said executors or trustees shall upon the death of my said daughter Gertrude E. Hart Hignett, if she survives me, and in case she, my daughter Gertrude E. Hart Hignett does not survive me, then upon the death of her youngest child that does survive me, distribute among* and the same shall become vested in, the children of said Gertrude E. Hart Hignett and the descendants of such children such descendants taking per stirpes and not per capita,.
So far as possible a yearly statement of the condition of said Trust Estate shall be prepared and rendered by my executors and trustees upon the request of and to the person or persons at the time entitled thereto or to any part thereof. If said statement shall be accepted and ratified by acquiescence or otherwise by such person, it shall be a full acquitance and discharge of said executors and trustees for all matters arising under said trust up to and until that time, excepting any willful neglect or willful fraud on the part of said executors and trustees.” (Italics ours.)
The trust estate includes both real and personal property. At one time not the same rule applied to both so far as concerns1 remainders. The distinction was supposed to grow out of the fact that real estate was not charged with payment of the testator’s debts. This is no longer true in Colorado. There may be other reasons for the distinction but they are not now of much, if any, force. The modern doctrine is that where a will includes both kinds of prop
It will be observed that in this clause is a direct and immediate devise and bequest of the residuary estate consisting of both classes of property to trustees," in trust, for the benefit of the testator’s daughter Gertrude, and her children and descendants of such children. The parties seem to be in accord that the intention of the testator was that the daughter should have and enjoy the trust property during her life with the remainder over, whether vested or contingent, to her children as a class and to the descendants of the children, such descendants taking per stirpes and not per capita. By some of the decisions this gift to trustees, so far as concerns the questions before us, is the same as it would be if it had been made, without the intervention of trustees, directly to the daughter Gertrude for life, remainder over to her children and descendants. In the opinions in some of these cases are intimations that, in such circumstances as are present here, the interest thus created is not technically a remainder, but a vested, absolute, equitable estate in the beneficiaries subject only to the legal title of the trustees, Lunt v. Lunt, 108 Ill. 307; Sawyer v. Cubby, 146 N. Y. 192, 40 N. E. 869. As the parties agree that a remainder was created by the will, our opinion will adopt this view, particularly as our conclusion is that a vested interest or estate was created irrespective of its technical name or classification.
An attempt to reconcile the conflicting decisions in this country and in England on the subject of vested and contingent remainders is as futile as it would be useless. Rarely, if ever, are any two wills alike, either in their gen
“In construing wills, the cardinal and fundamental rule is to ascertain the intent of the testator, and if the same is not contrary to some positive rule of law or against public policy, to give it effect. This intention is to be derived from the language of the will itself. When this is plain and unambiguous, the intent is easily determined; but when there Is uncertainty of language, * * * resort is had to well recognized rules of construction, more or less technical in their nature. * * * Precedents are of some assistance, but too' much reliance is not to be placed upon them, for rarely, if ever, are two wills precisely alike in language or in general structure.”
The same thought is expressed in Williams v. Fundingsland, 74 Colo. 315, 221 Pac. 1084. With this fundamental and controlling principle in mind, let this will be considered.
We venture to say that a skilled lawyer, if he could for the time being lay aside his knowledge of the pertinent canons of construction, or an intelligent layman, unacquainted with them, reading this will, would find therein no uncertainties or ambiguities, but could easily determine the purpose of the testator. The lawyer probably would give to the interest or estate a legal name; the layman might not be able, to do so. Each one, we think, would say that as to this trust property the testator intended that all of it, both principal and accretions by way of income or interest, should inure to his daughter Gertrude and her descendants only, and, if they were not living at the time for final distribution, what remained of the trust estate should go to their heirs at law, or personal representatives, and that none of testator’s other children, or their deséendants or any other persons, should ever have or enjoy the use of the same or any part thereof. The reader would also discover, what is plainly expressed, that during the
While this desire of testator is made in the form of a suggestion, still it is a clear and emphatic expression of his intention and wish that his daughter, so long as she lives, should have for herself and family the sole use of the trust estate and not merely the income or profit therefrom. And, although the testator does not wish to interfere with the broad discretion which he has conferred upon the trustees, nevertheless this, as is well known, is a legal discretion, and a mere wish or suggestion of a testator, when thus clearly expressed, is just as mandatory upon the trustees as though it were a positive direction or command, and the same, if necessary, will be enforced by the courts.
The will, moreover, further reads: “I further will and direct that in case my said daughter Gertrude E. Hart Hignett does not survive me, said executors and trustees may pay out of said Trust Estate or any profits, interest or income therefrom such sums from time to' time as they
So also in the event the daughter Gertrude survives the testator, the will says: “* * * Then upon her death my said executors and trustees may pay out of said Trust Estate or any profits, interest or income therefrom such sums from time to time * * * and such payment or payments shall be considered as an advancement as hereinafter provided.”
Then in orderly sequence the testator, for reasons satisfactory to himself, it may be because he considered it for the convenience or good of his estate, directed distribution of the estate when the youngest child of Gertrude, whether born before or after the testator’s death, attains the age of twenty years. To sum up, the testator gave to trustees of his trust estate, in trust, for the sole use and benefit of his daughter Gertrude and her family during her life, and at her death to her children and their descendants, and from and after the testator’s death and until the youngest child of Gertrude reached the age of twenty years, the trustees were directed to use in their discretion the entire trust estate and its income in the support and in the maintenance of the family, and in the education of the children, and at the time last specified the trustees were directed to distribute what was then left of the trust property to the beneficiaries in the manner and in the proportion designated. To the ordinary mind it would seem that a present and immediate right to the trust estate was thus acquired by the beneficiaries, taking effect at once at the testator’s death, the final distribution and enjoyment of which was postponed till the youngest child reached the designated age. i
2. A reading of the cases and textbooks discloses that almost* every definition of a vested and a contingent remainder, whether by jurists, lawyers or authors, has been criticized. Many attempts at description and definition
“A contingent remainder is limited so as to depend on an event or condition which is dubious and uncertain, and may never happen or be performed, or not until after the determination of the particular estate. It is not the uncertainty of enjoyment in future, but the uncertainty of the right to that enjoyment, which marks the difference between a vested and contingent interest.”
Applying this rule to the facts of this case, it is to be said that at the time of the testator’s death his daughter Gertrude and three of her children were living. To Gertrude was given a life estate in the trust property; to the children as a class a remainder over at her death. At the very moment of the testator’s death the life estate was vested in her, as was the remainder in the living children. The remaindermen, in being at the same time, immediately upon the termination of the life estate by the death of Gertrude, were ready to take, and, in that event, would have taken. The estate, therefore, under all the definitions, as it seems to us, thus created was vested and not contingent. The fact that the remaindermen might not be living at the time fixed for final distribution does not affect or prevent the vesting of the estate at the time of the testator’s death. Only the enjoyment of the property, or a portion thereof, is postponed to a future time. The right to the future enjoyment was fixed and immediate upon the death of the testator. Possession and enjoyment only were deferred. We have arrived at this conclusion from the plain and unambiguous terms of the will itself. Unless there are declarations or expressions in the will itself to the contrary, we do not see any escape from this conclusion.
4. Another point by respondents is based upon the following paragraph: “I further direct that in case the law of any jurisdiction in which any of said property is situate does not or will not permit said executors or trustees to postpone the date of distribution of said Trust Estate as hereinbefore provided, or if the provisions or directions of the first two paragraphs of page four of this instrument (This refers to the direction as to the time and manner of distributing the trust estate) should for any reason be invalidated or become inoperative as to any or all of said Trust property, then as to any such parcel or parcels, or all of said Trust Estate said executors or trustees shall upon the death of my said daughter Gertrude E. Hart Hignett, if she survives me, and in case she, my daughter Gertrude E. Hart Hignett does not survive me, then upon the death of her youngest child that does survive me, distribute among and the same shall become vested in, the children of said Gertrude E. Hart Hignett and the descendants of such children * * .
The respondents say that the only purpose thereof was to guard against the danger of a conflict with the rule against perpetuities. That may have been one object but not the only one. The devise and bequest to trustees would, we think, avoid that danger, for the rule is directed against an unlawful suspension of the time of vesting and not time of enjoyment. The testator does not make this direction merely to obviate the danger suggested, for the will says that if for any reason these provisions with reference to the time and manner of distribution should be invalidated or become inoperative, the trustees, nevertheless, shall make disposition, and within the appropriate time and in the same manner, to the same persons designated to receive under the terms of the trust; that is, if for any reason the terms of the trust become inoperative, nevertheless the trust estate shall be distributed and belong to the same persons who are mentioned as beneficiaries therein.
There is nothing in the will which indicates that the testator intended to restrict his gifts to those of his own blood, or that he was hostile to, or cherished antipathy for, the petitioner, the husband of his daughter Gertrude. On the contrary, petitioner was then a member of Gertrude’s family and the will expressly says the trust estate is for the benefit of her family. Testator knew when he made the will that Gertrude was married to Mr. Hignett and they had three children living. He is presumed to know the law of his state, and if this trust estate was vested in the legatees living as of the time of his death and thereafter all
6. Speaking generally, we say that the various rules invoked by respondents and the propositions asserted by them to sustain their contentions, may be conceded to be sound in the cases where they were announced and under their facts, but in none of them are the provisions of the will construed, the same, or even in material parts, so similar to the Hart will as to be controlling or even very persuasive. Respondents say that there is in this will no antecedent or separate gift to beneficiaries, and no> gift at all other than that implied from the direction to pay or distribute, and from this they reach the conclusion, which ac
Another exception which is applicable here is that where the entire income — and some cases say part of the income • — or any part of the principal of the trust property is directed to be paid over in the interval, the general rule fails and the exception governs. In such a case only payment is deferred, and time is not of the essence or substance of the gift. In the Moran Case, perhaps respondents’ chief reliance, where the remainder or interest was held to be contingent, the majority opinion clearly differentiates that case from this. There was not in that case, as there is
Here we do have the kind of a case which the Kountz opinion says was not before the Pennsylvania court. Here we have a case of income and principal to be paid to the same persons and in the same right. The language of the Kountz Case shows conclusively that had such facts been present in that case as are present here, the remainder would have been held vested. There are other expressions in the opinion of the Kountz Case which further distinguish it from the facts of the instant case.
7. Bespondents also say that in a gift to a class of persons the share of each is dependent upon the ultimate number whose members are to be determined at the time of distribution, citing 40 Cyc. p. 1473. On page 1475 the author says the general rule is that where an immediate gift is to a class of persons it vests in those of the class in esse at the time of the testator’s death, although distribution
8. The respondents further contend that the clause in the will: “whenever the youngest child of my said daughter Gertrude * * * shall attain the age of Twenty (20) Years, then my said executors and trustees shall distribute said Trust Estate and the same shall become vested as followsis conclusive that only a possibility of an interest was given and not a vested estate, since it was necessarily uncertain who the remaindermen would be when the youngest child became twenty years of age. The argument is that “then” applies not only to the time of distribution but to the time of vesting of the estate. It is not difficult to demonstrate that “then” is restricted to the time of distribution and not to the time of vesting, even from this clause alone, disconnected from everything else that appears in the instrument. “Then” is not repeated after the distribution is directed, but the will reads: “the same shall become vested as follows:”. What follows has no bearing whatever on the time of vesting. It relates solely and wholly to the manner, not to the time, of distribution, and to the quantum of interest in the respective beneficiaries in the contingencies mentioned.
Besides, ordinarily to vest means “take effect”. Vesting, however, is used to denote not merely an immediate right of present enjoyment but also the present fixed right of future enjoyment. In other words, there is á vesting in interest and a vesting in possession. Smith v. West, 103 Ill. 332, 337. As the entire will shows that the intention
9. Chilcott v. Hart, 23 Colo. 40, 45 Pac. 391, 35 L. R. A. 41, is not an authority for respondents. The remainders were considered there in connection with the rule against perpetuities and that rule is not even remotely involved here. But the remainder there adjudged contingent was so palpably different from the one in this case that the decision there has no application whatever to the case now before us. There a particular freehold estate was granted to a trustee with remainder over to such of the testator’s grandchildren as were living at the time of the death of the last of his three children. We said that remainder was contingent because, in the nature of things, the persons in whom the fee would ultimately vest were dubious and unascertainable so long as any one of the three children was living. There is no such language in this will and no such manifestation of intention by the testator that a contingent interest was in his mind. Here there were living at the time of the testator’s death not only the life tenant of the particular estate but also three remaindermen were, in esse, capable of taking the moment the particular estate should terminate, to open, of course, if necessary to let in other children born either before or after testator’s death, as he had thus provided.
10. We come now to the last paragraph above quoted which we think conclusive that a vested estate was in
We think petitioner’s theory is right and the rules of construction invoked, if there are uncertainties in the will, make this remainder vested. These rules of construction, and they are as potent and important as any announced, are that, unless the expressed intention of the testator clearly appears in the will to the contrary, an absolute, rather than a qualified, a vested, rather than a contingent, interest or estate is created; that intestacy is not favored and a testator is presumed, when he makes a will, to dispose of all of his property. In addition to the cases above mentioned, the following, among others, have been cited and
And the following by respondents: 1 Tiffany on Real Property, p. 486, § 136-b; Washburn on Real Property, vol. 2, p. 515, § 1543; Howbert v. Cauthorn, 100 Va. 649, 42 S. E. 683; Schuldt’s Estate, 199 Pa. 58, 48 Atl. 879; Sellers v. Reed, 88 Va. 377, 13 S. E. 754; Hanson v. Graham, 6 Ves. Jr. p. 239; Neeb’s Estate, 263 Pa. 197, 106 Atl. 317; McCartney v. Osburn, 118 Ill. 403, 9 N. E. 210; Kingman v. Harmon, 131 Ill. 171, 23 N. E. 430; Jones v. Miller, 283 Ill. 348, 119 N. E. 324; Matter of Crane, 164 N. Y. 71, 58 N. E. 47; In re Bell’s Will, 147 Minn. 62, 179 N. W. 650; Clark v. Cammann, 160 N. Y. 315, 58 N. E. 709; Twaites v. Waller, 133 Iowa, 84, 110 N. W. 279; Ross v. Ware, 131 Ky. 828, 116 S. W. 241; White v. Underwood, 215 Mass. 299, 102 N. E. 426; Rudd v. Cornell, 171 N. Y. 114, 63 N.
As we have found the remainder to be vested, not contingent, it necessarily follows, as. both parties concede, that distribution in that event should be to the petitioner. The trial court having ordered distribution to the respondents, its decree is reversed, and the cause remanded, with directions to set it aside, and, in lieu thereof, to make a decree directing distribution to. the petitioner.