198 P. 521 | Or. | 1921
Lead Opinion
This controversy arises out of the construction of paragraphs 7 and 12 of the will, and as to the estate or interest in the real property thereby devised to the plaintiff. It is the contention of the defendant that the provisions of the paragraphs of the will referred to vested in plaintiff only a life estate with the remainder over to his children or grandchildren living at the time of his death; and in case he died “without leaving lineal descendants, children or grandchildren, ’ ’ then in such case only does title to the property pass to the brothers and sisters.
“All courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true interests (intent) and meaning of the testator in all matters brought before them.”
The provision of the will that Ralph Imbrie should not sell or mortgage the land until he became 40 years of age clearly indicates that after that time he could dispose of it at his pleasure. The provision
It is clear that by the seventh paragraph of the will Robert Imbrie devised the land to his son, Ralph Imbrie, in fee, subject to certain restrictions enumerated in that part of the will. Applying the maxim, ex-prés sio unius est exclusio alterius, it would not occur to one by the reading of the will, when taking it by its four corners, that it was the intention of the testator to include or apply other restrictions or limitations to take effect after his decease. Under any suggested construction of the will when taking into consideration paragraph 12, the estate devised to Ralph Imbrie may last forever, as he may not “die without leaving lineal descendants, children or grandchildren.” Therefore, it is safe to start with the premise that Ralph’s estate is a fee.
It is noticed that by the provisions of paragraph 7, the devise to Ralph was conditioned upon its being accepted and received by him in full of the testator’s indebtedness to him, with the exception of $500. While the amount of the indebtedness is not disclosed by the record, it would not seem that the father in the liberal disposition of his bounty to his son, as manifested by the will, would devise a title in fee .to land for a consideration in one part of the will and take it away or diminish the title, debase the fee as it is usually termed, in another part. It would be inequitable for him to attempt to do so, and a construction of the will which would effectuate such a result would be antagonistic to the intention of the testator, according to the language of his testament. As well said by Mr. Justice Burnett, in Bilyeu v. Crouch, 96 Or. 66 (189 Pac. 222), “No will has a twin brother.” It might be said that on this account, the precedents which we find for enlightenment, do not appear to belong to the same family. It is seldom that one undertakes to reconcile the divergent judicial -decisions. No such effort will here be made.
It is stated in 21 O. J., page 995, Section 149, as follows:
“The tendency of modern decisions on questions of contingent and vested remainders has been more and more to break away from the technical refinements of the old common-law learning, and to allow deeds and wills to be effective in line with the intent of their faces, as gathered from the everyday good sense of their language.”
We quote from 10 R. C. L., page 651, Section 7:
*598 “Since an estate in fee simple implies absolute sovereignty over tbe land, the power of alienation is necessarily and inseparably incidental thereto, and an unlimited condition in restraint of alienation attached to such an estate is void. The estate is subject to dower and curtesy; and it is descendible to the heirs general, whether male or female, lineal or collateral.”
Nevertheless the question is submitted as to whether or not the language of paragraph 12 of the will clearly shows an unmistakable intention on the part of the testator to diminish the estate of Ralph Imbrie, or debase the fee advised by the terms of paragraph 7. It is believed that the question should be answered in the negative.
An executory devise is defined as a future estate or interest in lands created by will and limited so that it cannot take effect as a remainder or a future use. It does not vest at the death of the testator, but only on the happening of some future contingent event. It is such a limitation of a future estate or interest in lands as the law admits in the case of a will, though contrary to the rules of limitations regarding conveyances at common law. It can be created without the intervention of a preceding estate, and it may be limited after a fee: 2 Alexander on Wills, § 1017. This kind of an estate or interest, it is declared, was instituted to support the will of the testator in cases where by the rules of law the devise of a future estate
“The rule of construction prevailing in most states of the Union is that a devise of a fee, coupled with a condition that if the devisee die without issue the estate is to go to others, means dying without issue in the lifetime of the testator, unless a different intention is manifest from the context of the will. ‘The presumption that the contingency of dying without issue,’ says the author of the exhaustive note to the case of Lumpkin v. Lumpkin, 25 L. R. A. (N. S.) 1063, 1064, ‘is to be restricted to testator’s lifetime being fundamentally limited to cases where an absolute gift is made to the first taker, in express terms or by implication, is not applicable where the gift is clearly of a less interest.’ ”
Turning to the foundation of that enunciation, 25 L. R. A. (N. S.) 1059 et seq., we find among numerous authorities cited in the notes the following on page 1060:
“It is well settled that where the terms of the will indicate an intention that the primary devisee shall*600 take tlie fee on the death of the testator, coupled with a devise over in case of his death without issue, the words refer to a death without issue during the life of the testator; and where the primary devisee, surviving the testator, takes an absolute estate in fee simple, this rule of construction is adopted in order to avoid repugnancy, and because the law favors the vesting of estates at the earliest possible moment, in the absence of a clear manifestation of the intention of the testator to the contrary: Tarvell v. Smith, 125 Iowa, 388 (101 N. W. 118).
“Where a bequest is direct and immediate, and nothing else appears to aid in the interpretation, the law inclines to construe ‘die without issue’ as meaning the death of the legatee without issue in the testator’s lifetime: Birney v. Richardson, 5 Dana (Ky.), 424. * *
“So, also, in Washbon v. Cope, 144 N. Y. 287 (39 N. E. 388), it is said that the rule is well settled that where a devise or bequest over to third persons is dependent upon death without issue or without children, the death referred to is death in the lifetime of the testator.”
We therefore conclude that the proviso that in the event Ralph Imbrie should “die without leaving lineal descendants, children or grandchildren,” etc., was not inserted in the memorandum of the testator with the intention of debasing the fee devised to Ralph Imbrie, or indicating that Robert Imbrie proposed to give to this son an estate less than an absolute fee
It is no doubt the rule that where an estate otherwise than an absolute estate in fee simple is devised in one portion of a will, in clear and decisive terms, and the subsequent provisions clearly show an unmistakable intention on the part of the testator to give an estate less than an indefeasible fee simple, such latter intention must control: 2 Alexander on Wills, p. 1363, § 933. In considering the will in question we do not find such unmistakable intention indicated on the part of the testator.
“"When indeed a devise is made to one person in fee, and ‘in case of his death’ to another in fee, the absurdity of speaking of the one event which is sure to occur to all living as uncertain and contingent has led the courts to interpret the devise over a referring only to death in the testator’s lifetime. * # But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated at any time, whether before or after the death of the testator.”
Applying this excerpt to the present case, upon an analysis of the entire will, we think that the provisions of the will, other than those embraced in paragraph 12, control and clearly express the desire of the testator in bestowing his bounty. Whatever road we travel, and view as many precedents as we may, we necessarily come back to the language found in the testamentary instrument.
The minor child of plaintiff has no interest in the real property in question. The time is past for the happening of the event detailed in the seventh' paragraph of the will. Ralph Imbrie did not sell or encumber the land prior to his arriving at the age of 40 years, so that his interest in the real property would cease and the land go to his children by virtue of the will.
The decree of the lower court is therefore affirmed.
[^firmed.
Concurrence Opinion
Specially Concurring in the Result. — This is a suit by the seller to enforce specific performance of a contract whereby the defendant agreed to buy certain lands, provided the plaintiff had a fee-simple title thereto. The plaintiff derives title under the will of his father, Robert Imbrie, who died January 5, 1897. Other clauses of the testament devise lands to the sons of the testator in fee, but the title of the plaintiff depends upon and is affected by two clauses, the seventh and the twelfth. The seventh reads thus:
“I give, bequeath and devise to my son, Ralph Imbrie, all the land that I now own in and being a part of the donation land claim of Caleb Wilkins and wife, # * subject to the following restrictions, to-wit: said land shall not in whole or part be sold of mortgaged until the said Ralph Imbrie is forty years of age, nor subject to his debts and should he sell or mortgage it, or any part of it, before that time, all his interest in said land shall cease and terminate, and said land shall descend to his children, if he then have any, and if not, then to all his brothers then living. This devise to be accepted and received by him in full of my indebtedness to him, except five hundred dollars. The incumbrance upon his land to be paid out of my estate.”
The twelfth cláuse here follows: ■
“I further bequeath, devise and direct that should any of the above named devisees die without leaving lineal descendants, children or grandchildren, then, in*604 that case, all of the property above devised to such devisee shall go in equal shares to Ms or her brothers and sisters then living, or to the children of any brother or sister then deceased, by right of representation.”
The complaint states that the plaintiff became 40 years of age on October 8,1916, and prior to that time did not sell the realty in whole or in part, or mortgage the same or permit it to become subject to his debts. The pleading also recites the names of the children of Eobert Imbrie, the testator, then living and one daughter dead, survived by her two children, gives the names of all the grandchildren of the testator, and avers that on January 29, 1920, all the brothers and sisters of the plaintiff then living and all their children and the children of the deceased sister, naming all of them, conveyed to him all their right, title and interest in the property by deeds of conveyance duly executed, acknowledged, delivered and recorded. He states that he himself has one child, Gladys Imbrie, a minor, born after the death of the testator. Upon this narration of facts, claiming he has no plain, speedy or adequate remedy at law, he prays for a decree to the effect that his title be adjudged a marketable one and that the defendant be compelled specifically to perform the contract; together with other and further relief as may seem equitable.
The sole defense interposed is a general demurrer to the complaint, which being overruled, the defendant refused to answer further; whereupon the court rendered a decree according to the prayer of the complaint, and the defendant has appealed.
It is conceded that the testator had the fee-simple title absolute to the land, hence the question to be determined is, whether or not the plaintiff Ealph
“A devise of real property shall be deemed and taken as a devise of all the estate or interest of the testator therein subject to his disposal, unless it clearly appears from the will that he intended to devise a less estate or interest”: Section 10121, Or. L.
It is admitted that all of the conditions in the seventh clause restraining the alienation of the land until Ralph is 40 years of age have been fulfilled. Without regard, therefore, to the question, academic here, of whether this condition is void as a restraint upon alienation, under the authority of Hawley v. Northampton, 8 Mass. 3 (5 Am. Dec. 66), and many other precedents, or whether it is fulfilled, the question to be determined is: What effect has the twelfth clause of the will on the estate of Ralph? We note that the entire fee-simple estate passed out of the testator by virtue of his will and succeeding death. There is no remainder to anyone by virtue of that devise. The case does not involve either vested or contingent remainders. The whole estate went to Ralph Imbrie with the conditional limitation laid down in the twelfth clause.
It is impossible by deed to convey a fee-simple title to one, and in the same conveyance to limit the same
Another principle to be observed is thus expressed in 21 R. C. L. 289:
“In enforcing the rule against perpetuities, it is a firmly established principle that every future limitation of an estate is void as too remote unless it is*607 apparent that it must take effect and vest, if at all, within the period allowed by the rule. * * Thus, where a breach of condition on which a limitation depends, if it occurs at all, must occur within the period allowed by the rule, it will be upheld. It is not sufficient that the future estate may by possibility become vested within the period allowed by the rule against perpetuities or even that it will probably become vested in such period. If it may possibly happen beyond the established time limits or if there is left any room for uncertainty or doubt on the point, the limitation is void. If a future limitation may not by possibility take effect within the prescribed period it cannot be made good by subsequent events. In other words, the validity of the future estates under the rule against perpetuities depends not on what actually happens after the time at which the rights of the parties are fixed, but on what may happen as viewed at the time when the deed or will creating them takes effect. Thus, it makes no difference that one to whom a future interest is given happens to be born within the period allowed by the rule if he might have been born beyond that period.”
A leading case on perpetuities is Brattle Square Church v. Grant, 3 Gray (Mass.), 142 (63 Am. Dec. 725). The syllabus of that case reads thus:
“A limitation, by way of executory devise, which may possibly not take effect within the term of a life or lives in being at the death of the testator, and twenty-one years (adding in case of a child en ventre sa mere, about nine months) afterwards, is void, as too remote, and tending to create a perpetuity. A devise, subject to a conditional limitation void for remoteness vests an absolute estate in the first taker.”
In the exhaustively reasoned case of Moody v. Walker, 3 Ark. 147, 190, the rule is thus stated:
“An executory devise cannot be barred by fine or a common recovery, and therefore to prevent perpetuity, it became necessary to prescribe bounds and limits beyond which it should not extend, The time*608 to which they were limited was definitely settled in Stephens v. Stephens and that decision received the sanction of the court of chancery and of the judges of the king’s bench. According to the resolution of that case the devise over must vest within the compass of a life or lives in being and twenty-one years and nine months thereafter. But should an executory devise be not limited to an event within the prescribed period of time mentioned, as upon an indefinite failure of issue, it was void by reason of its remoteness, as favoring the doctrine of entailed estates and thereby creating perpetuities. ‘It is of no importance how the fact turns out to be; it is void at the commencement if the event on which its existence depends may, by possibility, extend beyond the duration of the time prescribed’: 6 Cruise, title ‘Devise,’ 32, Chap. 17.”
In Lawrence’s Estate, 136 Pa. St. 354 (20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925), it is said that no interest subject to a condition precedent is good, unless the condition must be. fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest. In Barnum v. Barnum, 26 Md. 119 (90 Am. Dec. 88), it was decided that:
“An estate so limited that it may by possibility extend beyond life or lives in being at the time of its commencement, and twenty-one years and a fraction of a year (to cover the period of gestation) after-wards, during which time the property would be withdrawn from the market or the power over the fee suspended, is a perpetuity, and void as against the policy of the law, which will not permit the property to be inalienable for a longer period.”
In Graham v. Whitridge, 99 Md. 248 (57 Atl. 609, 58 Atl. 36, 66 L. R. A. 408), the principle is thus enunciated:
“If the contingency upon the happening of which the remainders over * * are to vest is one that might or might not happen during a life or lives in being at*609 the time of the death of the testator and twenty-one years and a fraction of a year in addition, then the condition is too remote and the remainders fail to take effect. In determining this question of remoteness it is an invariable principle that regard is to be had to possible and not merely actual events. It is not determined by looking back on events which have occurred and seeing whether the estate has extended beyond the prescribed limit, but by looking forward from the time the limitation was made and seeing whether according to its terms there was then a possibility that it might so extend. The event upon the happening of which the remainder is to vest must be one that is certain to happen within the prescribed period or the limitation will be had.”
The court there, speaking of remainders, said the same rule already mentioned respecting remainders applies to executory devises: See, also, Andrews v. Lincoln, 95 Me. 541 (50 Atl. 898, 56 L. R. A. 103); Wells v. Heath, 10 Gray (Mass.), 17; Coggins’ Appeal, 124 Pa. 10 (16 Atl. 579, 10 Am. St. Rep. 565); Lasnier v. Martin, 102 Kan. 551 (171 Pac. 645); Minot v. Paine, 230 Mass. 514 (120 N. E. 167, 1 A. L. R. 365); Hopkinson v. Swain, 284 Ill. 11 (119 N. E. 985); Ortman v. Dugan, 130 Md. 121 (100 Atl. 82); Moroney v. Haas, 277 Ill. 467 (115 N. E. 648); Taylor v. Crosson, 11 Del. Ch. 145 (98 Atl. 375); Riley v. Jaeger (Mo.), 189 S. W. 1168; Overby v. Scarborough, 145 Ga. 875 (90 S. E. 67); Camden etc. Trust Co. v. Guerin, 87 N. J. Eq. 72 (99 Atl. 105); O’Hare v. Johnston, 273 Ill. 458 (113 N. E. 127); Harmon v. Harmon, 80 Conn. 44 (66 Atl. 771); Shepperd v. Fisher, 206 Mo. 208 (103 S. W. 989); Bartlett v. Sears, 81 Conn. 84 (70 Atl. 33); Haydon v. Layton (Ky.), 128 S. W. 90; Starr v. Minister, 112 Md. 171 (76 Atl. 595); Hewitt v. Green, 77 N. J. Eq. 345 (77 Atl. 25); Gambrill v. Gambrill, 122 Md. 563 (89 Atl. 1094); Hollan
With these principles in mind, let ns advert to the conditions described in the complaint. We remember that Ealph’s father, the testator, died on January 5, 1897, and that Ealph’s daughter, Gladys, yet a minor, was born after the death of the testator. As to Ealph’s devise, his own was the only life in being at the death of his father. Yet the estate to be taken under the executory devise by Ealph’s brothers and sisters is made by the twelfth clause of the will to depend on possibly three lives: First, Ealph’s'; second, that of his yet unborn daughter; and third, that of her potential child or children; for this twelfth clause makes the estate of the brothers and sisters to depend upon the conditional limitation that Ealph shall die without leaving lineal descendants, children or grandchildren. Contrary to the law, the testator essayed to control the devolution of his property through and beyond two generations yet unborn. In other words, it is possible that grandchildren be born to Ealph; that he survive both them and his own children and that he then die “without leaving lineal descendants, children or grandchildren.” Extending, as possibly it may, over three lives, two of which in succession were not in being when the will took effect, January 5, 1897, the conditional limitation by way of ex-ecutory devise which was designed to defeat Ealph’s fee and pass it to his collateral kindred is void within the rule against perpetuities. The result is that since there is no valid restriction now operative on the estate given to him by the seventh clause of the will, Ealph has a fee-simple absolute in the property mentioned. His title is therefore marketable. There is