54 A. 379 | R.I. | 1903
The case stated for an opinion sets forth that title to real estate in Newport is involved under a clause of the will of Paran Stevens, which gave said real estate to his wife for life, and then added: "Upon the decease of my said wife, the property by this and the preceding clause devised shall belong to my children, the descendants of any deceased child to take the share their parent would have taken if living, and if no descendants of mine survive my said wife, then said property shall belong and be delivered over by my executors to the same persons named as residuary legatees, in case of such failure of descendants, in the next clause of this will and in the same proportions."
Paran Stevens died in 1872, leaving Marietta Stevens, his widow, and three children, Mrs. Melcher, Mrs. Paget, and Henry L. Stevens.
Henry L. Stevens died without issue in 1885, before the termination of his mother's life estate, leaving a will which gave one-half of his property to her and one-half in trust for his sister, Mrs. Paget. Mrs. Stevens, the life tenant, died in 1895, leaving a will giving her property in trust for Mrs. Paget.
The questions presented are whether the divisees of Henry L. Stevens took an undivided third of the real estate in question, and what are the respective interests of the parties therein?
The answers to these questions depend upon the decision of the effect of the will of Paran Stevens as to the interest taken by Henry L. Stevens thereunder. On the part of Mrs. Paget it is claimed that he took a vested interest, which passed under his will; and on the part of Mrs. Melcher, that the estate did not vest in the children upon the testator's death, but, if it did, it was only a vesting defeasible in respect to any child upon the death of that child prior to the termination of the life estate, whether with or without issue, in favor of the issue, if any; but if none, in favor of the surviving children of the testator. *577
We quite agree with the counsel for Mrs. Paget that the legal effect of the provisions of a will, plainly expressed, must prevail over an implied intention. Chapin v. Hill,
The first inquiry, therefore, is the legal effect of the terms of the will. This involves three things: the time of taking, the persons to receive, and the quantity of the estate devised.
Upon these points we think that the will is explicit. The time when the interests of the children or their descendants were to attach was "upon the decease of my said wife." That is the focal point. That was the time when the interests were to be determined.
The persons who were then to receive the property were the living children or their descendants, per stirpes. The persons, therefore, who were to take were uncertain. It could not be known which, if any, of them would be alive to take an interest in the estate. If one or more of the children did not live, the estate was not to go to their heirs, as heirs, nor to their assigns, but to certain described persons. For example, had Henry L. Stevens left children, a third interest would have gone to them, not as heirs of their father, but as devisees under the will. In this respect the will differs from that in Loring v. Arnold,
The main contention, however, is upon the third element of the devise, the resultant quantity of the estate devised.
On the part of Mrs. Paget, who claims under the will of Henry L. Stevens, it is urged that, by the terms of the will in question, said Henry took a vested estate, subject to be divested by the two contingencies (1) of his death before the life tenant, leaving issue him surviving; (2) the death of all issue of the testator before that of the life tenant.
As neither of these contingencies happened, it is claimed that the estate was in him unimpaired. *578
On the part of Mrs. Melcher it is claimed that the remainder was a contingent remainder, taking effect at the death of the life tenant, and so giving no interest to said Henry, prior thereto, which was either descendible or devisable.
Both views have been ably and learnedly presented.
Cases upon the construction of wills and upon vested and contingent remainders have been too numerous and conflicting for an attempt to review or to reconcile them. Indeed, the task would be well-nigh impossible. In view of the fact that the case involves only title to realty in this State, and that the law applicable to it is settled by decisions of this court, we will confine our attention to such decisions.
In Watson v. Woods,
The counsel for Mrs. Paget suggests a distinction in the use of the word after the death in that case instead of upon the death, as in this case. We are unable to see force in the distinction, if there be one. We do not see that the use of either word imports a different legal effect from the other.Upon or on the death means at the time of; and such a reference to the devolution of an estate points as clearly to the time of the death as the word after. Certainly upon does not imply an estate before the death. The case was decided by the court, and not, as counsel assumes, by a single judge.
Brown v. Williams,
In Daboll v. Field,
In Bailey v. Hoppin,
The question was whether the equitable remainders were vested or contingent, and they were held to be contingent. Durfee, C.J., said: "They were limited after the death of the grantor and his wife, not to their six children, but only to such of them as should then be living, and to the issue of such of them as should be dead. It was uncertain at the creation of the trust, and it continued to be uncertain during the life of the surviving parent, who, if any, of the children would survive." That is exactly this case. The intervention of an express trust estate is not significant, since equitable interests pass under the same rules that apply to legal estates.
R.I. Hospital Trust Co. v. Harris,
The cases in this State relied on by the counsel for Mrs. Paget are quite different from the case at bar. In Staples v.D'Wolf,
Rogers v. Rogers,
In all of these latter cases there was no remainder over.
We think that the decisions we have quoted are conclusive of the case at bar.
We therefore give as our opinion (1) that the devisees of Henry L. Stevens took no interest in the real estate in question; (2) that said real estate belongs in equal moieties to Mrs. Melcher and to the trustees under the antenuptial settlement of Mrs. Paget.
Decree accordingly.