120 Cal. 79 | Cal. | 1898
The plaintiffs brought this action against the defendants to quiet their title to certain lands, described in the complaint. Sarah C. Pierce died seised of the lands in question Hovember 28, 1891, leaving a last will and testament bearing date November 15, 1884, containing the following provisions:
“2. I give, devise, and bequeath to my grandson, William S, Pierce, his heirs and assigns forever [certain property charged with the payment of certain legacies]; my said grandson, William S. Pierce to come into possession of said property so devised and bequeathed on his reaching the age of twenty-one years.
“3. AH the rest, residue, and remainder of my estate, real and personal, I hereby give, devise, and bequeath to my said grandson, William S. Pierce, his heirs and assigns forever.
“4. In the event of my said grandson, William S. Pierce, dying without leaving lawful issue him surviving, then all the property, real and personal, devised and bequeathed to him by this instrument, I devise and bequeath to my heirs according to the laws of the state of California.”
By a codicil thereto, the testatrix revoked certain of the legacies which she had charged upon the estate bequeathed to her grandson, and made certain changes in others. Her will was admitted to probate, and upon the settlement of the final account of the executors, December 12, 1892, the superior court made a decree of final distribution of her estate, which after reciting therein the provisions of her will, and that WilHam S„ Pierce was at that time upward of twenty-two years of age, and is entitled to the residue “according to the terms of the said will and codicil,” declared as follows:
“It is therefore ordered, adjudged, and decreed that the residue of the said estate be and the same is distributed as follows, to wit: To William S. Pierce, said grandson, his heirs and assigns forever, and, in the event of the death of the said William S. Pierce leaving no lawful issue him surviving, then all the property, real and personal, of deceased herein distributed,*82 to the heirs of the said deceased Sarah 0. Pierce, according to the laws of the state of California.”
William S. Pierce died without issue March 21, 1895, leaving a last will and testament by which he devised his estate to the defendant, Mary J. Pierce, who was also appointed executrix of his will. At the trial of the cause, the plaintiffs, in addition to the foregoing facts, offered evidence tending to show that they are the heirs at law of Sarah C. Pierce, deceased, and at the close of their testimony the court, upon the motion of the defendants, rendered its judgment that plaintiffs take nothing by the action, and dismissed the same. From this judgment the plaintiffs have appealed.
The right of the plaintiffs to the land in question depends upon the construction to be given to the decree of distribution in the estate of Sarah C. Pierce, deceased. Counsel upon each side have argued elaborately and with ability upon the construction which should be given to the words “dying withput leaving lawful issue him surviving-” in the fourth item of her will—whether these words should be construed as referring to the death of William S. Pierce in the lifetime of the testatrix, or to his death at any time thereafter without leaving lawful issue. The construction which these words in a will should receive has been decided differently in different states, but has never been determined in this state, and, although counsel upon each side claim that the position taken by them respectively is sustained by the great weight of authority, the decision of the question is not required in the present case, and we therefore deem it inappropriate to express an opinion thereon, but leave it open to be determined when a suitable occasion shall be presented. The will of Sarah C. Pierce received a construction at the distribution of her estate, and upon the entry of that decree the provisions of her will were merged in a judgment which determined the rights of all who might claim any portion of her estate by virtue of the provisions of the will. That decree was a- judicial construction of her will, and not having been appealed from, its terms are made by the statute conclusive as to the rights of all heirs, devisees, or legatees claiming any portion of her estate. If the decree did not correctly define' the interests of any claimant, it could have been
In giving a judicial construction to the will of Sarah C. Pierce the court determined that she devised to William S. Pierce an estate in fee defeasible upon the contingency of his dying without leaving any lawful issue surviving him, with a remainder in fee limited upon this contingency to the heirs of the said Sarah C. Pierce. The decree of distribution is by its terms prospective, and as Sarah C. Pierce was at that time dead, the words “in the event of the death of the said William S. Pierce leaving no lawful issue him surviving” can by no construction be held to have reference to the death of William S. Pierce in her lifetime. This clause in the distribution of the estate to him is a condition upon the happening of which the property distributed was adjudged to go “to the heirs of the said Sarah C. Pierce according to the laws of the state of California.” At the common law, such disposition of her property would have been termed a conditional limitation by way of an executory devise, but under the system prevailing in this state may be denominated a contingent re
It is urged by the respondents that, as the decree of distribution does not “name the persons and the proportions or parts to which each shall be entitled,” except William S. Pierce, that portion of the decree is not entitled to be considered, and that the plaintiffs cannot invoke it in support of their claim. If the persons and the proportions to which they are entitled are named in the decree, “such order or decree” is conclusive, and “such persons" may demand, sue for, and receive their respective shares from the executor, and such order or decree is conclusive as to their rights, as well as to the rights of heirs, legatees, or devisees; but it does not follow that a failure to name the persons and the proportions, will render the decree inoperative or subject to collateral attack. An examination of the cases cited by the respondents ;in support of their proposition will show that
The failure of the court to find whether the plaintiffs are heirs of Sarah C. Pierce does not authorize an affirmance of its judgment. At the close of the plaintiffs’ evidence, the defendants moved for a dismissal of the action. This was in the nature of a nonsuit, and in such cases findings are not required. The evidence offered on behalf of the plaintiffs tended to show that they are heirs of Sarah C. Pierce. Whether they constitute all of her heirs is a matter in which the defendants are not interested. If the estate devised to William S. Pierce terminated
The judgment is reversed.
Van Fleet, J., and Garoutte, J., concurred.
Hearing in Bank denied.