Johnson v. Preston

Apr 18, 1907
Versions:

Lead Opinion

Mr. Justice Vickers

delivered the opinion of the court:

First—Appellants contend that clauses 5 and are void because they violate the rule against perpetuities. In our consideration of this question we will first consider it with reference to the estate or interest devised to the executor. The sections of the will in question need not be considered separately. The language employed in the two sections brings them both under the same rules of law. The effective words which create the estate of the executor and limit its commencement and duration, separated from the language relating to the use, are as follows: “I give and devise to my executor hereinafter named, my farm of 120 acres in Willow Creek township, described as follows, (description,) to have and to hold for the space of twenty-five (25) jrears from and after the date of the probate of this will,” etc. This language is followed in each section with other language intended to create a beneficial interest in certain named grandchildren of the testatrix, but there is nothing in either of said sections, or elsewhere in the will, that in any way modifies the language above quoted creating and defining the estate of the executor. The contention is that the language "from and after the probate of this will,” being an uncertain contingency upon which the estate of the executor shall come into being, which may not happen within the time prescribed by the rule against perpetuities, makes the devise void.

A perpetuity is defined to be a limitation taking the subject thereof out of commerce for a longer period of time than a life or lives in being and twenty-one years thereafter, and in the case of a posthumous child, a few months more, allowing for the period of gestation. (Bouvier’s Law Dict; Waldo v. Cummings, 45 Ill. 421; Rhoads v. Rhoads, 43 id. 239; Lunt v. Lunt, 108 id. 307; Hart v. Seymour, 147 id. 598; Howe v. Hodge, 152 id. 252.) The question to be determined under the rule is, when does the estate vest? The interest of the-executor is subject to a condition precedent,—that is, it cannot arise, by the very words of the devise itself, until the probate of the will. Since there is no precedent life estate, the vesting of the estate of the executor must be within twenty-one years, (Tiffany on Real Property, sec. 154,) and the time within which the estate is to vest is computed from the date of the testatrix’s death. (Kale on Future Interests, sec. 255; Madison v. Larmon, 170 Ill. 65; Ingraham v. Ingraham, 169 id. 432.) 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 execution of the instrument, or in case of wills, at the death of the testator. (Gray on Perpetuities, sec. 201; Howe v. Hodge, supra; Lawrence v. Smith, 163 Ill. 149.) It is not enough that a contingent event may happen, or even that it will probably happen, within the limits of the rule against perpetuities. If it can possibly happen beyond those limits an interest conditioned on it is too remote. (Gray on Perpetuities, sec. 214; Lawrence v. Smith, supra; Eldred v. Meek, 183 Ill. 26; Owsley v. Harrison, 190 id. 235; Chapman v. Cheney, 191 id. 574; Schuknecht v. Schultz, 212 id. 43.) It would seem to result necessarily from the rule laid down in the above authorities that the condition precedent upon which the estate of the executor was to vest,—that is, the probate of the will,— brings the estate of the trustee directly within the rule against perpetuities.

In this connection the language of the court, speaking through' Justice Scholfield, in Husband v. Epling, 81 Ill. 172, is applicable: “The event here is-, ‘when the estate of Thomas Mason is settled up.’ Can it be said to have been morally certain, when the instrument was executed, that the estate ever would be settled up? The law requires estates to be settled and fixes a period within which it shall W done, but it does not, of and by itself, settle them. The presumption is that the law in this regard, as in others, will be obeyed. But this presumption does not amount to absolute certainty. The enforcement of the law, depending on human agencies, is liable to be affected or controlled by many circumstances, and instances where it is not only not fully enforced, but is openly violated, áre within the experience of all, so that it is impossible to predict with moral certainty that a thing will be clone simply because it is the command of the law that it shall be.”

While the reasoning above quoted was employed in discussing the question whether an instrument payable “when the estate of Thomas Mason is settled up” was a promissory note, it is pertinent here as bearing upon the uncertainty as to when a will will be probated, even though that act, like the settlement of an estate, is required by law. In Fowler v. Ingersol, 127 N. Y. 472, (28 N. E. Rep. 471,) it was held that a will suspending the power of alienation for more than two lives in being at the time of the testatrix’s death is not made valid by the fact that it gives the power of sale within that period if permission is obtained from the Supreme Court. “Such permission,” the court say, “might not be given, and unless it was, the power of alienation was suspended until the estate vested in possession in the remainder-man.” . See, also, Cruikshank v. Chase, 113 N. Y. 337; 21 N. E. Rep. 64; People v. Simonson, 126 N. Y. 299; 27 N. E. Rep. 380.

It is clear from the language of the will itself, that whatever interest the executor took under it could not vest in him until the probate of the will, and while this event would, in the ordinary and usual course of events, probably occur within a few months, or at most a few years, after the death of the testatrix, yet- it cannot be said that it is a condition that must inevitably happen within - twenty-one years from the death of the testatrix. Since a bare possibility that the condition upon which the estate is to vest may not happen within the prescribed limits is all that is necessary to bring the devise in conflict with the rule, we see no escape from the conclusion that the devise to the executor offends the rule against perpetuities and is therefore void. The devise to the executor is not saved from the effect of this rule by reason of the fact that it is merely a term of years instead of an estate in fee simple or other, freehold interest. Terms of years may be created to,,commence in futuro, but if the condition upon which they are to arise is uncertain and may not happen within the limits fixed by the rule against perpetuities, such terms are void. I Washburn on Real Property, sec. 468.

What has already been said makes it unnecessary to discuss the question argued by counsel respecting the character of the trust. Since the devise to the executor must be held void, it is unnecessary to consider whether the trust which the testatrix attempted to create was active or passive.

Second—Since, as we have seen, the executor can take nothing under this will, this brings us to the question whether the estate devised to the grandchildren can be sustained. It is a well established rule that where valid and invalid portions of a will are so related to the general scheme of the testator as to be interdependent, so that they can not be separated without doing violence to the testamentary plan, the entire disposition must fail. (Lawrence v. Smith, supra; Eldred v. Meek, supra; Greenwood v. Greenvood, 178 Ill. 387; Reid v. Voorhees, 216 id. 236.) The converse of this rule is likewise well established, that where the invalid portions can be separated from that which is valid and still give effect to the general testamentary scheme, the invalid clauses will be disregarded and those that are valid upheld. (See cases cited supra.) The .controlling consideration in the construction of the will is to discover the intention of the testator as expressed in the words of the will, and to give effect to such intention if it can be done consistently with the law. (Howe v. Hodge, supra.) When the entire will before us is read and each clause is compared with the others, the controlling purpose of the testatrix to give her son James J. Platt and his five sons her entire estate is manifest. With the exception of one annuity payable to Mary J. Atkinson, of $100 per year, no other person is given any beneficial interest whatever in this estate except her son and grandchildren above mentioned. It is also to be noted that the interests of the grandchildren devised under clauses 5 'and 6^4 were not postponed until the expiration of the twenty-five years during which the trust was intended to continue. It is provided in these clauses that the grandsons should “share, equally in the use, benefit and enjoyment of said property during the period of said trust and equally in said property after said trust is ended.” As to the farm devised in clause 5, the testatrix expresses the wish that her two grandsons to whom she devises the farm shall live upon said farm and work the same and make it their home, preserve it and keep it in good shape, and not allow it to be neglected and run down. The same language is found in clause 6^4 in relation to the store property devised to the other three grandsons, except there is nothing said in this clause in relation to their living in the property. There is, as respects both the devises, a clear intention to give an absolute fee simple estate to the devisees mentioned, with a present right of enjoyment. The title is not made to depend upon any event or contingency that is to happen during the twenty-five years or at the end thereof. If the trust estate was upheld and the trustee was continued there is no act that he is given power to perform that could in any way affect the interests of these devisees. He is not required, at the end of his term, to convey, release or distribute to the devisees. Their interest comes, not by way of remainder, but in presentí. In other words, the trust here sought to be created, if it could be upheld, is not a trust created for the purpose of serving the interests of some charitable object or a third person, but is an attempt to create a trust for the benefit of the same persons to whom the estate is devised. If the trust should be upheld and given effect the ultimate result would not be any different from what it is with the trust eliminated. In both cases the property of the testatrix goes to the same persons, in the same way, at the same time and in the same proportions. If this is true, how can it be said with any show of reason that the interests of the devisees under clauses 5 and 63/2 are so interdependent with the estate attempted to be given to the trustee that if his devise falls it must pull their estate down with it?

While a remainder may be accelerated where the precedent limitation fails or for any reason comes to an end and the next tenant in succession is in being and competent to take when the condition precedent to the vesting of the estate happens, still this rule need not be invoked here, for in this case there is no precedent estate sought to be vested in the executor which must expire before the devisees are let into their estate. While the language of the will attempts to devise the land to the executor for a term of years from and after the probate of will, in trust, etc., and he is directed to see that the taxes are paid and the premises kept in repair and insured, yet all the things required of the executor are for the benefit of the devisees of the beneficial interests, and are not inconsistent with the full and complete vesting of the title in the grandchildren together with the immediate enjoyment of their estate. If it be said the executor is charged with the payment of the annuities to James J. Platt and Mary J. Atkinson, and that this affords a reason why the trust and the use must stand or fall together, we reply that th'ese annuities are made a direct charge upon the land, and that they will follow the land into the hands of anyone who may become the owner. The failure of the trust estate will in no way defeat or delay the annuitants in the collection of their money. The same may be said with reference tp the payment of taxes on these lands. The trustee is to “see” that the taxes are paid. What duty is imposed on the executor in this regard that the usees will not be compelled to perform in order to save their lands from sale ? Is it necessary to have a trustee “see” that one pays the taxes or makes necessary and reasonable repairs on his own property? Let us for a moment suppose that the estate of the trustee is upheld and he is continued under the will for twenty-five years and he should fail and neglect to perform the duties enjoined on him; who would have a right to bring him to account for his default ? The answer must be, the persons for whose benefit the trust was created, who are, as we have seen, the same persons ■ upon whom self-interest and the law impose the same duties and obligations for a breach of which the trustee would be called to an account. Unless the devisees place the funds in his hands to discharge these obligations the will makes no provisions for his ob-tabling the funds in any way, except as respects the annuities he might bring a suit to subject the land to their payment, and the annuitants can do this by the shorter course of bringing the action in their own names. It may not happen often that an attempt to create a trust can be held invalid and yet the testamentary scheme be carried out in all its essential details, but the case at bar is one wherein that can be done, as it seems to us, without departing in any matter of substance from the clearly expressed intent of the testatrix.

The views herein expressed, in so far as the trust is held invalid and the devise to the beneficiaries is upheld, find support in the following authorities: Kennedy v. Hoy, 105 N. Y. 134; 11 N. E. Rep. 390; Underwood v. Curtis, 127 N. Y. 523 ; 28 N. E. Rep. 585; and the principle is clearly recognized and applied in Nevitt v. Woodburn, 190 Ill. 283. And among the many cases holding that a devise in fee subject to a conditional limitation which is void for remoteness is not affected by such remoteness, and that under such circumstances an absolute estate vests in the first taker, the following may be cited: Hudson v. Gray, 58 Miss. 882; Miller v. Macomb, 26 Wend. 229; Manice v. Manice, 43 N. Y. 303 ; Theological Education Society v. Attorney General, 135 Mass. 285; Outland v. Bowen, 115 Ind. 158; 17 N. E. Rep. 281; Comegys v. Jones, 63 Md. 317; Henderson v. Henderson, 113 N. Y. 1; 20 N. E. Rep. 814.

In the case last above cited the devise was: “All the rest, residue and remainder of my estate, both real and personal, wheresoever situated, I hereby authorize, empower and direct my executor to partition, divide and apportion equally among all my children living at the time'of making such partition and division and the child or children of such of my children as may be dead leaving issue; * * * and I do hereby give, devise and bequeath to each of my children the share or portion of my estate so to be partitioned, divided and apportioned to them, respectively, as aforesaid;” and it was provided that in case of the death of any of the children without issue before the partition, then the portion of such deceased child .should go to the surviving brothers and sisters. It was provided in the will that the executor should malee partition within five years “from the date of the probate of the will.” It was held that, the executor did not take a valid trust, but that the estate vested in fee in the beneficiaries, but the direction to the executor to partition, divide and apportion the residuary estate, though ineffectual to create a valid trust, might be upheld as a valid power in trust. This case, in many respects, is like the case at bar, and is an authority sustaining the principle involved in the conclusion we have reached in this case. There is nothing here, as there was in the late case of Starr v. Willoughby, 218 Ill. 485, to indicate a clear intention of the testator to postpone a vesting of the estate in the beneficiaries. On the contrary, the intention.to vest the title in the grandchildren immediately is made clear from a reading of the several provisions of the will.

Third—The general rule is, that where a devise is made in fee, either of a legal or an equitable interest, all limitations tending to deprive the estate of any of the incidents appertaining to the interest created are held to be repugnant to the devise, and void. To transfer a fee and at the same time to restrict the free alienation of it, is to say that a party can give and not give, in the same breath. (Steib v. Whitehead, 111 Ill. 247.) There is an apparent exception to this rule where what is known as a spendthrift trust is created. As illustrating this doctrine, see Steib v. Whitehead, supra, and Bennett v. Bennett, 217 Ill. 434. But the devise in this case bears no resemblance to a spendthrift trust, and even if it can be said that cases of that character are an exception to the general rule,—which is not before us and which we do not decide,—the case at bar does not fall within such exception, and it must therefore be held, in accordance with the general rule, that the attempt of the testatrix in clauses 5 and to restrain the alienation of the estates of the devisees is .wholly void, as being in restraint of alienation.

Section 9 of the will is not involved in this litigation, and no consideration of it is called for by the issues involved.

Finding no error the decree is affirmed.

Decree affirmed.





Concurrence Opinion

Cartwright, J.,

specially concurring:

I agree with the conclusion reached by the court in this case, but regard the third proposition of the opinion as not applicable to the case. After attempting to create an intermediate estate in a trustee for a period of twenty-five years the testatrix devised the property to certain named persons, or their heirs, absolutely, meaning, as I think, that after the expiration of twenty-five years the property should go to the persons named, if living, or if deceased, to those who would then stand in the relation of heirs of said persons, excluding their mother. The word “or” interposed between the names of the devisees and their heirs indicates substitution in a will of the nature of this one. (Ebey v. Adams, 135 Ill. 80; 1 Redfield. on Wills, 486.) As the first devisees are living and the attempt to create an intermediate estate failed, they take the property in fee.