74 Mich. 491 | Mich. | 1889
This suit was brought to quiet title to land under a will, which defendant is charged with claiming, but which he has taken no steps to recover. The whole contest is over the construction of a devise. In May, 1854, Horace Johnson, being an unmarried man past middle life, residing in the township of Locke, Ingham county, Mich., and owning real and personal property in that township, and in the adjacent township, made his will, and died shortly afterwards. He left surviving him a mother advanced in years, a sister, Lucinda, unmarried and 50 years old and upwards, two brothers, a married sister, Mrs. Mary Stevens, and two nephews named in the will, who were William Johnson, a brother’s son, and William Warren, the son of a deceased sister. The
“I also give and bequeath to Alcyone Deloss (oldest son of Mrs. Eosetta Warren) the above-described eighty acres of land when my mother and sister shall have done with it, and when he shall arrive at the age of twenty-one, on the following conditions, to wit: That he shall come within one year from the present date and live with my sister Lucinda as her own, to be under her sole guidance and guardianship "until he shall arrive at the age of twenty-one. But, in case the above-named Mrs. Warren’s son does not comply with the above conditions, then the said' Alcyone shall not be entitled to the said premises, but it shall be divided among my brothers which are now living, sister Mary, and my two nephews, William Johnson and William Warren.”
Lucinda was made executrix. At this time William Warren, who was son of Gfillman Warren by his first wife, who was testator’s sister, and was half-brother of defendant, who -was not related to testator, was living, and continued to live, with Lucinda till he grew up. At this time he was about ten years old, and defendant about five. Lucinda survived her mother, and died in 1875, being more than 70 years old. Defendant was then 25 or 26 years old. He had never been adopted by Lucinda, and had until manhood lived in his father’s family. He had made occasional visits at Lucinda’s, and had occasional employment there in such chores and work as he could do at haying and similar occasions. His
The court below came to the conclusion that Lucinda had always treated defendant with such care and guidance as she supposed would satisfy the will, and be most advisable for the boy, and he submitted to it, and that she was satisfied with it. We cannot find in the record any testimony tending to show, and still less to convince us of, any maternal or filial relations whatever between these parties, or anything to indicate that Lucinda ever regarded defendant as her ward or child by adoption. Upon the argument this was not much urged, but it was claimed the condition was nominal, and not material, and that Lucinda did not see fit to insist on it and waived it.
The will is not in the least ambiguous. It gives to Lucinda and her mother life-estates; thus covering the whole time during which alienation could be restrained. It gives to the brothers, sister, and nephews the remainder
It was claimed -on the argument that the conditions were nullities, under section 5562 of HowelPs Statutes, which reads as follows:
“When any conditions annexed to a grant or conveyance of lands are merely nominal, and evince no intention of actual and substantial benefit to the party to whom or in whose favor they are to be performed, they may be wholly disregarded, and a failure to perform the same shall in no case operate as a forfeiture of the land conveyed subject thereto.”
It is sufficient to say that this section refers only to grants and conveyances, and can only cover conditions which are to be complied with after the estate vests. It refers expressly to' estates which may be forfeited by noncompliance, and not to estates which have not been created by the conveyance in the grantee. It can have no reference to devises. Previous sections refer repeatedly to grants and devises as distinct things, and negative any idea that wills and grants can mean the same thing in this section. In chapter 1, on the interpretation of statutes, the words grantor and grants are confined to parties
We have no means of knowing, except by the will, why the testator chose to impose these conditions, but they certainly are not frivolous. The plain meaning is that, instead of creating a remainder over after Lucinda’s death in favor of his own collateral heirs by blood, he was willing to select as the object of his bounty a particular heir by adoption, if he should be taken into his sister’s care so young and raised to manhood so exclusively under her charge that he should be in all respects the same in family surroundings and training as if he were her own son. The language bears no other meaning. He did not mean to give the property to defendant, except as an adopted kinsman reared in the family. It was not as defendant’s mother’s son, but as testator’s sister’s child by nurture, that he chose to benefit him; and, as a minor cannot choose for himself, it was not left to his volition. Neither was Lucinda authorized to waive anything. The estate was devised over to others, unless these relations in fact existed. He did not mean to give his property to a stranger by nurture, and he preferred his brothers and sister and his nephews by blood to any but an adopted relative so nurtured as to have the same family attach-, ments. Such a condition is reasonable and intelligible.
The fact that the conditional beneficiary is not in fault for non-performance can make no difference. In the present case he could not have chosen for himself. The entire condition was to be performed during his legal incapacity; and when the condition is one of fact, and not left open to option or contingency, it makes no difference why it is not performed, when the only right that the devisee has to receive any bounty from the estate is found in the words of the will. See Co. Litt. 206b; Roundel v. Currer, 2 Brown, Ch. 67; Boyce v. Boyce, 16 Sim. 476; Hodge’s Legacy, L. R. 16 Eq. 92; Powell v. Rawle, L. R. 18 Eq. 243; Astley v. Earl of Essex, Id. 290; Bertie v. Falkland, 1 Salk. 231, 2 Vern. 333.
The decree should have been for complainant. It must, be reversed, and a decree rendered here in accordance with the prayer of the bill, with costs of both courts.