137 P. 187 | Or. | 1913
delivered the opinion of the court.
The only question to be considered is whether or not the plaintiff, as the administratrix of the estate of Clarence Kaser, deceased, has any interest in the personal property of the testator’s estate, after the determination of the defendant’s life interest in the property the use of which did not result in a consumption thereof.
‘ ‘ Originally, where a chattel mortgage or other personal estate,” says Mr. Justice Mulicey, in Welsch v. Belleville Savings Bank, 94 Ill. 191, 204, “was given to one for life with a limitation over to another, the former took the absolute title, and the limitation over was void, both at law and in equity. In the course of time, however, equity which has ever been a pioneer in the interests of justice and right — in the case of a devise of a chattel real to one for life with a limitation over to another, interposed on behalf of the remainder-man, holding the limitation over good as an executory devise, but not as a remainder. And even now such
By the early rule, prevailing in England, it was determined at law that an interest in personal property could not be created by way of a remainder; but in equity it was ruled that, if a chattel personal were bequeathed to A for life and upon his death to B, the property was considered as belonging to B, and that A had only the use thereof: Gray, Perpetuities (2 ed.), § 84. In America, however, a future limitation by will of a chattel personal passes a legal interest both at law and in equity: Gray, Perpetuities (2 ed.), § 88; 40 Cyc. 1640.
By the bequest of a chattel for life the legatee under the rules of the ancient law took the property absolutely, and every limitation over was ineffectual for any purpose, for the reason that an estate for life in personal property was treated as the highest possible interest which could be acquired in or to a chattel, and hence nothing remained to be limited over. That doctrine, however, has been repudiated in the United States, where the rule is quite general that, though a bequest of nonperisbable personal property, without express words of limitation, evidences an unconditional gift, yet the testator may, by the employment of proper words, restrict the bequest to the use of the chattels for life by the legatee, which testamentary disposition will be upheld.
In Proprietors of the Church in Brattle Square v. Grant, 3 Gray (Mass.), 142, 148 (63 Am. Dec. 725), in speaking of a condition marking the period which determines an estate, without any act on the part of him who has the next expectant interest, Mr. Justice Bigelow says: ‘ ‘ The limitation over being executory, and depending on a condition, or an event which may never happen, passes no vested interest or estate.”
Whether there were any issue in being of the children of testator when he died does not appear from the averments of the copiplaint; but, however this may be, a bequest to the issue of his children who were not in esse at the time of his death is nevertheless ex-ecutory: 1 Jarman, Wills (6 ed.), *822. Such a bequest when, as in the case at bar, it does not violate the rule against perpetuities, is regarded as a valid testamentary disposition of property: Buchanan v. Schulderman, 11 Or. 150 (1 Pac. 899); Shadden v. Hembree, 17 Or. 14 (18 Pac. 572); Love v. Walker, 59 Or. 95 (115 Pac. 296). “When the disposition of an aliquot part of the residue itself, ’ ’ says a noted author,
What has been here said with respect to the duration of the estate and interest which each child will take by will upon the death of the defendant is used only by way of illustration, for the remark can have no binding force upon the testator’s surviving children, since they are not parties to the suit. The conclusion thus reached does not exclude the plaintiff, as the widow of Clarence Kaser, from receiving a share of the testator’s nonperishable personal property.
The decree is therefore reversed, the demurrer overruled, and a decree will be entered, requiring the defendant to give a good and sufficient undertaking' whereby the sureties upon her death will pay or cause to be paid to the plaintiff the sum of $45.63.
Reversed: Decree Rendered.