107 Cal. 410 | Cal. | 1895
This is an action brought by the trustees under the will of Cynthia Hoff Shillaber, deceased, to obtain a construction of certain provisions of said will. The will, after making certain bequests of personal property, proceeds as follows:
“ Fourth. All of the residue of my estate, both real, personal, and mixed, after paying the expenses of administration, I do give, devise, and bequeath unto my said nephew, Carroll Cook, and to his brother, Wm. Hoff Cook, to be held by them in trust, however, for the following uses and purposes, viz:
“ 1st. My homestead on Sixteenth street, corner of Hoff avenue, in San Francisco, California, together with the furniture therein contained, and the statuary not hereinbefore disposed of, they are to deliver possession of to my sister, Williametta H. Cook, and she is to be allowed to occupy and use the same until her death free of rent.
“ 2d. The mortgage now held by me on the Hew York Hotel property, corner of Battery and Commercial streets, San Francisco, executed by my sister, Frances H. Lowndes, is to be by said trustees fully canceled and released, and given to my said sister.
“ 3d. To pay out of the income of my estate to my true and faithful servants, Charles Payler and Clara Thompson, a sum of five hundred dollars each.
“ 4th. All of the residue of my said estate, real, personal, and mixed, is to be held by said trustees, and kept invested, the income thereof, after paying all expenses, to be paid in equal proportions to my sisters, Williametta H. Cook and Frances H. Lowndes, until the death of my said sister, Williametta H. Cook, or in case she do not die until ten years have elapsed from*415 and after the date of my death, then until the expiration of such ten years.
“ 5th. Upon the death of my said sister, Williametta H. Cook, or in case she do not die until ten years have elapsed from and after the date of my death, then at the expiration of such ten years all of the residue of my said estate (then remaining in the hands of my said trustees) is to be by such trustees sold and converted into money, and such money, after paying all expenses, is to be disposed of as follows, viz:
“ Ten thousand dollars is to be paid to my nephews, W. Hoff Cook and Carroll Cook, to be held by them in trust, the income thereof to be paid to my nephew, Channing H. Cook, during his lifetime, and upon his death the said principal sum-to be paid-to my nieces, share and share alike. The remainder of such money so realized from the sale of said property is to be divided and given in equal proportions to my nieces, Kate C. Gould (wife of C. B. Gould), Leonide Sue Cook, Gertrude Lowndes, and Theodora Lowndes, except that the proportion going to my niece Kate C. Gould is to be sixteen thousand dollars less than to the remainder of my said nieces, as I have already given to her, through her husband, that amount; and, in case either of my said nieces should die before such distribution, then the proportion which would have gone to such deceased niece shall be given to her children (if she have any); if not, to her surviving sister, and, in case no sister be surviving, then to the brothers of such deceased niece, in equal proportions to each.”
The only question presented on this appeal is as to whether the will makes any disposition of the reversionary interest in the homestead, and the furniture and statuary therein, after the death of Williametta H. Cook, or whether, as to that interest, the deceased died intestate. The court below held that the will made no disposition of that interest, and that the decedent died intestate with respect thereto. The defendants Kate C. Gould and C. B. Gould appeal, and contend that that
The case has been argued by counsel with much learning and research, and many cases have been cited and reviewed on each side. With regard to those cases we may repeat what we said in Rosenberg v. Frank, 58 Cal. 387, 411. “The case before us is one of interpreting the meaning of a written document, and decided cases afford but little aid in arriving at a correct interpretation. We hazard nothing in saying that this is in accordance with the universal experience of gentlemen learned in the law, who have been frequently called on to employ their faculties in the solution of such questions. The good sense of what was said by Washington, J., in 1803, in Lambert v. Paine, 3 Cranch, 131, will be generally acknowledged: ‘Except for the establishment of general principles, very little aid can be procured from adjudged cases in the construction of wills. It seldom happens that two cases can be found precisely alike.’ ”
The general principles which must control in the determination of the question here presented are well settled. Constructions which lead to intestacy, total or partial, are not favored; and, therefore, such an interpretation should, if reasonably possible, be placed upon the provisions of the will as will prevent that result. Especially should this be done where the will evinces an intention on the part of the testator to dispose of his whole estate. A devise or bequest of the “ residue” of the testator’s property therefore passes all the property which he was entitled to devise or bequeath at the time of his death, not otherwise effectually devised or bequeathed by his will. (Civ. Code, secs. 1332, 1333.) Where, however, it is manifest from the context, or from the provisions of the will, that the testator used that word in some more restricted sense, it will be given the meaning in which it is clear that the testator used it.
It is not sufficient, however, for the purpose of limit
The word' “residue ” occurs three times in the will in question. After bequeathing certain personal property by the third paragraph of the will, the testatrix, in the beginning of the fourth paragraph, devises and bequeaths to certain trustees “ all of the residue of my estate, both real, personal, and mixed.” By the first subdivision of the fourth paragraph she directs the trustees to deliver to her sister, Williametta H. Cook, the possession of her homestead and the furniture and certain statuary therein, which “ she is to be allowed to occupy and use until her death, free of rent.” By the second and third subdivisions she directs the trustees to dispose of certain other property. By the fourth subdivision she provides: “All of the residue of my said estate, real, personal, and mixed, is to be held by said trustees and kept invested,” and the income thereof to be disbursed in a certain manner. The fifth subdivision then provides: “ Upon the death of my said sister, Williametta H. Cook, or in case she do not die until ten years have elapsed from and after the date of my death, then at the expiration of such ten years all of the residue of my said estate (then remaining in the hands of my said trustees) is to be by such trustees sold and
Respondents concede that the word “ residue,” as first used, means all of the property of the testatrix not bequeathed by the third paragraph; but they contend that that word, as used in the fourth and fifth subdivisions of the fourth paragraph, does not include the reversion (if it may be so called) of the homestead, furniture, and statuary, after the death of Williametta H. Cook. They argue that, as used in the fourth subdivision, it could not be intended to include that property, because the “residue” there mentioned is to be“held” by thetrustees and by them “ kept invested ” so as to derive income therefrom, which, they say, would be inconsistent with the life estate (so called) of Williametta H. Cook. But they contend that, whether this be'so or no't, that word as used in the fifth subdivision could not have been so intended, for it is there limited by the words “then remaining in the hands of my said trustees.” They urge that Williametta H. Cook might live more than ten years after the death of the testatrix, and that, as she is to occupy and use the homestead and furniture until her death, that property would not in that event be in the hands” of the trustees at the expiration of the period of ten years. And, finally, they say that this so-called reversionary interest, particularly in the personal property, could not be sold by the trustees and converted into money. For these reasons they contend that the will makes no disposition of this property beyond the life of Williametta H. Cook, and that at her death it will fall to the heirs at law of the testatrix. With this reasoning we are unable to agree.
It is unquestionable, and it is not disputed, that the entire estate of the testatrix in the homestead, furniture, and statuary was devised and bequeathed to the trustees by the opening words in the fourth paragraph. It is therefore certain that the deceased did not die intestate as to that property. She did dispose of it by her will; her entire estate therein vested in the trus
The first trust as to this property is contained in the direction of the trustees to deliver the possession of this property to Williametta H. Cook, and to permit her to occupy and use it until her death, free of rent. This provision does not create a “ life estate” in the occupant, as has been assumed by counsel. The entire estate, as said above, remains in the trustees, and the beneficiary has a mere personal right of occupancy without rent. The condition of the property, and the estate of the trustees therein, during the life of the occupant, is precisely the same as would be the case as to any other piece of property which the trustees might be, from any cause, unable to rent. They would not be deriving income therefrom, but they would nevertheless “ hold” it, and it therefore falls within the word “residue,” as used in the fourth subdivision. The fact that they could not rent it during the life of the occupant does not conflict with the requirement that they are to “keep” the property embraced in that residue “invested.” That direction must be construed in connection with the first subdivision, and with the teachings of ordinary experience, and merely means that they are to keep the property invested and derive income therefrom so far as they are able. While it was possible that Williametta H. Cook might live more than ten years, it was equally possible that she might live for a less period; and in that event it would unquestionably be the duty of the trustees to rent the property and apply the income as directed in the fourth subdivision. We are therefore clearly of the opinion that the word “ residue,” as used in that subdivision, includes the property in question.
The argument of respondents under this head, moreover, proves too much. They direct their attention solely to the contingency that Williametta H. Cook may be still living at the expiration of the ten years. But,
There is, therefore, no reason for supposing that the testatrix, in the fifth subdivision, intended her language to be restricted or deprived of any of its full, legal, and ordinary meaning. As we said at the outset, it is immaterial whether or not she had the various contingencies that might occur clearly before her mind. If she had, the one contingency was as likely to occur as the other, and each presented the same difficulty. If she had not, she at least used language sufficient to provide for every possible contingency, and must be presumed to have done so intentionally.
Some other considerations have been advanced, though not very strenuously urged by respondents; but as what has been said in effect disposes of them, it is not necessary to discuss them separately. Nor is it necessary to refer specifically to the cases cited by them. We have given them a careful examination, and, while we are disposed to think that some of them go perhaps too far, we are of opinion that each of them is readily distinguishable from this case, and that our decision is entirely in accord with the principles laid down in them.
The second and tenth conclusions of law of the court
The judgment or decree appealed from is therefore modified by striking therefrom all that portion thereof which is in the following words: “ The plaintiffs have fully performed all their duties as trustees in regard,” and inserting in lieu thereof the word “ as”; also by striking therefrom all that portion thereof which is in the following words: “And that their trust be and the same hereby is terminated as to said described property and every part and parcel thereof”; and the whole of the paragraph next following said words, which begins with the words: “ It is further ordered,” and ending with the words and figures, “ September, 1888,” and inserting in lieu thereof the following: “The plaintiffs have performed so much of their duties as trustees as relates to the delivery of the possession thereof to the defendant Williametta H. Cook.
“It is further ordered, adjudged, and decreed that the plaintiffs hold the said above-described two parcels or lots of land, and the personal property contained in said dwelling-house, described in finding 27, upon the further trust to sell the same and convert the same into money upon the death of the defendant Williametta H. Cook, or, in case she do not die until ten years have elapsed from and after the date of the death of said Cynthia Hoff Shillaber, then, at the expiration of such ten years, and, in the latter case, to sell the same subject to the right of the said defendant Williametta H. Cook to occupy and use the same until her death, free of rent; and upon the further trust to apply the proceeds of such, sale as directed by the fifth subdivision of the fourth
The said judgment or decree is further modified by striking therefrom all that portion thereof which is in the following words: “It is further ordered, adjudged, and decreed that the defendant Williametta H. Cook is the owner of a present interest to the extent of the undivided one-third of the fee of the property mentioned in finding of fact 27, and hereinabove particularly described; and that the defendants Elizabeth H. Quiton and Frances H. Lowndes are the owners of a vested future interest to the extent of an undivided one-third of the fee each of said property last above described, subject to the life estate of said defendant Williametta H. Cook therein.”
As so modified the said judgment or decree is affirmed; the appellants to recover the costs of this appeal.
Henshaw, J., McFarland, J., Temple, J., Garoutte, J., and Harrison, J., concurred.
Rehearing denied.