115 P. 296 | Or. | 1911
Dissenting Opinion
dissenting.
It is maintained by plaintiff’s counsel that the will gave to their client an estate in fee in the premises; that the codicil does not clearly evince an intention to abridge such absolute interest; that the condition stated therein, associated with the contingency of dying “without lawful issue born alive and living at the time of his death,” does not mean the end of plaintiff’s life at any time, but his decease prior to that of the testator, or before a partition of the real property. It is insisted by the defendants’ counsel, however, that the clause in the codicil, “in
An irreconcilable conflict of judicial utterance exists as to the occurrence of a possible uncertain incident such as is referred to in the third clause of the codicil. In speaking of a similar testamentary direction, a text-writer says:
“The general rule is that, where the contest is silent, the words referring to the death of the prior legatee, in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator.” 2 Jarman, Wills (6 ed.) 719.
See, also, Rood, Wills, § 653. Another author, referring to the same subject, observes:
“The intention of testator that dying without issue may mean a death after the death of testator may also be inferred from other provisions in the will. Thus, a provision that, in case of the death of the beneficiary without issue, her share shall revert to the estate of testator, shows that he contemplates her death without issue after his own. So a provision that certain lands shall pass to testator’s sons after the death of testator’s widow, provided that if either dies without issue his estate shall pass to another, shows that the death without issue meant a death after that of testator.” Page, Wills, 798.
In the excerpt last quoted it will be observed from the allusion to a testator’s “estate,” which means the property he might leave at his death, and from the reference to a testator’s “widow” which necessarily signifies her expected survivorship, the intention is deduced that the contingency specified is supposed to occur after the testator’s death. In the case at bar it will be remembered that the codicil declares that, if plaintiff die without lawful issue him surviving, “then the said devise or legacy to
A devise of real property is deemed to be a gift of all the testator’s estate in the premises subject to his distribution, “unless it clearly appears from the will that he intended to devise a less estate or interest.” Section 7344, L. O. L.
“All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true interests (intent) and meaning of the testator in all matters brought before them.” Section 7347, L. O. L.
*104 “This rule we apply in the present case with the less hesitation, for the reason that the settlement bears upon its face the most palpable marks that it was drawn by a person who was not only entirely ignorant of legal forms, but incapable of expressing his meaning with clearness and precision.”
In the case at bar the testimony shows that the codicil was written by a person evidently unable to express in proper legal form the testator’s directions. If the third clause of the supplemental testament transferred an estate in fee to plaintiff, his wife has an inchoate right of dower in the premises, which interest, if she survives him, will become a life estate of an undivided one-half unless she is lawfully barred thereof. Section 7286, L. O. L. If the absolute estate to her husband were not cut down by the codicil, she could incumber the land by incurring expenses for the support of the family (Section 7039, L. O. L.), thereby endangering all the real property, except the homestead, to sale on execution (Section 221, L. O. L.). The plaintiff could also convey the premises to her in fee. Section 7036, L. O. L. The possible consequences suggested could be partially thwarted by construing the gift to plaintiff “for his sole and separate use, independent of his wife at all times,” as manifesting an intention on the part of the testator to bestow a life estate only. As all property of the judgment debtor, except the homestead, is liable to execution (Section 227, L. O. L.), it follows that, if plaintiff acquired a life estate in the real property, such interest might be subjected to all the incidents indicated, except dower, so that, in all other particulars, the attempt to restrict the rights of plaintiff’s wife was almost unavailing. The codicil makes no arrangement for plaintiff’s lawful issue in case they survive him; but, if he took a fee in the land, no provision to that effect was essential.
The limitation over is not indefinite, but takes effect at plaintiff’s death without lawful issue him surviving. 17 Am. & Eng. Enc. Law (2 ed.) 564. If he took a fee in the lands, such interest would formerly be reduced by the limitation over, upon a definite failure of issue, to an estate in fee tail. Hill v. Hill, 71 Pa. 173 (15 Am. Rep. 545). It has been suggested, however, that the statutes of this State, permitting alienation of whatever interest a grantor has in real property, impliedly repealed the statute de donis, which ancient enactment converted estates in fee simple conditional into estates in fee tail: Rowland v. Warren, 10 Or. 129.
It is argued by plaintiff’s counsel that the third clause of the codicil is so different from the first and second, which were employed by the testator to cut down the fee-simple estate given by the will to Mary C. Stafford and Fred D. Love, that a purpose is disclosed to devise to Green C. Love more than a life estate. A comparison of the first and second clauses with the third will show that the differences observable are in the phrases “that at her death” and “that at his death” in the former, and “that in case of his death” in the latter, to which contingency is added the condition, “without lawful issue, born alive and living at the time of his death, then the said devise or legacy to him shall belong and go to the remaining devisees of my said will in proportion as they hold of the shares or parts of my said will.”
No attempt will be made to reconcile the conflicting decisions or to determine the weight of authority upon the question of death of a devisee in connection with some collateral fact, supposed to happen either before or after the death of a testator, but the decision of this cause will be placed on what is believed to be the purpose of Lewis Love respecting the objects and the extent of his bounty.
If, after giving a fee to plaintiff, the will had also included the third clause of the codicil, it is possible that a presumption might be invoked that the condition of dying without living issue would be construed to mean the death of plaintiff before that of the testator, so that on the happening of the latter event the absolute estate would have become vested in Green C. Love of which
“It was always my purpose to distribute my property equally between my several children and to the heirs of those of my children who had died, leaving children or grandchildren.”
Though neither of these great-grandchildren is named in the will or codicil, nor is any provision expressly made for them, we think it is fairly disclosed from the context of the codicil that, if either were living when plaintiff died, such survivor or survivors would take the real property or a part thereof in fee by implication.
This conclusion, in our opinion, upholds the testator’s intention as gathered from the will and codicil when viewed in their entireties where necessary, and considering the supplemental testament as a last will which revokes the prior will in so far as it conflicts therewith. If Lewis Love had designed that the remaining devisees should take as remaindermen, on the termination of plain
It follows from these considerations that the decree is reversed, and the suit dismissed.
Reversed: Suit Dismissed.
Dissenting Opinion
delivered the following dissenting opinion.
I dissent from the opinion of the majority of the court in this case. All agree that except for the codicil Green C. Love takes an estate in fee simple. Unless defeated by the supplementary testament, that estate continues. As to Mrs. Stafford and Fred D. Love, the testator left no doubts.. No uncertainty is annexed to the certain event of the death of either of them. At their death, whenever that comes, there is the remainder to their children. But, as affecting the course of descent in the case of Green C. Love, the certain event of his death is turned into an uncertainty by the annexation of the condition that it shall be “without lawful issue born alive and living at the time of his death.” These words should be considered only as a qualification in favor of the remaining devisees .of the will, for they would have precisely the same potency in construing that document if Green C. Love had never married. We cannot say as a matter of law that the possibility of issue born alive to Green C. Love by his present wife is extinct. If such a child should be born and should outlive its father but die without issue before its mother, she would inherit from it.
The problem, then, is to work out a solution of the uncertainty annexed to the certainty of the death of Green C. Love by the words, “lawful issue born alive and living at the time of his death.” The context is not silent here, but will aid in solving the problem. The will in question is something more than a mere direction of how the estate shall be distributed, leaving that to be effected as to time automatically, so to speak, by the operations of the probate court. The instrument goes further and creates a trust, appoints trustees, passes the estate to them, and fixes a time certain when their stewardship shall be terminated. To “pass” means, in this connection, to devise. Gant v. Henly, 64 Mo. 162; Young v. Boardman, 97 Mo. 181, 185 (10 S. W. 48); Joyslin’s Estate, 76 Vt. 88 (56 Atl. 281). If this same word “pass” were used alone in a will made directly in favor of any one, it would operate the same as if the word “devise” itself were employed. The estate being devised to the trustees, the centui que trustent take, not immediately from the testator, but from the trustees, and must
“I direct that my trustees make final distribution of my estate on January 1, 1907.”
It was not the intention of the testator to prolong the matter indefinitely. Attention must be given to the word “final.” It means a termination and signifies the last beyond which there can be no other. The trustees are required not only to divide, but also to distribute, the property. This depends for fulfillment, not upon some death other than that of the testator, certain enough as to event though uncertain as to date, but upon the time appointed by the will. It is said by appellants’ counsel that death alone is no contingency, and that, if the first taker lives beyond the testator, he takes an absolute estate; but, if the death of the taker is coupled with any other contingency, such death means his decease at any time, whether before or. after that of the testator. In this case, however, the intervention of the trust estate and the requirement that it come to an end January 1, 1907, operate to fix the time of distribution, making the word “then” in the third clause of the codicil correspond to that date and designating the then living Green C. Love as the devisee rather than the “remaining devisees.” The date appointed for final distribution establishes for the contingency of his dying without issue a boundary beyond which it can have no effect. The testator, through his trustees, disposed of all his property to named devisees without prescribing that, in case of the death of either, the descendants of such a one should take that share by right of representation. On the contrary, he says that, if Green C. Love die without issue, his share shall pass to the remaining devisees — that is, to those devisees then surviving — not per capita, but in proportion as they hold the shares he has designated.
In brief, the will gave Green C. Love a fee-simple estate. The codicil did not supersede it but only appended the contingency of his death without then living issue. The contingency itself was limited by the appointment of January 1, 1907, as the date of final distribution. The fortuitous events did not occur within the period prescribed for its potency and cannot now or ever disturb the absolute estate to which it was annexed. At best the case falls within the principle that, where an absolute fee is once clearly devised, it cannot be afterward limited or taken away except by equally explicit language. It is true we must have regard to the intention of the testator, but it must be ascertained by a judicial examination of what he has written. Under any view of the case most favorable to the defendants, the obscurity of language in the third clause of the codicil is in such strong contrast to the clear diction of the original will conferring on the plaintiff “the highest estate a man hath in lands” that for this reason, if for no other, the decree of the circuit court should be affirmed. 1 Redfield, Wills, c. 9, §30; Holt v. Wilson, 82 Kan. 268 (108 Pac. 87); McNutt v. McComb, 61 Kan. 25 (58 Pac. 965); Lonmuller v. Mosher, 74 Kan. 751 (87 Pac. 1140); Byrnes v. Stilwell 103 N. Y. 453 (9 N. E. 241: 57 Am. Rep. 760); Wasbon v. Cope, 144 N. Y. 287 (39 N. E. 388); Fowler v. Duhume, 143 Ind. 248 (42 N. E. 623); Lambe v. Drayton, 182 Ill. 110 (55 N. E. 189); Meyer v. Weiler, 121 Iowa 51 (95 N. W. 254); Brewster v. Douglas (Iowa), 80 N. W. 304; Roth v. Rauchenbusch, 173 Mo. 582 (73 S. W. 664: 61 L. R. A. 455); Spencer v. Scovel, 70 Neb.
Lead Opinion
delivered the opinion of the court.