25 Colo. App. 231 | Colo. Ct. App. | 1913
delivered the opinion of the court.
This "case presents for' determination the .contest of a written instrument' purporting to he, and presented for prohate as,-the last will and testament of• David F: Miller,' .who .’died in Canon City in December; 1906; -Miller whs
I.
When the case was called for trial in the district court May 22,1911, appellant for the first time interposed a motion for change of venue to the City and County of Denver. This motion was based upon the grounds (1) that Park county was not the proper county for probate of the will, because, as it was alleged, the testator at the time of his death was a resident of Denver, and that the greater part of his personal estate was kept and found in the City and County of Denver; (2) that the contestant could not have a fair trial in the county of Park, because of the interest of the district judge of said county in the subject matter of the litigation, and of his undue influence tending to prejudice the people of the county against contestant; (3) of convenience of witnesses. This motion was overruled, and error is assigned thereon and urgently insisted upon, both in the written briefs and oral argument.
The provisions of two statutes are involved in this motion, vis., sections 7900 and 8043, Mills’ Ann. Stats. 1912 (7102 and 7254, Rev. Stats. 1908).
•. “The administration of all estates of persons dying testate or intestate, and of all minors and persons mentally incompetent, shall be had in the county court of the county of the last Imown residence of such testator, intestate, minor or mental incompetent, or if he had no residence in this state, then in the county court of the county wherein his personal estate or the greater part thereof may be found, but if he left no personal estate, then in the county court of the county wherein his real estate, or the greater part thereof, is situated.” * * * —rSection 7900, Mills’ Ann. Stats. 1912; 7102, Rev. Stats. Í908.
Appellant’s motion was supported by his affidavit, that all of the personal effects of the testator at the time of his decease were, and for a long time prior thereto had been, in the City and County of Denver, except a few things that he had left on a ranch in Park county, “and that he had taken up his home in said City and County of Denver.” This affidavit was not ¡disputed by any counter-affidavit offered directly for that purpose. Appellant’s contention is that the provisions of section 7900, that the administration of all estates of persons dying testate or intestate shall be had in the county court of the county of the last known residence of such testator or intestate, are mandatory, and cannot be waived; that, therefore, on the filing of the motion and affidavit aforesaid demanding a change of venue, the district court was
Furthermore, we think, and hold, that the jurisdiction of the county court in probate matters, depending upon the residence of the testator or intestate, is one that may be waived by the heirs of intestate, or the heirs and beneficiaries named in the will of testate estates, and that the question of such jurisdiction was waived by the appellant. The administration of this estate had been pending in the county court for more than two years after appellant filed his amended caveat, which constituted his
II.
Counsel for appellant denies the right and authority of the trial judge to direct a verdict in a case involving the validity of a will. This point has been determined adversely to the contention of appellant in Snodgrass v. Smith, 42 Colo., 60, 62, 94 Pac., 312, 15 Ann. Cas., 548, in which our supreme court expressly ruled that the court has the 'same power in will contests to direct a verdict as in ordinary civil eases; and that, whether a court, in directing the jury to return the verdict, commits error is to be determined by the rules applicable in ordinary civil cases. See also, In re Shell’s Estate, 28 Colo., 167, 63 Pac., 413, 53 L. R. A., 387, 89 Am. St. Rep., 181; Butcher v. Butcher, 21 Colo. App., 416, 122 Pac., 397; In re Carey’s Estate (Sup.), 136 Pac., 1175. We discover no-evidence in the record to support the allegations of the caveat that testator was not of sound and disposing mind when he executed his will, and there is no evidence whatever that
.III.
The last contention made by appellant is that, upon its face, the will violates the rule against perpetuities, and is therefore against public policy and void. In the printed briefs, as well as upon oral argument, this question was urged as the most important of any, and decisive of the contest; but in our opinion the point raised, on which the offense against the rule is predicated, as applied to the will in this case, is highly technical — abstract and academic rather than substantial, because, whatever may be the decision upon that point, the will may be sustained. TIis contention is based upon the rule against perpetuities in force in this state, which prohibits the suspension of the fee to real estate, or of the vesting of title to personalty, for a longer period than that of designated lives in being at the time of the death of the testator, and twenty-one years and nine months thereafter; or, as the rule is sometimes expressed,' “No interest is good unless it must vest, if at all, not later than twenty-one years and a fraction after some life in being at the creation of the interest. ’ ’ — Gray on Eule Against Perpetuities, 201. The will, after providing for payment of the funeral expenses and debts, bequeathed the entire estate, by words of pres
“I hereby constitute William E. Weston and I. S. Smith of Fairplay, Colorado, and either of them, should the other be dead or refuse to act, executors of this will and trustees of my property,- real and personal, and all right and credits, to whom, on the admission of this mil to probate, the title and ownership of my said property rights and credits shall go, in trust, however, for the realization of said rights and credits and the conversion into money of said real estate and personal property according to their best ability and judgment under the supervision of the court of probate, and for the distribution of all the proceeds, after first paying my funeral expenses and my debts as above directed as well as all expenses of administration, including full compensation to ■my said executors as next hereinafter stated.”
In Chilcott v. Hart, 23 Colo., 40, 45 Pac., 391, 35 L. R. A., 41, Mr. Justice Campbell discusses in a most scholarly manner the law, ancient and modern, pertaining to perpetuities, and the permissible construction of a will so as to give it force and effect when it consists of parts
As in that case, this is an action to overthrow the will. Counsel for appellant insists that the will is' void because (a) of the clause in the paragraph quoted and italicized, to-wit, “to whom, on the admission of this ivill to probate, the title and ownership of my said property rights and credits shall go, ’ ’ etc., which he insists makes the time of the vesting of the estate in the executors as trustees indefinite, and (b) the vesting of the title of any legatee or beneficiary under the will is left to the uncontrolled judgment of the trustees. It is said that neither the vesting of the title primarily in the trustees, nor ultimately in the beneficiaries, must happen within twenty-one years and a fraction after some'life or lives in being, and that the bare possibility that the estate may not vest within that time makes, not only the clause, but the entire will, void; in support of which appellant cites Gray on Perpetuities (2nd ed.), sec. 201; Johnson v. Preston, 226 Ill., 447, 80 N. E., 1001, 10 L. R. A. (N. S.), 564; Tilden v. Green, 130 N. Y., 29, 28 N. E., 880, 14 L. R. A., 33, 27 Am. St., 487, and other cases. The case of Johnson v. Preston is chiefly relied on because of the use of the words contained in the will there under discussion, to-wit:
“I give and devise to my executor hereinafter named, in trust, for the purpose and for the time hereinafter mentioned * * * my farm * * * to have and to hold for. the space of twenty-five years from and after the date of the probate of this ivill * * * with no power of sale, conveyance or alienation of said land during said twenty-five years by said trustee * * * ,” and the holding of the court that because of the language quoted, the trust estate attempted to be vested in the executor offended the rule against perpetuities, and was therefore void. The striking similarity in the two phrases
/ The words of the will that “on the admission of this will to probate, the title and ownership of my said property rights and credits shall go” to the trustee, have no other or different meaning than the language of the statute last quoted, in substance, that upon the admission of the will to probate and record, it shall be good, and available in law for the granting, conveying and assuring the property thereby granted, devised and bequeathed. Read together, it is evident that the intention of the testator was to conform to the provisions of this statute. If the will violates the rule against perpetuities, it does so by making the precise provision that the statute makes for every will. Under no circumstances or wording of the will could the estate vest in the trustee before the admission of the will to probate. — New York Life Ins. Co. v. Brown, 32 Colo., 365, 376, 76 Pac., 799.
Moreover, under said statutes and others mandatory in terms, requiring the presentation of wills for probate within ten days (sec. 7800, Mills’ Ann. Stats.), and the commencement by the executors of proceedings to cause such will to be proven within thirty days (sec. 7900, Mills’ Ann. Stats.) “enforced by the sanction of compulsion,”
We are reluctant, to the point of unwillingness, to follow Johnson v. Preston, supra, as a precedent, if the effect of adopting the construction there given would be to defeat the will now under consideration in toto; but if we concede that the words i£to whom, on the admission of this will to probate, the title and ownership of my said property rights and credits shall go in trust” offends the rule against perpetuities, and defeats the trust estate attempted by said clause to be vested in the trustees, nevertheless, we think a valid power in trust to sell, convert and distribute was created, and the will as a whole may be sustained with the offending phrase, clause or provision eliminated or disregarded, and that it may be stricken out. The general rule is that where certain items in a will are valid and others are invalid, unless the valid portions are so inseparably connected with the other parts of the will that if stricken therefrom' the general scheme of the testator will be defeated, the will as a whole should not be considered void. — Chilcott v. Hart, supra; Tilden v. Green, supra; Johnson v. Preston, supra; Henderson v. Henderson, 113 N. Y., 1, 20 N. E., 814. In Tilden v. Green, the principle has been thus expressed:
“If several trusts are created by will which are independent of each other, and each complete in itself,.*249 some of which are lawful and others unlawful, and which may be separated from each other, the illegal parts, although void, may be cut off and the legal ones permitted to stand.”
In CMlcott v. Hart, supra, at page 50, it was said:
“If, however, we should agree with appellants that each one of these items is incapable of enforcement, and therefore void for uncertainty, we are clearly of the opinion that all of them might be stricken from the will without impairing its integrity as' a whole, or without affecting the general scheme of the testamentary disposition, or interfering with or defeating the evident general intent of the testator. — 2 Schouler, part 6, chap. 1.”
Keeping in mind these general rules, an examination of this will discloses that the primary object of the testator was that all his property of every kind and character should be converted into cash immediately after his death, or as soon thereafter as the property could be sold without undue sacrifice, and without the delay or expense incident to sales under the usual processes required by the statute in intestate estates, and that the proceeds of such sale should be paid to the several beneficiaries named in .the will, to each of whom, including the contestant, he made a bequest of a fixed amount, by words of present gift; with such object in view, he gave his executors, full power to sell said property to the best of their ability and judgment, without the interposition of the court, and, as incidental arid subordinate to the power to sell, attempted to vest the title in such executors as trustees, provision being made for the residuary estate if there should be an excess, and for ratable diminution' if there should be an insufficiency to meet the specific legacies.
We conclude that the intention of the testator was to vest in his executors a power to sell or otherwise convert the property into money, make payment of debts
In tbe case of Johnson v. Preston, relied upon by appellant to avoid this will, tbe court, after bolding tbe trust estate void, and striking from tbe will or disregarding all portions thereof containing tbe void trust clause, nevertheless gave tbe will full effect, saying:
“If tbe trust should be upheld and given effect, the ultimate result would not be different from what it would be with tbe trust eliminated. ’ ’
Tbe same may be said in this case. It cannot be said tbat tbe interests of tbe beneficiaries are so interdependent with or upon tbe estate attempted to be given ' to tbe trustees tbat if their devise in trust fails it must pull tbe estate of tbe beneficiaries down with it.
IV.
Neither under tbe trust nor under tbe power is tbe vesting of title in tbe beneficiaries left to tbe uncontrolled
Other assignments of error have not been overlooked. The judgment will be affirmed.