Pearson v. Hanson
82 N.E. 813
Ill.
1907
Check Treatment
Mr. Justice Vickers

delivered the opinion of the court:

The court below held that the interest of the devisees under the will of Andrew Peterson was contingent on the devisees being alive at the periods of distribution, and that Harold having died before either of such periods was reached had no devisable interest, hence his mother took nothing under his will. Cases of a present vesting of title where the enjoyment in possession is postponed are often difficult to distinguish from cases where the title is.only to vest on some future contingency which may or may not happen. In determining this question the legally expressed intention of the testator as found within the four corners of the will must be the chart and guide of the court. That this great, fundamental rule may prevail and the property of the testator take the posthumous course intended by the owner other rules are made and unmade. One test given for the decision of the question is to consider the object of the testator in fixing upon a future period for the devisee to come into the enjoyment of the estate. If it appears that the controlling purpose was personal to the devisee then the estate will not vest until the time appointed, and is contingent upon the devisee being alive when the time designated is reached. The leading case in England on this subject is Leake v. Robinson, 2 Mer. 363, which is extensively quoted by this court in Howe v. Hodge, 152 Ill. 252, (see p. 275.) Many other cases may be found applying this test. The other branch of the rule is, that if the payment was postponed for the convenience of the property or fund then there is an immediate vesting of the title and the postponement merely respects the time of enjoyment, even though there be no other gift than the general direction to pay or distribute at the appointed time.

The distinction which we have above sought to point out will be made clear by a quotation from Scofield v. Olcott, 120 Ill. 362. On page 373 this court said: “But even though there be no other gift than in the direction to, pay or distribute in futuro, yet if such payment or distribution appear to be postponed for the convenience of the fund or property, as where the future gift is postponed to let in some other interest, for instance, if there is a prior gift for life or a bequest to trustees to pay debts, * * * the gift in remainder vests at once and will not be deferred until the period in question. But where the payment is deferred for reasons personal to the legatee the gift will not vest until the appointed time. (2 Jarman on Wills,—R. & T.’s ed.— 458; Theobald’s Law of Wills, 412.) Thus, a gift to a person if or when he shall attain a certain age will not vest until the age is attained. (Idem.) In other words, if'the reason for the postponement is the position of the fund, the bequest in remainder vests at once; but if it is the position of the legatee, the remainder is contingent.—In re Bennett’s Trusts, 3 Kay & J. 280.”

The case at bar was heard on the bill, answer and a stipulation. The stipulation recites that “Josephine Kay wood is a distracted person, and that Nina M. Pearson Olson is married and is deaf and dumb from birth.” The unfortunate condition of two of the devisees under the will is introduced for the purpose of supplying a basis for the claim that the testator, in postponing the period of enjoyment, did so out of considerations personal to the unfortunate devisees. These facts being in the record by agreement, no question is made as to the admissibility of circumstances outside the will itself to discover the intention of the testator. Conceding the right of the parties to have these extrinsic circumstances considered, we fail to see any force in them. There is no reason to suppose that the testator hoped, believed or anticipated that the condition of these devisees would be any different at the end of the ten or twenty years than at the date’of his death. Their incapacity to manage the estate, if it existed, was of a permanent character, and can afford no rational explanation why the testator fixed a future date for the enjoyment of the devise. Again, the testator limits the time of enjoyment of the other two devisees, as to whom this argument does not apply, to the same time and manner as to the two unfortunate ones. If any argument can be drawn from these extrinsic facts, it seems to us quite as reasonable to conclude that the unfortunate condition of these two devisees, and their inability to accumulate property and provide for themselves and their heirs, may have had some influence on the testator in leading him to Vest in them a portion of his estate absolutely. But we do not regard this matter as having any controlling weight either way. The law favors the vesting of estates, and in cases of doubt the construction will be adopted which leads to that result. An estate is vested when there is an immediate right of present enjoyment or a present fixed right of future enjoyment. It carries with it the seizin in law or in equity, according to the character of the estate, and talces • effect in interest and right immediately on the death of the testator, although it may not take effect in possession and enjoyment until the death of a life tenant or the termination of another particular estate. (Scofield v. Olcott, supra.) In the case at bar there is nothing dubious or uncertain about the devise. The testator has with unusual clearness expressed the purpose to give the residue of his estate to the four persons named, and it is specially provided in each clause referring to the distribution, that the share of any of the devisees who may die before the time appointed for the several distributions shall be paid to the legal heirs of such deceased devisee. The expressions used in the different clauses are not identical, but there is no indication that the testator meant to convey a different meaning by the slight changes to be found in the different clauses. In our opinion the testator intended to vest the title in fee in each of the devisees to an equal share of the residue of his estate, and the several clauses providing for the legal heirs to take in case any devisee should die, is only a further manifestation that the interest intended to pass was the absolute title and right, complete and perfect in all respects, except the enjoyment in possession was postponed for a limited but certain and fixed time.

It is said by the appellees that the devise here should be held to be a spendthrift trust. There is nothing in the will that has any resemblance to a spendthrift trust, and if there were, we know of no decision that has gone to the extent of holding that a testator can do more than to exempt the devise from- the rights of creditors of the devisee. That a devise can be made under the rule that will exempt the estate from the creditors of the devisee has been established in tins State ever since the case of Steib v. Whitehead, 111 Ill. 247, was decided; but to hold that a testator can devise an estate and at the same time exempt such estate from the law of devise and alienation, is to say that a testator can give and not give, in the same breath. Steib v. Whitehead, supra; Johnson v. Preston, 226 Ill. 447.

Our conclusion is that the estate vested in the devisee upon the death of the testator and that the estate was a devisable interest, hence under the will appellant succeeded to all the rights, title and interest of her deceased son, both as to the corpus and the income thereof.

The decree of the circuit court is reversed and the cause remanded, with directions to enter a decree in conformity with the views herein expressed.

Reversed and, remanded.

Cartwright and Scott, JJ., dissenting.