No. 55 | 4th Cir. | Feb 7, 1894
(after stating the facts as above.) The learned judge who heard this case in the circuit court was of the opinion that the second clause of this will created a perpetuity. On this ground he held that the will was void, and directed the executors to surrender the whole estate to the heir at law. Assuming that this is the legitimate construction of the second clause, let us examine the correctness of the conclusion drawn therefrom. We confine ourselves to the terms of the will proper. The- effect of the codicils will be noticed hereafter.
Where a previous disposition of property in a will is void by law, or becomes impossible, it does not follow that a subsequent disposition of it in the same will will fail, although it be expressly made to follow the void or impossible disposition. In Robison v. Orphan Asylum, 123 U. S. 703, 8 Sup. Ct. 327, the testator gave the income of his estate to his wife for her life. He then gave said income to his two sisters, or that one of them who should be living at the death of himself and of his wife, and he directed that at their death the income of the whole estate be divided into three equal parts, and be given to three several charitable societies. The two sisters died before the testator. The wife survived him, and claimed the whole estate, insisting that inasmuch as the provision for the sisters lapsed, the devise to the societies dependent on it failed also. The supreme court sustained the gift to the three societies.
In Avelyn v. Ward, 1 Ves. Sr. 420, testator devised his real estate to his brother and his heirs on the express condition that he should, within three months after testator’s death, execute a release of all demands on his estate, but if the brother should neg
In the case of Warren v. Rudall, 4 Kay & J. 603, a devise to a charity, which is void by law, with a gift over in the event that the inhabitants are not willing to carry out the scheme, Wood, V. Ch., sustained the devise over, notwithstanding that the devise to the charity was void by law. “I cannot,” said he, “see anj substantial distinction between the case of a devise to a nonentity, if the nonentity should die under 21, or, again, of a devise over after the death of a deceased person, if the deceased person should fail to do a certain act, and the case before me of a devise to a charity which cannot take, followed by a devise over in the event of that charity omitting' to perform a certain act.”
This case went into the house of lords, and is reported as Hall v. Warren, 9 H. L. Cas. 420. Lord Campbell, then chancellor, and Lords Cransworth, Wensleydale, and Kingsdown all concur in sustaining the devise over, notwithstanding that the first devise was void by law.
In Cambridge v. Rous, 25 Beav. 414, (Sir John Bomilly, master of the rolls,) there was a gift of property to trustees to invest and pay the yearly dividends to ¡he sister of testatrix during her life, and at her death to divide the said property equally among her sister’s children when they should severally and respectively attain the age of 27 years. If the sister died not leaving any child or children at the time of her death, or in case of the death of all the children under 27, the will gave the whole property to certain relations of testatrix. Held, notwithstanding that the provision for the children was too remote, the devise over was good, the sister having died withou t children.
In Monypenny v. Dering, 2 De Gex, M. & G. 145, before St. Leonards, Ld. Ch., (devise in trust for A. for life, and after bis decease in trust for his,first son for life, and after the death of such first son in trust for the first son of the body of such first son and the heirs male of his body, and in default of such issue in trust for all and every other son and sons of the body of A., severally and successively, according to seniority, for like interests and limitations, as hereinbefore directed respecting the first son and his issue, and in default of issue of the body of A., or in case of his not leaving any at his decease, In trust for B.,) the learned chancellor held that the limitation lo I he unborn son of an unborn son of A. was void, but that the devine lo B. was good in the alternative event, which happened, of A. not leaving any issue at his death. In the fifth edition of Jarman wi Wills, by
The supreme court of Massachusetts, in Jackson v. Phillips, 14 Allen, 572, lay down the.same rule. The court says:
“The general rule is that if any estate, legal or equitable, is given by deed or will to- any person in the first instance, and then over to another person, or even to a public charity, upon the happening of a contingency which may by possibility not take place within a life or lives in being and twenty-one years afterwards, the gift is void, as tending to create a perpetuity. * * * If, therefore, ,the gift be limited upon a single event, which may or may not happen within the prescribed period, it is void, and cannot be made good by the actual happening of the event within that period; but if the testator distinctly makes his gift over to depend upon what is sometimes called an alternative contingency, or uiion either of two contingencies, one of which may be too remote and the other cannot be, its validity depends on the event. Or, in other words, if he gives his estate over on ouo contingency, which must happen, if at all, within the limit of the rule, and that contingency does happen, the validity of the distinct gift over will not be affected by the consideration that, upon a different contingency, which might or might not happen within the lawful limit, he makes a disposition of his estate which would be void for remoteness. The authorities on this point are conclusive.”
. The case of Armstrong v. Armstrong, 14 B. Mon. 333, sustains the same position.
Jarman states the principle and draws the distinction. “Where the gift over is to arise on an alternative event, one branch of which is within, and the other is not within, the prescribed limits, so that the gift over will be valid or not according to the event,” (1 Bigelow, Jarm. Wills, [5th Ed.] p. 285;) or, as it is put in the Massachusetts case above cited, if the gift over be upon an alternative contingency, if one of the alternatives be not too remote, and the event transpires, so as to make the gift over available if deemed valid,, such gift will be supported, notwithstanding the fact that the other alternative is too remote,” (Jackson v. Phillips, supra.)
If we examine the language of this will we will find that the testator disposes of his estate upon an alternative contingency. Grieved by the unfilial conduct of his son, the testator gives him by the will proper no interest in his property which would be subject to his disposition. He creates in him no particular estate with a limitation over; consequently, if that limitation be too remote, no absolute estate can vest in him as the first taker. He leaves him subject to the discretion of, and at the mercy of, his executors and trustees. Turning from him, he gives the fee in his realty and the absolute estate in his personalty to these trustees, so that the whole property may be kept together and preserved until his ultimate wishes regarding it shall have been accomplished.' The burden of the trusts remains on them, and their heirs and representatives, until the happening of one or the other of two events. He selects as the object# of his bounty: First. The children of his son, should such children come into being. “If my said son should have any lawful children, my property shall be equally divided” between them, etc. Second. “In case my said son shall die without lawful issue,” he provides for
"T£ the gift in question can be read as a gift in the alternative, that in case there is no issue living at the death of the brother, the estate is to go over, then effect may be given to it, consistently with Beard v. Westcott, 5 Taunt. 393, Turn. & R. 25, and every oilier authority. because the estate over would not be carried under the limitation at the expense of any person whom the testator intended to- tafee, and no- objection on this ground could consistently be raised.”
We are of the opinion (hill: the decree of 21st January, 1885, was premature because, at that time, the son being alive, non constat
“Neither James Jackson nor Mrs. Palmer is entitled to a present equitable estate in fee. But as James, though now unmarried, may marry and have children who survive him, and as Mrs. Palmer’s children may survive her. —in either of which cases half of the income of the share would, by the will, go to such children during their lives, and the bequest over to the charity be too remote, — the validity and effect of that bequest cannot now be determined.- If the contingency upon which it is valid should hereafter occur, —namely, the death of testator’s son and daughter, respectively, leaving no children, — the whole remainder of the share will then go to the charity.”
This course should have been followed here. We are also of the opinion that the decree sustaining the demurrer to the bill of review is erroneous, in that the third clause of the will presents an alternative event, and can go into operation even if the second clause be void; and that the testator did not die wholly intestate.
The testator, in Codicil USTo. 2 of his will, revoked the provision, made in the third paragraph of his will, of one-fourth of the residue to the children of Sophia Choen, and of another fourth to the children of John Heisner. These are fourths of the residue of his estate, after a comfortable support for the widow of his son .during her widowhood is secured. Subject to this charge, these two-fourths have been undisposed of by the testator, and to that extent went to the son as heir at law.
The decree is reversed, and the case is remanded for such other proceedings as may be proper and consistent with this opinion.