Richardson v. Paige

| Vt. | Jan 15, 1882

The opinion of the court was delivered by

Redfield, J.

The property in question has been attached by trustee process, by a creditor of Wilbur P. Paige, the principal debtor ; and the question is submitted, whether it be subject to such attachment.

Wilbur F. Paige derives his title to the property by the will of his father, which is expressed in the following words :

“ I give, &c., to my son Wilbur F. Paige, one equal undivided half of all the residue of my estate, both real and personal. To have and to hold to him the said Wilbur F. Paige, his heirs, executors, administrators and assigns forever ; subject, nevertheless, to the conditions and provisions following, which are hereby made for the contingent benefit of Alice Paige, wife of the said Wilbur F. Paige; to wit, in case the said Wilbur F. shall die leaving the said Alice surviving him, then, in that case, it is my will that said Alice shall have the use of the entire share, or legacy hereby bequeathed to him the said Wilbur F., or so much as shall remain on hand at the time of his decease ; and also the avails of so much thereof as shall have been converted into money, or other property ; and the same shall be held and enjoyed by the said Alice, and appropriated towards the necessary support, and maintenance of any child, or children of said Wilbur F. and Alice, if any such there shall be, so long, and so long only, as the said Alice shall remain the widow of the said Wilbur F. And at the decease of said Alice, or in the event she shall marry again, then, and in either event, *it is my will that said share, or so much as shall remain on hand, or the avails thereof, shall descend to, and vest in the legal heirs of the said Wilbur F. Paige, as herein before set forth.”

The bequest is the absolute and entire fee to Wilbur F., his heirs, executors, administrators and assigns forever, subject, nevertheless, to all the provisions made in the same instrument, for the contingent benefit of Alice.

In the great number and variety of adjudged cases that have come to our notice, the language of each bequest differs somewhat from that of others. But all the cases agree, that the intent of the testator is to be ascertained and followed, in giving construction to a will. And as was said by Lord Chancellor Erskine, in Hixon v. Oliver, 13 Ves. 111, “ this is a question of intention, which the court can get at only by the words of the will.”

It is to be noticed that the bequest to Wilbur F. is, in express language, made subject to the right and interest in the same property, and by the same instrument, bequeathed to his wife Alice ; and the counsel for the plaintiff rely solely upon the. language used by the testator in defining the bequest to Alice ; so that whatever estate is carved out of this property, for the benefit of Alice, is not, and cannot be, repugnant to, or inconsistent with, the bequest to Wilbur E.; for, that, by express words, is made subject to the provision, made in said will, “ for the contingent benefit of Alice.” A large portion of this instrument is occupied in carving out and limiting an estate, in this property, which the testator declares to be for the benefit of Alice ; yet the counsel for the plaintiff insist that such language is used, in describing the provision for the benefit of Alice, that the whole provision becomes nugatory, and without meaning and effect. It is a maxim of the law, that every separate and distinct provision of a written instrument is supposed by the maker to have a purpose and meaning ; and is to be construed, if possible, to give them all effect, ut res magis valeat quam pereat.

Judge Phelps, in Hibbard v. Hurlburt, 10 Vt. 178, wherein it was argued that two provisions in a will could not both subsist, and be enforced, says tersely, as was his habit: “ Of his intentions (of the testator), in this case to create both estates, there can be no doubt; and that intention must be effectuated, unless there be a legal impossibility that they should subsist together.”

Judge Redfield, Law of Wills, 2d, p. 278, in summing up says : “ It is a settled rule of American, as well as English law, that when the first devisee has the absolute right to' dispose of the property in his own, unlimited, discretion . . . any estate

over is void, as being inconsistent with the first gift.” But he admits, in his note to Ide v. Ide, 5 Mass. 500" court="Mass." date_filed="1809-10-15" href="https://app.midpage.ai/document/ide-v-ide-6403441?utm_source=webapp" opinion_id="6403441">5 Mass. 500, “ that a contingent executory devise may be limited upon a fee simple.” Such is the case of Brightman v. Brightman, 108 Mass. 238" court="Mass." date_filed="1871-10-15" href="https://app.midpage.ai/document/lawton-v-chase-6416621?utm_source=webapp" opinion_id="6416621">108 Mass. 238 ; Burleigh v. Clough, 52 N. H. 267 ; Williamson v. Daniel, 12 Wheat. 568" court="SCOTUS" date_filed="1827-03-16" href="https://app.midpage.ai/document/williamson-v-daniel-85548?utm_source=webapp" opinion_id="85548">12 Wheat. 568. “ The exclusion of the devise over depends upon whether the first taker has the absolute right to dispose of the property.” And Ch. J. Marshall, in Smith v. Bell, 6 Pet., 68" court="SCOTUS" date_filed="1832-02-18" href="https://app.midpage.ai/document/smith-t-v-bell-85765?utm_source=webapp" opinion_id="85765">6 Peters, 68, disregarded this rule, in order to give effect to all parts of the will, and carry out the intent of the testator.

Does this will give the absolute and unlimited disposal of the property at his discretion, to Wilbur F. ? Not so, as we have seen by the language of the bequest to him.

Is it to be inferred from the language defining the bequest to Alice ?

This language is general and comprehensive ; “ it is my will (in the event named) ' that said Alice shall have the use of the entire share, or legacy, hereby bequeathed to him, the said Wilbur F., or so much thereof as shall remain on hand, at the time of his decease ; and also the avails of so much thereof as shall have been converted into money or other property.” This provision for Alice must be “ effectuated,” to use the language of Judge Phelps, “ unless there be a legal impossibility that the two provisions should subsist together.”

The subject of the bequest is described “ as one equal undivided half of all the residue of my estate both real and personal.” It may well be supposed to consist of real estate, and the different kinds of personal property, and choses in action that may constitute property. Without any right of disposal of this property by Wilbur F. for his own benefit, it is possible, indeed most probable, that some of this property during the lifetime of Wilbur F. would perish by the using; some by fire or other casualty. And bonds, notes-, and other choses in action, would in course of administration, mature, and by foreclosure, or otherwise, change in form, if it continued to subsist as property.

The provision for Alice -in substance is that in case of the death of Wilbur F. leaving Alice a widow, the entire share or legacy shall go to Alice, so long as she should remain the widow of Wilbur F., both that that shall remain in specie, and the avails of all such- as in course of administration, may have changed in. form. By this construction of the language, there is no forced or unnatural use of language ; the intent of the testator is carried out, and the two provisions of the will subsist together in harmony. Wilbur F. was vested, by this will, with the fee simple with the right to the income and use during his life subject to a contingent life-estate in Alice, while she remained his widow.

The result is, the judgment of the County Court is reversed, and cause remanded that judgment may be entered according to the stipulation of the parties.