85 Neb. 337 | Neb. | 1909
This is an action to quiet in plaintiff title to an undivided one-half of certain real estate in the city of Lincoln. John Barrett, the litigants’ parent, died testate' seized of
“I give and bequeath to my beloved daughter, Mary Katherine McManaman, ‘ the sum of fifteen hundred ($1,500) dollars. In case of the death of Mary Katherine McManaman, the money above bequeathed to her shall be paid to her children in equal amount.
“I give and bequeath to my daughter, Alice Bridget Schneider, the sum of five ($5) dollars.
“I give and bequeath to my beloved son, John N. Barrett, all property of which I shall die siezed or possessed, whether real, personal or mixed, not hereinbefore bequeathed, that is to say, after the payment of said sum of fifteen hundred ($1,500) dollars to my daughter Mary Katherine McManaman, and said sum of five ($5) dollars to my daughter Alice Bridget Schneider, all of the remainder of my property of every description I give and bequeath to my son John N. Barrett, to have and to hold forever. In event of the death of John N. Barrett without lawful issue born, the property herein bequeathed to him shall immediately become the property of my daughter Mary Katherine McManaman.”
Subsequently John M. Barrett, who is referred to in his father’s will as John N. Barrett, died testate, unmarried, and without issue born, and his will has been duly probated. In his will, after making some minor bequests, he devised the residue of his estate in equal shares to his sisters, the litigants herein. If the elder Barrett’s will vested his son with title in fee simple to the real estate, plaintiff should prevail, and the decree of the district court should be affirmed. On the other hand, if John M. Barrett’s title was defeasable upon his death without issue born, defendant is entitled to a decree in her favor. Section 121, ch. 23, Comp. St. 1909, provides: “Every devise of land, in any will hereafter made, shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly
We are called upon “to sit in the seat of the testator” and construe his will, yet the litigants are content to submit their case upon the will and a statement that the senior Barrett was a widower at the time he executed his will and so continued until he died; that the litigants and John M. Barrett constituted the sole and only heirs at law of their father, and that John M. Barrett died childless and unmarried. The subject of executory devises has not received extensive consideration in this court. In Little v. Giles, 25 Neb. 313, it was held that a devise of real estate to a widow, with a power to sell and convey so long as she did not remarry, vested her during widowhood with the power to convey the real estate and transfer title in fee simple. The will in the cited case provided that all of the estate bequeathed, “or whatever may remain” at the remarriage of the first taker, should go to the testator’s children. All of the real estate devised was sold and conveyed by the widow before her second marriage, so that the court did not determine whether the devise over would be valid in any event. In Spencer v. Scovil, 70 Neb. 87, it was held that a devise in fee simple cannot be cut down by a subsequent clause in the will purporting'
If an examination and comparison of all of the parts of the will satisfies the reason that the testator vested the primary devisee with a title in fee simple and thereafter attempted to control that title upon certain contingencies, then the rule of law intervenes and renders nugatory the devise over. Loosing v. Loosing, ante, p. 66. The rule is reasonable and well calculated to advance the administration of justice. It must be admitted that the devise of real estate to the testator’s son “to have and to hold forever,” considered in the light of the statute, is sufficient to vest the devisee with all of the interest the testator possessed in the property referred to. Does the subsequent clause, “in the event of the death of John N. Barrett without lawful issue born, the property herein bequeathed to him shall immediately become the property of my daughter,” etc., clearly indicate that the testator devised to his son less than an estate in fee simple, and do those words create a devise over to the defendant? A devise to one in fee, and in the event of his death to another in fee, refers to death during the testator’s life, because the event cannot be said to be contingent, and it seems more compatible with reason to say that the testator by the use of the words was providing a substitute for the first taker, should that devisee not survive the testator. When, however, the death of the first taker is coupled with other circumstances which may or may not ever occur, a devise over has been upheld by many eminent courts. Pells v. Brown, 3 Cro. (James, Eng.) 590; O’Mahoney v. Burdett,
In the instant case the testator has indicated by bequeathing to plaintiff but $5 that, for some reason best known to himself and not in any manner reflected from the evidence, he did not desire her to receive any substantial part of his estate. By stating that, “in the event of the death of John N. Barrett without lawful issue born, the property herein bequeathed to him shall immediately become the property of my daughter Mary,” it seems plain to us that the testator did not contemplate that his son would predecease him. The estate could not vest “immediately” in the daughter unless the son survived the father. We therefore hold that the will refers to the son’s death without issue subsequent to the father’s dissolution. It is conceded that issue was never born to the son, so
Considerable space is given in the brief, and an instructive argument was presented at the bar, to sustain the proposition that the reference in the will to death without
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.