24 Minn. 180 | Minn. | 1877
This is an action to set aside a conveyance of real estate made by the defendant Officer to the defendant Cook, and a mortgage made by Cook to the defendant Griggs; to have the provisions of a will construed, so far as they relate to real estate; and the title to the real estate adjudged to be in the plaintiffs other than Mary L., subject to her dower, and in the defendant Emma Kelsey.
The plaintiff Mary L. is the widow, and the other plaintiffs •and the said Emma Kelsey are the children of James W. Simpson, deceased. The latter died in May, 1870, seized of «certain real estate, among it part of block 16, in the town of St. Paul, and leaving a will, the construction of which is sought in this action. The will, as originally drawn, nominated the defendant Officer as executor. It expressed a desire that the widow and children should continue to occupy the then homestead, situated on part of block 16, until a permanent homestead should be purchased as therein provided. The
The testator afterwards added a codicil to the will, in these words: “I hereby nominate and appoint John B. Cook, of the city of St. Paul, as a co-executor of said will, and desire that the said Harvey Officer and John B. Cook may be appointed as executors of the said last will and testament.” At the time of the testator’s death five of his children were minors. The will was proved and allowed by the probate court of. Bamsey county, and the two executors named, qualified, and letters testamentary issued to them. October 12, 1870, the probate court made an order discharging Cook as executor, which recites that it is made upon his resignation, and after a faithful discharge of his duties as executor. In April, 1871, Officer, as sole executor, conveyed to Cook a part of the real estate in block sixteen, upon a sale-made in good faith, for full value, and in all respects just and fair, and for the best interests of the estate.
The plaintiffs claim that this will -is void as to the real estate, because it suspends the power of alienation for a period longer than that allowed by statute. The statute, sections 14 and 15, c. 45, Gen. St., reads: “Section 14. Every future estate is void in its creation, which suspends the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended where there are no persons in being by whom an absolute fee in possession can be conveyed.” “Section 15. The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.” The case mentioned in section 16 is that of a contingent remainder in fee limited on a prior remainder in fee, and the exception has no application to this case.
Is the suspension for a longer period than is allowed by the statute ? The common law rule applicable to executory devises was that the contingencies ought to be such as may happen within a reasonable time; as, within one or more life or lives in being, or within a moderate term of years. The ■utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is that of a life or lives in being, and one and twenty years after-wards. 2 Bl. Com. 173. In this respect the statute has abolished the distinction existing at common law between the different kinds of future estates, and, except in the case mentioned in section 16, applies to all the common law rule applicable to executory devises; reducing, however, the number of lives to two, and cutting off any additional suspense. Its provisions were taken from the statutes of New York. Those statutes have received from the courts of that state very thorough examination and decision. This result has been arrived at — and, indeed, no other was possible, within the terms of the statute — that there can be no valid suspension of the ,power of alienation except where the period during which it imay continue is defined with reference to the continuance of jnot more than two lives in being at the time when the suspension commences. It follows from this that there can be no jsuspension for a fixed time; for such term, however short, [may extend beyond the continuance of lives. It may be made
In this case there were, at the testator’s death, five minor children, and if the will, properly construed, provides for the suspension to continue during all of the minorities, so that it would not cease until all the minors became of age or died, it’ would» certainly be for a period longer than that allowed by the statute. The expression in the will is, “until the youngest child shall become of lawful age, ” which is equivalent to the
On the part of the defendants it is claimed that it means the youngest child living at the death of the testator; and, if that be so, the suspension is to cease with the coming of age, or death, if it happen sooner, of that one child, and it depends on only one minority. The validity of the limitation, then,, depends upon which of these two meanings shall be attributed to the expression which we have cited. The most natural meaning to give to it is, that the testator referred to one child who might be known at the time the will took effect; that is, the one who should answer the description, “youngest child, at that date. A general rule for the construction of contracts, and it is peculiarly applicable to wills, is that the construction shall be favorable, so that the agreement may, if possible, be supported; and if the words be susceptible of two senses— one agreeable to, the other against law — the former sense shall be adopted. 1 Chitty on Con. (11th Am. Ed.) 111, 112; Du Bois v. Ray, 35 N. Y. 162; Butler v. Butler, 3 Barb. Ch. 304; Burke v. Valentine, 52 Barb. 412, 425. In the last two cases the same form of words as those we are considering occurred in wills; and the validity of the limitations depended on whether, in the one case, by “youngest child,” and in the other, “eldest child,” the testator meant the youngest or eldest child living at the time the will went into effect, or the young- ' est or eldest who should live to majority; and to sustain the will, the court, in each case, held to the first of these meanings. Such, we think, was the meaning of this will. There was, therefore, no illegal suspension of the power of alienation. *
The sale of part of block 16, by Officer to Cook, is claimed to be invalid, because they were, as claimed, co-trustees
Judgment affirmed.