64 Neb. 563 | Neb. | 1902
One Thomas Smith, deceased, by his last will devised his real estate, some 240 acres, situated in Otoe county, and being all the land he owned, to his infant son, by the name of Finley Smith. The devisee named was the issue
The provisions referred to in the will of the testator,
“I hereby devise and bequeath to my son, Finley Smith, by my second wife, Sarah, all of my lands and real estate lying and situate in Hendricks precinct, Otoe county, Nebraska. This devise and bequest is made on the following terms and conditions. That my son Finley shall have for his support the entire net proceeds from said lands and real estate until he reaches the age of twelve years. My executors to have full charge and control of all of said real estate and lands. To rent the same, pay all taxes and necessary repairs to prevent waste and pay the balance to the guardian of my son Finley for his said support. After he shall have reached the age of twelve years then the net income from the said farm as aforesaid shall be placed at interest both principal and accruing interest, until my son Finley shall have reached the age of twenty-one years, when the whole amount shall be paid him by my executors. My son Finley shall have no further use of said moneys out of said lands except as aforesaid, nor the occupancy of said lands until he has reached the full age of twenty-one years then he is to come into the full possession of the same and to have and hold all the right, title and interest I am now possessed of in said lands and real estate.
“The conditions of the above devise and bequest to my son Finley are these: That my son Finley shall be baptized and christened Finley Smith and none other name but Finley Smith, and that he shall maintain and be known by that name, during his natural life. If otherwise that is.to say, if he is not christened Finley Smith and does not maintain that name, then this devise and bequest to my son Finley Smith shall be of no effect whatever and void, and my real estate and lands shall be divided equally among my three sons, William, John E., and Thomas, or their legal heirs. And I make a further condition to my bequest and devise to my son Finley. That should my*567 son Finley die before he marries and has issue then in that case, the said lands shall revert to my three sons William, John R. and Thomas, and be divided equally among them as before mentioned.”
While some collateral questions are presented in briefs of counsel of respective parties, in our view of the record now before us the main and important question to be determined is whether, as a matter of fact, .there has been such a compliance with the terms and conditions of the will with respect of the devise to Finley Smith as to entitle him to the property of the deceased testator, or whether the property should be held to revert to the other devisees mentioned, under the terms of the will, because of noncompliance with such conditions. It seems reasonably clear, as we read the entire instrument, that the conditions heretofore set forth to be performed and complied with on behalf of, and on the part of the said Finley Smith were to follow and he complied with after the vesting of the estate in the person mentioned, and are therefore conditions subsequent; that is, by the terms of the mil the property was devised to the son Finley Smith on the death of the testator; the title to remain in him, and the property to be held and possessed by him, only on condition that he should be baptized and christened Finley Smith, and none other name but Finley Smith, and that he should maintain and be known by. that name throughout his natural life, and that in the event of either of the conditions named, or both of them, not being complied with, the property should revert to the testator’s other sons therein named, and their legal heirs. Such construction, we think, carries out the intention expressed by the testator, and gives force and effect to all the different provisions of the instrument. The title to the property did not vest in the executors, the other devisees mentioned, except on breach of the conditions named in the will, nor in the heirs at law. Consequently we think the title must be held to have vested on the death of the testator conditionally in the son Finley Smith, to be divested on failure to comply with the
With these preliminary observations we proceed to a discussion of the record relativé to the question of whether the conditions subsequent to which we have alluded haA7e been performed and complied with, so as to preserve to the defendant in error title to the property devolving on him by the terms of the instrument under consideration. The district court found there had been a substantial compliance with such conditions, and, in reviewing the case, we are required to determine whether such finding is reconcilable with any reasonable view which may be taken of the evidence submitted in the cause. As introductory to what follows, we should perhaps here state that it is disclosed by the record that the mother of the son Finley
Regarding the statement that the son had maintained the name Finley Smith since the alleged christening, we can regard it only in the nature of a conclusion, rather than a statement of fact, and unquestionably contradicted by every transaction and fact shown in evidence during the entire period covered by the testimony. It is manifest that the father desired his son to be named and known as Finley Smith, and none other name, in order to conform to a family custom existing for many years of its past
It is urged in excuse for the action of the devisee that' he can not be held accountable for any act or omission to act until he arrived at the age of his majority. But this,
It is obvious that the testator was jealous lest that particular name, and none other, should not be borne by his offspring and devisee; and, desirous of the name being maintained, uncorrnpted with any other, so expressed himself in unmistakable terms. It was not incumbent on the devisee or his guardian to accept the conditions. Whether to comply with the terms of the will or not was a matter
Our conclusion is that, for the reasons stated, the find
Reversed and remanded.