Smith v. Smith

116 Wis. 570 | Wis. | 1903

Wnvsnow, J.

The appellant ñiakes two contentions r (1) That the finding that the deed was never delivered is not supported by the evidence; and (2) .that the court erred in finding that Anson La Rose Smith had any title to or interest in the land when the deed was made.

1. The defendant is doubtless right in his claim that the fact that a deed is duly recorded is prima facie evidence of its due delivery. 1 Devi. Deeds (2d ed.) §.292. But this is ■a presumption of fact, merely, which may be rebutted by ■other evidence showing, as matter of fact, that there was no 'delivery. Id. The evidence in the present case, which tended •strongly to show that no consideration was paid, that Anson placed it on record himself, and that Alva had no knowledge ■of its execution or recording at the time, and never had pos-session of it, was deemed sufficient by the trial judge to over■come the presumption of delivery resulting from the recording, and we entirely agree with the conclusion so reached.

2. The proposition that Anson had no title, is based 'upon the claim that under the will of Matthew no vested interest passed to the children during the-lifetime of the mother, or -that, if a vested interest did pass, it was subject to be devested by death prior to the death of the mother. This question is ■simply a question of intent, to be gathered from the language of the whole will. The argument for the appellant is that, 'because no division is to be made until the death or remarriage of the life tenant, no estate in remainder can be held to ■vest absolutely until the happening of one of those events. It is also said that the sixth clause indicates that there was no intention to vest an estate in any of the children prior to the •mother’s death, because, if the estate was vested then, upon •death of any of the remaindermen intestate his share would .go back to the mother, and upon her death intestate would be ¡shared by her children by the former marriage, in violation. ■ of the wish of the testator, expressed in the sixth paragraph, that no other person should have any share of the property. Much if not all of the significance to be attached to the sixth ■paragraph, as bearing on this question, is removed, however, ’by the last clause thereof, by which it appears that the idea ■ of the testator in adding this clause was to make sure that his children by his previous marriage should in no event share ■in his property, and to explain the reason of this disposition. This scheme would be in no way defeated or affected by the westing of the estate in the remaindermen during the life of ■Catherine. Onr statute (see. 2037, E. S. 1878) provides that future estates in land “are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or preceding estate. They are contingent whilst the person to whom or the event upon which they are limited to take effect remains uncertain.” The primary canon in the construction of wills . is that the intent is to be gathered from the whole will, rather than from the phraseology of any particular isolated clause. It is also well established that in-doubtful cases the law leans in favor of an absolute, rather than a defeasible, estate, and of a vested, rather than a contingent, interest, and that, while the general rule is' that a gift will .be deemed contingent when it is found only in a direction to divide at a future time, this is subordinate to the primary rule that the intent, to be collected from the whole will, must prevail.

Viewing the provisions of the will before us, we are quite well convinced that the testator intended that the interests of the four children should vest at once upon his death. These children are made the sole objects of his bounty, subject to the mother’s interest. The anxiety of the testator to give them each a beneficial interest, and to exclude others, is manifest. There is no provision for survivorship in the case of the death of one or more without issue, nor any provision for the disposition of the share of such a child, nor any provision cutting off the issue of a child dying before the termination of the mother’s estate.

The will, in its essentials, is quite similar to the will involved in Patton v. Ludington, 103 Wis. 629, 79 H. W. 1073, where a similar result was reached, and where the whole subject of the vesting of remainders is so fully discussed, with references to the authorities, that it seems unnecessary to go over the ground again.

By the Court.- — Judgment affirmed.