88 Neb. 805 | Neb. | 1911
In 1899 Wells Willits and Rachael C. Willits, husband and wife, resided in Harlan county, Nebraska. In that year Mrs. Willits died, leaving her husband and her only
The present controversy arose upon the final distribution of the proceeds of the estate of Wells Willits. Upon the final report of the executor being filed in the county court, John M. Willits by his guardian filed a petition in that court praying for a construction of the will, that the money paid by the executor to the guardian of Lee C. Willits be recovered back, and in substance that he be declared the owner of the entire estate. The county court held in substance that one-half the estate vested in each of the grandchildren, and directed the payment of the proceeds to the guardian of John M. Willits and the executor of the estate of Lee C. Willits, respectively. On appeal to the district court this judgment was affirmed, and the judgment is now before' us for review.
The point at issue is the construction which should be •
“I- give and confer upon the executor, to be hereinafter named, and acting under this will, full power and authority, by public or private sale, as he shall deem expedient, to make sale of all real estate of which I may die possessed and do all needful acts to convey title to the purchasers thereof. The proceeds of such sales to be turned over to the lawful guardians of my grandsons, above named, and held in trust by said guardians, until each attain his majority when he shall have his share.”
The question presented is: What right in the property did Lee-C. Willits possess at the time of his death? Was it an indefeasible vested estate, or did all the property devised to • him “revert to the other” grandson on the happening of that event? The surviving grandson takes the position that on the death of Lee C. Willits at any time the entire estate passed tp him, and that the legatees of Lee took nothing by his will. He contends that the intention of the deceased was to divide his estate equally between his two grandchildren and to prevent the diversion of the property to the heirs or legatees of either, and that the proper construction to be placed upon the will is that, “whenever the first legatee dies, whether before or after the testator, the other shall take; or it means that, if one dies before some contingency which the testator then had in his mind, the other shall take all; or it means that, if the first is prevented from taking by dying during the lifetime of the testator, the other shall be substituted for him.” On the other hand, the defendants contend that the contingency referred to in the will was death before the death of the testator, and that in any event the estate of Lee O. Willits became absolute upon his arrival at 21 years of age.
It is elementary that in the construction of a will it is the duty of the court to effectuate the intention of the testator if it can be ascertained, and in order to ascertain this intention the court should place itself as nearly as possible in the position of tbe testator, and consider not only the particular clause of the will which is in dispute, but the whole instrument. McCulloch v. Valentine, 24 Neb. 215; Chick v. Ives, 2 Neb. (Unof.) 879; Yoesel v. Rieger, 75 Neb. 180; Lewis’ Estate, 203 Pa. St. 219; 30
Appellant bases much of his argument upon the provision that, in case of the death of either grandson, his share “shall revert to the other,” but we think he places too much stress upon this phrase, and does not give sufficient consideration to the other provisions of the will.
Coming now to a consideration of the whole instrument: The will first devises and bequeaths all the testator’s property, both real and personal, to the grandsons, share and share alike. This language clearly conveys a vested interest upon the death of the> testator to each grandson. The next provision is that, in case of the death of either grandson, his share shall revert to the other. Standing alone, these two provisions would, under the general rule, apply to death before the death of the testator, but, as we shall see, there are other clauses which must be taken into account. The next paragraph empowers the executor to sell and convey all the real estate, and further directs: “The proceeds of such sales to be turned over to the lawful guardians of my grandsons, above named, and held in trust by said guardians, until each attain his majority when he shall have his share.” Wliile this provision does not expressly direct the executor to convert the real estate into money, it is apparent that it was the intention of the testator that the land should be sold and the proceeds paid during the minority of the grandsons, otherwise the provisions for payment to the guardian would be useless, and the direction that each shall have his share at majority would also be without force. 1 Jarman, Wills (6th ed.) 558; Chick v. Ives, supra. The direction in this clause that the proceeds shall be held in trust for each grandson until his majority, “when he shall have his share ” seems to us to be of great importance in the ascertainment of the testator’s intention. From the circumstances at the time the will was made it is evident that he knew and realized his condition, and that the possibility of his living until either
The language of Lord Hatherley in O’Mahoney v. Burdett, 7 L. R. H. L. (Eng.) 388, 403, in discussing the second and fourth rule in Edwards v. Edwards, 15 Beav. (Eng.) 357, is peculiarly applicable: “So again, I apprehend, in another class of cases, many of which were cited before us, which have been decided since Edwards v. Edwards, one of them having been before myself; in those cases where the court has found upon the face of the will a positive direction to pay over the personalty to the legatee, or to make a distribution among several legatees at a given time, the period of distribution being fixed at which, as it appears from the face of the will, the whole
We are of opinion that the gift took effect at the testator’s death, with a gift over to the survivor upon a contingency terminable at the attainment of majority, 'which was the period of distribution.
The contingency by which the title of Lee C. Willits might he divested and the other grandson substituted became impossible on Lee attaining his majority; after that time the-appellant had no interest in the half of the estate given to the first taker.
It follows that the judgment of the district court should be, and is,
Affirmed.