Lovett v. . Gillender

It is insisted, on the part of the appellants, Augusta Gillender and her husband, that the grandchildren of the testator take, under the will, future estates commencing in possession after the death of his daughters; that these future estates are remainders, the precedent estates being in the testator's daughters, as his heirs-at-law, and *Page 619 entitled to the personalty, under the statute of distributions. It is also insisted that, "upon the words of the principal devise, leaving out of view all other parts of the will, the daughters would take an estate for life as tenants in common." The chief question in the case is, whether the testator's daughters take any interest in his property, other than their annuities, and the special bequests to Augusta, and the devise to her for life of the dwelling in Union Square. I think they do not. The devise to the grandchildren is not of a future estate. To Miss Gillender, clearly, it is a present estate. "I give to my granddaughter, Helena Gillender, one-fourth part of all my real and personal testate." Then he adds: "And the other three-fourths to be equally divided between the rest of my grandchildren, after the death of my two daughters, and no division in any case before that time." That is the same as if he had said, "I give the other three-fourths to my other grandchildren, to be equally divided between them, after the death of my daughters." The title to the estate, is in presenti. The division is not to be made until after the death of his daughters. The division is in the future, not the estate. The testator was earnest as to the division. Hence he repeats and fortifies it, adding, "and no division in any case before that time." Further, "that no part of my real estate be sold or incumbered during the lives of my two daughters, or either of them." "That any balance of money unexpended of my estate shall be invested on bond and mortgage, on real estate." Further, "in order to effect a division of my estate," he gave to his executors power to sell and convey his real estate, after the death of his daughters. There is nothing even in this part of the will, absolutely inconsistent with a present gift of the title to his property to his grandchildren; no prohibition against their occupying, in common, any real estate devised to them, or receiving the rents and profits thereof — no prohibition against their receiving or using the personal estate or its dividends. By the terms of the will, the property subject to the legacies,c., was given to the grandchildren if to any one. It *Page 620 is clear, the testator did not intend to give all the residue of his real and personal estate to his daughters for life, as he had already carefully provided for them by an annuity to each for life, by a life estate in his dwelling house to Mrs. Gillender, and by bequests of other property. These annuities would have been entirely idle and absurd, if he had intended in the same will to give them the whole of his income — amounting to four times these annuities. (1 Jarm. on Wills, 466; Willis v.Lucas, 1 P. Wms. 472.) So that, looking at the whole will, it is impossible to say, that the testator intended to give a life estate, or any estate in his property to his daughters, beyond the particular provisions made for them. The intention of the testator is probably apparent. He intended to make a reasonable provision for his daughters, and give the title in the residue of his property to his grandchildren, and have it accumulate until the death of his daughters. That there should be no division until then, and then it should all go to his grandchildren absolutely. The intention of the testator should always be carried out, when not in conflict with the law. In this case it clearly is in conflict with the law. Such accumulation is forbidden by our statutes. (1 R.S., 726, §§ 37, 38.) Looking at this will without the aid of authority, I should say there is a present absolute gift of the residue of the testator's property, real and personal, to his grandchildren, after providing for the annuities and bequests before given. Authority and legal principles, I think, confirm that construction. The terms of the gift being absolute and in presenti, passed the title to the beneficiaries, the grandchildren and the prohibition against a division, sale or incumbrance, is repugnant to the title and estate thus granted, and I think is void. (Roosevelt v. Thurman, 1 Johns., Ch., 228; Lane v. Lane, 8 Allen, 350; Oxley v. Lane, decided at last term of this court; and see Craig v. Wells, 1 Kern., 322.) These prohibitions of the testator were a part of his unlawful purpose of accumulation, and fell with that purpose. It is said that there is no gift in terms of the rents of the real *Page 621 or of the interest of the personal property accruing intermediate the death of the testator and the time when the property was directed to be divided, viz., the death of his daughters. This is true, but such a gift was entirely unnecessary. The whole title was granted, and a transfer of the principal always carries every incident attached, viz., the rents of the real and the income of the personal property. There is no ground for claiming that the daughters took an estate for life, by implication, under this will. This is scarcely insisted upon under all the provisions of the will. The proposition, as put forth, is expressly based "upon the words of the principal devise, leaving out all other parts of the will." Such an estate cannot be implied, even on that basis. First. Because the estate granted to the grandchildren is not a future estate, but an absolute present title, as tenants in common, to be divided merely in the future. Second. If it were a future estate to the grandchildren, to commence after the death of his daughters, it would not give to the daughters a life estate by implication. (See 1 Jarm. on Wills, 465, 466; 2 Jarm. Powell on Devises, 199, c., and authorities cited.) If the daughters take a life estate at all, they take as heirs, and not as devisees, on the ground that that estate is not devised by the will, and, therefore, descends to the heirs. But, looking at all the provisions of the will, as we must, to give it an intelligent construction, it is quite clear that a present, vested estate passed to the grandchildren. This is so clear that it may be taken as a basis for construing the other parts of the will. It is insisted, on behalf of Miss Gillender, that the provision of the will, continuing to the child or children of his daughter first dying, the amount left to either of them, as above mentioned, until the division of his estate among his grandchildren, is valid and should be sustained. This continuance was undoubtedly ordered upon the ground that no part of the estate was to be divided until after the death of his two daughters. It was, therefore, designed to provide for the family of the daughter first dying, until the property should be divided. *Page 622 This purpose having failed, the whole object of this provision fails, also, and we think it must be declared void. The slight difference in the age of the sisters affords very little ground for determining who will probably be the survivor, although, if Mrs. Kingsland should long survive her sister, Miss Gillender's interest would clearly be promoted by sustaining this provision of the will. It follows, also, from these views, that the house in Union Square is given by a vested devise to the grandchildren, subject only to the life estate of Mrs. Gillender. Under the will no estate in the property was given to the executors. It simply gives them authority to sell and convey after the decease of his two daughters, for the purpose of "effecting a division" of his estate. Whether the design was to sell only a part, made necessary for equality of partition, or the whole, it is not material to inquire. This is mere authority, without any direction, to sell, was given upon the supposition that the estate could not be divided or sold until after the death of his daughters. There is no reason for its continuance, under the changed circumstances, and it may be properly extinguished. There is no ground for claiming that the real estate should be regarded as converted into personal property, under this provision. It is not necessary to be so converted, either to carry into effect the will of the testator, or to prevent injustice to any one. (Van Vechten v. Van Vechten, 8 Paige, 104.) There is but one other question alluded to in the case, and that is, whether the grandchildren, living at the death of the testator, took an absolute title then, or did the devise to the "rest of my grandchildren" include those who might be born after the testator's death. From the ages of the daughters at the time of the testator's decease, the probability of any such question ever having any practical application in this case, would seem to be very remote. An ex parte argument was made upon this point by the counsel for the Kingsland grandchildren. Upon objection by their counsel, the court refused to hear the counsel of Miss Gillender, upon the other side, as she could have no interest *Page 623 in that question. The gift to her being to her by name of a certain, fixed, absolute share in his estate, and, of course, her counsel was without authority to appear for possible unborn grandchildren. It does not seem to me to be at all necessary to the execution of the valid provisions of this will, that this question should be decided. Considering the present ages of the daughters, it can scarcely be regarded as a practical question, and, to my mind, it is not seemly that the rights of these possible unborn grandchildren should be cut off without any opportunity afforded them of being heard. Whatever opinion or decision should now be given, no court should ever regard it as conclusive against them, or refuse to award to them any rights they might be entitled to under the will. The case, as presented, does not call for an opinion upon this point, and we decline to volunteer one. These views lead to an affirmance of the decree of the court below. The costs of the parties to the litigation should be paid out of the estate.