McKethan v. . Ray

PbaesoN, C. J. Our construction of sec. 315, O. O. P. is, that it does not confer upon certain parties who differ as to their rights, to propound to the Court on a case agreed, interrogatories in respect thereto, but that the purpose is simply to dispose with the formalities of a summons, complaint and answer, and upon an agreed state of facts to submit the case to the Court for decision and thereupon the Judge shall hear and determine the case arid “render judgment thereon as if an action were depending.” It follows that all persons having an interest in the controversy must be parties, to the end that they may be concluded by the judgment, and the controversy be finally adjudicated as in case of an action instituted in the usual way. The fifth question submitted to the Court for its decision is in these words: “ If the words of the will create a condition the non-performance of which would cause a forfeiture and divest the estate of the trustees, will the property in that event result to the next of kin (heirs at law) of the testator or will the residuary legatees (devisees) take it under the residuary clause ? This interrogatory shows that in certain aspects of the matter in regard to the construction of the will, the heirs at law and the residuary devisees have an interest and of course would not be concluded by a judgment in this case as now constituted, so we are not at liberty to give a judgment unless they be made *171 parties and either enter a diselaimor and put in a condition to be concluded by the record, and have the title settled. His Honor declares his opinion to be: “ There is no question of lapse ox forfeiture involved in the case. The devise is absolute, not contingent, expressed in clear terms for a definite, lawful and charitable use, to a party capable of taking and enabled and required by law to hold in perpetual succession. The devise is therefore valid, and neither heirs or residuary legatees have any interest in the matter*” The estate given by the .devise may be an absolute one subject to no conditions or qualifications and subject only to the charitable use, “ that until the premises are used for a parsonage, the rents are to be applied for the purposes of the congregation,” but these are points of construction in which, as we conceive, the heirs and residuary devisees have an interest, and in regard to which they ought to be heard and concluded by judgment, before this Court can take such action as might induce a purchaser to depend upon the title, exposed as it would be to the claims of the heirs at law, or of the residuary devisees. There is error. The judgment below is reversed and the ease will be remanded to the end that the heirs and residuary devisees be made parties, and such other amendments made, as the parties may be advised to move for, and the Court see fit to allow. The will may admit of several constructions : 1. The testator did not intend to make the donation unless the congregation as a condition precedent, would locate the parsonage upon the premises, making the location of the parsonage the primary purpose. 2. The testator intended to make the donation but to subject the estate toa qualification that the estate should determine when the premises should cease to be used as the parsonage, in other words to create a base or qualified fee, such as we read of in the old books, “ to A and his heirs, so long as they are tenants of the Manor of Dale” An estate clogged with such a *172 burden on free alienation, is not known to our law, and the Courts would be slow to admit it, although it-be made to a religious congregation with the best motives imaginable. 3. The testator intended to make the donation, that is a fixed fact — his primary intention ; the suggestion as to his purpose in making the donation, being a secondary consideration, and the words do not support the inference of an intention not to make the donation, or to revoke it, unless the premises were accepted and used for that and no other purpose. We incline to the opinion that the last is the proper construction, and make this intimation for the purpose of calling the attention of the counsel of the parties to the points to be argued, when the case comes before the Court properly constituted in respect to parties and to the judgment demanded. Pee CuRiam. Judgment reversed.