Donohue v. McNichol

The opinion of the court was delivered, July 6th 1869, by Williams, J. Though the will in this case is inartificially drawn, there can be little-or no doubt as to its meaning. The primary intent of the testatrix was to make suitable provision for her son John, and for this purpose she devised and bequeathed all her estate, real, personal and mixed, unto her executor in trust, and directed him out of her personal property and net income of her real estate, to pay her son such sum or sums of money as might be sufficient to support him respectably, and if he became a sober industrious man, she declared it to be her will and desire that he should receive the rents, issues and profits of all her real estate during his natural life. It is clear, that under the clause making provision for his support, the son took no interest or estate whatever in the real and personal property devised and bequeathed to the executor ; and the amount he was to receive out of the personal property and net income of the real estate for his support was left to the discretion of the executor, subject to the restriction that it should be “ a sum sufficient to support him respectably.” In the succeeding clause a conditional life estate was given to him in the rents, issues and profits of the real estate, but as the condition upon which it was to vest was never performed, he took only a legacy sufficient for his support. The testatrix’s next care was to provide for his lawful issue, if he should have any, and she directed the executor, upon his death leaving such issue, to pay them the net income of her real estate, and such part of her personal property as he might deem proper. Under this clause of the will an estate for life is given to the issue, not in express terms, but by necessary implica [78] tion, from the limitation of the estate upon their death to her lawful heirs, and from the express prohibition of the mortgage or sale of her real estate during the life of her son or his lawful issue. The testatrix next provides, that after the death of her son’s lawful issue, or in the event of his death without such issue, that all her real and personal estate shall be held in trust by her executor for her lawful heirs, their heirs and assigns for ever, to whom he is directed to give up and convey the same. At the date of the will, and at the death of his mother, John was unmarried. After her death he married, and died without issue, leaving the appellant, his widow, surviving. At the death of his mother, John was her sole heir; and at his death her nephews and nieces, the children of her deceased brothers, were her heirs. Who, then, are entitled, under the limitation to the testatrix’s lawful heirs, to the residue of the personal property, if any, and to the real estate of which she died seised ? Did the testatrix intend that it should go to such person or persons as might be her heirs at her death, or to those who might be her heirs at the death of her son or his issue ? If she intended it to go to the former, then it must go precisely as it would if she had died intestate as to the remainder or reversion, after the contingent life estate given to the issue of her son; and the limitation over to her lawful heirs is nothing more than a declaration that her property should go according to the Intestate Act, and if so, it went to her son John as her only heir. But if she intended that it should go to those who might be her heirs at the death of her son or his issue, then the limitation is void for remoteness. If the event, upon which the estate is limited, may by possibility not occur within the term of a life in being and twenty-one years afterwards, it is too remote: Brattle Square Church v. Grant, 3 Gray 153. Here, the limitation, as was said in Sears v. Russell, 8 Gray 97, “ is not upon a life in being with twenty-one years superadded, but upon a life in being, and after its termination, upon a life or lives not in being at the time of the testatrix’s death, and which might continue fifty years or more after the expiration of the life of her son.” The limitation is after the gift of a life estate to his unborn issue, and it is an invariable principle in applying the rule against perpetuities, that regard is to be had to possible, not actual events, and the fact that the limitation might have included objects too remote, is fatal to its validity, irrespectively of the event: 1 Jarman on Wills 233. It is not sufficient, that on the happening of certain events, the gift over may take effect, and if originally limited to those events would have been valid, but it must appear to be legal and valid in all the events, which at the time when the will takes effect,' may by possibility occur: Sears v. Russell, 8 Gray 85. John’s issue might have outlived him half a century, and the limitation, if [79] it applies to those who might he the testatrix’s lawful heirs at their death, must undoubtedly be regarded as too remote. The case of Cooke v. Bowler, 15 Eng. Ch., 2 Keene 54, decides the very question raised here. There the testator bequeathed his property to his executors upon trust to convert the whole into money and invest the same in certain stock, the dividends of which, after paying thereout an annuity to his father during life, he gave to his brother George and three sisters for and during their lives, and after the decease of either of them, leaving any children, the share of him or th'em so dying to such children for their lives with benefit of survivorship; and in case his brother or either of his sisters should die without such issue, then the survivor or survivors to take the dividends, and after the decease of the survivor of the children of his brother and sisters, he directed the said stock, moneys and all interest then due and in arrear, to be distributed according to the Statute of Distributions. The testator died leaving his father his sole next of kin, his brother George and his three sisters mentioned in the will, surviving him. His father died within two or three years after his death. Two of his sisters died' without issue, and one died leaving two children. Plis brother George survived the three sisters, and assigned his interest under the will to the plaintiff, who filed his bill against the executor upon the death of George, and the question in the cause was, what, interest, in view of the events which had happened, George was entitled to under the will. And it was held, that he was entitled to a life interest in three-fourths of the capital, and that the capital was undisposed of and belonged, to the next of kin of the testator living at his decease. The Master of the Rolls (Lord Langdale) said: “I am of opinion upon the construction of this will, that George Walker took a life interest in three-fourths, and that the corpus is undisposed of by the will. It is clear, that the survivor of the brother and sisters was to take the shares of such of them as died without leaving a child. It is equally clear, that a gift of the interest and dividends standing by itself would give the corpus; but the next following clause plainly indicates that he meant to give only an interest for life. After having given the dividends without express words of limitation, he proceeds to dispose of the capital in terms which fail for remoteness. The capital, therefore, is undisposed of, and goes to the next of kin of the testator living at his death.” Mr. Jarman criticises this opinion, because of its real or apparent conflict with the rule that a remainder expectant on a gift for life to an unborn person is valid, provided it be made to take effect in favor of persons who are competent objects of gift. He says: “As a gift for life to an unborn person is valid, so, it is clear, is a remainder expectant on such gift, provided it be made to take effect in favor of persons who are competent objects of gift. Though here also a fallacy [80] prevails; for it is not uncommon to find it stated in unqualified terms, that though you may give a life interest to an unborn person, every ulterior gift is necessarily and absolutely void; and some countenance to this doctrine is to be found in the judgment as reported of an able living judge (see Cooke v. Bowler, 2 Keene 54), though the adjudication itself, rightly considered, lends no support to any such doctrine, as the ulterior gift, which was there pronounced to be void, was nothing more than a declaration that the property should go according to the Statute of Distributions, so that the claim of the next of kin, who was held to be entitled, was perfectly consistent with the will, unless indeed it applied to the next of kin at the death of the unborn legatee for life, which would have been clearly void as embracing persons who would not have been ascertainable until more than twenty-one years after a life in being; but for this construction there seems to have been no ground:” 1 Jarm. 240-1. The correctness of Mr. Jarmyn’s rule, and the propriety of his criticism, it seems to me, admit of serious question. The limitation in Cooke v. Bowler was held void, not because it would, by possibility, embrace persons not ascertainable until more than twenty-one years after a life in being, but because it might not take effect within that period. Whether the particular persons of the class designated, and to which the estate is limited, #re or are not ascertainable at the death of the testator, the limitation is too remote, if the event upon which the estate is limited, may, by possibility, not occur within the prescribed period. It is the possibility, however remote, that the event upon which the estate is limited may not occur within the prescribed period, and not the uncertainty of the persons who are to take, that renders the limitation void for remoteness: Dodd v. Wake, 8 Sim. 615; Newman v. Newman, 10 Id. 57. In laying down the rule in question, Mr. Jarman seems to have overlooked the principle which he had previously stated, and which he had declared to be invariable, that in applying the rule against perpetuities, regard is had to possible, not actual events. He cites no authority in support of the rule, and it is believed that none can be found, unless cases where the limitation is to the testator’s heirs or next of kin, are supposed to come within it. But in such cases the estate is the same in nature and quality as that to which they would be entitled by descent, and the better opinion would therefore seem to be, that they take as heirs by descent, and not as purchasers under the limitation. But whether this is so or not, is immaterial, so far regards the result in this case. If the limitation was to the- heirs of the testatrix at the death of her son’s unborn issue, it was void for remoteness under Mr. Jarman’s rule, as the persons to whom the estate was limited might not be ascertainable within the prescribed period; and it was clearly void, as we have seen, because the event upon which it was limited, might, [81] by possibility, not occur within such period. But if the limitation was to the heirs at her death, and if it was valid because they were then ascertainable and competent objects of gift, then the testatrix’s son took the estate as a purchaser under the limitation. But if the limitation was too remote, which seems to us the better opinion, then he took the estate as heir at law by descent. It follows that the plaintiff is entitled to' the discovery and relief which she seeks, and therefore the pro forma decree at Nisi Prius sustaining the demurrer and dismissing the bill must be reversed, and a decree entered overruling the demurrer and requiring the defendant to account and make discovery as prayed for in the bill. Let the proper decree be drawn up under the rule.