Johnes v. Beers

Pardee, J. Henry J. Beers executed his will in 1882, and died in 1881; his wife, one son, William A. Beers, and three daughters surviving. After giving to his wife the use of certain lands for life, the will proceeds as follows: “Fifth. I order and direct my executor and trustee hereinafter named, to collect and set apart from my estate securities producing interest of the par value of the sum of seventy-five thousand dollars, and to collect and receive and pay the income derived therefrom as fast as the same shall be received to my said wife so long as she may live..... “Seventh. Immediately upon the death of my said wife, or if she should die before me, then upon my decease, I order and direct my said executor and trustee to turn said aforementioned real and personal property into money, and to divide the same into four equal parts, and pay one part thereof to my son William A. Beers; one part to my daughter Mary B. Johnes, wife of Goldsmith D. Johnes; one part to my daughter Addie Curtiss, wife of Henry W. Curtiss; and the remaining part to my daughter Elizabeth G. Alsop, wife of Charles B. Alsop. In case of the death of any of my said children, I order and direct that the part — 300 — of him or her so dying be paid to his or her lawful issue, and in case he or they shall die without leaving any lawful issue, to pay and divide the part of him or her so dying to and amongst my surviving children and the lawful descendants of any of my said children, William, Mary, Addie and Elizabeth, who may have deceased, such descendants of children to receive per stirpes and not per capita. “Eighth. For the purpose of carrying into effect the aforementioned purposes, I give, devise and bequeath to my said executor and trustee all of my said aforementioned real and personal estate, in trust however, giving and granting unto him full power and authority to sell and convey the same to effectuate the purposes of this my will. “Ninth. All the rest, residue and remainder of my estate, both real and personal, and wheresoever the same may be situated, and the rents, issues and profits thereof, I give, devise and bequeath to my executor and trustee hereinafter named, in trust, nevertheless, upon my decease to convert the whole thereof into money, and to divide the same into four equal parts, and to pay one equal part thereof to my said son William A. Beers, absolutely; one part thereof to my said daughter Mary B. Johnes, absolutely; one part thereof to my said daughter Addie Curtiss, absolutely; and the remaining part to my said daughter Elizabeth G. Alsop, absolutely. In the event of the death of either of my said children before he or she shall have received his or her share, then to pay the share of him or her so dying to his or her lawful issue. In case he or she shall die without leaving lawful surviving issue, then to pay the part of the one so dying to my surviving children and to the issue of such of my said children, William, Mary, Addie and Elizabeth, who may have died, such issue to take per stirpes and not per capita.” Goldsmith D. Johnes, the husband of the testator’s daughter Mary, was made executor and trustee. As such he asked the Superior Court for instructions as to his duty in the matter. In his complaint he alleges among other things, as follows :— “ Since the death of said testator, and on the 9th day of — 301 — December, 1887, William A. Beers died, leaving him surviving his widow, Julia A. Beers, and one son, Henry J. Beers. “William A. Beers, bequeathed and devised all his estate to Julia A. Beers, his widow. “Prior to the death of William A. Beers, the plaintiff, as executor and trustee, in accordance with the ninth section of the will, converted into money and paid over to the parties entitled thereto, all the residue and remainder therein referred to, except a lot of land in Fairfield, known as ‘ Corner Lot,’ appraised at $2,500, and notes for $666.66, secured by a mortgage on a farm in Indiana, and about $164.50 in cash, as appears by the administration accounts rendered to the probate court, by the executor—the last thereof having been rendered February 18th, 1888. “From the date of the probate of the will of Henry J. Beers, to the date of the death of William A. Beers, the ‘Corner Lot’ was in the possession and control of the plaintiff as executor and trustee. “The mortgage and cash represent the proceeds of the sale of a certain farm, owned by Henry J. Beers, in the state of Indiana, which was sold by the executor prior to the death of William A. Beers, and a portion of the cash proceeds derived therefrom divided among said legatees and devisees, including William A. Beers. “Prior to his death William A. Beers requested the executor to convert the ‘Corner Lot’ into cash, provided that it could be done without selling the same at a sacrifice, and distribute the proceeds thereof among said legatees and devisees; but the executor could not realize such price therefor as was believed by all the heirs to be sufficient and proper and for the best interests of all concerned therein, although he endeavored so to do, and- therefore the lot was not sold. “ The mortgage was taken by the executor to secure a portion of the purchase money of the farm so sold as aforesaid by him. “ In accordance with the fifth clause of the will of Henry — 302 — J. Beers, interest producing securities of the par value of $75,000 were set apart by the executor, the income derived therefrom to be paid to Priscilla A. Beers, his widow, during life. She is still living. “Various questions have arisen, and various claims have been made by the different persons hereinbefore named, relative to the construction and legal effect of certain of the provisions and trusts in said will contained, among which are the following:— “1st. Whether the cash in the hands of the executor and trustee, and the proceeds arising from the note and mortgage and the corner lot, are to be paid to Henry J. Beers, the sole surviving issue of William A. Beers, or to Julia A. Beers, as executrix and sole legatee and devisee under the will of William A. Beers. “ 2d. Whether, in the event of the death of Priscilla A. Beers, the share which William A. Beers would have taken, if living, of the real .and personal estate devised and bequeathed in the second, third and fifth sections of said. will, for the benefit of Priscilla A., during her life, shall be paid to Henry J. Beers or his heirs, or to Julia A. Beers or her heirs.” The questions are reserved for the advice of this court. The cited clauses make it quite certain that it was the intention of the testator to give his entire estate to his children absolutely; the whole of it in right, at his death; the possession and enjoyment of a part then, of the remainder at the death of his wife. At the execution of the will it was of course unknown whether any one of his children would survive him; unknown in case the death of any one preceded his own, whether that one would or would not leave a child or children surviving. Therefore, that he might die testate as to all of his estate, and might avoid the necessity for another will, he so framed this as to meet the possibilities in this regard. In the absence of a clear manifestation of intent on the part of a testator to postpone to an uncertain and possibly — 303 — distant time after Ms death the vesting of the title to his estate in his children, the nearest objects of his love and bounty, the law prefers, and presumes he intended, that it should vest at the moment when the will should become operative. Of course the testator was well aware of the possibility of long delay in the satisfactory conversion of the entire assets of an estate into money, in adjusting claims against it, and in reaching the point of final distribution. But unless he so says explicitly, it cannot be presumed to be his will that either unavoidable or permitted delays should put it in the power of an executor to carry to a grandson an estate which he intended for his son. ' There is every presumption in favor of a father’s desire, circumstances permitting, that his children should take his estate in the form in which he leaves it invested. But, as there may be difficulties attending satisfactory division in specie among numerous heirs, testators often provide for melting the estate into money for absolute equality in division. That is the extent of the testator’s wish. His provision for division in that manner furnishes no foundation for the belief that he thereby intended to postpone beyond his death the vesting in his children of the right to his estate. In the seventh clause the testator says that, “in case of the death of any of my said children, I order and direct that the part of him or her so dying be paid to his or her lawful issue. Here the death of the devisee, an absolutely certain event, not being by the testator associated with any circumstance or other event, the law refers it to the time of his own death. It is a well established rule that where there is a devise to A, and in case of his death, to B, if A survives the testator he takes absolutely. Lowfield v. Stoneham, 2 Stra., 1261; Hinckley v. Simmons, 4 Ves., 160. And this is the language of the testator in the seventh paragraph. The presumptions from the frame of this will that the testator preferred children to grandchildren, the vesting of his estate in his children at his death rather than upon an event of uncertain time thereafter, and the express provi — 304 — sion for such vesting contained in the seventh clause—are together too weighty to permit any inference-' to the contrary to be drawn from the words “shall have received” in the ninth clause. In the light of all else in the will these are to be interpreted as meaning “shall have become entitled to receive by surviving me.” In common understanding also, the devisee of an estate in fee simple absolute “ receives” it at the moment of the testator’s death, although the enjoyment is postponed until the demands of creditors shall be satisfied. He can convey and give title; he can devise. The Superior Court is advised that the devises by the seventh and ninth clauses vested in right in the children of the testator at his death. In this opinion the other judges concurred.