Witherspoon v. Brokaw

ELLISON, J. — This proceeding was instituted to set aside the conditions of a will, it being alleged that they were void as against public policy. The finding and decree of the trial court were against defendant and he appeals. It appears that the testator, Mrs. Brokaw, was the aunt of plaintiff Emma and grandaunt of plaintiff Ora, who is Emma’s infant daughter. She made a will of which the following is the portion here involved: [172] “I will and devise to my niece, Emma Witherspoon, the .undivided half of all property to which I may now be entitled or may hereafter become entitled by virtue of the will of my father, Jacob Goodlive, or by inheritance from him, together with the net annual proceeds thereof until divided or sold, and the proceeds of the sale thereof when sold under the provisions of the will of said Jacob Goodlive or by virtue of any proceedings in court of competent jurisdiction, or by the consent of all parties interested therein, to have and to hold to her sole use and benefit so long as she may live separate and apart from her husband, Herbert Witherspoon, and no longer, and upon her reunion with him to vest, freed of this devise in my son Charles O. Brokaw. Upon the death of said Herbert Witherspoon, before the termination of the above interest, the said undivided half of said property shall vest in said Emma Witherspoon in fee' simple absolute. “I empower said Emma Witherspoon and my son, Charles O. Brokaw in case of sale or conveyance of the said property, to convey the same in fee simple, but the proceeds of the undivided half of said property shall then be placed in the hands of a trustee to be appointed by a court of competent jurisdiction to hold and to invest under the terms of this will. “In case of the death of said Emma Witherspoon before the death of her husband, the said undivided half of said property shall be held’ for the use and benefit of her daughter, Ora Witherspoon, so long as she shall be kept from the control and custody of her said father, and no longer, and upon his assuming such control and custody said property and the proceeds shall vest in my said son.” By the fourth clause the son, Charles O. Brokaw, was made sole residuary legatee and devisee. The trial court entered a decree freeing the will of the conditions and vesting the absolute property in plaintiff Emma. [173] It appears that Emma was married to Herbert Wither-spoon and that they separated and that she returned to live with her aunt, the testatrix, bringing with her the child, Ora. And that she shortly afterwards obtained a divorce on account of desertion and nonsupport. Nothing has been heard from Herbert Witherspoon, though it does not appear that he is dead. If we view the will as giving the property to plaintiff Emma absolutely provided she remained separated from her husband as therein contemplated, it was a void condition and the property would be Emma’s absolutely, freed from any condition. The condition would be void as against public policy. Tiedeman on Real Prop., sec. 275; Bispham’s Prin. Equity, sec. 225; 29 Am. and Eng. Ency. of Law, 476; Schouler on Wills, sec. 22. See, also, Williams v. Cowden, 13 Mo. 211. If a separation had already taken place, or was in contemplation of being presently carried out, between Emma and her husband, and the will merely provided for her support or gave her property absolutely to sustain her so long as she should thus be deprived of the support of her husband it would be a valid will. The object being not to bring about the misfortune, but to provide for one who is in such an unfortunate condition. Fox v. Davis, 113 Mass. 255; Walker v. Walker, 9 Wall. 743; Greenhood’s Public Policy, 483-485; But where the condition of the will shows by its terms and provisions that it is intended as a premium on the separation, and its object is to prevent a resumption of the marriage relation, it is void. We so regard the present will. It is apparent from the face thereof that the object of the testatrix was to make the separation final and that a reconciliation would be punished by a failure of the legacy. The same may be appropriately said as to the contingent provision for the daughter. It is evident that the testatrix [174] was determined that the husband and father should not resume his relations as parent and custodian of the child, and such condition (in the view now presented) is void. But we do not regard the will as giving the property to Mrs. Witherspoon absolutely upon the condition referred to. The will shows conclusively that the property should not become vested absolutely in her until the death of her husband. It provides (in effect) that if the interest given to Emma should not be terminated by a reconciliation, that then, upon the death of the husband, it should become an absolute interest. The testatrix held the title from her until all posibility of a reconciliation had been closed by his death. It certainly was not to be hers before his death for it was provided that if she died before the husband the interest should go to the child. So, therefore, the decree entered is not justified by the terms of the will and by the facts. The husband, for aught the record shows, is still alive and the time is not arrived for Emma’s absolute estate. Indeed, she might yet be reunited with Witherspoon and thus, if she is now to take the property, thwart the great aim and object of the testatrix. It is proper that we express an additional view of the will and its effect: We fully appreciate the great difficulty which has been constantly experienced by the courts in the interpretation or construction of wills. Taking what we deem to be the most reasonable view of the object of the testatrix, in so far as it can be carried out in a legal way, we conclude that the plaintiff Emma is entitled to the use of the money during the life of the husband and that she shall have that use even though she should be reunited with him, for the provision to the contrary is void. Upon the death of the husband her title will become absolute, even though she should be reunited with him. Our view of the child’s interest is this: It only attaches [175] upon the death of Emma, the mother. It is then provided that it shall be held for the use and benefit of the child, so long as she shall be kept from her father. This limitation is void, and it being evident that in the event of the death of the mother the property was to go to the child, we hold that excluding the void condition attached, the child would take it absolutely on the death of the mother, even though the father had resumed parental authority. Doubtless some of the suggestions herein as to resumption of the relation of husband or parent are altogether improbable, yet we make a statement of them in order that our view of the matter may be fully understood. The result is that the judgment should be reversed and the cause remanded. Smilh, P. J., concurs; Gill, J., absent.