Otterback v. Bohrer

Lacy, J , delivered the opinion of the court. — 549 — The bill was filed in this cause on the 21st day of January, 1889, by the appellants against the appellees, the plaintiffs and the defendants being the children and grandchildren of Philip Otterback, Sr., deceased. The suit, friendly in character, was brought to have a construction of the will of the said Philip Otterback, deceased, and for other stated purposes. In construing the said will, the circuit court rendered a decree on the said 26th day of November, 1889, by which the part of the said will known as the ninth clause was given a construction which was not acceptable to the plaintiffs, who appealed, in which appeal the defendants have united. But counsel appear here for the infant defendants, and insist upon an affirmance of the said decree as plainly right. The ninth clause is as follows : “Ninth. I give, devise, and bequeath to my friend, Levi Burke, of Fairfax county, in the State-of Virginia, his heirs and assigns, after the death or marriage of my wife, whichever may happen first, all my estate in said Fairfax county, Virginia, called Belvoir, more commonly known as the White House estate, with all its appurtenances and fisheries, to be held by him and them upon the implicit trusts following, and for no other purpose, until the youngest child of all my said children shall have attained the age of twenty-one years; that is to say, the said trustee, for the time being, is hereby empowered to rent out the said estate and fisheries in such manner as he may deem best, or otherwise to manage the said estate to the best advantage; to receive the rents, issues, income, and profits thereof; to cut down and remove the doted and decayed wood, and none other, except such as shall be necessary for the use of the said estate; to pay all taxes and Other expenses in the care, preservation, and management of the said estate; and, after reserving to himself a commission not exceeding six per cent, on the said rents,' income, issues, and profits, for his trouble and responsibility, he shall apply the residue, in the first place, in his discretion, for the education — 550 — of each and every of my grandchildren, now born, and which may be born, until they shall respectively attain—the girls the age of sixteen years, and the boys the age of twenty-one years; and if there shall be any surplus remain, the same shall be invested in some safe stock, bearing interest, to accumulate during the said trust. And when the. youngest child-now and which shall hereafter be born, of all my said children* shall have reached, or if living, would have reached, the age of twenty-one years, I direct that the said trustee and his assigns shall sell the said estate and fisheries, with all the appurtenances, at public vendue, and receive the proceeds and divide the same, together with the stocks and accumulations aforesaid, among such of my children as may then be living* and the'descendants of those who may have died (they taking a parent’s part). And for the purpose of keeping the said trust in active existence, I hereby empower the said Levi Burke, by will or deed, to appoint and create a new trustee* or new trustees, to execute the same; and, in default thereof, I desire the court'having chancery jurisdiction in said county, on the application of any of the parties interested therein, to appoint a trustee, or trustees, to execute the said trusts.” Philip Ótterback, the testator, died in 1858, leaving a very large estate, situated in Virginia and in the District of Columbia, there being three large tracts of land in Virginia. The widow died in 1885, not having remarried. There are grandchildren now living under twenty-one years of age, the youngest being eight years of age. At the date of the will* in 1854, and at the time of the testator’s death, there were four children under twenty-one years of age. All the residue of the estate, except that mentioned and deyised under the ninth clause, was to be sold at the death of the widow. The circuit, court, in the decree rendered on the 26th day of November, 1889, and appealed from here, provided “ that the tract of land known as Belvoir, or White House, is and shall remain subject to the trusts established and expressed in and — 551 — by the ninth clause of the will and testament of Philip Otter-back, deceased, until the youngest grandchild of the said testator, now or hereafter to be born, shall reach, or, if living, would have reached, the age of twenty-one years; and, should it at any time be made to appear that it will be for the best interests of those concerned under the will of Philip Otterback, deceased, that the Belvoir estate should be sold, an application looking to that end will be entertained.” The first error assigned here is that the court erred in its decree aforesaid in holding that the Belvoir estate, devised to a trustee in the ninth clause, should remain subject to the said trusts until the youngest grandchild of the said testator, now or hereafter to be born, shall reach, or, if living, would have reached, the age of twenty-one years; whereas, by the said ninth clause, the said trusts attached to the said estate only until the youngest child should become of age, &c. Upon this question we have only to look to the terms of the will itself to discover the intent of the testator, and if that be clear, and be in yiolation of no rule of law, then we must follow that intention. The language of the will is, “until the youngest child of all of my said children shall have attained the age of twenty-one years.” And again : “ And when the youngest child now and which shall hereafter be born of all my said children” shall attain twenty-one years, &c.; and, finally, the ninth clause provides that as to the distribution the proceeds shall be divided “ among such of my children as may then be living, and the descendants of such as may have died.” What does the testator mean by tbe “ youngest child of my said children ? ” What is a “ child of a child,” as to the testator ? When he speaks of the distribution of the proceeds of this estate he speaks of children, and he calls them children. When he speaks of a “ child of all of my children,” does he mean the same thing, or does he mean what the words imply? What is a “child of a child?” When a father speaks of the — 552 — youngest child of his child, or the youngest child of all of his children, he can mean nothing else but his grandchild. What does “grandchild ” mean ? Webster says “grandchild ” means a son’s or daughter’s child. If he wished to speak of his youngest child, would not he say “my youngest child?” If he did, would there be the slightest ambiguity in such an expression ? Ihe expression, “the youngest of all my children,” would mean his youngest child; but the expression, “ the youngest child of all my said children,” means obviously his youngest grandchild. This is the plain significance of the -words used. But when the whole will is considered, and we bear in mind that his large and valuable estate had been divided out among his children, and that the main—indeed, only— object of the ninth clause was to provide^or the education of his grandchildren, as is clearly expressed, and that this property so set apart in the ninth clause was but a small part of his estate, I think it is free from doubt that the reference is to his grandchildren. But it is farther urged that this provision, so construed to apply to grandchildren, is obnoxious to the rule of law against perpetuities. In this we do not concur. The testator was evidently not inops consilii. This is evident from the artistic structure of the instrument, and counsel’s name appended to the will is not unknown to the profession. The will, especially this clause, is in its structure clear and finished. The testator has not gone farther than the law allowed in his limitations, but during the lives in being, and the utmost period of gestation, and twenty-one years thereafter. This estate must vest within this period. There can be no child born to any of his children who would not fulfil the conditions within the prescribed period. This is allowed by the law, and is in violation of no rule thereof, and so it is good. The argument that the property must waste in all this time is of no force in the consideration of this question. The courts may be invoked to conserve all the interests involved, and the circuit court in this case has — 553 — not decided against any application to that end, but has, indeed, as we have seen, expressly reserved to the parties the right to apply for such relief whenever required. We are. of opinion that there is no error in the decree appealed from, and the same must be affirmed. Lewis, P., dissented. Decree appirmed.