Prince v. Barham

Sims, J., after making the foregoing statement, delivered the following opinion of the court. [1] The interest in question was devised by the 4th clause of the will of Benjamin Prince above set forth. This is an executory devise. [2-4] All of the authorities agree, however, that an executory devise stands upon precisely the same footing as con — 467 — tingent remainders in so far as transmissibility of the subject thereof is concerned; and that an interest in such subject may be conveyed (certainly by virtue of such a statute as section 2418 of the Code of 1887 of Virginia) prior to the happening of the contingency upon which the interest is appointed by the will to vest in right of possession, provided the grantor has at the time of conveyance a possibility of taking coupled with an interest; and this he has, according to the authorities, if he, at such time, is cun ascertained person to take under the devise. 2 Minor’s Inst. (4th ed.) 421-2; 1 Minor on Real Prop, section 804, p. 889; 16 Cyc. 653; 4 Kent’s Com. 263, 285. And he is such an ascertained person if he is designated by name, or by class, all of which class are to take and one of which he is. 2 Jarman on Wills (6th Am. Ed.) top pp. 168-170; 16 Cyc. 653; 1 Minor on Real Prop, section 749, 826; 2 Minor’s Inst. (4th ed.) 463; Chess’ Appeal, 87 Pa. 362, 30 Am. Rep. 361; Jones v. Roe, 3 T. R. 88; Jackson v. Waldron, 13 Wend. (N. Y.) 178. Where a possible taker is thus designated by class and he should die before the testator, if the will speaks as of that time in designating the person to take, the survivors of the class will take (Saunders v. Saunders, 109 Va. 191, 63 S. E. 410) ; but if he survives such time, his interest, under an executory devise, equally as if it were a contingent remainder, is descendible (Medley v. Medley, 81 Va. 265), devisable (2 Minor’s Inst. 421 and other authorities above cited), and assignable in equity, and also at law, certainly by virtue of the statute aforesaid in Virginia (2 Minor’s Inst. 422; 1 Minor on Real Prop., section 804, p. 889. See also Graves’ Notes on Real Prop., sections 189, 190); many of the authorities holding that the same is true at common law, since the statute of uses and of wills dispensing with livery of seisin—4 Kent’s Com. 263, 285 and notes; Jackson v. Waldron, 13 Wend. (N. Y.) 178; 16 Cyc. 653. In such case, it is true, the interest which is thus — 468 — transmissible, may be reduced in quantum, pro tanto, by the number in the class being increased, as permitted by the terms of the will; for example, by after-born children (when children of a certain person is the designation of the class), pending the happening of the event appointed for the vesting of the estate in possession. 2 Jarman on Wills, supra (top pp. 168-170; 16 Cyc. 653). But the latter rule of law is of no practical importance in the case before us, since there were no children of the class here in question who were bom after the date as of which the will speaks on this subject, as we construe it, and before .the event happened upon which the executory devise took effect by the vesting the right of possession. It is mentioned merely to clarify our meaning in what is said above on the subject of the objects of an executory devise taking a transmissible interest in the contingent estate. 2. The single ultimate question involved in this case, is whether the conveyance made by George P. Barham in 1884, under which the appellant claims, operated to pass the contingent interest of George P. Barham attempted to be conveyed thereby? [5-8] 3. As follows, however, from what we have said above of the law bearing upon the subject, the decisive question for determination is whether the 4th clause of the will speaks as of the date of the death of Henrietta Bailey, or as of some other date when George P. Barham was living, in its designation of the objects of the devise, i, e., the persons to take the subject of the devise made by such clause? It is strongly argued by counsel for appellees that the 4th clause must be read along -with the 2nd and 3rd clauses of the will—and especially with the 2nd clause. That when so read and construed the conclusion must be reached that the will speaks as of the time of the event of the death of Henrietta Bailey leaving no children, in designating the — 469 — objects of the devise. That, hence, the same contingency which creates the uncertainty of the event of the devise ever taking effect in possession, also creates the uncertainty as to the persons to take; and that the persons to take, as designated in the will, are the children of Virginia A. Bar-ham, and the descendants of those deceased, who should be living at the death of Henrietta Bailey leaving no children. And the cases of Smoot v. Bibb, 124 Va. 28, 97 S. E. 355; Bristol v. Atwater, 50 Conn. 402; DeWolf v. Middleton, 18 R. I. 810, 26 Atl. 44, 31 Atl. 271; 31 L. R. A. 146, and Pinkham v. Blair, 57 N. H. 226, are cited on this point. In Smoot v. Bibb, the deed unquestionably fixed upon the time of the death of the holder of the preceding estate as the time for the ascertainment of the persons to take the contingent remainder. It necessarily followed, as was there held, that only those persons who were in existence at that time could take under the devise in question. This was the extent of the holding in that case. Precisely the same is true of the express provisions of the wills involved in all of the other cases next above mentioned, which are cited and relied on by appellees as aforesaid. The will before us is distinctly different. And even if the word “managed” could be given a meaning of “divided,” which in its context would operate to devise the contingent estate, which is the subject of the 4th clause of the will, to those children of Virginia A. Barham who were living at a certain time and descendants of her deceased children who were living at the same time, and to such persons only, that time, as expressly designated in the will, upon giving it the most favorable construction for appellees on this subject, would have been at the death of Virginia A. Barham, and not at' the death of Henrietta Bailey leaving no children. In such case a similar question would have been presented for decision as that involved in — 470 — the ease of Wilson v. Langhorne, 102 Va. 631, 47 S. E. 871, and the principle involved in the holding in that case would be decisive of the instant case against the appellees. However, we do not think, upon looking to the whole will, that the word “managed” can be given a meaning of “divided.” The will uses both words, but uses the former in the 4th clause only, the latter only in the 2nd and 3rd clauses. The manifest purpose of the trust created to embrace the interests which the daughter, Virginia A. Bar-ham, a married woman, would acquire under the will, was to shield such interests from any debts her husband might owe or contract. The interposition of the trustee was plainly for that purpose. The word “managed” in the 4th clause of the will seems clearly to refer only to the action of the trustee during the lifetime of such daughter. Whereas, the word “divided,” as used in the 2nd and 3rd clauses' of the will, refers to divisions to be made by others, since the trusteeship would at the time of such divisions be at an end, the parties to participate in such divisions being then entitled so to do in absolute right of ownership. The trustee was to so manage “a,ll the property” which this daughter might take under the will, as that during her lifetime it should (as expressed in the will) “not be subject to any debts her husband may owe or contract.” Such would be the ordinary and usual meaning of the word “manage,” when used in a direction to a, trustee to carry out such a purpose. When it came to the division of the property after the death of the daughter that was another matter. It is true that in the second and third clauses of the will language is used (if the will in these clauses is to be taken to speak as of the time of the death of Virginia A. Barham in its designation of her children who were to take, and not as of the time of the death of the testator—which, however, is not free from doubt), which, under the settled construction which the authorities have given to that phraseology, — 471 — would be construed to devise a contingent remainder to the children of the daughter and the descendants of those deceased who should survive her. The word “divided,” as it is used in such context in the 2nd clause of the will might have that meaning; although without such context it would have rather a contrary significance, referring to the carrying into effect in possession of previously existing property rights. But any one reading the will as a whole can but feel that such a, meaning may be an artificial meaning-when it is given to the 2nd and 3rd clauses of this particular will. One feels that it may have been the actual intention of the testator that the daughter, Virginia A. Barham, should take a life estate in all the property which might become vested in right in her during her life, with remainder or limitation over in fee, or absolutely to all of her children. One feels that, but for the provisions intended to create the trust aforesaid, the whole will would probably have been clearly so drawn. That is to say in all parts of it affecting them the devise would probably have been unquestionably to Virginia A. Barham for life with remainder, or limitation, over to her children, as aforesaid. But if such was the actual intention of the testator, it was not unquestionably so expressed in the 2nd clause of the will. The proper construction of the 2nd and 3rd clauses upon the point under consideration would greatly depend upon whether there is a period after the words “at her death”, in the second clause, as is true of the will as shown in the printed record, which is copied above, or a comma following those words, as is true of the will as shown in the petition for the appeal. In our view of the case, however, it is unnecessary to decide • whether the language of the 2nd clause of the will creates a vested remainder in the children of Virginia A. Barham living at the death of the testator or a contingent remainder in such of the children and their descendants as should be living at the death of — 472 — 'Virginia A. Barham. For, when we come to the 4th clause we find no language which incorporates in that clause the word “divided,” with its context as found' in the 2nd clause of the will. There is sufficient, as aforesaid, in the other parts of the will to satisfy the meaning of the word “managed” without the need of giving to that word- any ■other than its ordinary and usual meaning aforesaid; and we are not there confronted with language used by the testator which might have a settled meaning different from what we believe was probably his actual meaning. We, therefore, find ourselves at liberty to give to the language used in the 4th clause both what we believe to have been the probable actual meaning of the testator and also the meaning which the language used itself imports. These views are strengthened by the further consideration that the omission of the words, “and divided” after the word “managed” in the 4th clause of the will, which the court is, in effect, asked to supply by its interpretation, at least renders it doubtful whether the testator intended to use the word “managed” with the meaning of “managed and divided,” or of “managed” only. In this situation of doubt, if the arguments were as strong for the adoption of the former as for the latter meaning—which we do not think is the case—since the early rather than deferred vesting of estates and of rights of expectancy are favored in the law, that construction of the language of the will should be adopted which favors the former result. We should perhaps also remark that the word “managed,” when construed along with other language in the will, serves the further purpose of expressing the intention of the testator to devise to Virginia A. Barham a life estate only in whatsoever she might take under the will; thus creating an interest in her children, and taking the case out of the operation of the line of decisions in Virginia on the subject of the effect of certain language in a devise to a woman and her children. — 473 — The above being our conclusions as to the meaning to be given to the word “managed,” we are of opinion that the 4th clause of the will speaks as of the death of the testator in its designation of the objects, i. e., of the persons to take the subject of the devise made by such clause; and that the children of Virginia A. Barham living at testator’s death, and such as might be afterwards bom before the death of Henrietta Bailey, leaving no children, were the objects of the executory devise as designated in the will. Since George P. Barham was one of the children of Virginia A. Barham, and was living at the death of the testator, the further conclusion necessarily follows that he was then an ascertained person to take under the devise, and consequently thereupon took a possibility coupled with an interest in his share of the devise, so that the same passed by his subsequent deed. Hence, as of the time of suit brought, as between the appellees, the heirs at law of George P. Barham, deceased, and the appellant deriving title under said deed, the latter is entitled to such interest which became vested in right of. possession on the death of Henrietta Bailey, leaving no children. The decree under review must therefore be reversed, and the cause will be remanded for further proceedings not inconsistent with the views expressed in this opinion.