Warren v. Hembree

By the Court, Kelly, C. J.: Lycurgus Hembree died on the thirty-first day of March, 1876, leaving a will made on the eighth day of November, 1875. The material portions of the will are as follows: “2. I give and bequeath to my son, Henry L. Hembree, my farm in Lane county, known as the Green B. lingers donation land claim. 3. I give and bequeath unto my beloved wife, Mary M. Hembree, my town property in the town of McMinville. 4. It is my will that my beloved wife shall have the use, control and management of all my property, both personal and real, during her natural life, or so long as she shall remain my widow, and then the said property shall all go to my son, Henry L. Hembree, except as hereinafter provided. 5. I give and bequeath to my nephew, Frank M, Shadden, one-tenth of all my personal property [122] outside of my real estate. The said one tenth to be given to him when he is twenty-two years of age. 6. It is my will, that in the event my beloved wife and my son, Henry L. Hembree, shall die before my son Henry L. Hembree shall become twenty-one years of age, then it is my will that my real estate shall descend to my nephew, Frank M. Shad-den, and in the event so mentioned I do so will the same to him. And it is my will farther in the event just mentioned, the death of my wife and son, that all my personal property shall be equally divided, one half descend to my brother, I. N. Hembree, my sisters, Levina Preston and Susetta Preston, and Elizabeth Montgomery, each to have an equal share; and the other half to my beloved wife’s brother and sister, each to have an equal share. It is my will that my son be thoroughly educated as far he will receive an education. 8. I hereby appoint my beloved wife my sole executrix, and it is my desire and will that she be not required to give bonds in administering upon my estate.” This will was admitted to probate on the third day of July,' 1876, and Mary M. Hembree, the widow of the testator, was appointed executrix thereof. Frank M. Shadden died on the thirtieth day of September, 1878, and was at the time of his death twenty-one years two months and six days old. Henry Warren was appointed administrator of his estate. Mary M. Hembree, the widow of the testator, is still living and unmarried, and has duly administered the estate, and paid the indebtedness of the decedent, and has on hand twenty thousand dollars subject to distribution. This suit was brought by the appellant for one tenth of that sum, under the fifth clause of the will, and the only question presented for our consideration is, whether the bequest to Frank M. Shadden was a vested or a contingent legacy. The intention of the testator is always to govern in the construction of his will, and it is to be so construed, if possible, as to harmonize the several provisions and give effect to them all. But in cáse of doubt or uncertainty as to whether the testator intended to give a vested or contingent legacy, certain rules have been laid down by elementary law writers and by the decisions of courts to govern in the [123] construction of the will. Blackstone says: “ If a contingent legacy be left to any one, as when he attains, or if he attains the age of twenty-one and dies before that time, it is a lapsed legacy. But a legacy to one to be paid when he attains the age of twenty-one years is a vested legacy; an interest which commences in prcesenii although solvendum in futuro.” (2 Bl. Com. 513.) The question in such cases usually is whether the gift and the time of payment are distinct. If they are, then, as each clause in a will is to have some operation, the gift is deemed to be vested at once, and payable at a future time. (O’Hara on the Construction of Wills, 262.) Tested by the rules here laid down, tbe bequest to Frank M. Shadden in the fifth clause of the will was clearly a vested legacy, and the words “to be given to him when he is twenty-two years of age,” are equivalent in meaning to the words “to be paid to him when,” etc., and it is conceded that if the latter phraseology had been used by the testator, the legacy would have vested on his death in the legatee. Other portions of the will tend to show that this was the intention of Lyeurgus Hembree, when he made his will. By the sixth clause it appears that he was especially careful to provide how his other property should be disposed of in the event of the death of his wife and son before the latter should become twenty-one years of age, but in regard to the one tenth part bequeathed to Frank M. Shad-den, he made no disposition whatever in case of his death, showing clearly, we think, that the testator considered this portion of his estate as finally disposed of and that it would become vested in Shadden as soon as the will should take effect. But it is contended in behalf of respondent that this construction is inconsistent with the provisions contained in the fourth clause, and that the widow is entitled, during her life and widowhood, to the use, control, and management of all the property of the testator, including as well that bequeathed to Shadden as that which was devised to his son. That is not the proper construction to be placed upon this provision of the will. The last words of it, “ except as herein provided,” exclude the idea that she was [124] to have the use aud control of all the property of the testator. They except from her control a part of it, and this exception can apply only to that portion bequeathed to Shadden. The widow was entitled to use and control it until he should become twenty-two years of age, when, in the language of the will, it was “to be given to him by the executrix.” The decree of the circuit court is reversed and this cause remanded for further proceedings.