Herrell v. Herrell

Mr. Justice Eobb delivered tlie opinion of the Court: The first question presented is whether the words, “die without issue,” refer to death in the lifetime of the testatrix or at any time. While it is true that similar words have been held to refer to death in the lifetime of the testator, where no contrary intention was manifest (Stokes v. Weston, 142 N. Y. 433, 37 N. E. 515; King v. Frick, 135 Pa. 575, 20 Am. St. Rep. 889, 19 Atl. 951; Lawlor v. Holohan, 70 Conn. 87, 38 Atl. 903; Lumpkin v. Lumpkin, 108 Md. 470, 25 L.R.A.(N.S.) 1063, 70 Atl. 238), we deem it unnecessary to consider those decisions, because the Supreme Court of the United States in Britton v. Thornton, 112 U. S. 527, 28 L. ed. 817, 5 Sup. Ct. Rep. 291, laid down the rule that, under a devise to one person in fee and in case he should die under age and without issue to another in fee, the devise over takes effect upon the death at any time of the first devisee under age and without children. The court said: “When, indeed, a devise is made to one person in fee, and fin case of his death’ to another in fee, the absurdity of speaking of the one event which is sure to occur to all living, as uncertain and contingent, has led the courts to interpret the devise over as referring only to death in the testator’s lifetime. 2 Jarman, Wills, chap. 48; Briggs v. Shaw, 9 Allen, 516; Lord Cairns in O'Mahoney v. Burdett, L. R. 7 H. L. 388, 395, 31 L. T. N. S. 705, 23 Week. Rep. 361. But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated, at any time, whether before or after the death of the testator.” Unless, therefore, there may be found in the instrument under consideration other controlling provisions, we must accord the words under analysis their ordinary meaning. It is not questioned that the devisee took under the will a defeasible fee-simple estate. Under the will that estate was subject to be devested by his death “without issue,” while under the codicil the estate was further subject to be devested by his death, with [33] or without issue, either before the death of the testatrix or before the settlement of her estate. The provisions of the codicil not being inconsistent with that of the original will, and there being no other controlling words, it necessarily follows that the words under analysis must be held to mean death at any time “without issue.” In view of the construction we have placed upon the words “die without issue,” it becomes unnecessary to determine the applicability of sec. 504 of the Code [31 Stat. at L. 1268, chap. 854j, to the effect that such expressions “shall be construed to mean a want or failure of issue in the lifetime or at the time of the death” of the first taker, and not an indefinite failure of his issue, “unless a contrary intention shall appear in the instrument,” because, assuming its applicability, the result is not changed. But the effect of the order appealed from is to cut down the defeasible fee-simple estate of this appellant to a mere life interest. That is to say, the words, “die without issue,” have been construed to mean “die without leaving issue.” AVe think this was error. The law favors the vesting of estates at the earliest possible moment, and will not defer such vesting longe; than the language of the testator plainly requires. Moreover, to effectuate this rule of construction, courts are inclined to interpret the words, “die without issue,” to mean “die without having had issue,” unless it is plain from a reading of the entire will that the words -were used in a more restricted sense. Voris v. Sloan, 68 Ill. 588; Kales, Future Interests, sec. 199. In Kendall v. Taylor, 245 Ill. 617, 37 L.R.A.(N.S.) 164, 92 N. E. 562, the testator devised all his ('state to his two sons, and, in the event of the death of either “without issue, then the estate” to go to the survivor of them, and in the event of the death of both prior to the decease of the testator to his collateral heirs. The court said: “The intention of the testator, gathered from the entire will, manifestly was that if both of appellants [the sons] had issue born to them, then the entire estate should vest in said appellants, share and share alike. This conclusion, in our judgment, must necessarily follow under the general rules of law-laid down in this and other jurisdictions as to the con [34] struction of wills, as well as from the decisions of this court in applying those rules to particular cases. The hirfh of a child to each of appellants settled any controversy that, might arise, in regard to the land ever passing to appellees.” Reading the entire will in the present ease, tin: intent ion of the testatrix is quite as clear as was that of the, testator in Kendall v. Taylor. It was the failure of appellant to have issue, and not his death without leaving issue, that concerned the testatrix. She first vested in him a fee-shnple estate. At the time of the execution of the original will it is apparent that, in the judgment of the testatrix, he had not reached years of discretion, and she therefore provided that his estate should not become indefeasible until the happening of a certain event. This was merely placing a milestone which he was to pass to demonstrate that he'had reached years of discretion. And it Was a natural provision; for it is the general opinion that when a man becomes a husband and father he will, if ever, realize to the fullest extent his responsibilities. The language of the codicil, executed more than six years later, is in harmony with this view, for the solicitude of the testatrix concerning her grandson is there clearly revealed. It follows, therefore, that the decree must he reversed, with costs, and the cause remanded, with directions to enter a decree in conformity with this opinion. Reversed and remande,d.