Casper v. Walker

THE CHANCELLOR. Ebenezer Peterson died in 1869, leaving his widow, Clarissa C., and bis daughter Amy, his only heirs at law, surviving. By his will he provided as follows: “ I give and bequeath unto my beloved wife, Clarissa C. Peterson, the sum of $4,000, the same to be put at interest in some safe investment, and secured to her during her natural life.” “Also, I give and bequeath unto my said wife the annual income of $400, to be paid half-yearly from the farm where I now reside, in the township of Lower Penn’s Neck, purchased of Thomas D. Bradway; the said income to be paid in full, without any de [37] ductions for taxes or other expenses, this being my expressed wish and will. Also, I give and bequeath unto my beloved wife, Clarissa C., the choice of all my household goods and furniture, or the whole of them, if she chooses, without any reservation.” A devise to testator’s wife for life, and then, “ It is my wish my son W. should live with his mother; ” and after her death the fee to be his own, gives no present estate in the land to W. (Head v. Head, 7 Jones 620). A devise of a lot for life, and of $10,000 to enable the devisee to build a house thereon, does not compel him to build the house (Ashe v. Ashe, Rich. Eq. Oas. 380; see Five Points House v. Amerman, 11 Hun 161; Eeek’s Appeal, 46 Pa. St. 527). The following words were held to render the devise conditional upon the devisee’s residence on the premises: that “ if A. refuses to dwell there himself, or keep in his own possession” (Eoe v. Hawke, 2 East 481); that “every such person shall live and reside on the said estate called Juts” (Fillingham v. Bromley, Tarn. & Buss. 530); that the use and enjoyment should be offered, rent free, to his eldest child for the time being, as long as he or she should please, and in case of refusal, or of his or her ceasing to occupy the same, then to his other children in succession (Madarm v. Stainton, 4 Jar. (N. S.) 199) ; that the devisee should “ reside ” in the mansion-house for six months in every year (Walcot v. Botfidd, Kay 634); that the devisee’s estate should be forfeited in case he did not make the mansion-house “ his usual and common place of abode and .residence” (Wynne v. Fletcher, 24 Beav. 430); that the person entitled should, with his family, reside at the mansion-house, and make it his principal place of abode (Dunne v. Dunne, 8 8m. & Giff. 22, 7 De G. M. & G. 207); “on the express condition only that she remove into and live in said house, herself and family” (Bart v. Ghesley, 18 K. JET. 378); “that my wife is to keep my children, and raise them, and give them a sufficient schooling ” (Orawford, v. Patterson, 11 Gratt. 364); that a plantation be given to E. and M., “provided they come and live on it” (Lowev. Cloud, 45 Ga. 431); that “ B. should remain on the farm,” and pay certain charges (Lindsey v. Lindsey, 45 Lnd. 552); that lands should go to O., “ providing he shall live on the place, and carry it on in a workmanlike manner (Marston v. Marston, 47 Me. 405. See, further, Moore v. Gamble, 1 Stock. 246). [37] “ I give and bequeath unto my daughter, Amy R. Turner, wife of Jonathan I. Turner, the homestead farm where I now reside, in the township of Lower Penn’s Neck, adjoining lands of John Dunn and Elijah W. Dunn, containing about 105 acres, more or less, save the legacy of $400 per year payable to my wife, Clarissa, as above specified.” “ It is further my will that the said Amy R, Turner reside on the aforesaid farm after my decease, and take proper care of the same. In case they (I mean Amy R. Turner and her husband) should not see proper to move on the same, then I order my executor, hereinafter named, to sell the same farm at public vendue to the highest bidder; but there is nothing herein con [38] tained that affects the dower of $400 devised to my wife aforesaid.” But a condition that if any of the devisees “ shall not settle on my land, or those now settled will not remain on said land, but will remove off and leave the same,” was deemed void (Pardue v. Givens, 1 Jones Eq. 306); so, a devise to testator’s children, “ in case they continue to inhabit the town of H.” (New-kerk v. Newkerk, 2 Caines 345; see Beenes v. Craig, 1 Winst. 209; Keeler v. Keeler, 89 Vt. 550; Wren v. Bradley, 2 De G. & Sm. 40 ; Boss v. Lies, 20 W. B. 858); so, if a devisee should not cease to reside in S., within a limited time (Wilkinson v. Wilkinson, L. B. (12 Eq.) 604; Forward v. Thamer, 9 Gratt. 537). The following words were held not to be conditional, but that the devisee might reside elsewhere without forfeiting the devise; that testator’s wife “shall have her maintenance off of the farm devised to J. while she lives, * * * that J. is to let her have the house while she lives, and to furnish her with everything necessary to her comfort” (Tope v. Tope, IS Ohio 520); that she should have “a comfortable room” and “sufficient maintenance during her natural life ” (Steele?s Appeal, 47 Pa. St. JjS7); that “ my five daughters shall have a home in the house, and a reasonable and moderate support, during their single lives, from the said farm” — not lost by one becoming a sister of charity (Donnelly v. Hdelen, 40 Md. 117); that “I give unto my wife E. the use of that part of my house which I now occupy, during her widowhood, and her full and comfortable support,” &c., (Van Buyne v. Van Duyne, 1 MeOart. 49); that A. should have “ the right to occupy and possess my estate called Bellegrove, and the furniture, &c., there or elsewhere, during her natural life and widowhood” (Kearney v. Kearney, 2 Q. E. Or. 59, 504; see Murphy v. Murphy, 20 Oa. 549); that a son to whom a farm had been given “afford a lawful maintenance to my daughter A. and her two daughters, from said farm, as long as they live and shall want the same,” and that “ A. shall abide and have a lawful maintenance, and her two daughters with her, on said farm, as long as the said A. lives and her two daughters shall want their maintenance ” — as to the daughters after A.’s death (Stillwell v. Pease, S Or. Oh. 74) ; that “my mother is to have her support on my estate, to the amount of forty dollars a year, if she chooses to remain on my estate, and if she chooses to go away, she is to be paid the sum of forty dollars a year during her natural life,” — and she goes away, the devisee is still liable, and not the executor (Henry v. Barrett, 6 Allen 500); that “it is my desire that my son Aaron remove back to this country, and to have them [slaves], but not to take them to any other part of the country” (Harris v. Iiearne, Winst. Eq. 91). [38] “Further, I order and direct the balance of my personal property, after securing the $4,000, to be equally divided between my wife, Clarissa C., and my daughter, Amy R. Turner.” The $4,000 have been duly invested, and the interest paid to the widow. The questions submitted are: What interest does the widow take in the $4,000 ? what estate does the daughter take in the farm under the devise thereof to her ? and is that estate defeasible on her ceasing to reside on the property ? The gift of $4,000 to the testator’s wife is absolute in its terms. It is not given over in any event, either expressly or by implication. The will, indeed, provides that it shall be invested for and secured to her during her life; but that is merely a provision as to the manner of its enjoyment by her during her life; the gift of the fund is, neverthess, absolute, subject to the qualifying trust. Woodward v. Woodward, 1 C. E. Gr. 83; Kay v. [39] Kay, 3 Gr. Ch. 495; Hawk. on Wills 268; Gulick v. Gulick, 10 C. E. Gr. 32; S. C. on appeal, 12 C. E. Gr. 498. The devise of the homestead farm to Amy is in fee, subject to the charge of the annuity to the widow. It is not defeasible by her non-residence on the property. The testator declares that it is his will that Amy reside on the farm after his death, and taire proper care of it, and provides that in case she and her husband should not “ see proper to move on the same,” his executor sell it. He adds a further provision that such conversion of the farm into money shall not affect the gift of the annuity charged thereon in the devise. Amy is the testator’s only heir at law. He died, as before stated, in 1869. Soon after his death, Amy and her husband removed to the farm, and resided there for about two years. They then leased it, and it was occupied by their tenant. In the spring of 1880 they returned to it, and ever since then have resided thereon. The intention of the testator, in the provision under considera [40] tion, was not to defeat the devise to his daughter, but to secure the property against want of care. He not only does not provide that, in case of non-compliance with his direction, the farm shall go over to some one else, but he makes no provision whatever in that connection, except that the farm be converted by his executor into money, by sale. He makes no disposition of the proceeds of the property after conversion. The residuary clause is confined by its terms to his personal estate. If the farm were converted under this provision, the proceeds subject to the annuity would go to Amy, under the devise; and, apart from that, it would go to her as heir. The annuity is given expressly in lieu of dower. That the testator did not mean to provide that his daughter should reside on the property for life is evidenced by the use of the word “ move ” in the second clause. In the first, he expresses his desire that she and her husband should reside on the farm and take proper care of it. In the second, he orders that if they do not “ see proper to move on ” [41] the property, the executor is to sell it. There is no evidence of any intention on his part to compel his daughter to reside on the farm, as a condition of her title to it under the devise. The language of the first clause is merely expressive of his desire. It has no mandatory character, but is merely precatory. The provision, taken altogether, is as if he had said that his daughter and her husband occupy his homestead farm, as their home, immediately after his death, and enter on such occupation and care for it accordingly; but if such should not be their wish, then, in order to secure it against depreciation from want of care, he directed that it be converted into cash, the sale to be subject to the annuity-charge, but the proceeds to go to his daughter. The daughter moved to, and resided on, the farm for about two years, and then leased it, and again removed to it, and now resides thereon. There is no provision that in case she, having moved to it, leaves it and ceases to reside there, the property shall be sold, but merely that it shall be sold if she does not see proper to move there at all. The provision for sale is limited in its operation by its terms, and there is no reason for going beyond the literal import of them. To do so would be to ex [42] tend them indefinitely; for it would not even be limited by, and cease with, the annuity. Such construction would give the executor power to sell whenever the daughter should cease to reside on the farm. The testator undoubtedly contemplated no such construction. What he meant was, that in case his daughter should not be willing, at his decease, to enter on the occupancy of the farm as her residence, it should then be sold; and if sold, it should be sold subject to the annuity, and the proceeds of the sale should go to her. He did not intend to cloud her title with an ever-impending power of sale. The executor has not now, and will not have, any duty in respect to the sale of the farm. The devisee might let the premises to another; that testator’s two sons might have the “ use and occupation ” of certain lands, by paying a stated rent (Babbeth v. Squire, 19 Beav. 70); that W. “ may have the choice of those two rooms which shall the best suit her, because I desire that the said W. should be sure of a shelter during the time she may live ” (Wusthoff v. Dracourt, 8 Watts 240); that a widow might have “ the free use and enjoyment of the portions of the house ” which she and testator then occupied (Tobias v. Cohn, 88 1y. 2”. 888); “ the free occupancy of any house in my possession, for her life, free of any payments or charge whatever ” (Mannox v. Qreener, L. B. (14 Eq.) 458). See, further, Trammel v. Johnston, 54 Ca. 841; Whittome v. Lamb, 12 M. & W. 818; Thomas v. Boyd, IS Ind. 888; Davis Y.Vineent, 1 Houst. 415; Smith v. Jewett, 40 N. H. 580. The devise is not forfeited if the condition be broken by the act of God, as by death (Sutcliffe v. Bichardson, L. B. (18 Eq.) 607; MeLachlan v.MeLaeh-lan, 9 Paige 584; Sampson v. Down, 2 Chit. 529; see Hayward v. Angelí, 1 Vern. 222); or insanity (Burns v. Clark, 87 Barb. 496); or by destruction of the house devised, by fire (Sehanck v. Arrowsmith, 1 Stock. 314, 830; Tilden v. Tilden, 13 Cray 108); or by leaving the premises through constraint (Jordan v. Clark, 1 C. E. Or. 243; Boe v. Boe, 6 C. E. Or. 258; Craven v. Bleakney, 9 Watts 19; Hogeboom v. Hall, 24 Wend. 145; Huekabee v.Swoope, 20 Ala.491; see Philips v. Walker, 2 Bro. P. G. 198); or by taking possession of the premises with a bona fide intention of permanently residing there, and subsequently removing (Brmdage v. Domestic Soa., 60 Barb. 204; Hunt v. Beeson, 18 lnd. 880); or by going to sea (Shaw v. Steward, 1 A. & E. 800); or by temporary absence (Hart v. Ghesley, 18 N. H. 383; see McKissick v. Pickle, 16 Pa. St. 140)• — aliter, as to an absence of several years (Orawford v. Patterson, 11 Qralt. 864); or by the bankruptcy of the devisee {Goldnefis Case, 3 Deac. 570); or by impossibility of performance through testator’s act (Bunburry v. Doran, Ir. L. B. (8 G. L.) 516, (9 O. L.) 284; Hearn v. Gannon, 4 Houst. 20 ; Martin v. Ballou, IS Barb. 119; Lamb v Miller, 18 Pa. St. 448; Walker v. Walker, 2 De G. F. & J. 255); or by operation of law {Adams v. Bass, 18 Ga. 130; Curry v. Gurry, SO Ga. 258; Miller v. Lewis, S3 Ga. 61; Tennille v. Phelps, 49 Ga. 532; Maddox v. Maddox, 11 Graft. 804); or by the voluntary release or waiver of the person entitled to a performance (Jones v. Bramblet, 1 Scam. 276 ; Petro v. Cassiday, 18 Lnd. 289; Boone v. Tipton, 15 Lnd. 270; Bush v. Bush, 40 lnd. 88; Orawford v. Woods, 6 Bush 200; Wilson v. Wilson, 38 Me. 18; Simonds v. Simonds, 8 Mete. 558; Spaulding v. Hollenbeck, 39 Barb. 79; Brewster v. Brewster, 4 Sandf. Gh. 22; Buckmaster v. Needham, 22 7t.617; Wells v. Wells, 87 Vt. 483; see Frost v. Butler, 7 Me. 225; Manwéd v. Briggs, 17 Vt. 176 ; Hubbard v. Hubbard, 12 Allen 586). — Bep.