Calkins v. Estate of Smith

Cooley, J. It seems to ns manifest that when the testator speaks of his wife’s death before his estate is settled, as a contingency 'upon which the sum of one thousand dollars given to or settled before marriage upon her is to pass to the residue, he means, not the settlement in the popular sense of the term, but the stage of proceedings when the funeral expenses, debts and legacies are paid, and when nothing remains but to proceed with the steps for a division of the residue. That is put beyond doubt by the ninth clause of his will, in which this thousand dollars is named among the sums to be paid before the residue is distributed. At that stage of his proceedings the executor’s duties may be said to be closed; nothing remaining to be done by him as such, except the rendering and adjustment of his own account. What further he was to do in respect to the estate was to be done not as executor, but as donee of a power in trust. What strengthens this view is that the testator could have had no good reason for postponing further the final and unconditional vesting of the right to this sum in his wife. The rights of all others were then fixed: why should not hers be also? The other proceedings were merely for the partition of common interests, which might be delayed indefinitely at the option of the parties if it seemed desirable that this be done, and perhaps negligently or willfully delayed by the donee of the power. Conditions are not favored in law when they defeat estates, and they should not for a moment be subject to be continued at the option or through the misconduct or neglect of others where any other conclusion is reasonable. The judgment must be affirmed with costs. The other Justices concurred.