City Savings Bank & Trust Co. v. Cortright

Smiith, C. J., delivered the opinion of the court. This is an appeal from a decree construing a will at the request of the administrator of the estate of one of the devisees therein. The will of D. C. Casey, who died in May, 1914, is in part as follows: “Item II. I give and bequeath a life estate in and to all 'of my property, both real and personal wherever situated, to my beloved wife, Cornelia Elizabeth Casey, and my adopted daughter, Laura Cornelia Womack, and Charlotte Caroline,, daughter of the said Laura Cornelia Womack, share and share alike. “Item III. At the death of my said wife, Cornelia Elizabeth, and my said adopted daughter, Laura Cornelia Womack, the said Charlotte Caroline Womack is to take á iife estate in the whole of my estate, both real and personal, wheresoever situated, should she be then alive. It is my intention that at the death of either my said wife or adopted daughter, the said Charlotte Caroline Womack is to take a life estate in the share of the deceased, either or both whichever it may be, unless [82] the said Laura Cornelia should marry again and have children, if so, then such children of the said Laura Cornelia Womack to share and share a life estate with Charlotte Caroline Womack in the estate aforesaid. “Item IV. Should the said Charlotte Caroline Womack die without issue before my said wife, Cornelia Elizabeth, and my said adopted daughter, or either of them, the survivor of her, the said Charlotte Caroline Womack, is to take a life estate, if both, then share and share alike. “Item V. Should the said Charlotte Caroline survive my said wife, and daughter, and my said daughter should have no other living children at her death, then as aforesaid the said Charlotte Caroline is to take a life estate in the whole of my property, real and personal, remainder to heirs of her body, if any, in fee simple; should she die without issue, after surviving my said wife and adopted daughter, then remainder over to my right heirs in fee simple.” Laura Cornelia Womack who had been regularly adopted by Casey, and given the right to inherit property from him, married the appellee, George C. Cortright, and died in [December, 1'9'13, leaving surviving her as her sole heirs at law the appellee George C. Cortright, Sr., her daughter Charlotte Caroline Womack, and a son George C. Cortright, Jr., born of her marriage with the appellee. Mrs. Casey is still living. The appellee was appointed administrator of the estate of Ms deceased wife Laura Cornelia,, and a part of the property. thereby coming into his hands being a portion of that received by her under the will of her father, D. C. Casey, he exhibited his bill of complaint against Charlotte Caroline Womack and George C. Cortright, Jr., the city Savings Bank &> Trust Company, their guardian, and Mrs. Cornelia Elizabeth Casey, praying that the -will of D. C. Casey, deceased, be construed, and he be directed how to dispose of the property received by [83] Laura Cornelia under the will, and which has come into his hands as her administrator. No objection by demurrer or otherwise was interposed to this bill by the defendants therein, all of whom were duly summoned, and all of whom, except Mrs. Casey, answered the bill, practically admitting its allegations, and joining in the request for a construction of the will. The City Savings Bank & Trust Company, George C. Cortright, Jr., and Charlotte Caroline Womack, being dissatisfied with the decree rendered in the court below, appealed to this court. The remainder in fee devised by Item V of the will being limited in contingency, the reversion remained, in the heirs of the-testator pending the happening of the event designated in the will for taking it out of them, and since the happening, that event has become impossible because of the death of Laura Cornelia leaving a son surviving her, the reversion cannot now be taken out of the heirs of the testator and their right thereto has become absolute. The heirs of the testator at the time of his death, at which period they must be ascertained, were his widow, Cornelia Elizabeth, and his adopted daughter, Laura Cornelia. On the death of Laura Cornelia, her interest in the reversion descended to her husband and two children, George 0. Cortright, Jr., and Charlotte Caroline Womack so that the reversion, which is an estate in fee, is now owned one-half by Cornelia Elizabeth Casey, the testator’s widow, and one-half in equal parts, or one-sixth each, by George C. Cortright, Sr., the husband of Laura Cornelia, and by ,George C. Cortright, Jr., and Charlotte Caroline, and her two children. The destruction of the contingent remainder devised by Item V of the will does not affect the precedent life estates devised to the testator’s wife, adopted daughter, and her children, unless, as contended by counsel for the appellee, they have become merged into the estate [84] in fee because of the union in the same persons of the life estates and the fee. A “merger generally takes place when two estates, either related inter se as derivative and original, or else being both derived out of the same original, and both being held in the same right, meet together in the same person; the posterior estate (1) being greater, or, at least, not less, in qucmtum than the prior estate; and (2) following immediately after it in the order of succession, without the intervention of any intermediate (vested) estate.” Challis’ Real Property (3d Ed.), 86. This rule is not inflexible in, and will not be applied by, a court of equity when the extinguishment of the lessor estate will work an injustice to the owner thereof, or to another person interested in its preservation. Moore v. Luce, 29 Pa. 260, 70 Am. Dec. 629; Burdick on Real Property, 91; 16 Cyc. 665; 20 Amer. & Eng. Enc. of Law (2d Ed.), 590. Applying this rule to the case at bar, no merger of the life estates of Mrs. Casey and Laura Cornelia into their interest in the reversion has taken place, for the reason that their life estates were not -followed immediately by the reversion, but are separated therefrom by another intervening life estate. The life estate of Mrs. Casey is separated from the reversion, by the life estates devised by Item III of the will on her death to Charlotte Caroline and any other child Laura Cornelia might leave surviving her, and the life estate of Charlotte is separated from the reversion by the life estate devised on her death without issue to Mrs. Casey. It is true that the devise of the life estate to Mrs. Casey on the death of Charlotte Caroline without issue is of a contingent and not a vested estate; nevertheless its destruction by the merger of the life estate of Charlotte Caroline into her interest in the fee is prevented [85] by the last clause of section 2)774, Code of 1906, section 2278, Hemingway’s Code, which provides: “Nor shall the alienation of any particular estate on which a remainder may depend, whether such alienation be by will or other writing, nor the union of such particular estate with the inheritance, by purchase or by descent, so operate, by merger or otherwise, as to defeat, impair, or any w¡ay affect such remainder.’” The life estate of George C. Cortright, Jr., in one-sixth of the property devised,, although followed immediately by his one-sixth interest in the reversion, has become merged therein, unless its destruction which would be occasioned thereby would work an injustice to the parties hereto, and we do not understand them to contend that any such result would follow the merger of the two estates. The only interest which the appellee, George C. Cortright, Sr., has in the property, is the one-sixth interest in the reversion inherited by him from his wife. It is alleged in the answer that Mrs. Casey has conveyed a portion of her interest in the reversion to Charlotte Caroline and George C. Cortright, Jr. If this is true, Mrs. Casey’s interest in the reversion will be decreased and the interest therein 'of the grantee in this deed will be increased to the extent of the interest thereby conveyed. It follows from the foregoing views that the right to the present enjoyment of that portion of the testator’s property devised to Laura Cornelia for life is in George C. Cortright, Jr., and Charlotte Caroline Womack. The decree of the court below, not being in accord herewith, will be reversed, and the cause remanded. Reversed and remanded. Ethridge, J., dissents.