Saxton v. Webber

Cassoday, J. The testator, William A. Webber, by his last will and testament, after disposing of his personal estate, devised all his real estcote to his wife, Mary TL, for and during her natural life, in trust to take care of and manage the same, and to receive the rents, issues, and profits thereof, and to pay and distribute the net income therefrom, as therein prescribed. The real estate so devised in trust consisted of two classes, — one of which was made up of three several pieces of land, therein specifically described; and the other class was made up of all the residue of his real estate, and not therein specifically described. By the third clause of the will, quoted in the foregoing statement, he devised, after the death of his said wife, all his real estate as follows, to wit: To his .daughter, Harriet A., “her heirs and assigns forever,” the three several pieces so specifically described, and an undivided one-sixth of the lands not so specifically described, subject,, however, to the conditions andlimitations therein named; the undivided one-sixth of the lands not so specifically described to each of his three sons Albert G., William F., and Wilkie A., and to their respective heirs and assigns forever; the undivided one-sixth of the lands not so specifically described to such person or persons as his said wife, Mary TL, might “ convey or devise the same to, his or their heirs and assigns forever; ” and the remaining undivided one-sixth of the lands not so — 624 — specifically described to a trustee, to be appointed as therein designated, for the use of said Harry J. for life, and then to his issue, upon the conditions therein named. The trial court adjudged each of the said six several devises contained in the third clause of the will to be entirely void, on the ground that they altogether constituted “ a single scheme for the disposition” of the testator’s real estate after the death of his widow, and that at least one of said dispositions is void. We are unable to perceive any valid reason for sustaining such judgment. 1. “ Future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession^of the lands upon the ceasing of the intermediate or precedent estate. They are contingent while the person to whom or the event upon which they are limited to take effect remains uncertain.” Sec. 2037, B. S. Under this section it is very obvious that at least the devises to Albert G., William F., and Wilkie A., respectively, were each vested immediately upon the death of the testator, since each was then entitled to the “ immediate right to the possession of the lands” so devised to him, “upon the ceasing of the intermediate or precedent estate ” so devised in trust to the widow. It is true that the statute, which declares,-in effect, that all devises of land made to two or more persons shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy (sec. 2068), does not apply to devises made in trust (sec. 2069), but this exception only seems to be applicable where the devises so made in trust are of the same estates so devised to two or more persons in solido or in common. Assuming for the present that this exception is applicable to the several devises to Harriet A. and her heirs and assigns, to Harry J. and his issue, and to such person or persons as the widow should designate by conveyance or devise, yet it can have — 625 — no application to the several devises to Albert G., William F., and Wilkie A., since they each took a vested fee of such, devises, respectively, immediately upon the death of the testator, subject only to the extinguishment of such life estate so vested in the widow. Dana v. Murray, 122 N. Y. 614; Scott v. West, 63 Wis. 583, 584, and cases there cited. Besides, the statute expressly declares that “estates, in respect to the number and connection of their owners, are divided into estates in severalty, in joint tenancy, and in common” (sec. 2067); and, since Albert G., William F., and Willcie A. each took one undivided sixth part of the fee, subject to the extinguishment of the life estate/ it is manifest that each took in severalty, and hence such devise to each of them must be regarded as entirely independent of the other devises mentioned, and of each other. Everitt v. Everitt, 29 N. Y. 39; Monarque v. Monarque, 80 N. Y. 324; Wells v. Wells, 88 N. Y. 332; In re Verplanck, 91 N. Y. 439; Purdy v. Hayt, 92 N. Y. 447; Tiers v. Tiers, 98 N. Y. 572. So regarded, we must hold the devises to Albert G., William F., and Wilkie A., respectively, to be valid, whatever may be our conclusions respecting the other provisions of such third clause of the will. 2. William F. died intestate, August 25, 1886, being after the death of his father and prior to the death of his mother, and, as he left no issue or widow him surviving, the land so vested in him necessarily descended to and became the absolute property of his mother. Subd. 2, sec. 2270, R. S. This being so, the same passed by her will to her three sons Albert G., Wilkie A., and Harry J., upon the conditions and limitations and subject to the proviso therein contained. 3. By the third clause of his will the testator, after the decease of his wife, also devised the undivided one-sixth part of his real estate, not therein specifically described, to such person or persons as his said wife might designate by — 626 — deed or will, and “ to his or their heirs and assigns forever.” That also passed by her will to her three sons Albert G., Wilkie A., and Harry J. upon the conditions and limitations and subject to the proviso therein contained. 4. This brings us to the question of the validity of the devise to the daughter, Harriet A. By the third clause of the will the testator, after the death of his wife, gave and devised to his “said daughter, Harriet A. Saxton, her heirs and assigns forever,” the lands therein described, followed by this clause: “ But in case of her decease without issue, then and in that case all the real estate so devised to her is to descend to my heirs at law living at the túne of her decease, unless her said husband shall survive her, in which case he shall be entitled to the same for and during the term of his natural life, in case he shall not marry again, and upon his decease or marriage the same shall descend to my heirs at law living at the time of his decease or marriage.” This devise was, of course, subject to the life estate in the widow, and upon the death of the testator it immediately became vested in the said Harriet A. (sec. 2037, R. S.) as a future estate limited to commence in possession on the determination, by lapse of time, of the precedent estate, created at the same time in 'the widow. Sec. 2034, R. S. The mere fact that Ila/rriet A. might have died prior to her mothfer did not prevent such estate from vesting in her immediately upon the death of her father. Scott v. West, 63 Wis. 571; Webster v. Morris, 66 Wis. 383; Baker v. McLeod's Estate, 79 Wis. 541. Such an estate is not only a freehold, but “ may be termed a remainder.” Secs. 2029, 2035, R. S. “ Estates in lands are divided into estates of inheritance, estates for life, estates for years, and estates at will and by sufferance.” Sec. 2025, R. S. It will be observed that the devise to Harriet A. is not in terms for life, nor for years, nor at will, nor by sufferance, but is to her, “ her heirs and — 627 — assigns forever,” and hence, under the section last quoted, it must be regarded as an estate of inheritance, subject to the conditions named in the will. “Every estate of inheritance shall continue to be termed a fee simple or fee, and every such estate, when not defeasible or conditional, shall be a fee simple absolute, or an absolute fee.” Sec. 2026, B. S. Here it is contended that the estate so devised to the daughter, “ her heirs and assigns forever,” is defeasible or conditional. The conditions annexed to such devise are to the effect (1) that, in case the said daughter should survive her husband, and die “ without issue, then and in that case all the real estate so devised to her ” was "to descend” to such of the “heirs at law” of the testator as should be “ living at the time of her decease; ” (2) that, in case she died without issue and her husband survived her, then he should be entitled to said real estate “ for and during the term of his natural life,” and “ upon his decease” the same was to “ descend” to such of the “heirs at law ” of the testator as should be “ living at the time of his [the husband’s] decease; ” (3) but that, in case she should die without issue, and her husband should survive her, and should marry again, then he should only be entitled to said real estate up to the time of such remarriage, and upon such remarriage the same was to “descend” to such of the “heirs at law ” of the testator as should be “ living at the time of his ” said remarriage. Such “ heirs at 'law ” of the testator as should be living at the time of the daughter’s death might be entirely different persons from such heirs as should be living at the time of her husband’s remarriage, and such heirs of the testator as should then be living might be entirely different persons from those living at the time of the husband’s death. Besides, by the express terms of such conditions, such heirs of the testator as should be living at either of the three dates named were to take the lands so devised to the daughter, “ her heirs and assigns forever,” — 628 — by descent; that is to say, in the language of the condition, the same was “ to descend, to ” such “ heirs at law.” The will nowhere undertakes to state from whom such lands are thus “ to descend.” They could not descend from the testator, for two reasons. One is that, if they descended from him at all, they would go to his heirs at law living at the time of his death, and not such other persons as might be regarded as his heirs at some subsequent and indefinite period,— assuming that such a thing is possible; and the other reason is that by -his will the testator undertook to dispose of all his property. There is no presumption of an intent to die.intestate as to any part of the estate to be indulged. On the contrary, whenever the words of a will, fairly construed, are such as to carry the whole estate, it will be presumed that the testator intended to dispose of all his property. Given v. Hilton, 95 U. S. 591; Raudenbach's Appeal, 87 Pa. St. 51; Ferry's Appeal, 102 Pa. St. 207; Miller's Appeal, 113 Pa. St. 459. Among the manifest purposes of the testator, in case-his daughter should die without issue, was to prevent the fee of such real estate from becoming vested in her husband, and to have the same return to certain of his own heirs at law, as mentioned. Under the presumption indicated, it is very obvious that the testator intended by his will to vest the title to such real estate in the daughter, “ her heirs and assigns forever,” and then by the conditions thus annexed to such devise, in case she should die without issue, to control the descent from her, to the extent that the remainder should, in that event, return to his heirs at law, as indicated, instead of attempting to secure the same purpose directly by way of executory devise, or defeasance by way of forfeiture, or otherwise. It-may be questionable whether a lawful condition can in that way be annexed to such a devise; but, assuming that it may, yet it is manifest, and is in fact conceded, that the several conditions so — 629 — annexed to the devise are each and all repugnant to secs, 2038, 2039, E. S., as they stood at the time the estate was created by the death of the testator. Those sections, as they then stood, prohibited and rendered void in their creation every limitation or condition whatever whereby the absolute power of alienation of any future estate should be suspended for a longer period than during the continuance of two lives in being at the creation of the estate, with certain exceptions not material here. Ford v. Ford, 70 Wis. 61. It was there said: “We have no authority to speculate upon the chances. The rule is universal that such suspension of power of alienation must necessarily terminate, under any and all circumstances, within the period prescribed by the statute, or the disposition will be void.” Here the testator attempted by the conditions annexed to the devise to suspend the “ absolute power of alienation ” for a longer period than during the continuance of the lives of his wife and daughter, and hence such conditions are necessarily void and of no effect. The question recurs, upon the assumption suggested, whether the devise itself is destroyed by reason of the annexation of such unlawful conditions. The statute provides that “ successive estates for life shall not be limited unless to persons in being at the creation thereof; and when a remainder shall be limited on more than two successive estates for life all the life estates subsequent to those of the two persons first entitled thereto shall be void, and upon the death of those persons the remainder shall take effect in the same manner as if no other life estate had been created. Sec. 2041, E. S. This section was borrowed from New York, where it has been held that it “ refers only to vested, not to contingent, remainders, and executes the remainders in possession only in favor of such ascertained persons as, except for the void life estate, would, under the will or deed, be entitled to the immediate possession.” Purdy v. Hayt, — 630 — 92 N. Y. 446. Here the will undertook to create a future life estate in the son-in-law on the death of the daughter, which would be a nullity under the last section, even if the will had only attempted to create in the daughter a mere life estate; and in that event such life estate, as well as the life estate to the widow, would be preserved by the same section. But here the case is very much more favorable to the daughter, since, as already indicated, instead of a mere life estate in the daughter, the devise is to her, “ her heirs and assigns forever,” with the unlawful conditions annexed. There is, therefore, much stronger reason for holding that such unlawful conditions should not operate as a defeasance of the title thus vested in the daughter. Thus it has repeatedly been held in Massachusetts that “ a devise, subject to a conditional limitation void for remoteness, vests an absolute estate in the first taker.” Proprietors v. Grant, 3 Gray, 142; Theological Ed. Soc. v. Att'y Gen. 135 Mass. 285. The same rule has been sanctioned in New York. Manice v. Manice, 43 N. Y. 383; Tiers v. Tiers, 98 N. Y. 568; Dana v. Murray, 122 N. Y. 604. See, also, Outland v. Bowen, 115 Ind. 150; Coggins' Appeal, 124 Pa. St. 10. This court has, in effect, held the same thing. Scott v. West, 63 Wis. 529, 582. We must hold that the devise to the daughter, “ her heirs and assigns forever,” vested the title in her, and that the unlawful conditions annexed thereto did not and cannot operate as a defeasance. 5. The devise of the one undivided sixth part of the lands not specifically described to such person or persons as the county court might appoint, in trust to take care of and manage and to receive the rents, issues, and profits thereof, for and during the life of Harry J., and to pay the net income therefrom to him quarter-yearly during his life, and upon his decease to convey the same to his issue then living, in fee; or, in case he shall die without issue, then and in that case the same to descend to such of the heirs at law — 631 — of the testator in fee as shall then be living,— only ties up said estate so devised in trust during the life of said Harry J.; and hence is not repugnant to the statutes cited, but is a valid trust. It follows that the plaintiffs can claim nothing- by virtue of the peculiar provisions of that devise in this action for partition. The same may be said respecting the proviso annexed to the devise to the said Hairy J. in the will of the widow, Mary H. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in accordance with this opinion, and for further proceedings according to law.