Cashman v. Ross

ViNJE, J. The sole question presented by the appeal is whether or not under the will set'out'in the statement of facts any estate or interest in the lands vested in Margaret Ross at the death of the testator or before'the death of the life tenant,. Katie Ross. If an estate or interest vested in her, then plaintiff, as her sole heir, is entitled to maintain the action. On the other hand, if.no interest or estate vested in the re-maindermen until the death of the‘life tenant, then plaintiff,, since his wife, Margaret', died before the life tenant, has no-interest in the lands, and cannot maintain partition. Sec.. 3101, Stats. 1913, provides that an action of partition may be .maintained “by any person who has any estate in the lands of which partition is sought.” This means that' he must have some interest in the lands that has vested prior to the commencement of the action. It is not sufficient that such an interest may vest in him in the future. See Greeney v. Greeney, post, p. 621, 145 N. W. 201, and cases cited. The question must be solved, primarily, by the language of the will itself. If the intention of the testator is clear as to when the estate'vests, the statute relating to the vesting of estates cannot affect it. Morans Will, 118 Wis. 177, 193, 96 N. W. 367. The will of testator contains no words of present gift or devise to the children. It creates a life estate in the wife and then directs that upon the termination of such estate, that is, after her death,-the property is to be divided equally between his children. Respecting the pre [560] cise question here presented, the court in Morans 'Will, supra,, said: “But where there is a precedent life estate, and the devise or bequest is not direct to those who are to take in remainder, leaving the period of enjoyment to commence only after the ¡termination of a precedent life estate, but the bequest or •devise is in the form of a direction or an expressed purpose ¡that at the termination of the precedent estate the property ;shall be divided between certain persons specified, that circumstance is held to effectually displace the presumption as ¡to immediate vesting, and create the presumption, nothing appearing clearly to the contrary, that the intention of the testator was that the estate in remainder should not' vest until the time for division and distribution should arrive.” See pp. 196, 197, and cases cited. The devise in.t'he instant case meets the conditions of this language. It is not a present devise to the children. It is a direction that after the termination of the life estate the property shall be divided between them, and nothing appears in the will to indicate that any vesting of interest shall precede the right to the enjoyment of the estate. When property under a will is to be divided at a spebified time in the future among a class, only those thereof who are alive at the time of division can take under the will in the absence of provisions to the contrary. Moran’s Will, 118 Wis. 177, 199, 96 N. W. 367; Matter of Baer, 147 N. Y. 348, 41 N. E. 702. We have no provisions in this will disposing of the share of a remainderman who dies before the life tenant. The devise, therefore, to Margaret Eoss lapsed upon her death prior to that of her mother, and her share went to the other children of the testator who survived and not to her husband. The court properly granted a nonsuit. By the Court. — Judgment affirmed.