Brown v. Higgins

Owen, J. The judgment of the lower court was rested on the proposition that the judgment in the action to- quiet title commenced in 1907 was conclusive and binding upon the appellants. Of the appellants here only Malesta Higgins [256] was a party to that action. As to her it is no doubt conclusive. The other appellants are sons and daughters of the children of Fitch Higgins who were living at the time of his death. They were not parties to the action to quiet title, except as unknown heirs. Respondents contend that they were, nevertheless, represented in that action by their ancestors, who were parties thereto, and are .concluded by the judgment entered therein upon the principle applied in Ruggles v. Tyson, 104 Wis. 500, 81 N. W. 367, and Perkins v. Burlington L. & I. Co. 112 Wis. 509, 88 N. W. 648. If the construction which the judgment in that action placed upon that provision of the will of Fitch Higgins, here involved, was correct, it will be unnecessary to consider whether the former judgment was binding upon the appellants here who were not parties to that action. After giving a life estate in the lands to Frederick F. Higgins the will provides: “And in the event of the said Frederick’s having an heir or heirs, then oh the death of the said Frederick I give and devise all of said lands herein described to him or them and their heirs and assigns forever. But in the event of the said Frederick’s dying without leaving any legal heir or heirs, then I hereby devise and bequeath said lands, each and every of them, to my own heirs at law, to have and to hold the same unto them and their heirs and assigns forever.” Frederick died without leaving heirs, and the question is, Who 'took the remainder at the termination of Frederick’s life estate ? Appellants claim that those who were the heirs of Fitch A. Higgins at the death of Frederick, while respondents contend that those who were the heirs of Fitch A. Higgins at the time of his death,-took the remainder, title thereto vesting in such heirs at the time of his death, subject to be divested if Frederick died leaving heirs. Sec. 2037, Stats., provides that future estate's in land are vested when there is a person in being who would have an immediate right to the possession of the lands upon the [257] ceasing of the intermediate or preceding estate. Technically and correctly the word “heirs” means those qualified to take at testator’s death. Flint v. Wis. T. Co. 151 Wis. 231, 138 N. W. 629. The law favors an early vesting of title, and there must be a reasonably clear intention to the contrary read out of the will in order to postpone it. West v. Andrews, 166 Wis. 509, 166 N. W. 31. The construction which the circuit court placed upon the will in the action to quiet title is in harmony with these principles. Immediately upon the death of Fitch Higgins there were persons in being who had an immediate right to the possession of the lands upon the ceasing of the life estate of Frederick. Under such circumstances sec. 2037 specifically provides that the estate shall be vested. Counsel for appellants does not seriously controvert any of these propositions but 'seeks to avoid the consequences of their application by invoking the principle that all rules for the construction of wills are subordinate to the primary canon that the intent of the testator, as gathered from the whole will, must be given effect. He contends that the expression, “then I hereby devise and bequeath said lands, each and every of them, to my own heirs at law, to have and to hold the same unto them and their heirs and assigns forever,” are not words of present grant, but amount to a direction that the premises shall be divided among those who may be his heirs at the time of Frederick’s.death. His argument is that the word “then” is an adverb of time and that its use indicates an intention of the grantor to postpone the grant until Frederick’s death. Whether the words of devise are words of a present grant or a mere direction for division at a future date is often of much significance in determining when a future estate vests, and if by the use of the phrase under consideration the testator intended to postpone the grant until Frederick’s death, there would be much to appellants’ contention. However, we do not think the word “then” was used in this connection as an adverb [258] of time, but was rather used in the sense of “in that case/'1 so that the words of the devise are words of a present grant and not a direction for a division at a future date. Appellants also argue that it is appárent fi-om other parts of the will that the phrg.se “my own heirs at law,” in the sentence of the will under consideration, did not mean the sons and daughters living at the time of testator’s death, because, in another portion of the will, .after directing his executors to pay to his son Frederick a certain amount in ten equal annual payments, he provides: “And in case my said son Frederick F.' Higgins should die, without issue previous to the expiration of ten years from and after my decease, then I give.and bequeath two thirds of the balance to my sons and daughters share and share alike, their heirs and assigns forever.” The argument is made that when the testator meant “sons and daughters” he distinctly so stated, and that the use of such expression in other parts of his will indicates that the expression “my own heirs at law” was used to denote other persons or another class of persons, 'technically the two expressions mean exactly the same thing, and if they mean the same thing there is no reason why the testator might not have used either expression without raising a presumption that he used one to .indicate something different from the other. We think the construction contended for by appellants is unwarranted. We think it clear-that upon the death of Fitch Higgins the future estate vested in his then heirs and that the appellants here took nothing under that will. It follows that they have no interest in the premises and that the order determining the rights of the parties cannot be disturbed upon their appeal. / By the-Court. — Order affirmed.