Lucas v. McNeill

TRIEBER, District Judge (after stating the facts as above). The only question involved is whether the bankrupt has a vested remainder under the will of his father in the lands of which his father died seised. On behalf of the petitioner it is claimed that as tire devise is to the mother, who is still living and unmarried, “and assigns,” and devises to his children only the property “remaining,” she has an absolute fee, and the children only a contingent remainder, ’ dependent upon the widow remarrying or dying seised of the property devised to her, and unless that happens he has no interest in the lands which could pass to his trustee in bankruptcy. [1,2] The authorities construing such provisions in a will are not harmonious; but, as this will affects the title to real estate in the state of Kansas, the construction placed upon similar provisions in wills, by the Supreme Court of that state must control. A well-established rule of that court is that in construing a will the testator’s intention, gathered by the consideration of the entire will, controls. Technical rules, it is held, ought never to be resorted to, where the application defeats the manifest intention of the testator. Williams v. McKinney, 34 Kan. 514, 518, 9 Pac. 265; Ernst v. Foster, 58 Kan. 438, 443, 49 Pac. 527; Holt v. Wilson, 82 Kan. 271, 108 Pac. 87; Bullock v. Wiltberger, 92 Kan. 904, 142 Pac. 950. Counsel for the petitioner claim that the will gives the mother absolute power to sell, as the devise is to her “and assigns,” and devises to his children only the property remaining at her death or upon her remarriage undisposed of by her, therefore she owns the land in fee simple, or at least she has absolute power to sell it during her lifetime and as long as she remains unmarried, and as she is living the petitioner has no interest in the lands, except a contingent or expectant remainder, which may never become vested. The devise set out in the statement of facts is copied literally, and shows that the punctuation is not accurate, but the intention of the testator is clearly shown. ' [3] Under.the laws of Kansas, as construed by the Supreme Court of that state, it is claimed a provision in a will which gives the first taker under it an absolute right to dispose of the property enables him to deprive the remaindermen of their interest. In our opinion this contention is sustained'by the uniform decisions of the Supreme Court of Kansas. In Ernst v. Foster, supra, a devise of property to E., “to have and to use and dispose- of during her natural life, and after her death to be divided equally among my three youngest heirs,” was held to confer a life estate with power of disposition on E., and leave but a contingent remainder to the heirs. In McNutt v. McCombs, 61 Kan. 25, 58 Pac. 965, the will provided that, after the wife died, what remained of the estate should go to his [675] children, and it was held that the will granted the widow a power of disposition, and her conveyance passed a title in fee. In Greenwalt v. Keller, 75 Kan. 578, 90 Pac. 233, the will read: “I wish my wife * * * to have all my property of every kind that I may own at my death, to have for her own use and benefit while she may live. And at her death all property that may be left by her [is to pass to certain devisees named].” In construing this clause of the will the court said: “By the use of the last clause of the last sentence the power of disposal in fee is added to that which would otherwise constitute a life estate only. The only property which he intended Iris heirs to receive was whatever might be left by the mother at her death. This clearly indicates that he intended her to use and permanently dispose of a part of the estate so that it would not be in existence at the time of her death for the benefit of the heirs. We think this amounts to a life estate with power to convey in fee.” In Bullock v. Wiltberger, supra, the provisions in the will were: The second paragraph of the will devised a life estate to the widow. The next paragraphs read: “Third. After the death of my said wife, it is my will that all of my property, both personal and real, * * * shall be divided equally among' my four children. “Fourth. If any of my said children shall die before my wife, * * * then it is my will, that the share which would go to my deceased child or children if living, shall bo divided among his or her children in equal parts; and if any of said children shall die without issue, prior to the death of my said wife, then it is my will that his or her share, shall be divided equally among my children then living, or if any of them be dead, then, his or her share, equally among tlieir children.” In construing this will the court held that the manifest intention of the testator was that hig estate should be kept intact until the death of his wife, and was then to be divided among his children and the heirs of such as might be deceased; that each of the four had contingent remainders, the contingency being that they survive the testator’s wife, and failing in this., as to any one or more of them, the remainder vest in his or their representatives by purchase. To the same effect is Holt v. Wilson, supra. Bor a remainder to be vested, it is necessary that throughout its existence it stands ready to take effect in possession, whenever and however the preceding estate determines. It is contingent when it is limited on an event which may happen before or after, or at the time or after the determination of the particular estate. Ætna Life Ins. Co. v. Hoppin, 214 Fed. 928, 131 C. C. A. 224, and authorities there cited. [ 4, 5] In the case at bar, petitioner’s estate was only such as may remain undisposed of at the remarriage or death of the widow, and as she has never remarried and is still living the most that can be claimed is that the petitioner’s estate is one of expectancy. Pearsall v. Great Northern Ry. Co., 161 U. S. 646, 673, 16 Sup. Ct. 705, 40 L. Ed. 838. The words “and her assigns” in the first clause, and the word “remaining” in the second clause, indicate clearly that the testator intended to give the widow' the power of disposal. As there is nothing in the will to indicate that the testator intended to differentiate the [676] personal and real estate of which he died seised, the will bequeathing and devising both to the widow, the courts are powerless to impose such a restriction on the real estate, and limit the power of disposal to the personalty. The District Court erred in holding that the petitioner had a vested interest in the realty, and its. order against the petitioner is vacated and set aside, with directions to enter an order or decree in accordance with the views expressed in this opinion.