Atwater v. Russell

51 N.W. 624, 49 Minn. 22, 1892 Minn. LEXIS 138

• Court: Supreme Court of Minnesota
• Decided: March 11, 1892
• Status: Published

Opinion

Gilfillan, C. J.

September 24, 1884, Eichard Martin, then owning two tracts of land, or farms, near Minneapolis, in this state, a house and lot in the village of Eed Hook, Dutchess county, N. Y., and nearly $100,000 in notes, mortgages, money, and bonds, made his will. He then resided in the state of New York, but he had for many years resided in Minneapolis. He had no wife; and a brother and sister of the full blood, who are also legatees in clause two of the will, and a sister of the half blood, who is also a legatee, were his next of kin, and upon his death were his sole heirs at law. The will contained eleven clauses. By the third, fourth, fifth, sixth, and seventh he made specific bequests to each of his next of kin, and to other more distant relatives. The second, ninth, tenth, and residuary clauses come in question here.

October 1, 1888,-no other changes in his circumstances than .as recited in the codicil having taken place, he executed the codicil to bis will.

The word “eleventh” in the codicil is manifestly a clerical error, and it is conceded that it should be “tenth.”

The action is brought to get a construction of the will and codicil,. and a decision upon some of the bequests made by them.

Very many questions are raised, and they are argued in the briefs with great ability and thoroughness, everything that could be said-' for or against the several propositions being fully set forth.

The legatees in clause two claim that by the codicil that clause was so modified as to make a bequest absolute to Anna S. Eussell and Walter S. Martin of $30,000, to be divided between them in the proportion specified in the clause in place of the income of $21,000 to be so divided, and also another absolute bequest of $30,000 to the children who, by the terms of the clause, were to take the $21,-000 after the deaths of Anna S. and Walter S. It is difficult to see how any one could reach those conclusions upon the codicil. Its meaning is very plain, — to increase the sum mentioned in the clause, and make it $30,000 instead of $21,000. That increase of course increases in the same ratio the annual income to be paid to Anna S. and Walter S., and the shares in the principal sum to be paid to the children upon the death of one or both of those two persons. What is said in the codicil as to the proportions in which payments are to be made to Anna S., Walter S., and the children was manifestly inserted from (probably unnecessary) caution, and to exclude an inference that a change was intended in respect to those payments. It would be a forced and unnatural construction to hold that the testator intended by so indirect and ambiguous a form to change the whole plan of the clause, when direct and explicit terms ■ for expressing the intention must have been present in his mind with such intention if he had it.

On the part of the heirs it is claimed that the testator died intestate as to the half of the residue of the estate left to the trustees for “the institution which shall take under the tenth bequest of this will.”

Various reasons are assigned for this proposition, only one of which we need now consider. It is, in substance, that, as the will is modified by the codicil, no beneficiary for that one half of the residue can be ascertained. Of course, if the legatee intended by a bequest cannot be ascertained by the will, the bequest must of necessity fail. The argument is that by the terms of the residuary clause no beneficiary can take that half of the residue, except the institution which shall take under clause ten, and, as that clause is annulled, there can be no taking under it, and consequently there can be no beneficiary answering to the description in the residuary clause. Where a bequest is made to one by name or by a sufficient description, and another bequest is made, not repeating the name or description, but referring for the legatee to the other bequest, it is as though the name or description were repeated, and the latter bequest will not fail because the former does, unless the intention be apparent to make the latter bequest depend on the former taking effect.

The plan of clause ten was to endow with the property mentioned an orphans’ home or an asylum for aged and infirm persons in the city of Minneapolis, under the control and management of the members of the Protestant Episcopal churches in that city, a corporation for the purpose to be organized by the trustees named, or one of them, and, when formed, the trustees were to turn the property over to it. And, in case such an institution as the clause described should be in existence in said city at the testator’s death, then they were authorized, in their discretion, to turn the property over to that institution. We are not now concerned with the validity of the provisions of that clause. We are now seeking to find what the testator intended — what was in his mind — at the time he executed the will, as. a guide to his intentions in making the codicil. No existing beneficiary is named or described in clause ten. The beneficiary is to be brought into being by the act of the trustees, or in a'certain event ascertained by their selection or adoption.

The residuary clause leaves the residue of the estate for St. Barnabas Hospital, and the institution so organized or selected, and so taking the bequest in clause ten. The only way in which, either for the purposes of clause ten or of the residuary clause, the latter bene-fieiary could be ascertained, was that provided in clause ten, to wit, by the acts of the trustees in incorporating or selecting a home or asylum, and appropriating to it the bequest in that clause. Such acts, when done, and only such acts, would point out the beneficiary intended in the residuary clause. The latter clause contains no authority to the trustees to either incorporate or adopt a beneficiary for its purposes alone. It is also apparent that the testator intended the bequest in clause ten and one half of the residue of the estate to go together to the same institution. The residuary bequest was therefore dependent on the other.

When the authority to the trustees to incorporate or select a corporation to take under clause ten was withdrawn by annulling that clause, no act of theirs could ascertain or point out the beneficiary intended by the residuary clause. Had the codicil stopped with annulling clause ten, no beneficiary to share the residue with St. Barnabas Hospital could have been ascertained. A case would then have been presented where the court is driven to the conclusion that a testator, in spite of his intention to the contrary, has died partially intestate.

But on behalf of the Sheltering Arms it is claimed that the codicil brings it in as, or in lieu of, the institution intended in clause ten and the residuary clause. If so, then partial intestacy is avoided.

The intention of the testator, as shown by the will, was beyond question to dispose of all his estate; to die intestate as to none of it; to leave none of it to go to his heirs or next of kin by- the law of descent or distribution. This is apparent, not only from the fact that the will assumes to dispose of all the estate, but from the careful and precise provision made for every person who might be regarded as a natural object of the testator’s bounty, and who might, upon his death, stand in the relation of heir or next of kin. When such is the intention, it is frequently a powerful consideration in the interpretation of a will. In such eases courts will not hold that a testator died intestate as to any part of his estate, unless driven to the conclusion that he has done so in spite of his intention to the contrary. It may, in a particular case, be impossible to ascertain who is the intended devisee or legatee, or such devisee or legatee may be incompetent to take, or the bequest may be void because in violation of some rule of law, — as where it attempts to create an unlawful trust or perpetuity; and in such case the property included in it will fall into the residue of the estate, and, if there be no devisee or legatee appointed to take the residue, partial intestacy will of necessity be the result. But the 'court will avoid that result if it can be done by any reasonable interpretation. The presumption is that the testator intended that interpretation which supports the will in all its parts and for all its purposes, and not such a one as will defeat any part of it.

The changes made by the codicil consist in the increase of the bequest in clause two; the revocation of the money bequests in clauses nine and ten, so that those sums fell into the residue; the excluding from the specific devises of one tract of land because it had been conveyed by deed; in devising the other tract for a beneficiary not named in the will; in withdrawing from the trustees authority to organize or adopt a beneficiary; and in bringing in the Sheltering Arms as an object of the testator’s bounty. His reasons for making the changes are stated in the recitals. Those reasons are important and influential considerations in the interpretation to ascertain the extent of the changes intended wherever there is ambiguity in the terms employed. The change in values of real estate consisting, as found by the court below, in an increase, especially as to the tract described in clause ten, furnishes a reason for increasing the bequest in clause two, and probably for the transposing, so to speak, of the tracts of land devised by clauses nine and ten, so that the tract described in clause ten goes, under the conveyance recited, to the beneficiary named in clause nine, and the tract described in clause nine goes to the new beneficiary. The other fact recited, to wit, “the establishment in the city of Minneapolis of institutions of the same or of similar nature to those which the bequests named in my will were intended to establish or aid,” can hardly be supposed to have influenced him in making the two changes last above referred to; but it stands out as the reason for the testator designating a beneficiary himself, and bringing in an institution of the kind which the bequests in the will were intended to establish or aid, instead of leaving it to his trustees to organize or select one. That recital cannot refer to St. Barnabas Hospital, for that had been established before he executed the will. It can refer only to institutions of the same or similar nature as those described in clause ten, — that is, orphans’ homes, and asylums for aged and infirm persons, under the control and management of the Protestant Episcopal churches of Minneapolis, or members thereof. It appears that the Sheltering Arms was incorporated after the will and before the codicil was executed, and it differs from the orphans’ home described in clause ten only in this: that communicants of the Protestant Episcopal- church generally (and not merely members of the local churches) may become members entitled to vote, and so to control and manage it. It is not found as a fact, nor is there evidence to show, that any other institution, either orphans’ home, or asylum for aged and infirm persons, in any way answering to the description in clause ten, had been established when the codicil was executed. It is therefore beyond question that in reciting the fact in consequence of which he, by the codicil, expunged clause ten, the testator had in mind the Sheltering Arms, and no other institution. He found existing an institution such as he had in mind in preparing clause ten and the residuary clause; and because he found such institution already existing he designated it as the object of his bounty, and took from the trustees the power he intended by clause ten to confer on them, — to organize or select one which should take under that clause, and also under the residuary clause.

Did he intend thereby to revoke the residuary clause as to one half the residue, die intestate as to that half, leaving it to be distributed by the law, or did he intend it to stand with the object of his bounty thus selected by him, to take under it in lieu of an institution to be organized or selected by his trustees as at first contemplated ?

It must, of course, be presumed that when executing the codicil he knew that the will contained a residuary clause, how and to whom that clause assumed to dispose of the residue of his estate, that, with clause ten annulled, there could be no possible legatee for half the residue, and that he would consequently die intestate as to that half, unless he provided one in place of the legatee originally intended. There is, then, but this alternative: he intended to revoke the clause as to one half the residue and die intestate as to that half, or he intended to let it stand with a substituted legatee. If the latter, then he intended the beneficiary brought in by the codicil —the Sheltering Arms — to be such legatee.

' An intention to revoke or in any way modify the residuary clause is not expressed in the codicil; it must be found by implication. The clause is not alluded to at all in the codicil. What the testator intended with respect to it must be implied from the codicil, read in connection with the will, in view of the surrounding circumstances, especially those he recites as his reasons for making the codicil. It is urged, if he intended to substitute a new legatee in the clause, why did he not say so ? On the other hand, it is urged with equal force, if he intended to revoke the clause, why did he not express that intention? Why did he leave it not alluded to at all? The answer to both of these suggestions is that the necessity or propriety of saying anything about it probably did not occur to the testator.

The general scheme of the will, when executed, was to provide by specific or money bequests for all the testator’s relatives, and to endow two charitable institutions, — one a hospital, the other an orphans’ home, or an asylum for aged and infirm persons, — each of the two to be endowed by a specific devise of real estate and a bequest of money, and of one half the residue of the estate; one half the residue was to go with each specific tract of land. As the testator then thought, neither the tract of land, nor the money bequests, nor half the residue, was by itself a sufficient endowment for either of the institutions. There was certainly no change of intention to endow two such institutions. The plan has been carried out with respect to the hospital by conveying one of the tracts for its use, and leaving the residuary clause unchanged. As to the adequate endowment of that institution, he had not changed his mind. There is nothing from which to infer a change of mind as to that point in regard to the orphans’ home, unless it be that he’ devised to it the tract of land, without inserting its name in the residuary clause, which, as he was devising to it in lieu of the institution to be organized, under clause ten, the land described in clause nine in lieu of that described in clause ten, he may not have thought to be necessary, or the propriety of which may not have occurred to him. The suggestion that the fact of its being already established was, in the mind of the testator, a reason for not endowing it so fully as he intended to do the institution to be organized under clause ten, has little force, in view of the provision in that clause, authorizing the trustees to turn over the specific bequests to an already established institution, if there should be one at his death, and the residuary clause that one half the residue should follow it.

Taking the will and codicil together, and in view of the circumstances which induced the execution of the latter, as recited in it, it seems to us much more probable that the testator brought the Sheltering Arms into the plan for distributing his property as, or in lieu of, the institution contemplated in clause ten and the residuary clause; that he intended it to stand in his will as one of the two charitable institutions, to be endowed each by a specific devise of real estate, and a bequest of one half the residue of his estate, — than that he intended to revoke the bequest in the residuary clause for such an institution.

We therefore hold that the testator intended the Sheltering Arms to take under the residuary clause, in lieu of the institution originally described in it.

In arriving at this conclusion we have taken into account no extrinsic facts but those recited in the codicil, and it was competent for the court below to admit evidence as to those facts, to put itself as nearly as might be in the place of the testator in respect to the subjects and objects of his testamentary dispositions. If any other evidence was erroneously admitted it was harmless.

As clause ten was annulled, so that no disposition of the property depends upon it, there is no necessity to consider whether it was valid or void.

Of the proposition that the residuary bequest to St. Barnabas Hospital was revoked by the codicil, all that is necessary to say is that there is no basis for it.

(Opinion published 51 N. W. Rep. 624)

The clause in the codicil following the devise of land to the executors: “And as soon as, in the judgment of my said executors, the same can be sold for a reasonable price, (and not later than ten years after my decease,) to sell the same, either in a body or in separate portions,” etc., — does not suspend the power of alienation for any period. The executors may not exercise the power till the end ■of the ten years, and ten years may extend beyond the duration of two lives. But that the power of alienation may not be exercised within the period prescribed by statute is not the test. The test is, ■can it be exercised, and a good title passed, within the prescribed period ? The executors had the power to alienate and pass the title as soon as they qualified. That they are to sell as soon as in their judgment the same can be sold for a reasonable price does not limit the power to alienate and-pass the title, and puts no restriction on their exercise of it beyond what the law would impose, though the - clause were omitted.

■ The proposition that under the provisions of the will the legatees Bussell, Walter S. Martin, and Brown have- forfeited their legacies cannot be considered, because — First, no facts are found on which to base it; second, that there was no decision of the point by the court below; third, no one but those legatees appeals.

Order affirmed.

Mitchell, J., took no part in the decision.