Dohn's Exr. v. Dohn

62 S.W. 1033, 110 Ky. 884, 1901 Ky. LEXIS 152

• Court: Court of Appeals of Kentucky
• Decided: May 17, 1901
• Status: Published

Opinion

Opinion op the court by

JUDGE DuRELLE

Reversing.

In October, 1898, Andrew Dolm died, leaving a widow, son, and three daughters. In December, 1899, the son, Frank Dohn, died without issue, but leaving a widow. Rebecca Dohn, one of the children of Andrew Dohn, is an infant ab'out the age of 6 years; and, .after the death of Frank Dohn, the appellant, as executor and trustee under the will, and as guardian of Rebecca, instituted this suit for the construction of clause 5 of the will of Andrew Dohn, and subsequently pleadings were filed by parties in interest .asking a construction of the entire will. By his; will, Andrew Dohn gave to his son a stock of groceries and fixtures, providing that in the final settlement of the estate he should be charged therewith at the sum of $2,000. To the husband of his daughter Lizzie, he gave a similar stock to be charged at the same sum to her share. The residue of his estate was to be held in trust by the Louisville Trust Company, as executor and trustee for the tru;sts thereinafter stated, with a provision for the erection of ia family monument. The will then proceeds: “Item 4. My executor and trustee is directed to pay to my wife one hundred dollars ($100.00) per month during her lifetime, and my wife shall also have the free use and occupation of my residence and all the furniture therein iior .and during her natural life, free of rent; .and all the taxes', insurance, and repairs shall be paid by any executor and trustee. Item 5. I direct my executor and trustee to pay to each of my children the sum of seventy-five dollars ($75.00) per month, until my youngest child is twenty-five (25) years of age. Item (S. After the death of my wife, and when my youngest child is twenty-five (25) years of age, my entire estate, real and personal, of every nature and deiscription, shall be divided in equal parts among my children or their hieirs. The issue of the ■child or .children dying shall inherit the share of its parent., Item 7. The share of my daughters shall be their separate estate, free from the claim or control of any husband they or either of them may have, with power to dispose of same by will or deed. Item 8. I empower my executor and trustee to advance to each of my children, after the death of my wife, a sum not exceeding fifteen hundred dollars ($1,500), to be charged to their share in the final settlement, to be made when my youngest child is twenty-five years of age. My .executor and trustee shall Keep all my property in good repair, and pay all taxes and assessments promptly, and keep tlhe property insured. The net income left over and above the amounts required for my wife and Children, as herein stated, shall be invested by my executor and trustee in good, well-paying stocks, bonds, mortgages, or other property, and divided as stated in item 6 herein. In testimony whereof, witness my hand to this, my last will and testament, this 17th day of September, 1892, at Louisville, Ivy.” No issue of fact was presented for decision. Upon final (hearing the learned special judge decided that each of the four children took a vested right to receive $75 per month until Rebecca, the youngest child of Andrew Dohn, would became 25 years of age, which will occur on January 18, 1920; that, Frank J. Dohn having died intestate, his right passed to his administrator; and his mother and Ms widow, being his1 only heirs at law, were entitled each to one-half of such monthly installments. It was also held that on tihe death of Andrew Dohn each child took a vested right to a one-fourth interest in all the personal estate left by Andrew Dohn, and, Frank Dohn having died intestate' and without issue, his right to an undivided one-fourth interest in sucih personalty passed to his administrator, and, there being no creditors of Ms estate, Ms share: :of such personalty goes equally to Ms .mother and widow, Ms only heirs at law, whose rights are, however, taken subject to the provision that the trust company shall hold and manage the estate until the termination of the trust. It wias further held that at the death of Andrew Dohn each child took a vested right to an equal, undivided one-fourth interest in the real‘property left by Andrew Dohn, and that Frank Dohn’s one-fourth interest descended to his mother, with .a right of dower therein in his widow, the enjoyment of which is postponed until the termination of the trust. it was further held that the trust company is to hold all the estate, real and personal, and apply as directed the rents and profits thereof, until the death of Andrew Dohn’s widow, and until Rebecca, his youngest child, .shall .arrive at the .age of. 25 yeans, which will he on'January 18, 1920, or so long as itmaybe necessary to execute the trust created in the will and to pay the monthly installments of $100 to Andrew DoMPsi widow* and $75 each to his children or their representatives; it being further adjudged that, if Rebecca shall die under the age of 25 years, and Andrew Dohn’s widow shall be already dead, or upon the death of Rebecca under 25 years of age and upon the death of Andrew Dohn’s widow after.such death of Rebecca, the monthly payments shall cease, 'and the estate shall be paid over by.the trustee as directed in the previous, provisions of the judgment.

On behalf of appellant trust company, as executor, trustee, and guardian, it was urged that it was error to adjudge that the bequest of $75 a month to Frank Dohn survived to his administrator; that such bequest is to continue until January 18, 1920; and that he took a vested right upon the death of his father in the corpus) of Andrew Dohn’s real and personal estate, in which his widow is entitled to share as distributee of the personalty and diowreisis of the realty. The objection to the provision fixing the duration of the monthly payments is not well taken, as the provision with respect thereto is modified by a subsequent provision of the judgment which contemplates an earlier stoppage1 of such payments. It is contended for appellant that the devise of $75 per month, to each child until the youngest child is 25 years of age was intended for the maintenance and support of such child, and wais wholly personal to the legatees, or, at alL events, was for the benefit only of 'those who were to take the estate under item 6. We are of opinion that the second alternative presented by appellant upon this question is not tenable, and that the bequest was either personal, and ceased upon the death of the legatee, or was a vested interest, which continued until the termination of the trust. There is no clause of substitution, as in item 6. Nor do we see how items 5 and 6, which provide for payments at entirely different times, can be so construed together as to make the last clause of item G apply to the gift in item 5, so as to make the issue of a dead child take the place of the parent. Nor do we think that by fair construction the gift can be construed as limited to the life of the legatee. Apt words for such a limitation were used in the clause imimediiately preceding with reference to the monthly payments to the widow, and were omitted from this clause. Upon the other hand, the gift is absolute in its terms; applies equally to each one of the children; the same duration is fixed for each; and no provision is made for the payments ceasing, or for the substitution oí any other beneficiary, in the event of the- death of any of the legatees before the period fixed for terminating the payments, though such a contingency was evidently in contemplation, as shown by the succeeding clause. Moreover, the testator evidently aimed at equality among his children. This is evidenced by .the provision made for charging up the advancements made to his .son and son-in-law. It seems clear that the testator did not intend, in tlhe event of the death of a child leaving issue, that such issue should be cut off from the receipt of all benefit froun his estate until his youngest child should arrive at the age of 25 years, which would be the effect of holding that this gift was personal to each legatee, and ceased upon, his death. We are of opinion that by this item a charge was created upon his estate in favor of each child for the period fixed by him, and the right thereto vested upon the death of the testator. In other words, it was the gift of an annuity. It may be admitted that.it is quite probable the testator did not intend the provision for his wife to be increased, as is done by this construction; but that is an unforeseen result of carrying out his actual intention. The intent of the testator being ascertained, the unforseen results which follow can not change the construction. In this conclusion we are supported by the case of Stevenson’s Ex’rs v. Stevenson, 91 Ky., 51, 12 R., 658 (14 S. W., 955), in which the will provided: “I direct that $700 per annum be paid to my daughter, Sallie Coles Stevenson, during each and every year of my wife’s life.” The legatee died before the testator’s widow, leaving two infant children. The question was whether the gift was personal to the daughter, and ceased at her death, or should continue until the death of the testator’s widow. It was held that the payment of the $700 per annum was a charge on the estate until the death of the widow. See, also, Morris v. Bolles, 65 Conn., 45, (31 Atl., 538); Page, Wills, 599, 600.

The next question is whether the estates devised under item 6 are conditional upon the survival of the beneficiaries until the time fixed for distribution. That section provides: “Item 6. After the death of my wife, and when my youngest child is twenty-five years of age, my entire estate, real and personal, of every nature and description, shall be divided in equal parts among my children or their heirs. The issue of the child or children dying shall inherit the share of its parent.” Appellees contend that the language used in this item presents a case for the application of the rule of construction of devises that the “policy of the law is to let the fee vest at the earliest possible time” (1 Dembitz, Land Tit., 661); i. e. upon the death of the testator, that the estate then vested in the children who survived the testator, or in the issue of such as had died before that time; and upon the subsequent death of Frank Dohn his estate passed to his heirs subject to the widow’s right of dower and distributable share. Some importance is attached in argument to the language which provides that “the issue of the child or children dying shall inherit the share of its parent,” it being urged that the word “inherit” is used as a word of limitation, to indicate that the issue of a dead child should take from and through the parent, and not from the testator. But, if the death of the child be referred to the period before the testator’s death, it seems obvious that little weight can be given to this argument, fop in that dew the issue would not inherit at all, either from its parent or from the testator, but would take under the will. Indeed, it seems probable that the word “inherit” is loosely used in lieu of “take,” as frequently occurs in wills. Nor can we perceive much force in the argument that a perpetuity is created by the construction that the testator meant that the person® answering the description of children, or issue of dead children, at the death of the widow and when the youngest child is 25 years of age, shall then be vested with the estate, because of the fact that the time of such vesting .is definitely ascertainable as the 18th of January, 1920. No one is here contending that January 18, 1,920, is fixed as the time of the vesting of the estate, or as the time of division. It seems conceded upon all sides that the distribution is to take place upon the happening of whichever of two events shall take place last, — one the death of the widow, the other the arrival at 25 years of age of such child of the testator as shall then be his youngest living child. If the child who is now the youngest shall die in infancy, the next older living child’s arrival at the age of 25 years wall become one of the elements determining the time of distribution; and it makes no difference how many degrees removed from the testator the final takers may be, provided the life or lives selected to determine the vesting are in being at the time the will takes effect. «

It is argued with much ability that the estate vested in those children who survived the testator, though the distribution and possession of the corpus of the estate was postponed until the period indicated; that the postponement of possession iwas not with reference to any needs of the devisees, or to their capacity for the enjoyment of the estate, but solely for the, convenience of the estate, to enable the trustee to make the monthly payments provided for in an earlier clause of the will. A number of authorities have been very plausibly cited on behalf of appellees in support of this contention. But the majority of the court have reached a different conclusion as to the construction to be placed upon the language used in this clause. Except by the sixth iteim of the will, no estate in the corpus is devised to any of the descendants of the testator. The whole estate under the third item, is given to the appellant company in trust for the uses thereafter named. Those were to manage the estate; pay taxes, insurance, and repairs; collect rents and profits, and out of the income pay the monthly installments provided for in the fourth and fifth clauses; the allowance to the wife being undoubtedly a provision for her maintenance during life, and those to the children being presumably for the same purpose. The surplus income was to be invested with the principal. In item 6 alone is there any devise of the corpus of the estate. That devise is coupled with and follows the provision for the time of distribution. This devise was made by the testator to his children or their heirs. Upon the happening of both the events provided for, his estate was to be divided among his children or their heirs. The language up to this point indicates strongly an intention that it was to he divided among those persons who should then answer to the description of his children or their heirs; that is, the heirs of such as might die during the period between the testator’s death and the time fixed for distribution. The age of the testator at the time he made his will would indicate that he expected all of his children to survive him. The clause then proceeds in a separate sentence to provide that ‘‘the issue of the child or children dying shall inherit the share of its parent.” For what did this sentence provide? If the previous portion of the clause provided for a vested estate in each child at the death of the testator, does this sentence add anything to that construction? IVe think mot. On the contrary, it seems rather to provide a clause of ¡substitution of devisees, and at a different period, viz., at the period of distribution. Assume, for the.sake of argument, that the testator intended to give each child alive at the time of his death a vested estate, but to postpone the enjoyment ¡and possession, except a portion 'of the income, what would be the natural and usual mode of making the provision? Undoubtedly, it would be to make the devise directly to them, with a provision that the trustee should hold the estate until the .period of distribution; or, ,to the trustee in trust for the children, with directions to pay certain monthly allowances until the period of distribution, when the corpus should bie distributed. Nothing of that kind appears here. It is given directly to the trustee, with directions for its management until the period of distribution. Certain monthly installments are to be paid out of the net income, and these in the aggregate, if we include the monthly payments to th'e widow, approximate the amount of the net income. But it is evident that the testator expected there would be ,a surplus during the whole period of the management by the trustee, and undoubtedly that ¡surplus would be increased in case of the death of the widow before the youngest child arrived at the age of 25 years, which was the natural order of events. This clause did not give an interest in pnaesemti payable in futuro. It did not .indicate ¡a legatee, .and then provide that the legacy should not be paid until the happening of a future event. It is mot here , provided that the profits shall be payable to the- future distributees, and at a designated period the corpus shall be divided among them. On the contrary, the corpus is vested in a trustee, with directions to pay a fixed proportion of the profits to another person. The amount to be paid to these legatees does not approximate the total profits of the estate. The period of distribution as then fixed depends upon two events, and after all these oomes the devise to the children or the heirs, coupled with the further provision that the issue of the child or children dying shall inherit the share of its parent. Dying when? Naturally and logically this means before the period of distribution; before the period when the devise takes effect; during the continuance of the particular estate in the trustee, which was created for the purpose of managing the property, accumulating the surplus, and paying a fixed part of the income to the children and to their mother. This is the natural construction .of the language used, and the one which must be given it unless the rule of policy in favor of speedy vesting of estates can overcome it. The argument, of Chief Justice Robertson in Roberts’ Ex’rs v. Brinker, 4 Dana, 570, strongly supports the conclusion wre have reached upon this question, though the special facts in that case led the court to a different conclusipn. It also supports the conclusion we have reached as to the gift of monthly installments, whic-h were present gifts, though payable in futuro. In that case it was said: “Bequests of personalty a,re construed generally .according to the rules of the civil law, and, according to the doctrines of that Code, adopted by courts of equity, which take cognizance of legacies, a legacy given when the legatees marry, or attain a prescribed age, without anything else in the will controlling or aiding the interpretation of it, will be understood to be contingent, and ‘when’ will in such a case be deemed synonymous with Of/ oir some other word or phrase implying a condition precedent to the vestiture of any certain interest. And, accordingly, a bequest of money to an infant at twenty-one years of age, or when he shall become twenty-one years old, will be construed to mean that he shall have no interest unless he shall attain the prescribed age. But a legacy to an infant in praesenti, to be paid in futuro, is deemed to be vested, and as not depending on his living until the time fixed for payment. And it is also an established rule of construction respecting- legacies that when there is no other legaitory expression or intention than that implied in a direction to pay or distribute at a future time, or on a contingent event, the bequest, nothing else appearing, should be considered as contingent. ' But as, prima facie, it may be presumed that a testator did not intend that any interest bequeathed in his will should lie dormant or undisposed of after his death, or should ever lapse, therefore a slight circumstance may be sufficient for showing that a legacy is vested, and not contingent.” See, also, Briscoe’s Devisees v. Wickliffe, 6 Dana, 158. In 2 Janm. Wills, p. 462, it is said: “An annual allowance for maintenance (although equal in amount to the interest) will not, unless given as interest upon the legacy, make the legacy vested. The gifts are perfectly distinct, and the title to the annual allowance actually given could not be affected by the interest on the legacy not amounting to so large a sum.” In Robb v. Belt, 12 B. Mon. 648, the bequest was to testator’s wife during her widowhood, with the proviso that, should she die unmarried, “the property is equally to be divided among my eight children, or their heirs above expressed.” It was held, in an opinion by Judge Marshall, that no absolute estate passed to any of the children. Said the court: “But the will reads sensibly in its present floran, makes a provision just and natural for the contingency evidently contemplated of some of the eig'ht childlren dying before the division was to take place, and may have a certain and definite and legal operation according to its letter There is, therefore-, no ground for changing the word ‘or’ into ‘and.’ ... We are of •opinion, therefore, that the proper construction of the clause, being that the division is to be made between the testator’s children who may be living at the time of the event referred to, and the heirs of the body of such as may then be, dead, which is the only devise to any of them, the testator did intend to control the property until the happening of the event wrhen the division was to be made; and that whatever interest any one or all of his children may have had upon his death was subject to that control, and therefore subject to be defeated or terminated by the death of such child before the time of division, and belonged, by the will, to the heir or heirs of the body of such decedent living at the time fixed for the division.” In Willett’s Adm’r v. Rutter’s Adm’r, 84 Ky., 319; 8 R., 304 (1 S. W., 640), the clause for construction was as follows: “If, at my death, there shall be any surplus stock or personal property, or any cash, or cash notes, on hand, it is imy will and desire that the stock and personal property may be sold, the money collected and loaned out during the life of my wife, and at her death I desire that it may be divided between my said daughter and granddaughter.” In that ease, Judge Bennett delivering the opinion of the ■court, it was held that the vesting of the estate was postponed until the arrival of the time for its distribution, the two being- inseparably joined, quoting from Jarm. Wills, p. 760, where it is said that in “the rules which regulate the vesting of personal legacies, the payment of which is postponed to a period subsequent to the decease of the testator, a leading distinction is that, if futurity is ¡mnexed to the substance of the gift, the vesting is suspended, but, if it appears to relate to the timé of payment, the legacy vests instanter.” Again, the court in that case said: “Thus we see that when the gift is created simply by directing the payment or distribution of the legacy at some future period of time after the decease of the testator, or upon the happening of a contingent event, aind there is no provision in the will for vesting the legacy immediately, then the future time fixed, or the happening of the contingency is of the essence of the gift.” The authorities froim this state cited on behalf of appellees are readily distinguishable from the case at bar. Williams v. Williams, 91 Ky., 547 (13 R., 293) 16 S. W., 361), and Wedekind v. Hallenberg, 88 Ky., 114 (10 R., 696) (10 S. W., 368), are perhapsthe strongest of these authorities. Williams vAYilliams is, in the opinion, distinguished from Robb v. Belt, supra, by the peculiar circumstances set forth in the opinion; and in Wedekind v. Hallenberg, Judge Holt, delivering the opinion, states the exact doctrine upon which we now proceed: “Tf the testator has annexed futurity to the substance of his bounty, and it is of the essence of the gift, then its vesting is suspended; but, if it merely relate to the enjoyment or payment of it, then it vests in praesenti, unless this be made to depend upon an event which may never happen. The legacy is to be regarded as vested or contingent, according as the time when it isi to take is annexed to the enjoyment of the gift or the gift itself. If there be no substantive gift, and it is -only implied from a direction to pay, then the devise is contingent, unless a contrary intention may be collected from tbe words or context, or tbe payment be postponed for the convenience of the property or estate, or to let in some other interest.” In the case at bar we do not think a contrary intention may be collected from the words or context, or that the payment directed was postponed for the convenience of the estate, or to let in some other interest. Giving all proper weight to the settled policy of the law that estates should vest at the earliest moment, we do not think that policy should he permitted ho override the natural import of the language here used, in the absence of circumstances to indicate a 'different intention, which do not, in our judgment, here .appear. The judgment is reversed, with directions to set aside the judgment and enter judgment in accordance with this opinion.

On petition fob modification of the opinion, June 22, 1901. Held: 1. As a will speaks from the death of the testator, a reference therein to the arrival of testator’s youngest child at the age of twenty-five years applies to the youngest child at the date of testator’s death, though born after the execution of the will. 2. Where a testator hy his will directed a monthly payment to his widow during her life, and to each of his children until the youngest child should reach the age of twenty-five years, and then provided that after the death of his wife, and when his youngest child should reach twenty-five years of age, his entire estate should be divided among his children or their heirs, •the monthly payments to the children must continue, in any event, until the death of the widow, though the only child under twenty-five years of age may die before that time.

Extended opinion by

JUDGE DuRELLE,

June 22, 1901.

Per Curiam. The will speaks from the death >otf the testator, and the reference therein to the arrival at the age of 25 years of his youngest child must be referred to Rebecca Dohn, who was the youngest child at the date of testator’s death, although born after the execution of the will.

■ The provision for an annuity in favor of each of the children was apparently intended for their support and maintenance during the continuance of the trust. We can hardly suppose that it was the intention of the testator to-leave his children, two of whom are females, without the means of subsistence until the death of his' wife, should the youngest child die before such death. This construction may seem somewhat strained, and in violation of the literal meaning of one of the clauses of the will; but, taking the whole will together, and' deducing the testator’s intention therefrom as best we may, this construction is probably as close to that intention as we can arrive, and seems to be supported to some extent by respectable authority. Gray v. Dickinson (11 Ky. L. R. 890) (13 S. W., 209); Boraston’s Case, 3 Coke, 19; Briscoe’s Devisees v. Wickliffe, 6 Dana, 162; Danforth v. Talbot’s Adm’r, 7 B. Mon., 627; Davis v. Wood, 17 B Mon., 91; McDaniel’s Guardian v. McDaniel, 91 Ky., 157 (15 S. W., 129). From this it would follow that the monthly payments to the children should continue until Rebecca Dohn arrives at the age of 25 years, should she live so long, and, in case of her death before the death of the testator’s widow, until the next youngest child reaches the age of 25 years, and in any event until the ideath of the testator’s widow.