Earnshaw v. Daly

1 App. D.C. 218, 1893 U.S. App. LEXIS 3028

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 2, 1893
• Docket: No. 69
• Status: Published

Opinion

Mr. Justice Sxiepard

delivered the opinion of the Court:

It is contended on behalf of appellant, that the fee in the lands was not devised, and that it descended at once to the children of the testator, subject to the estate carved out for the widow, and that the provision for the sale thereof, upon the “arrival at lawful age” of the youngest child, is void, because in restraint of alienation.

In the view that we have taken of the merits of this case, we do not consider it necessary to follow counsel in their learned and interesting exposition of the principles, and criticism of the authorities, relating to the laiw of perpetuities and restraints of alienation. The plain provisions of the will itself furnish the grounds for our conclusion.

“The first and great rule in the exposition of wills, to which all other rules must bend, is, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law.” Smith v. Bell, 6 Pet., 68; Colton v. Colton, 127 U. S., 300.

By this will the testator’s widow took a life estate subject to termination by marriage, or by the arrival at lawful age of the youngest child. This estate was charged with the education of the children, for we cannot but regard the words— “ and I desire her to see my children well educated, the expense of which shall be paid out of the general income”— as something more than advisory merely. The subject as well as the objects of this trust were certain and the expression of the desire was followed by an explicit direction of the manner of its satisfaction. The character and extent of this education only are left to tire reasonable discretion of the widow, the exercise of which by her is subject to the supervision of a court -of equity. Colton v. Colton, 127 U. S., 300 ; McMurray v. Stanly, 69 Tex., 227.

Whether the widow die before that time or not, the lands are required to be held until the arrival of the youngest child at lawful age, when, and not before, they shall be sold, and the proceeds distributed among all the children, “ share and share alike.”

The children took a vested interest upon the death of the testator, the full enjoyment of which is not to take effect until the majority of the youngest. Cropley v. Cooper, 19 Wall., 167. When that time arrives, they will have their election, to divide the lands or have them sold by a trustee, who may be appointed by a court of equity upon their application.

There was no attempt to cast upon them a fee-simple estate in the lands, coupled with a restraint upon their power of alienation. The testator’s purpose to hold the lands together unsold until the majority of the youngest child may have been induced by a reasonable belief that they would increase greatly in value, and the desire to secure the benefits thereof to all, and especially to the younger children, who could neither alien nor incumber their shares until arrival at majority. But whatever the motive may have been, it is a matter with which we are not concerned.

The will contains a simple and not unusual form of devise or bequest that has never been generally considered beyond the power of a testator, or opposed to any sound rule of pub-lie policy, so long, as in this case, it be not so long postponed in enjoyment as to come in conflict with the rule against perpetuities.

We see no error in the proceedings in the court below, and its decree must be affirmed, with costs.

Affirmed.