Johnson v. Washington Loan & Trust Co.

33 App. D.C. 242, 1909 U.S. App. LEXIS 6059

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 7, 1909
• Docket: No. 1900
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The determination of this case turns upon the construction of the -will of Washington Berry, particularly the fifth item thereof, which reads as follows: “It is my will and desire that my said homestead shall be kept and continued as the home and residence of my daughters so long as they shall remain single and unmarried. I therefore first after the death of my wife will and devise the said estate to my said daughters being single and unmarried and to the survivor and survivors of them so long as they shall be and remain single and unmarried and on the death or marriage of the last of them then I direct that the said estate shall be sold by my executors and the proceeds thereof be distributed by my said executors among my daughters living at my death and their children and descendants (per stirpes) and I hereby reserve to my heirs the family vault and burial ground embracing half an acre of ground and having the said vault as a center and on such sale as aforesaid I earnestly enjoin on my sons or some of their sons to purchase the said homestead that it may be kept in the family.

The testator had three sons, to each of whom, in earlier items of said will, he devised certain lands in fee. The first two sons were required, as conditions precedent to the taking effect of said devises, to convey their interests in certain lands devised to them by their grandfather, to the testator’s daughters, “jointly to their heirs and assigns.”

An unnumbered item following item 3 expressly annexed to the several estates devised to said sons, “this limitation that if either of them shall die without having lawful issue that the estate of each one. or both if more than one shall go to the survivor or survivors his and their heirs.”

Item 4 devised and bequeathed to testator’s wife, for and during her natural life, the homestead estate of Metropolis View, certain stocks, and all money in hand or due by bill, bond, note, or otherwise, “subject nevertheless the whole and every part of the said bequest to my said wife in the first place to the proper and comfortable support and maintenance and education according to tbeir conditions and prospects of my five daughters (naming them) so long as they and each of them shall remain single and unmarried and upon their marriage and birth of issue of each and every of them respectively to pay and deliver to each one or more so married and having issue her just, full and equal sixth part of the personal estate so as aforesaid given to my said wife.”

Item 6 reads as follows: “I direct that my executors shall divide and distribute all the rest residue and remainder of my personal estate among my children at my death and the descendants of such as may have died during my life to take a parent’s part.”

The will was executed in 1852, and testator died in 1856. All of the daughters survived him. One married, but had no child prior to his death. After his death, three other daughters married, and all had children, who are the appellants in this case. Eliza Thomas Berry, the last daughter, was never married, and died in May, 1903. The widow and one of the sons were appointed executors of the will. She assumed the duties of executor; the son declined. The widow died in 1864.

The two principal contentions of the appellants are thus stated in their brief:

“1. Under the general rule relating to the construction of wills, to which all other rules are subordinate, that the plainly expressed intention of the testator is to be carried into effect, unless in conflict with some established rule of law, item fifth of the will of Washington Berry must be held to have vested an equitable fee simple in Metropolis Yiew in the children of the daughters of Washington Berry who were living when his last surviving daughter, Eliza Thomas Berry, died unmarried. 2. As there is in this will no direct gift by' the testator to his daughters, nor even to trustees of that remainder for their benefit, but a mere provision that after the happening of certain events the property shall be sold, and the proceeds of the sale paid to a certain class or certain classes of persons, the remainder was not vested when he died, and those only take who were in existence when the precedent estate terminated.”

The contention of the appellee, on the other hand is: “The daughters of Washington Berry took under his will a life estate in Metropolis View, to take effect in possession upon the death or determination of the life estate of their mother, Eliza T. Berry, therein, to terminate on their marriage; and also, at the death of testator, a vested remainder in fee, to take effect in possession on the marriage of all of them, or the death of the last unmarried daughter.”

The following definitions of vested and contingent remainders are given in the opinion of Mr. Justice Swayne in Doe ex dem. Poor v. Considine, 6 Wall. 458, 474, 18 L. ed. 869, 874: “A vested remainder is where a present interest passes to a certain and definite person, but to be enjoyed in futuro. There must be a particular estate to support it. The remainder must pass out of the grantor at the creation of the particular estate. It must vest in the grantee during the continuance of the estate or eo instanti that it determines. A contingent remainder is where the estate in remainder is limited either to a dubious and uncertain person, or upon the happening of a dubious and uncertain event.”

Undoubtedly, as declared in Smith v. Bell, 6 Pet. 68, 75, 8 L. ed. 322, 325, the first and great principle in the exposition of wills, to which all other rules must bend, is that the intention of the testator expressed in his last will shall prevail, if not inconsistent with settled rules of law.

We do not find in the words of the testator such a clear and certain expression of his intention as to enable us to determine between the several contentions of the parties, before stated, without the aid of certain established rules of construction applicable in case of uncertainty. These are: 1. The law will not construe a remainder to be contingent when it can be taken to be vested. 2. Estates shall be held to vest at the earliest possible period, unless there is a- clear manifestation of the intention of the testator to the contrary. 3. Adverbs of time, as “where,” “there,” “after,” “from,” etc., in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not the time of vesting in interest. Doe ex dem. Poor v. Considine, 6 Wall. 458, 475, 18 L. ed. 869, 874; McArthur v. Scott, 113 U. S. 340, 378, 380, 28 L. ed. 1015, 1026, 1027, 5 Sup. Ct. Rep. 652; O’Brien v. Dougherty, 1 App. D. C. 148, 157; Richardson v. Penicks, 1 App. D. C. 261, 264; Hauptman v. Carpenter, 16 App. D. C. 524, 528.

Applying these rules, we are of the opinion that, by the provisions of the fifth item of the will, the daughters of the testator, who were all living at his death, took a vested interest in the Metropolis Yiew farm, to come into possession and enjoyment upon the termination of the life estate of the wife and the death of the last surviving daughter unmarried. The direction for sale and distribution among the daughters “living at my death” fixes that as the time of the vesting of the right in the said daughters.

It is argued by the appellants that, under this view, a daughter who might predecease the testator would take nothing, a result which, it is said, ought not to be considered as within the intention of the testator. And it was further said that, if a contingent remainder was to be created in the children and descendants of daughters, those words would limit it to the children and descendants of daughters who might be living at the time of the testator’s death, and thus cut off the children and descendants of any daughter who might have married after the date of the will, and then died before the testator, having a child or children. On the ground that neither of these results could have been within the intention of the testator, it is argued that the words “living at my death” must be eliminated and given no weight. There are no grounds, however, for eliminating words which indicate a particular intent, unless, at least, they can be shown to be utterly inconsistent with a primary or general intention otherwise clearly manifested. If any such primary intention can be said to be shown in the will it would seem to be that expressly manifested in the sixth item, and indicated more or less in others; namely, that the interests devised and bequeathed should vest in the daughters living at his death; the children of one dying in the meantime to be substituted for the deceased parent. We do not think that the language of the clause in item 5, “I therefore first after the death of my wife will and devise the said estate to my said daughters,” etc., can be held to mean that there was no intention to vest an immediate estate in the daughters, or that the vesting of any estate was postponed until after the death of the wife.

For that reason, the cases cited by appellants, to the effect that where the only gift is a direction to pay a fund at some future time, or is to trastees to sell and distribute the proceeds after the happening of a certain event, — that is to say, where the time or event referred to in the future is of the substance, and a condition of the gift, — do not apply. As we have seen, the settled rule is that estates shall be held to vest at the earliest possible period unless there be a clear manifestation of the intention of the testator to the contrary. And also that adverbs of time, like “after,” the word used, are ordinarily construed to relate to the time of the enjoyment of an estate and not to the time of vesting in interest, unless there are other terms clearly indicating a different intention. Similar words to those of the testator are frequently found in wills. The language here used is not substantially different from that involved in the case of Hauptman v. Carpenter, 16 App. D. C. 524, 526, 529. In that case the will of Daniel Hauptman devised a life estate to three of his numerous children, subject to be defeated by marriage ; the interest of one marrying to become vested in the unmarried survivor or survivors. The next paragraph provided that “after the death of all my aforesaid named children. * * * I give, devise and bequeath all of my aforesaid real estate and personal property to my son Francis E. Hauptman upon the trusts following, to sell,” etc., and distribute the proceeds among testator’s children and their respective descendants if they or any of them are dead, etc. The three life tenants died unmarried, one of them only before Francis E. Hauptman, who died leaving no issue. It was held that Francis E. Hauptman took a vested estate which passed under his will. It was said: “Tested by the definitions heretofore given of vested and contingent remainders, it would seem that the devises made in the will of Daniel Hauptman fully satisfy all the conditions of the former; and we find nothing in the remaining provisions clearly manifesting an intention to create a different estate. * * * That the estate is ordered to be sold and the proceeds divided after the determination of the life estate, thereby working an equitable conversion of the estate or interests in remainder, is of no importance in determining the character of that remainder.” See also Cropley v. Cooper, 19 Wall. 167, 174, 22 L. ed. 109, 113.

In that case the will provided that Elizabeth Oropley should have an estate for life in certain land; “and at her decease it is my will that the said — [land] be sold, and the avails therefrom become the property of her children or child, when he, she or they have arrived at the age of twenty-one years, the interest in the meantime to be applied to their maintenance.” This last item, of importance'in our aspect of the case, has no particular bearing on the point now under consideration because this right to maintenance could not accrue until at the death of the life tenant. The court said: “A bequest in the form of a direction to pay at a future period vests in interest immediately if the payment be postponed for the convenience of the estate or to let in some other interest. The payment of debts is an instance of the former, and a prior temporary provision for some other person, as for Elizabeth Oropley, in this case, is an instance of the latter. In all such cases it is presumed that the testator postponed the time of enjoyment by the ultimate legatee for the purpose of the prior devise or bequest. A devise of lands to be sold after the termination of a life estate given by the will, the proceeds to be distributed thereafter to certain persons, is a bequest to those persons, and vests at the death of the testator.”

In view of the decisions that have been referred to, which declare the law in this jurisdiction, it would serve no useful purpose to review the many cases cited by both parties in support of their respective contentions.

Having concluded that the daughters of the testator took a vested remainder in the Metropolis View homestead, there is no occasion to consider the power of the equity court, exercised in October, 1865, to advance the time of the sale of the same, upon the petition of the parties interested, to a time preceding the death of the unmarried daughter, who waived her right, and consented thereto.

The parties obtaining the benefit of that decree would be estopped to impeach it in any event; and the appellants have no right, title, or interest to furnish a foundation for their impeachment.

We think the third point of the appellants is embraced in the conclusion denounced.

There was no error in the decree granting the prayer of the appellee’s bill, and it will be affirmed with costs. Affirmed.

A motion for a rehearing by the appellants was denied, and, on April 20, 1909, an application by them for an appeal to the Supreme Court of the United States was allowed.