Lambden v. West

7 Del. Ch. 266

• Court: Court of Chancery of Delaware
• Decided: March 15, 1895
• Status: Published

Opinion

Wolcott, Chancellor.

The facts in this case are substantially as follows:- On the 20th day of October, A. D. 1883, Samuel H. Gault and Silas Gault, of Broad Creek Hundred, Sussex county, State of Delaware, of the one part, and Robert Lambden, of the other part, made and executed a certain agreement in writing, as follows:

“ This agreement made and concluded by and between Samuel H. Gault and Silas Gault of Broad Creek Hundred, Sussex County, and State of Delaware, of the first part, and Robert Lambden of the same place of the second part;

“Witnesseth, That the said Samuel H. Gault and Silas Gault, for and in consideration of the stipulations hereinafter set forth, Hath agreed to and with the said Robert Lambden, his heirs or assigns, to erect a steam saw mill on land of said Robert Lambden on what is known as Ross Point, lying between the Big and little Melson’s Mills, in Broad Creek Hundred and County aforesaid, and said mill to be kept at said location until all the timber large enough is sawed up, the said Gaults are to saw the timber into peach crate patterns at the rate of one hundred thousand annually or more if they chose, they are to cut, haul and saw said timber and to have the one half part of the same after it is sawed into patterns. All lumber sawed not peach box patterns, for said Lambden, they are to have, for what pine timber under one inch in thickness sixteen cents per hundered feet mill measure. All pine lumber sawed (except peach box patterns) one inch in thickness or over, twenty cents per hundred feet mill measure. All white oak and Hickory sawed to have twenty five cents per hundered feet. They are to saw all lumber in good merchantable order with as little waste as possible. The said Robert Lambden is to haul free of charge the said mill and machinery from its present position to the point where she is to be located on Ross Point, as aforesaid, to furnish also free of charge enough timber out of which said Gaults can saw lumber for the mill-house, said mill-house to be put up at the said Gaults expense. The said Lambden is to furnish the other parties a dwelling’ house to live in free of rent during the time they let the mill remain on Ross Point and while engaged in working said Lambden’s timber. The said Robert Lambden is to furnish the said Gaults two timber carts and his Laura mule to use free of charge during the time said Gaults are sawing his timber at Ross Point.

“"Witness the hands and seals of the parties hereto this twentieth day of October, A. D. 1883.

(Signed.) Samuel H. Gault, [seal.]

(Signed.) Silas T. Gault, [seal.]

(Signed.) Robt. Lambdeh. [seal.]

Attest:

(Signed.) Thomas W. Ralph."

That the said Robert Lambden departed this life on or about the 20th day of April, A. D. 1885, leaving to survive him as his heirs-at-law and next of kin, three children, to-wit, the complainants, Thomas S. Lambden and Harvey Lambden, and the defendant Mary J. West, who intermarried with, and is now the wife of, Samuel B. West, the other defendant.

That the said ¡Robert Lambden being seized in fee .simple in his lifetime and at the time of his death, of the tract of land hereinafter described, being the same tract mentioned in the said contract above quoted, made and published his last will and testament bearing date the 10th day of April, A. D1. 1885, and which was duly proved and allowed on the 29th day of April, A. D. 1885, by the register of wills of said county, and recorded in Will Record Book P, No. 15, page .112. Letters testamentary thereon were duly granted to the said complainant Thomas Lambden and the said defendant Samuel B. West, the executors named in said will.

Items 4 and 15 of said will, being the only parts involved in this controversy, are as follows:

“ Item 4th. I give and bequeath unto my daughter Mary J. West, wife of Samuel B>. West, to her and to her heirs and assigns, to have and to hold forever, a ■certain tract of land .situated in Broad Creek Hundered Sussex County, the same being all the land south of the public road leading from the Big Mill to the Little Mill, including all the land between the aforesaid Mill streams and containing about one hundered and ninety acres (190), Provided, however, that all the timber on the aforesaid 190 acres shall be worked as per contract now existing, and the rising issues therefrom shall be paid into my estate and be equally divided among my lawful heirs.”

“ Item 15th. I give and bequeath all the rest, residue and remainder of my personal property not heretofore-disposed of unto my three children, viz.: Thomas S. Lambden, Harvey Lambden and Mary J. West, the same to be equally divided among them.”

Prior to the death of the said Robert Lambden, the testator, the said Samuel S. Gault and Silas Gault, in pursuance of the said agreement, erected a sawmill on the tract of land in question, and proceeded to carry out the terms of the said agreement during the remainder of the said- Robert Lambden’s life, and for a few' months-after his death when, on account of insolvency, they abandoned the work, and utterly failed and refused to-complete the execution of the said agreement.

That in the month of January, A. D. 1889, the said. Mary J. West, under said item 4 of said will, took possession of the said lands so devised to her, and directed the-said Samuel B. West, her husband, to clear up said land with a view to putting the same under cultivation.

That on the 20th day of June, A. D. 188 91, the complainants claiming the timber upon said land under item 4 of said will, as heirs-at-law of the said testator, filed a bill setting forth substantially the above-stated facts,- and praying for an injunction restraining the said defendants from cutting the said timber; and thereupon a rule was, issued to show cause wrhy a preliminary injunction should not issue, returnable the 8th day of July, A. H. 1889, and an order was issued restraining them in the meantime, as prayed for.

On the 8th day of July, A. D. 1889, the defendants executed a bond with J. Gibson Cannon, as surety, conditioned that the said Mary J. West should keep a just and true account of all the timber that might be cut, converted and sold by her growing on the land devised to her as aforesaid, and pay the proceeds of the sale thereof to the executors of said deceased, provided, that the decree finally establishing the rights of the respective parties shall so direct, and that the said said Mary J. "West, her heirs, executors or administrators shall, in all things, perform and abide such decrees or orders as the Chancellor may make, then the said bond to be void; otherwise to be and remain in full force and virtue, whereupon the restraining order was discharged.

On the 30th day of July, A. D. 1890, Mary J. West, one of the defendants, filed an answer, admitting to be true all the facts stated in the bill of complaint, with the additional allegation that Robert J. Lambden in his lifetime, received the proceeds which arose from the said agreement with the said Gaults up to the time of his death, and the proceeds which arose therefrom subsequent to his death passed into the hands of his executors.

The controversy in this case arises between the complainants and the defendant Mary J. West, under the provisional clause in item fourth of the said will, by reason of the abandonment by the Gaults of the contract therein referred to.

It is proper at the threshold of the consideration of this question to eliminate therefrom the fact that the timber growing on the land devised was converted into money by Mary J. West, the devisee of the land, under the sanction of this court, and the same secured by a bond to await the adjudication of the rights of the parties. The conditions which existed at the time of the testator’s death must, for the purposes of this case, be regarded as existing now, as the status of the parties under the will was fixed at the moment of his decease. This court cannot create a condition unauthorized by the will, whether intentional or otherwise, by which a certain result may be attained compatible with either a supposed or real testamentary intent.

It was insisted by the solicitors for the complainants that the contract between the testator and the Gaults operated as an equitable conversion of the timber growing on the land devised to Mary J. West, from the time of its execution.

The determination of this question thus raised depends upon the purport and object of the contract. By that contract, the Gaults covenanted with the testator to erect a sawmill on Ross Point being on the lands devised in the said fourth item of the will to the said Mary J. West, and to keep the same there until all the timber large enough was sawed up, and to saw the said timber into peach-crate patterns at the rate of 100,000 annually, or more if they chose. For this they were to receive one-half, after being sawed into such patterns. All lumber sawed, not being peach-box patterns, they were to saw for Lambden, the testator, at prices specified in the contract.

It is manifest upon the reading of this contract that its effect is nothing more nor less than a simple hiring or employment of the Gaults by Lambden, the testator, to cut and saw the timber in question, to be paid for by him part in money and in part in ldnd. There is nothing whatever in its language to support the contention that it is a contract for purchase or sale of the timber, or any interest in the land.

It was further contended, on the part of the complainant, that the provision in the said fourth item of the will, by which the testator declared that the timber growing on the land devised to Mary J. West should be worked according to contract (referring to the agreement with the Gaults), and bequeathed the proceeds arising therefrom to his heirs-at-law, was a condition precedent annexed to the gift of the fee in the land.

This contention, however, must also fall from the fact that this provision in the will is in reality neither a condition precedent nor subsequent, as regards the devise of the land to Mary J. West. The vesting of the fee in Mary J. West did not in anywise depend upon the performance or nonperformance of the agreement. It was absolutely free from any contingency whatever. Immediately upon the death of the testator, her right in the land became definitely fixed or established. It is not a condition subsequent, because there is no intimation in the will that her estate in the land should be defeasible upon the happening or not happening of any particular event.

The only condition contained in item fourth of the will relates exclusively to the bequest to the heirs-at-law of the issues arising from the contract in regard to the cutting of the timber. After devising the fee in the land to Mary J. West, the testator provides, “ that all the timber on the aforesaid 190 acres shall be worked as per contract now existing and the rising issues therefrom shall be paid into my estate and be equally divided among my lawful heirs.”

This language cannot be misunderstood. It is only the issues arising from the contract with the Gaults that he gives to his heirs-at-law. He does not give them the timber, neither does he authorize the executors to sell the timber and give them the proceeds of the sale thereof; they take no interest whatever in the timber except in the particular mode designated in item fourth of the will, and no authority is conferred upon the executors to do any act concerning the timber except to receive the issues arising from the contract and to distribute the same among the heirs-at-law. The simple language employed by the testator to give to Mary J. West the fee in the land, invested her with absolute dominion and control over it and all the timber growing thereon. Her authority in respect thereto was limited only by the provisional clause in item fourth, which subjected the timber to the operation of the contract therein referred to. That agreement gave to the Gaults only the right to occupy the land for the purpose of working up the timber in the manner provided for in the contract. The right of Mary J. West to enter the land and use it for her own exclusive purposes was perfect against all the world except the Gaults. As we have seen, the executors had no right to enter, and the heirs-at-law are in the same position. It is urged that the provisional clause in item fourth of the will must be construed so as to have the effect of an exception of the timber from the gift to Mary J. West. Suppose it is, its operation was made by the testator to depend upon the will of the Gaults. I have no doubt that it was an exception subject to the contingency involved in the performance of the contract, through which the exception might be realized by the heirs-at-law of the testator.

By the insolvency of the Gaults, however, and their refusal to perform the contract mentioned, the only mode thus expressly provided by the testator by which his heirs were to receive any benefit under item fourth, has been rendered totally ineffective. The heirs-at-law cannot now, therefore, take anything under the fourth item of the will, unless it be in some way contrary to the testamentary method. This court has no power to provide such a way. It is certain that it has no power to make a new will for the testator, and it is equally certain that it has no power to substitute a new; provision in a will. Bor the power to do the latter would argue the existence of the power to do the former.

Suppose that the testator had intended that his heirs-.at-law should have the benefits of the conversion of the timber into personalty, in the way prescribed in the will, or of that which was equivalent thereto, he should not have restricted them to a particular mode of receiving such benefits. Having made the gift dependent upon the performance of the contract, must not they look to that as the only source whence such advantage must be derived? He, therefore, made the performance of the contract a condition upon which his heirs-at-law should enjoy the benefit of this peculiar bequest.

In the construction of this clause of the will, it is immaterial what the conjectural intention of the testator may have been. Whether or not he intended that his heirs-at-law should have the profits of the timber independently of any possible failure or abandonment of the contract cannot prevail against the unambiguous language which he used, not only to express his intention, but to carry it into effect. If he did so intend, it was. simply a case of volnit sed non elixit.

I am, therefore, of the opinion that Mary J. West,, after the abandonment of the contract by the Gaults, took the land devised to her in item fourth of the will, and all the timber growing thereon, discharged from any claim thereto on the part of the heirs-at-law of the testator or of his executors.