Phillips v. Wood

15 A. 88, 16 R.I. 274, 1887 R.I. LEXIS 82

• Court: Supreme Court of Rhode Island
• Decided: February 19, 1887
• Status: Published

Opinion

Per Curiam.

1. Sally Kelton, widow of John Kelton, takes under the will and codicil of her late husband an estate for life in the property given to her, coupled with a power “ to sell so much and such part of the property,” i. e. the entire estate therein, “ as she may think proper and necessary for her support, from time to time, as necessity may require,” the power being personal, not assignable. R. I. Hospital Trust Co. v. Commercial National Bank, 14 R. I. 625, 628.

2. The complainant takes under said will and codicil a remainder in fee, the condition attached being a condition subsequent. The estate is a remainder, not an executory devise, since it is limited to take effect on the determination of the preceding life estate. When an estate is devised on condition, the condition is construed as precedent or subsequent, according to the intention of the testator, if the intention is apparent, and, if not, preferably as a condition subsequent, since the courts favor the vesting of estates. The testator must have known that it would take time to pay debts and funeral expenses and erect gravestones, as provided in the condition, and it is fair to suppose that he contemplated the complainant’s taking a reasonable time, and that meanwhile he should not be exposed to the risk of losing the benefit of the testamentary gift, and yet he would be exposed to such risk by the determination of the preceding life estate before the condition was fully performed, though it might be in great part performed if the condition were a condition precedent. The estate having vested, the complainant will succeed to the possession on the decease of the life tenant, unless the heirs interpose for breach of condition.

3. Herbert B. Wood, trustee, takes under the trust deed only the life estate of Sally Kelton, the grantor.