Welsch v. Belleville Savings Bank

94 Ill. 191

• Court: Illinois Supreme Court
• Decided: November 15, 1879
• Status: Published

Opinion

Mr. Justice Mulkey

delivered the opinion of the Court:

The argument in this case has been confined to the question whether or not Arthur Her old took, under the will, a vested remainder in the $4000 therein mentioned. And it seems to be conceded that if such interest was taken by him, this action was improperly brought and the Appellate Court committed no error in affirming the judgment of the circuit court. Appellee claims that he did take such interest, and that appellant, in depositing the fund with appellee for investment, safe-keeping and payment to her of the earnings and accumulations thereof during her life, was simply performing a duty which the law would have enforced on his application; and that after having performed this duty she is bound by her action, and will not be permitted to disturb the possession and control of the fund so long as the trust is faithfully performed. This we understand to be in substance the position of appellee.

On the other hand appellant denies that Arthur Herold took any such interest, but insists that by the provisions of the will appellant was given power to dispose of the estate absolutely, and that the grant of such power by necessary implication conferred upon her a fee simple interest, and that hence the limitation over to Arthur was inoperative and void; that at most he took a mere contingency or possibility, liable to be defeated at any moment that appellant might think proper to do so; and that, therefore, appellant had the unquestioned and exclusive right to control the fund ; and that appellee, as custodian, having no vested interest in it, was bound to surrender it to her on demand, and that not having done so, she has a right to maintain this action for its wrongful detention. And this, as we understand, is substantially the position of appellant.

We will consider the case on the grounds counsel have placed it, and may possibly then give some additional views upon a phase of it that has only in part been suggested by counsel for appellee. Formerly wills were not construed by the courts with the liberality they now are, in furtherance of the intentions of testators. This is particularly true of devises, properly so called; and even now, in those States in which the legislature has not interposed by positive enactment, there are still a few well recognized arbitrary rules of construction that often defeat the manifest intentions of testators, among the most noted of which may be mentioned what is known as the rule in Shelly’s case. The rule of construction established by that most celebrated of cases has perhaps contributed more than all other causes combined to defeat the manifest wishes and purposes of those who have attempted to make dispositions of their estates by will. Subject to these few exceptions, however, the principle is firmly established and universally recognized that a will should be so construed as to effectuate the intention of the testator as,far as possible, and, in cases of doubt, the scope of the instrument should be considered, and its various provisions compared, one with another, in ascertaining such intention. To this fundamental rule of construction all others, with the exceptions above noted, must be subordinated. Under its influence, the express words of a will must sometimes yield to the manifest in tention of the testator; and even words will be added where it is necessary to effectuate such intention. Wright v. Dunn, 10 Wheat. 204; Bartlett v. King, 12 Mass. 537; Ruston v. Ruston, 2 Dall. 244. But courts, under the pretence of construction, have no right to either reject or supply words, except where it is absolutely necessary to avoid an absurdity or give effect to the manifest intention of the testator; for courts have no right to make a will either by rejecting some of its provisions or by adding new ones, nor by placing upon its provisions an arbitrary construction.

The general rule is, that, whenever it can possibly be done, a will should be so construed as to give effect and operation to every word and provision in it. Dows v. Swawn, 4 Mass. 208; 2 P. Wms. 282. Therefore, where the language of a will is clear and unambiguous, and there is no conflict in its various provisions, and no absurdity would thereby be involved, it should be given effect according to the literal terms used, taken in their general and popular sense, except where technical terms are used, in which case they should be taken in their technical sense, unless the context shows they are used in a different sense.

Looking at the will before us in the light of these well recognized principles, it would seem there ought to be little or no difference of opinion as to its import.

There is clearly no uncertainty as to what appellant takes under the will—manifestly the entire estate; nor is there any uncertainty as to the length of time for which this bequest was made or limited; for it is expressly declared to be “for the term of her natural life;” and there is almost as little doubt as to the purpose of the gift and right of user during this term; for it is declared in unequivocal terms to be “for her own free, independent and uncontrollable use and benefit.” So far as the. bequest to her is concerned, there can be no doubt as to its character, unless such doubt is raised by the subsequent provisions of the will.

Having thus given appellant a life estate in his entire property, the testator then proceeds to clothe her with an express power to divide the same between certain specified persons, subject to certain limitations thereinafter mentioned,-which are expressed in these words: “and that she may, at her own wish, at any time, divide the same among her, or our, children or grandchildren.” While these words clothe appellant with the power in question, they also, at the same time, indicate, in unmistakable terms, the testator’s intention that the estate shall ultimately be divided between their children and grandchildren, but not equally, for in the very next sentence he expressly provides that his grandchild Arthur shall receive “from the estate she may leave at her death,” before any division is made with the others, the sum of $4000, and also an equal share with them in the residue.

It is supposed by appellant that the expression, “from the estate she may leave at her death,” strengthens the hypothesis that it was the purpose and intention to give appellant unlimited power to dispose of the entire estate in such manner as she might think proper. While this view is not altogether without force, we can not concur in it. When the several provisions of the will are considered in connection with the character of his estate, so far as it is made to appear, or may reasonably be conjectured, the expression in question may be accounted for on a more rational hypothesis. Before the occurrence of this language the testator had already, in plain and explicit terms, limited to her the use of the estate for the term of her natural life, and had also empowered her, “ at her own wish,” to divide it at any time, either before or at the time of her death. Of course, if the division was made in her lifetime, it would be at the expense of the interest in the estate which had already been given to her; and in view of this state of things, it is but reasonable to suppose that this expression was used at least in part to negative the idea or conclusion that there was any purpose on the part of the testator, by reason of having authorized this division in her lifetime, to make it obligatory on her, and thereby curtail the life interest which he had already given to her. It was but a cautious, indirect repetition of his already unequivocally declared intention that she was to have the estate for life, and that the children’s and grandchildren’s interest was not to commence till her decease, unless she voluntarily saw proper to make the division before her death. But this expression is also to be accounted for on another ground, which doubtless operated in connection with the one we have just mentioned.

It affirmatively appears from the pleadings that the estate in question consisted in part of government bonds, which were liable to loss or destruction by accident or misfortune during her life, and it may reasonably be supposed that the estate also consisted in part of such chattels as would become greatly impaired in value from ordinary use and natural decay, so that by reason thereof the interest in remainder ivould necessarily consist of what remained of the estate at her death, and hence the expression in question. And this construction is clearly sustained by authority. See 3 Lomax’s Digest, 2d ed., top page 193, and authorities there cited.

Whatever apparent room for doubt may exist by reason of the use of those words, doubtless arises in part from the fact that the provision authorizing appellant to divide the estate among the children and grandchildren intervene between the limitation to her and the limitation to them. Had the will, after giving the life estate to her, proceeded directly to give Arthur the $4000, and to direct an equal division of the residue between him and the other children and grandchildren, and then closed by directing that his wife might make this division during her lifetime, if she saw proper to do so, there would probably never have been any doubt as to what was intended by it.

The fact that appellant is expressly authorized to divide the estate among the children and grandchildren, by implication strongly negatives a purpose on the part of the testator to authorize her to dispose of the estate in any other manner or to any other persons. Expressio unius est exclusio alterius. If he had already authorized her to dispose of the estate absolutely, why tell her she could divide it among the children? It certainly added nothing to the power- he had already conferred. The principle that the greater contains the less is as true in law as in mathematics.

We fully recognize the doctrine that where, by the terms of a will, there is given to one an unlimited power of selling or otherwise disposing of an estate in such manner as the devisee may think fit, a limitation over is inoperative and void by reason of its repugnance to the principal devise. Gay v. Montague, 3 Bro. Par. Ca. 314; Attorney General v. Hall, Vin. 103. But this doctrine has no application to a case where a life estate has been given to the first taker in express terms. Redfield, in his work on Wills, expressly lays it down that “a power of sale attached- to a life estate will not have the effect to enlarge it into a fee. And a direction that the devisee shall have the sole use of the estate,” as in the case before us, “and that at her death it shall go to her children, but if they are not raised, then to her husband and others, only creates a life estate in the first devisee,” citing, in support of the text, Jossey v. White, 28 Ga. 295. It must be conceded that the case at bar is a much stronger one against the position of appellant than the one just cited. For, in the case cited, there was not, as in the case before us, an express limitation for life to the first taker. The same doctrine is laid down in Lomax’s Digest. In vol. 3, 2d ed., top page 317, the author says: “Although a devise to a person generally, with power to give and dispose of the estate devised as he pleases, creates an estate in fee simple, yet where an estate is devised to a person expressly for life with a power of disposal, the devisee will only take an estate for life and a power to dispose of the reversion.” So, even if it were admitted that the terms “her own free,” “independent” and “uncontrollable” use gave appellant the power to dispose of the estate absolutely, it would not follow that Arthur Herold did not take a vested remainder. On the contrary, the authorities cited .establish the very converse of that proposition. But we are satisfied .that the testator did not intend by those terms to give appellant an unlimited power to dispose of the property. All that was intended by them was to give her the largest possible dominion over the estate consistent with the interest conferred upon her by the will. And it may be laid down as a general rule, that in all cases where, by the terms of a will, there has been an express limitation of an estate to the first taker for life and a limitation over, any general expressions like those in question, apparently giving the tenant for life an unlimited power over the estate, but which do not in express terms do so, must be regarded as referring to the life interest only, and therefore as limited by such interest. We are clearly of opinion, therefore, that in any view that may reasonably be taken of this case, in equity Arthur Herold had a vested remainder in the $4000 in question. We say in equity, for the whole doctrine of remainders in personal estates is a product of purely equitable growth. Strictly speaking, it is unknown to the law as contradistinguished from equity. It has been fostered and developed by courts of equity, the spiritual courts of England and the probate courts of this country, until it is deeply rooted in the jurisprudence of both countries.

Originally, where a chattel or other personal estate was given to one for life with a limitation over to another, the former took the absolute title, and the limitation over was void, both at law and in equity. In the course of time, however, equity—which has ever been a pioneer in the interest of justice and right—in the case of a devise of a chattel real to one for life with a limitation over to another, interposed on behalf of the remainder-man, holding the limitation over good as an executory devise, but not as a remainder. And even now such limitations over are not, strictly speaking, remainders; for it is as true now as then, one can not, in the common law sense of the term, have an estate in money or a mere chattel.

The interest thus conferred, in so far as it is acquired by an express limitation over, and is not to be enjoyed in possession till a future day, is analogous to that of a remainder, and it is only called a remainder by way of analogy.

The jurisdiction of courts of equity in cases of this character was originally confined exclusively to dispositions by will of chattels real, where the use merely had been given to tenants for life. But in process of time the same relief was extended to cases where the use of other chattels had been limited in a similar manner. And finally, equity wholly repudiated the distinction between the use of a chattel and the chattel itself, and adopted the more reasonable and sensible doctrine that where a chattel is given to one for life, with a limitation over to another, the first taker really acquires nothing but a right to the use, and such is the recognized doctrine at the present time. Whether a remainder in personal estate can now be created by an ordinary deed is, upon authority, very questionable. The weight of authority seems to be against it; yet, in a hard case equity would probably find some means of untying its hands and affording the necessary relief. It is well settled, however, that such interests may now be limited by deeds of trust, in which cases the trustees take the legal title, and, at law, would be recognized as sole owners.

The ancient doctrine which gave to the tenant for life the absolute property still prevails, both at law and in equity, with respect to a bequest of specific things whose use consists solely in their consumption, such as fruits, provisions, etc. The gift of such articles for life is said to be of necessity a gift of the absolute property, because the use and property can not exist separately. 2 Kent, 353, side page. The same author says: “If such articles are not specifically given, but generally as goods and chattels with a remainder over, the tenant for life is bound to convert them into money, and save the principal for the remainder-man.”

And it may be laid down as a general rule, in all cases where the property thus limited is not specifically given, and is liable to perish or greatly deteriorate in value by keeping or using the same, and there is nothing to indicate an intention that the property shall be enjoyed in specie by the tenant for life, a court of equity will, on application of the remainder-man, require the property to be converted into money and properly invested, giving the tenant for life all accumulations, and reserving the principal for the tenant in remainder, upon the former’s decease. Where chattels are specifically given to the tenant for life he is of course entitled to their possession and use, and so long as they are used with ordinary care and prudence the remainder-man is not permitted to interfere, even though it may altogether defeat his future enjoyment of the property. But where a testator gives to one for life a certain sum of money out of his'estate, with a limitation over to another, the former has no right to the possession of the money thus bequeathed. The title thereto devolves upon the executor, and it is his duty to see that the same is properly invested, and that the annual accumulations are paid over to the tenant for life, and the principal to the remainder-man upon the former’s decease.

It follows, from this view of the law, that appellant had no right to the personal custody of the moneys which her husband left at his decease unless she happened to be executrix, and that is not disclosed by the pleadings, upon which this case alone turns. Nor was she entitled to the United States bonds, for they were in effect money properly and judiciously invested by the testator before his death. As to them, it was the duty of the executor, after the payment of all debts, to pay to her the coupons thereto attached as they became due. But, inasmuch as these bonds came into her hands,—and whether properly or not is immaterial so far as this controversy is concerned,—and she voluntarily placed them in the custody of defendant, as a trustee for herself and Arthur, in the manner set forth in appellee’s pleas, she had no right, as tenant for life of the fund, to disturb the defendant’s possession of it, and hence she can'not maintain this action.

But there is another view, that has not been urged by appellee’s counsel to any extent, that we regard as fatal to a recovery in this case. Under the pleadings, appellee was entitled to adjudgment if either of the special pleas presented a good defence. The agreement set forth in the first special plea we consider a complete answer to this action, without regard to whether Arthur took a vested remainder in the $4,000 or not. In the first place, it must be conceded that there was reasonable ground to suppose that he had such interest. Arthur, through his guardian, claimed that he had. Appellant entertained this claim on her part, and by an instrument under her hand and seal conceded the justness of it, and thereby agreed that appellee should take the fund in question and invest it in other United States bonds for their mutual benefit; and this was done in pursuance of the agreement. It is not pretended that there was any fraud or overreaching, on the part of any one, by which she was induced to execute the agreement in question, and upon what principle it is now claimed that she can, without the consent of the other parties to it, avoid the obligations which it imposes, we are wholly unable to see. Having once fully and voluntarily, without any fraud or overreaching from any quarter, by her deed solemnly acknowledged the justness of his claim, and delivered the fund to appellee for him, to be delivered on her decease, she is now estopped from denying his right to it.

Under this state of facts appellant is bound, in any view we can take of the case. Suppose the agreement is regarded as a mere voluntary settlement, appellant is still bound, for the agreement is fully executed. Upon the delivery of the instrument in question and the transfer of the fund to appellee, nothing further was required at her hands to make Arthur’s title complete, and it was to all intents and purposes an executed agreement. And it is scarcely necessary to say that a mere gift or voluntary agreement is just as binding as any other undertaking, when executed.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.