West v. Moore

37 Miss. 114

• Court: Mississippi Supreme Court
• Decided: April 15, 1859
• Status: Published

Opinion

Handy, J.,

delivered the opinion of the court.

The appellee filed his petition in the Court of Probates of Wilkinson county, praying an allotment to him of one-half of the estate of his mother, Ellen C. Moore, deceased, which he claims was left by the last will and testament of his mother to executors, in trust for him and his sister, the wife of Richard 0. West, to be equally divided between them, when the petitioner should become twenty-four years of age; and alleging that he had reached that age.

The present controversy turns, for the most part, upon the nature and character of the estate bequeathed to the petitioner; and we have, therefore, to examine those parts of the will which respect .the estate bequeathed and limited to him.

By the second clause, the testatrix “ devises her whole estate, both real and personal, to her executors, for the use and benefit of her two children, and such charges as she shall make thereon, namely, Peter Smith Moore and Frances Matilda Moore,” the appellee and the wife of the appellant, with power to the executors to sell such property as they might think most advantageous, but the property to be kept together in the hands of the executors until the payment of all her debts.

Then follows this provision in the fourth clause: “ And as my son, Peter Smith Moore, seems to be of a dissipated, extravagant disposition, it is my will that my executors do not allow him to spend anything more than for necessary clothing, and food, and doctor’s bills, whilst under the age of twenty-one years; and furthermore, if my son, Peter S. Moore, will go to some college, and by application acquire a good practical education, and by good conduct and steady habits until the age of twenty-four, it is my will that my estate be equally divided between my children, both real and personal; but if my son Peter continue in his wild, extravagant, dissipated habits, my daughter, Frances Matilda, is to inherit all my estate, both real and personal, allowing to my son three hundred dollars per annum.”

The fifth clause provides that, in the event of her daughter’s marriage, her portion of the estate be secured to her and her children, so that they may not come to want; and in the event of her dying without issue, that her brother should inherit her estate, &c.; and should Peter marry, and die without legal issue, that “ such property as he may receive from my (her) estate, be equally divided between his widow and the daughter, Frances M.”

After some other provisions, the will contains the following concluding clause: “My last wish is that, though this my last will and testament be not written in strict legal phraseology, it may not be the cause of any litigation whatever, but be construed as intended, to keep my children from want, by securing their property so that they cannot squander it,” &c.

It was not alleged in the petition, nor shown by proof, that the petitioner had performed any of the conditions mentioned in the fourth clause of the will, except that he had attained to the age of twenty-four years. The case appears to have been decided upon the force and effect of the will and the construction given to its provisions; and upon the hearing, a decree was rendered for the petitioner; from which the appellant’s administrators cum. test, ann. have taken this appeal.

The first question for consideration is, whether the condition, that the petitioner should go to some college and acquire a good pradical education, and by good conduct and steady habits until the age of twenty-four years, is a condition precedent to the vesting of the estate bequeathed to his use and benefit.

The language employed in expressing the condition, if taken by itself, appears to be free from doubt or ambiguity. It manifests a clear intention, that the vesting of the estate was to depend upon the performance of the acts, or the observance of the course of conduct required. The language is apt and proper to constitute a condition precedent, — if he shall do so and so, the testatrix’s estate is to be equally divided between him and his sister; which shows a clear intention, that if he did not comply with the requisitions, the estate was not to be equally divided. But this is still more manifest from the negative form of expression which immediately follows, “ but if my son Peter continue in his wild, extravagant, dissipated habits, my daughter Frances is to inherit all my estate.” This has direct reference to the expression of a condition immediately preceding it, and must be construed in connection with the condition there stated. Both parts of the clause, taken together, show a clear and manifest intention, that if he complied with the requisitions imposed, the estate should, after the time stated, be equally divided between him and his sister; but if he failed to comply,— that is, continued in his wild and dissipated habits, — the estate should not be equally divided, and the portion intended for him should not vest, but that the whole should vest in his sister, subject to an annual allowance to him of three hundred dollars; and this clearly makes the vesting of the estate to depend upon the condition precedent, according to the language of this clause.

Is there, then, anything in the other parts of the will showing a. different intention in the testatrix ?

It is urged in behalf of the appellee, that the positive effect of the second clause, devising her whole estate “ to her executors, for the use and benefit of her two children,” was to vest the estate in the children at her death, subject only to the payment of debts, and to the special directions and dispositions with regard to the property made in the will; that this effect can only be avoided by a positive indication of a different intention in other parts of the will; that the provision in regard to the vesting of the estate in Peter being doubtful, must be interpreted with reference to, and so as to harmonize with, this plain and primary disposition of the estate, and must, therefore, be held to make his estate one upon condition subsequent, or subject to forfeiture, if he continued in his wild and dissipated habits; and that this must be adopted as the proper construction of the' conditions of the fourth clause.

But this position does not appear to be justified by the general spirit and purview of the will.

It may be true that the second clause, if taken alone, would vest the legal estate in the executors, which would inure to the benefit of the children of the testatrix by operation of the Statute of Uses. But it is plain that the legal estate is vested in the executors, as trustees; and the will proceeds, in other clauses, to declare the uses and purposes for which that title was to be held by them.

In the concluding clause, the will, which appears to have been written by the testatrix herself, states distinctly the main purpose with which it was made, to be, “ to keep her children from want, by securing their property so that they cannot squander it.” It appears by the fourth clause, that she considered her son Peter to be “ of a dissipated, extravagant disposition,” and that she wished to reform his evil propensity, and, in her own language, to “ turn him from the error of his ways.” In order to accomplish this end, she first directs that her executors “ will not allow him to spend” anything more than for necessaries during his minority, which means, simply, that her executors should not furnish him with means, or pay his contracts, except for necessaries. She then directs, with reference to his course after his majority, that if he will go to some college and acquire a good practical education, and be of good conduct and steady habits, until the age of twenty-four, her estate shall be equally divided between him and his sister ; but if be continued in his dissipated habits, that the entire estate should go to the sister, except an annual allowance to him.

It is manifest that she was fearful that he would squander the estate which she wished to leave him, and that she intended to place it out of his power to do so until he should, by his conduct, give the evidence prescribed, that it might be safely committed to his keeping. Her purpose clearly was to prevent the squandering of the estate intended for him, and to produce reformation as a condition to its being placed in his hands. Accordingly, she restricts allowances to him by her executors to necessaries during his minority; and after that period, makes his estate dependent upon the condition of acquiring a good education, and continuing in good conduct and steady habits until the age of twenty-four. Until this contingency takes place, the executors hold the legal title under the second clause; and the purposes of the trust in their hands, as above stated, prevent the use being executed, at least in behalf of Peter ; so that the first proposition upon which the position under consideration is based, to wit, that the estate vested in the children, at the death of the testatrix, by virtue of the second clause of the will, is not sustained, and the argument founded upon it fails.

The construction contended for, while it is not warranted by the phraseology of the fourth clause, is entirely irreconcilable with the primary purpose of the testatrix. She regarded the appellee as already wild and dissipated in his habits; and therefore she expressly declares her object to be to secure the property intended for him, so that it should not be squandered. To place it in his hands, subject merely to forfeiture of his estate in it, in the event that he should continue in his extravagant and dissipated habits, would have been to lead him into temptation by affording the means to do the very thing which she was so anxious to prevent, — to put it into his power to squander it; and that result might have been accomplished before he could have been arrested in his extravagance. So obvious a consequence appears to have been fully suggested to her mind, and to have been distinctly guarded against. But her object appears also to have been the reformation of her son from his objectionable habits. It is not to be supposed that she could have expected to do this by furnishing him with the means of indulging those habits, subject to be deprived of the means if be continued in the indulgence of them. A much more wise and effectual mode of inducing the desired change appears to have been adopted by her, — to offer the bounty as the reward of reformation, and to withhold it until a compliance with the conditions imposed by her should give assurance that her wishes had been accomplished.

Such being her objects, as clearly indicated in her will, she has, in clear language, provided in her own way how the' property shall be secured from being squandered, and how it shall be employed for his reformation, by requiring that the estate shall not vest in him until the conditions, which she thought St to impose, should be performed by him.

There may be contingencies which would create a hardship under the rule fixed by the testatrix, as the condition for the vesting of the estate in the appellee, as in the supposed case of his reforming and marrying, and afterwards dying leaving issue, before reaching the age of twenty-four. We are not called upon to say whether such isssue would take the estate or any interest therein devised to him by the will, because no such ease is here presented for consideration. We have to determine, simply, from the context of the will, whether the estate bequeathed for the use of the appellee was to vest for his benefit only upon • condition precedent to be pei’-•formed by him; and, both from the language employed and the purposes of the testatrix plainly manifested, we think it clear that the estate did not vest for his benefit, except upon the substantial performance of the condition.

In opposition to this construction, several objections are taken in behalf of the appellee, which are worthy of notice;

First. It is said that the first part of the fourth clause, viz., that the executors should not allow Peter to spend anything more than for necessaries during his minority, shows an intention that he was to have a present vested interest in the estate. But we do not consider this provision as having the force contended for. It has reference expressly to Peter’s expenditures during his minority, when he W'as not competent in law to make contracts, except for necessaries; and of this disability it must be presumed that the testatrix was aware. It cannot, therefore, be supposed that she-contemplated any power on his part over the estate. The legal title was left to the executors, to whom was committed the entire management of the estate; and the provision simply amounts to a direction to them not to allow him during his minority to charge the estate in their hands beyond his necessary expenditures ; that is, practically, not to pay his contracts or debts, except for necessaries, nor furnish him with the means to indulge his “dissipated, extravagant disposition,” and to take all proper and needful steps to prevent him from contracting any other debts than for necessaries.

In support of the same view, it is also said that the concluding-clause speaks of the property bequeathed to the children as “ their property,” thereby showing that a present estate was intended from her death. This is the clause declaring that the will shall be so construed as “ to keep her children from want, by securing their property so that they cannot squander it.” But the clause, as is above shown, taken with the context, tends clearly to show that the estate was not intended to be vested presently in Peter, but was so disposed of that he could not squander it by extravagance. And the expression, “ their property,” cannot be taken to mean a present estate vested, especially with regard to Peter, but the property intended to be bequeathed according to the terms of the will. And this is evident from the whole will with reference to him, and is shown by the clause in the fifth article in relation to him, that “such property as he may receive from her estate shall be divided between his widow and sister,” in the event of his marriage and death without issue.

Secondly. It is insisted, that the words in the fourth clause in relation to the condition annexed to the vesting of the estate in Peter are uncertain, and the provision imperfect, by reason of the omission of certain words which are necessary to render the provision complete, and to show what was the real intention of the testatrix in the matter; and, therefore, that the entire provision in relation to the condition must be disregarded as incomplete and unintelligible. The omission is said to be in that part containing the words, “ and by good conduct and steady habits until the age of twenty-four,” in which something is wanting necessary to render the sentence complete and grammatical; and it is contended, that the words immediately following, — “ It is my will,” &c., — are the beginning of a new sentence, not appearing to be immediately dependent for their force or meaning upon the preceding words.

It is true that there appears to be an omission of some words, required by strict grammatical construction to render the sentence complete, or the improper introduction of some word. But the error or omission appears to be immaterial, and it does not affect the sense, which is plainly shown to be, that “'if Peter will go to some college, and by application acquire a good practical education, and by (that is, be of) good conduct and steady habits, until the age of twenty-four, it is my will that my estate be equally divided between my children,” &c. It is plain that the word “by,” before the words “good conduct,” may be omitted without impairing the sense, or, if retained, that it is simply inaccurate and does not affect the meaning. It is also evident that the sentence was not intended to close with the words “ twenty-four,” but that those and the preceding words of the sentence, were intended in direct reference to the words immediately following, and as stating the condition upon which she wished the estate to vest. The words “it is my will,” &c., follow naturally the preceding words creating the condition; and, both considered together, show that they had direct relation to each other, the first being the condition, and the second the consequence ; and this plain intention cannot be avoided by the use of an immaterial grammatical inaccuracy, or by the error of employing a capital letter in the midst of a sentence.

It is, therefore, evident that these parts of the fourth clause must be taken together, as parts of the same proposition, and having a necessary dependence upon each other. And this is rendered more manifest hy the fact that, after declaring that if Peter would go to college and acquire an education, and be of good conduct and steady habits, until the age of twenty-four, it -was her will that her estate should be equally divided between her children; she continues, “ but if Peter continue in his wild, extravagant, dissipated habits, her daughter Frances should inherit all her estate,” &c. This last passage has a direct reference to the preceding parts of the clause, showing the connection between the preceding parts, and what was to be the disposition of the property in the event that the condition previously stated, in order to the vesting in Peter of the estate intended for him, should not be complied with on his part.

If this view of the purpose and effect of these parts of the fourth clause of the will be correct, it obviates the objection urged against the condition, that no time is specified for the performance of it, and hence, that it is either void for uncertainty, or may be performed at any time during the life of the appellee; for the period of performance is limited until the age of twenty-four.

Thirdly. It is objected that the omission of any provision for the support and education of the appellee, after his reaching majority, and until the age of twenty-four, notwithstanding the desire expressed in the will that he should acquire a good collegiate education, shows that the estate was intended to vest in him without requiring the performance of the conditions precedent.

But the vesting of the estate in the appellee was not necessary in order to carry out the wish of the testatrix, that he should go to college and acquire an education, and have until the age of twenty-four to reform his habits. Having clearly expressed her wish that he should pursue that course of life, and should be allowed until the age of twenty-four to do so, before the estate should vest in him, by a clear implication the needful means to accomplish the end were to be furnished him, as well after his majority, and until the age of twenty-four, as during his minority. Hence the end which she was so anxious to accomplish could not fail for want of the means ; and the omission of any specific provision for his support and education, is not irreconcilable with the condition precedent upon which the estate was to vest in him.

The next subject of inquiry is, whether the condition is void for uncertainty.

The substance of the condition is, that the appellee should acquire a good practical education, discontinue his wild, extravagant, and dissipated habits, and be of good conduct and steady habits until the age of twenty-four. The object was, that he might reform his moral habits, and by a course of good conduct and steady habits, until he reached the age of twenty-four, give assurance that he would not squander the estate intended for his benefit.

It is objected that it could never be ascertained, to any reasonable certainty, whether he had complied with these requisitions, as the question depends upon moral habits too vague and uncertain to be satisfactorily defined.

This is true to a certain extent; and the objection would apply to the consideration of all questions, depending upon moral qualities, which are constantly presented for the action of courts of justice, — such as questions of good faith, of intellectual and moral competency to do particular acts, of good or bad moral character, veracity, integrity, &c. The every-day affairs of men are involved in such questions, and they must be determined by courts, when rights depend upon them. The difficulty of adjusting them in a perfectly just manner, cannot avoid the necessity of their being determined in the most just way practicable; and they must, therefore, be settled upon such practical principles of conduct as generally govern men in their dealings with one another. In all such cases, the governing consideration must be, what was the intention of the party in requiring the condition or conduct provided for ? what did he design to accomplish? and this must be ascertained from the nature and circumstances of the case.

It appears, in this case, that the testatrix regarded her son as of “dissipated, extravagant” habits, so much so as to make her anxious to secure his property so that he would not squander it. In order to effect this object, she imposed the conditions upon the vesting of the property mentioned in the will. Keeping in view this object, there appears to be no difficulty in determining, according to the principles by which similar questions are solved in the transactions of men, what he was required to do, and whether he had conformed his conduct to that standard. He was first required to change “his dissipated, extravagant” course, and to be of “good conduct and steady habits until the age of twenty-four.” Ordinarily, it would certainly not be impracticable to determine whether he had so changed his habits, and acted with good conduct and steady habits for the period mentioned. The public judgment constantly determines such questions, and men competent to form opinions upon such matters, judge of them, and act upon such opinions — and the opinions of such persons, in such cases, form a proper basis of judicial action. Men of correct judgment might have no difficulty in coming to a conclusion as to whether a young man of the community was of such good conduct and steady habits as to give reasonable ground of belief that he would not squander his property; and this was the end which the testatrix appears to have been anxious to accomplish, and such the condition of the vesting of the property in him. This is all the assurance which she could have intended to require, and it is not so uncertain as to be incapable of being determined.

So it would not have been difficult for judicious men to determine from his conduct whether he “ continued in his wild, extravagant, dissipated habits/’ so as to induce the belief that he would squander his property. These words must be understood in the sense in which they are used, and acted upon in the practical affairs of men in like cases, and according to the common understanding of them; for upon such questions, absolute perfection of judgment is beyond human capacity. Such opinions are constantly formed, and acted on in important matters of business, by the friends and acquaintances of young men, and their characters, in this respect, may be shown by that kind of evidence. There might be instances in which, from the peculiar condition of the person, judicious men might not be able to form an opinion as to his character. But such exceptional cases are not to furnish the rule of action in matters of this nature; for there can be but little doubt that discreet and intelligent men in the community will generally form a correct opinion as to whether a young man, who has lived among them until the age of twenty-four, is of “wild, extravagant, and dissipated habits” or not.

Looking, then, at the course of conduct required of this young man, in a practical point of view, as it was plainly intended by the testatrix, it does not appear that there could be any difficulty in determining whether he had substantially complied with the requisitions upon which he was to enjoy the estate.

This case does not appear to differ in principle from that of Tattersall v. Howell, 2 Meriv. 26, in which a legacy was left by a mother to her son, upon condition that “ he changed the course of life he had so long folloioed, and would give up all his low company and frequenting public houses entirely.” These requisitions are certainly more vague, and difficult of proper ascertainment, than those in this case. Yet the condition was held to be valid, and that the legacy could not vest until it was shown to be performed.

We think, therefore, that this objection cannot prevail.

It follows, from these views, that as there was no proof of the performance of the conditions imposed upon the vesting of the estate in the appellee, the decree in his behalf for one-half of the estate is erroneous, and that it must be reversed and the petition dismissed.

Smith, Ch. J., being of kin to the parties, did not sit in this cause.