Schrader v. Schrader , 158 Iowa 85 ( 1912 )

Weaver, J.

John Peter Schrader died leaving a will, which has been duly admitted to probate. The meaning and effect of two clauses of said will having become a matter of dispute, this action was brought for their construction. Having first given his personal estate and a life interest in all his real estate to his wife, he undertakes to devise the remainder over in certain described tracts of land to his sons George, Henry, and Frank in the following manner: By the first of the disputed clauses he provides that a certain described tract of land shall, on the death of his wife, Dora, be equally divided between his sons, George, Hénry, and Frank, and then adds, “It is further my will that in the event that the said Dora Schrader shall die before I do that upon my death the last described premises shall be equally divided between my three sons.” By the other clause it'is provided as follows: “ If my well beloved wife Dora Schrader shall live after me, then it is further my will that on the death of said Dora Schrader my well beloved son, George Schrader, shall become the sole, absolute and unqualified owner, on the condition hereinafter expressed, of the following described real premises: [Here follows description of land other than that mentioned in the first clause.] It is the express condition that before George Schrader shall become the sole, absolute and unqualified owner of said real premises that he shall pay to my well beloved son, Henry Schrader, the sum of $500. And it is further my will that in the event my well beloved wife, Dora Schrader, shall die before I do that upon my death the said last above described real premises shall pass to the sole, absolute, and unqualified ownership of my son George Schrader, upon condition that he, my son George Schrader, shall pay to my son, Henry Schrader, the sum of $500.”

The testator died October 1, 1904, survived by his wife and three sons, above named. Thereafter, on June 8, 1906, the son George Schrader died intestate, leaving surviving him his wife, Louisa Schrader, and his infant daughter,’ Dora Schrader, his only child and heir, who are the defendants in this proceeding. George Schrader did not in his lifetime pay the said sum of $500 to his brother Henry; nor had it been paid by the widow or child of George when this action was instituted. On July 23, 1909, Dora Schrader, widow of the testator, died, and upon the lapsing of her life estate in the lands above described, question .at once arose as to* what interest therein, if any, accrued to the widow and child of George.

It was and is the contention of Henry and Frank that under the terms of the will George Schrader took no vested interest in any of said lands upon the death of their father, but that the devise to him was contingent upon his surviving their mother, the life tenant, and, having died before such devise became effective, and before acquiring any heritable estate in the property, no interest therein of any kind passed to his wife or child.

The trial court held and decreed that, under the devise of the first tract of land, George Schrader acquired a vested estate in the remainder of the undivided one-third of said tract, and that upon his death this interest passed to his wife and child. From this part of the decree the plaintiffs have appealed. As to the land last described, the court found that the devise of this tract made the payment of $500 to Henry a condition precedent to the vesting in George of any right or interest in the remainder over after the death of his mother, and as a necessary result of such conclusion it was decreed that he never acquired a heritable estate in such property, and that his wife and child acquired no interest therein through him. From this finding and decree, the defendants have appealed.

1. reminders: when vested. I. Giving first attention to the plaintiff’s appeal, it is very clear that it if their claim has any substantial foundation it is in the provision that this land is to be divided between the three sons “on the death .of - the said Dora Schrader.” If it was clear that the testator thereby intended to make this devise to his three sons contingent upon their survival of their mother, and that neither was to acquire any estate therein until her death, then, of course, such intention would prevail, and plaintiffs should have a decree in their favor. But it is a well-settled rule that an intention to postpone the vesting of a remainder over until the death of the life tenant will never be inferred from language such as is here employed. It has been held in a multitude of cases that, in the absence of other language necessitating a different construction, a provision that the remainder over shall pass to the remaindermen “on the death” of, “at the death” of, or “after the death” of the life tenant, or other terms of like import, has reference to the time when the devisee shall come into the right of possession and enjoyment of the property devised, and will not prevent the vesting of the remainder immediately upon the death of the testator. See Archer v. Jacobs, 125 Iowa, 480; Shafer v. Tereso, 133 Iowa, 342.

The case before us is clearly one calling for the application of the rule of these precedents, and, as we have no inclination to depart from or discredit it, the decision of the trial court, so far as it is involved in the plaintiff’s appeal, must be .affirmed.

2 same : condition subsequent vesting of remainder. II. Proceeding next to the matter of the defendants’ appeal, we have to inquire whether it was the intention of the testator, as expressed in his will, to make the payment of $500 by George Schrader to his brother Henry a condition precedent to the acquirement by Qeorge 0f any right to or interest in said land, or was it his purpose to make the gift to Henry a charge upon said property in the hands of George, and thus safely secure its payment.

The trial court, it seems, held to. the former theory of construction, but after considerable investigation we are led to adopt the latter. In the first place, as between contingent and vested estates, conditions precedent and conditions subsequent, forfeitable rights and nonforfeitable rights, the courts always incline to the latter whenever it' can fairly be done without violence to the language of the instrument under which the claims of the parties are asserted. In no class of cases can this rule be more equitably applied than in the adjudication of rights dependent on the construction of wills.

It must be presumed that in making his will the testator undertook to provide for what he deemed an equitable division of his estate. Without the condition in question, George would have obtained considerably more than one-third of his father’s real estate, and the testator apparently sought to equalize the distribution by requiring George to pay $500 to Henry.

There is no reason for thinking he intended to do anything more than to insure such equalization by making the payment of said sum a positive and unequivocal charge upon the land, and this is as effectually accomplished by treating the provision as creating a lien or providing a condition subsequent as it would be by considering it a condition precedent. The recital in the devise that George is to become the sole, absolute, and unqualified owner of the land on the death of Dora Schrader is not sufficient to postpone the vesting of his estate in remainder. The reference to the death of the life tenant means no more here than it means in the first clause of the will, where we have just construed it as referring, not to the time when the estate in remainder should vest, but to the time when the devisee should come into full ownership, and be entitled to the possession and enjoyment, of the property.

Much stress is laid by the plaintiffs on the use of the words “sole, absolute and unqualified ownership” and other expressions of like nature; but we think, when fairly construed in the light of the admitted facts and the authorities hereinafter cited, they mean no more than that the title in the hands of George Schrader shall be subject to Henry’s claim. In other words, that'George shall not be permitted to take the land or dispose of it, free and clear of this burden, until that claim is paid or discharged. That the testator regarded it as a lien or charge and not a condition precedent is made evident by the fact that he did not attempt to devise the fee to any one else, in case of George’s failure to make the payment.

As sustaining the soundness of this view and illustrating the strong tendency of the courts to hold conditions affecting title to lands to be subsequent rather than precedent and to construe conditions involving the payment of money, even when expressed in positive terms, to be in the nature of covenants, strict performance of which will not result in loss or forfeiture of valuable rights, we call attention to the following:

In Sehouler on Wills, section 598, the author says: “No criterion is afforded by the choice of technical expressions, but the probable intention of the testator must determine the construction in every case of the kind. ’ ’ The fact the will does not provide for a devise over to another on failure of the first-named devisee to perform the condition attached to the gift is by all authorities considered a circumstance of much weight, indicating that the condition is not precedent to the vesting of an estate. Cunningham v. Parker, 146 N. Y. 29, (40 N. E. 635, 48 Am. St. Rep. 765;) Hoss v. Hoss, 140 Ind. 551, (39 N. E. 255;) Hanna’s Appeal, 31 Pa. 53; Pearcy v. Greenwell, 80 Ky. 616; Vandevort’s Case, 62 Hun, 612, (17 N. Y. Supp. 316).

Even where the will provides in so many words that a certain act shall be a “condition precedent” to the vesting of gift, it will be held a condition subsequent if, upon consideration of the entire instrument, it may fairly be done. Winn v. Tabernacle, 135 Ga. 380, (69 S. E. 557, 32 L. R. A. [N. S.] 512).

A devise to the effect that the testator’s sons should have certain real estate by paying a stipulated amount to their sisters was held not to create a condition, but a charge on the land. Taft v. Morse, 4 Metc. (45 Mass.) 523.

A devise to A., on condition that he pays a legacy to B., charges the legacy on the land. 2 Jarman on Wills (6th Ed.) 2000.

A devise to A., “on condition that he pay my grandson B. $300, ’ ’ is not a conditional devise, but gives to B. a legacy of $300, charged upon the land. Woods v. Woods, 44 N. C. 290.

A devise to A., “upon the express condition” that he pay B. $700 before the 1st day of April after the testator’s death, is not a condition precedent, and B. obtains thereby only an equitable lien on the land. Casey v. Casey, 55 Vt. 518.

Where the devise was to A. for life, with the remainder to B. on condition that he pay a given sum to C., it was held that if the testator intended that the money should be paid after the termination of the life estate (which was clearly the intent in the case at bar) the remainder vested immediately on the testator’s death, and the payment was a condition subsequent. Duncan v. Prentice, 4 Metc. (61 Ky.) 216. See, also, Leighton v. Leighton, 58 Me. 63.

“If this .act does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the will, the condition is subsequent. It is in all cases a question of intention, and not of phrase or form. ’ ’ Finlay v. King, 3 Pet. 346, 7 L. Ed. 701.

Where land is devised at a valuation fixed in the will, such price to be paid by the devisee to the executor, the title passes ou the death of the testator, subject to the lien for the stated price. Hart v. Homiller, 23 Pa. 39.

A life estate was given to the wife, with remainder to a son on condition that he pay $4,000 to other children of the testator. The payment was held not a condition precedent, but the legacies were a charge upon the land; the son taking but an equity of redemption, which could be foreclosed in a court of equity. Warren v. Bronson (Vt.), 69 Vt. Rep. 655. See, also, Wahl’s Estate, 8 Pa. Co. Ct. R. 309; Smith v. Smith, 48 Hun. 617, (1 N. Y. Supp. 643) ; Pearcy v. Greenwell, 80 Ky. 616.

In the last-cited case it was held by the Kentucky court that failure to perform a condition though precedent, does not work a forfeiture of the devise, where there is no devise or limitation over upon failure of performance by the devisee. To same effect, see Maddox v. Maddox, 52 Va. 804. It is also held in Indiana that a condition attached to a devise will not be enforced as precedent, where there is no limitation over, upon failure of the devisee to perform. Crawford v. Thompson, 91 Ind. 266 (46 Am. Rep. 598).

A devise, made “only upon condition that the devisees pay to my executors” a specified indebtedness, no limitation over being provided, was held not to create a condition precedent. Cresswell v. Lawson, 7 Gill. & J. 227.

After a somewhat extended search of the authorities, we have failed to find a decision holding that a devise made upon condition that the devisee pay a stated sum of money to another person, and providing no limitation over upon failure to make such payment, has'been held a condition precedent. On the contrary, the cases hold with great unanimity that such a provision is in the nature of a legacy to the third person so designated, and is to be treated as a charge upon the land so devised. This is the holding in many of the eases already cited. In addition thereto, see Sherman v. Association, 113 Fed. 609, (51 C. C. A. 329); Gingrich v. Gingrich, 146 Ind. 227, (45 N. E. 101); Colby v. Dean, 70 N. H. 591, (49 Atl. 574); Kratz v. Kratz, 189 Ill., 276, (59 N. E. 519); Skillman v. Van Pelt, 1 N. J. Eq. 511; Smith v. Smith, 48 Hun, 617, (1 N. Y. Supp. 643) ; Taft v. Morse, 4 Metc. (Mass.) 523; Pennington v. Pennington, 70 Md. 418, (17 Atl. 329, 3 L. R. A. 816).

In the last-cited case the will provided that “before any person or persons herein named shall have possession or property under this will he or she shall pay” certain specified sums to other members of the family. This language, it will be observed, is as strong and imperative as the language in the will now before the court; but it was held not to prevent the vesting of an estate.

Finally, it should be noted that the will fixes no time in which the $500 is to be paid. It cannot be presumed that the testator contemplated payment thereof before the expiration of the mother’s life estate. It would be even more unreasonable to say that payment must be made at the instant of her death, in order to prevent a loss or forfeiture of the devisee’s right. There is nothing to suggest that the testator cqntemplated the possibility that the title of the ownership of the estate should be suspended or have no existence in any one between the instant of the life tenant’s death and the appearance of the remainderman with a tender of the money.

If no estate ever vested in George Schrader, when did it vest in Henry and Frank? Certainly not on the death of their father. If it'vested on the death of their mother, then what opportunity has George or his heirs had to meet the condition imposed by. the will ?

The testator’s purpose, as indicated by the will, was to give his wife .a. life estate, subject to which he undertook to divide one piece of land between his three sons and to give the other tract to George, charged with a payment to be made to Henry. .This will be effectively accomplished by permitting the defendants, as widow and heir of George, to take the land, subject to the burden which the will imposes upon it. Such a holding works no wrong to any one — a proposition which can hardly be affirmed of any other result.

It follows that upon defendants’ appeal the decree of the trial court must be reversed, at the cost of the plaintiffs.

Reversed on appeal of the defendants. Affirmed on appeal of the plaintiffs.