Stark v. Smiley , 25 Me. 201 ( 1845 )

The opinion of the Court was drawn op by

Suepley J.

The premises demanded formerly comprised a part of the real estate of the father of the tenant, and were by his will, executed in the year 1816, devised to the tenant, who has occupied the same since the decease of his father during that year. Upon his own application the tenant was decreed to be a bankrupt, on December 13, 1842. His as-signee, on August 15, 1843, sold at auction all his right, title and interest in the premises derived from the will of his father; and conveyed the same to the demandants, who were the purchasers.

In defence it is contended, that the tenant did not acquire any interest in the premises by virtue of the devise, that having been made upon condition precedent, and not performed.

By the first clause in his will the testator devised the estates demanded to the tenant “ upon conditions, reserving as follows.” He proceeded subsequently to make provision for the support of his widow, and for some of his children while unmarried, and for the payment of his debts; and gave legacies or made devises to his other children, and to one other person named. And concluded by saying, “ therefore as soon as Thomas Smiley, Jr. shall have paid all the lawful demands against my estate and the aforementioned sums to my children and Ebenezer Woodsum, or to their and his heirs, and otherwise" fulfilled this my last will and testament, he shall, by this instrument, be entitled to all my real estate and the privileges thereto belonging, in the towns of Winslow and Clinton in the County of Kennebec, and the saw mill in the town of Wins-low, to have and to hold the aforementioned real estate to him and his heirs for their use and benefit forever.”

Whatever may be the literal import of this language, it is a well established rule of construction, that no form of words will constitute a condition precedent, when the intentions of the testator, to be collected from every part of the will, clearly indicate a different purpose. This rule should be allowed full operation, in cases like the present, in which it is apparent, that the will was written by some person not learned in the law, and not accustomed to the use of language to distinguish between conditions precedent and subsequent.

There can be no doubt, that it was the intention of the testator, that the devisee should, immediately upon his decease, enter upon the enjoyment of the estate. Nor any doubt that some of the duties to be performed as a condition of that enjoyment, were not expected to be performed until very many years afterward. This is shown by the very particular provision made for the support of his widow, to be derived in part from the estate, and furnished by the devisee. From the provision made for a daughter, while she remained unmarried, to be derived from the same source, and furnished by the same person. From the provision made for the support of any of his children in the same manner, while they continued unmarried, if they should, by any unavoidable accident, be unable to support themselves. Some of these duties were of such a contingent character, that it was uncertain whether performance would ever be required. To perform all the duties enjoined by the will, as a condition precedent, would have been impossible.

To obviate this difficulty the counsel for the tenant contends, that he held the estate and received the income “ as executor charged with the trusts.” It was not however upon the executor as such, that performance was imposed, but upon the devisee of the estate, from which the means of performance were to be derived. If the devisee had refused the trust of executor, or for good cause had been deprived of it, the obligation to perform, would not have been less imperative upon him.

The tenant being entitled to the estate upon performance as a condition subsequent, and having, so far as appears, performed the conditions for more than twenty-five years, must be considered as having acquired the title against all persons, who have not a right to enforce the performance of some duty imposed upon the devisee with a charge upon the estate.

Tenant defaulted, and

judgment for demandants.