Brown v. Evans ( 1861 )

By the Court, Emott, J.

This is an appeal from a decree of the surrogate of Orange county, made upon the final accounting of the respondent as executor of Silas Corwin. The principal and indeed the only particular in which the decree is complained of, as I understand the papers submitted to us, is the rule adopted by the surrogate as to the rights of the parties interested or claiming an interest in the estate, and the construction of the will of Silas Corwin upon which that rule is based. Our attention is not called to any allowance made to the executor in the settlement of his accounts, or any decisions of the surrogate which are claimed to be erroneous, independent of those that followed from the construction which he gave to the will of the testator.

The petition of appeal is informal in not naming the parties who are to be made respondents, and who are to be called upon to answer. The proceedings are defective, because all the parties who are interested in sustaining the decree are not made respondents, and are not before the court. The administrators of Jabez Corwin, at least, should have been parties to this appeal, since the reversal of this decree would affect them seriously, much more so than the executor of Silas Corwin, because his interest in respect to the disposition of the residue extends only to be protected in whatever payments he may make. In the answer of the executor, who is the only respondent to the petition of appeal, the defect of parties which thus exists is brought to the notice of the court. Ho motion, however, has heen made to stay or dismiss the appeal, nor have the parties who are now absent either taken an appeal themselves, although the counsel for the executors complains of the decree as not sufficiently favorable to them, or applied to be made parties to the present proceeding.

The result is, that if upon examination we had come to the conclusion that the surrogate had erred in his views of the rights of these parties, we could not upon the present appeal reverse his decree, nor disturb the adjudication which has been made as to the rights and interests of the administrators of Jabez Corwin and others, until they should be made parties to the appeal. The rule as to the parties and the correct method of procedure in such cases will be found stated by the chancellor in Gilchrist v. Rea, (9 Paige, 66.) See also Gardner v. Gardner, (5 id. 170;) Kellett v. Rathbone, (4 id. 102, 107.)

An examination of the case, however, shows that no error has been committed in the particulars specified, of which the appellants can complain; and as the other parties have shown no disposition to disturb the decree, we ought not to refuse to affirm it, to enable them to come in and raise new questions.

The bequest to Jabez Corwin contained in the will of Silas Corwin is not a bequest of a life interest, as is supposed by the counsel for the appellants. It is a devise of the testator’s lands in fee, and a bequest of the entire interest in his personal property, although upon a condition. If the construction of this condition, which was contended for by the respondent’s counsel in one part of his argument, and which seems to liave been adopted by the surrogate, be correct, it is not a condition precedent, hut a conditional limitation, whose effect would be not to suspend the vesting of the interest devised or bequeathed, but to divest it, and send the property over, in the event of the non-fulfillment of the condition. The counsel for the appellants, on the other hand, contends that the clause in question constituted a condition precedent, and that until its fulfillment no estate or interest vested in Jahez Corwin, and that the rights of the appellants depend wholly upon the devises and bequests over to them in the event of the failure of the estate of Jahez Corwin, hy the non-fulfillment of the condition upon which that estate depended. In no aspect, however, can Jahez Corwin he said to have taken a life estate with remainders over, for there is no devise or bequest to his children, if he should have any; and the question of title or ownership lies wholly between him or his representatives on the one hand, and on the other, the devisees or legatees to whom the property is given, if it did not vest in him or become divested, among whom are the present appellants. If the provisions of the will and the limitations of the testator’s property which it contains are valid, either the one or the other of these classes of persons take the absolute interest in this property, in the event upon which that interest is made hy the will to depend.

It follows that the absolute ownership of the property could not he determined until that event occurred, and we thus encounter the question raised hy the respondent’s counsel, whether it must occur within the period allowed by the statute. (1 R. S. 773, § 1, tit. 4.) The cases cited by the counsel for the respondent establish, and "the rule is undoubtedly well settled, that it is the character of the limitation at the time it is created, and not the event as it turns out in fact, which is to determine its validity. If the estate created is such as hy its terms to suspend the ownership of the property for more than two lives in being, it will he void, although in the subsequent history of the estate or the parties in interest it may happen that this limit is not exceeded.

The devise and bequest to Jahez Corwin in this case is of the entire property, “ provided he ever has any lawful heirs that shall arrive at the age of twenty-one years,” and the rights of the appellants do not attach, nor is the ultimate and absolute title determined, until it has been ascertained whether any children which Jahez Corwin might have would live to become twenty-one years of age. As he might have had any number of such children, the title to the property would be suspended, not only during his life, but during the lives of each one of such children who should die under the prescribed age, and until some one of them should attain that age. If Jabez Corwin had three children, the title to this property might not vest either in him, or in the residuary legatees, until all these children should die; for if the first two should die under twenty-one, the title would still hang suspended upon the possible duration of the life of the third; and so of any number. The statute forbids the creation of such a limitation, and the estates in remainder under which the appellants claim are consequently void.

[Orange General Term, September 9, 1861.

There is, therefore, no error in this decree, of which these appellants can complain. The error, if any, has been made against the persons who are not parties to this appeal, and who have not themselves appealed from the decree. The present respondent is not in a condition to raise the question of such an error, or to ash us to modify the surrogate’s decree according to the views we have now indicated, because he has neither appealed nor set up or alleged any errors-in the decree, in his answer to the present petition of appeal, as he might probably have done under the 44th rule of the court. His answer to the appeal is that the decree is in all respects correct, and he cannot now be heard to complain of it.

The decree appealed from is therefore affirmed, with costs to be paid by the appellants.

Emott, Lott, Brown and Scrugham, Justices.]