Saunders v. Wilson ( 1928 )

The parties agree that the sole question in this case is whether or not the interest of the defendant in the real property attached is subject to the levy of attachment and execution. The facts are undisputed.

Joseph Boiler, at the time of his death, in 1900, was the owner in fee of the real estate involved herein. He was survived by his wife, Julia P. Boiler, who accepted the provisions of his will, and who in no way is affected by the questions in controversy herein. No further attention will, therefore, be given to her or her rights under the will.

Joseph and Julia P. Boiler were the parents of four children: to wit, Nora Ella, Ada A., Chester D., and Nettie A. (who married one Wilson, her name appearing in the will as Mrs. Nettie A. Wilson). To Chester D. he left a life estate in 880 acres of land in Pottawattamie County; to Nora Ella, a life estate in 640 acres in Cherokee County and 320 acres in Plymouth County; to Ada A., a life estate in 640 acres in Cherokee County and 167 acres in Plymouth County; to Nettie A. Wilson (formerly Nettie A. Boiler) he devised a life estate in the southwest quarter of Section 20, Township 92, Range 42, in Cherokee County, Iowa; also all of Section 7, Township 91, Range 34, in Pocahontas County, Iowa; also the southwest quarter of Section 35 in Township 77, Range 38, in Pottawattamie County, Iowa. Each of these devises was under certain limitations and conditions which are not material to the questions involved herein. The will then proceeds:

"Section VII. The above mentioned devisees, Chester D. Boiler, Nora Ella Boiler, Ada A. Boiler and Nettie A. Wilson, formerly Nettie A. Boiler, being my only children, it is my further will that at the death of either of them, the specific real property to each one above devised shall descend to the child or children of each individual devisee in fee simple, share and share alike. But if at the time of the decease of either of my said children, devisees aforesaid, they have no surviving children then and in that case it is my will that the specific real property shall descend to my remaining surviving children, above mentioned, in fee simple, share and share alike. Provided, however, that in case any one of my said children aforesaid shall have previously died leaving a child or children surviving them, then and in that case it is my will that said child or children shall take in equal shares as representatives of their deceased parents."

Nettie A. Wilson is still living, and is the mother of three children, one of whom is the defendant, C.C. Wilson, who was born prior to the execution of the will aforesaid. After the commencement of this action, writ of attachment was issued and levy made on all the right, title, and interest of the said C.C. Wilson in the land described in the bequest to Nettie A. Wilson. The defendant moved to dissolve the attachment and release the property, on the ground that the interest of the defendant in said realty was only a contingent remainder, and not subject to attachment or execution. Plaintiff filed appropriate resistance, and the facts heretofore recited were, in effect, agreed upon by the parties. But two questions are argued: (1) Whether the interest of C.C. Wilson in the land in controversy is a vested or contingent interest, and (2) if vested, it is conceded that it was subject to levy under this attachment. If, on the other hand, it is found that his interest is only a contingent remainder, then we have the further question as to whether or not, under the law of this state, it is a contingent remainder of such an interest that it can be levied upon and sold under execution.

Of the many puzzling questions with which this court is confronted, there is probably none more troublesome than the question of contingent remainder. Many courts have attempted to announce rules for determining the question, with the result of much confusion, and not much clearing of the atmosphere surrounding it. In fact, the many decisions of this court on the question evidence some dissonance. The want of similarity in the wording of the instruments creating the remainders tends to confusion, and makes it practically impossible to make definite rules of construction; yet there is not so serious a conflict in our decisions as would appear on a cursory reading. We have settled some phases of the question, from which we do not care to recede. For instance, in Schrader v. Schrader, 158 Iowa 85, at page 88, we said:

"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."

See, also, 23 Ruling Case Law 526.

In the instant case, we find nothing in the will to prevent the application of the rule laid down in the above cases. Under this rule, the phrase used in this paragraph of the will, "at the death of either of them," has reference only to the time of possession and enjoyment of the remainder, and in no way prevents the vesting of the remainder immediately upon the death of the testator.

The first part of the bequest in controversy is as follows:

"The above mentioned devisees, Chester D. Boiler, Nora Ella Boiler, Ada A. Boiler and Nettie A. Wilson, formerly Nettie A. Boiler, being my only children, it is my further will that at the death of either of them, the specific real property to each one above devised shall descend to the child or children of each individual devisee in fee simple, share and share alike."

Up to this point, then, the children of Nettie A. Wilson take a fee-simple title, the possession of the property and enjoyment thereof being deferred during the life of Nettie A. Wilson. If this were all there was to this devise, there could be no question that the interest of C.C. Wilson in the property in controversy was a vested interest. The devise, however, proceeds as follows:

"But if at the time of the decease of either of my said children, devisees aforesaid, they have no surviving children then and in that case it is my will that the specific real property shall descend to my remaining surviving children, above mentioned, in fee simple, share and share alike."

The force and effect of this clause of the will are to divest the interest of the children of Nettie A. Wilson of the vested interest devised by the first clause of the will in event that such child did not outlive its mother, Nettie A. Wilson. In the case of Horner v. Haase, 177 Iowa 115, we quoted with approval from John C. Gray's very able work "The Rule Against Perpetuities" (3d Ed.), Section 108, as follows:

"Whether a remainder is vested or conditional depends upon the language employed. If the contingent element is incorporated into the description of or into the gift to the remainderman, then the remainder is contingent; but if, after the words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus, on a devise to A for life, remainder to his children, but if any child dies in the lifetime of A, his share to go to those who survive, the share of each child is vested, subject to be divested by its death. But on a devise to A for life, remainder to such of his children as survive him, the remainder is contingent."

In the will under consideration in the Horner case, the contingent element was incorporated in the description of the gift. Hence the court held that the remainder was contingent.

In the case at bar, the testator says he gives to the remaindermen a fee-simple title; hence there can be no question, under the Gray rule, that the defendant, C.C. Wilson, was given a vested interest in said land, subject to be defeated, however, by his failure to outlive his mother.

In Sherlock v. Thompson, 167 Iowa 1, the will provided that the husband of the deceased should act as trustee so long as he lived, and on his decease, his son, Frank B. Sherlock, was to succeed to such trusteeship. The trustees were denied the power of sale unless under order of court, and W.M. and Frank Sherlock were given a life estate in the property, and a life estate was given to the survivor thereof. It was provided that no title to said property should vest in either Frank B. or W.M. Sherlock, and that, on the death of the survivor of the said two persons:

"I will devise and bequeath, in equal shares, share and share alike, to my nieces and nephews who shall be living at the date of the death of the survivor of the two persons named, * * * [the title to all my property]."

It is apparent here that the limitation as to nieces and nephews, to wit, that they were to be living at the time of the death of the survivor of the two trustees, is incorporated in and made a part of the gift itself. It is a condition precedent to the taking by any one of these nieces and nephews that they must be living at the date of the death of the survivor of said trustees. The remainder to these nieces and nephews was, therefore, contingent.

In Wilhelm v. Calder, 102 Iowa 342, the provision in the will was that the executor should hold the estate until the youngest child was 21 years of age, when he was to divide it equally between the children of the testator "then living." It was held that this created a contingent remainder.

In the case of Westcott v. Meeker, 144 Iowa 311, 312, under the terms of the will, the property went to Westcott during his life, and at his death to his heirs. It was held that, until the death of Westcott, he had no heirs; hence the persons who would take the property after his death were uncertain. The remainder was held to be contingent. In this case, referring to the line of authorities cited, the court said:

"The cases relied on for appellants are not in point, because all of them involve remainders to children of the life tenant, with the result that the remainder became vested at once, if there were living children (subject, of course, to a condition subsequent), or might vest before the termination of the life estate by birth of children to the life tenant."

In Blain v. Dean, 160 Iowa 708, a life estate was given to the wife, and after her death the executor was directed to sell the remaining land and divide the proceeds equally among the children. The will further provided:

"If any of my children shall have died leaving no issue I direct that his share shall be divided among those leaving issue and among my other children then living."

The widow refused to accept the terms of the will, and took her dower right, which was set off to her. This, of course, eliminated the life estate, and accelerated the remainders accordingly; so that the share of the daughter Ethel, who was one of the children of the testator, became immediately vested. She died intestate, without issue, a year and five months after the death of her father. It was held that the last clause of the will, covering the death of the children without issue, referred to the date of the death of the testator, and not to the date of the death of the life tenant, and that the remainder of the daughter Ethel was not contingent, but vested.

In Jones v. Parsons, 182 Iowa 1377, the life estate of a daughter was by the will placed in the hands of a trustee, and it was further provided that, at the death of the life tenant, the property should go to "her nearest blood connection." It was decreed a contingent remainder.

In the case of Bladt v. Bladt, 191 Iowa 1344, the controlling paragraph of the will gave to the wife a life estate, with power of disposal, and provided that, in case she did dispose of all or any part of the estate, she was to deduct her one third, and the balance was to be divided among certain issue (naming them), share and share alike, and in case one of said parties should be dead, without issue, that share should revert to those of the named parties then living. It was held that there was a contingent remainder. The writer of that opinion, however, overlooked the fact that there was no remainder created in said estate following a life estate. Had the wife died without disposing of any part of said estate, then the property would have been disposed of as though the testator had died intestate. In other words, there was no remainder whatever created in the property to be supported by or following the life estate given to the wife. It was only in event that the wife disposed of some part or all of the estate during her lifetime that the division provided for was to be made. The question involved was not the question of vested or contingent remainder.

In Sutherland v. Green, 191 Iowa 711, the bequest was to the wife for life, and then: "After her decease I give and devise the same to the surviving children of my said wife, * * * share and share alike, to them, their heirs and assigns forever." It was held that this remainder was contingent, and rightly so; because the specific provision was that it was to go to the children who survived the wife, and, of course, until her death, no one could tell who the surviving children were, as the condition is attached to the gift or devise.

The case of Williamson v. Youngs, 200 Iowa 672, is bottomed on the case of Sutherland v. Green, supra, as controlling, so as to require a holding that the remainder in the Williamson case was contingent. This apparently is a mistaken view, because, in theWilliamson case, the will provided that, upon the death of the life tenant:

"I give and devise the same to his children or other issue in equal portions, or share and share alike, the issue of any deceased child taking the share or portion which his, her or their parent would have taken if living."

In the Sutherland case, cited, the will provided that, after the life estate:

"I give and devise the same to the surviving children of my said wife, * * * share and share alike, to them, their heirs and assigns forever."

In that case, the will provided that the remainder was to go to the surviving children, and it was held that it was contingent. In the Williamson case, there was no provision whatever similar to the provision in the Sutherland case as to survivorship. Further than this, the Williamson case lays down the rule recognized generally by this and other courts, that:

"An estate is vested where there is some person in esse, known and ascertained, who, by the will or deed creating the estate, is to take and enjoy the estate upon the expiration of the existing particular estate, and whose right to such remainder nocontingency can defeat."

Under the facts in that case, it is found that the remainderman was in esse during the life estate, and capable of taking; hence, under the rule cited in the Williamson case, the remainder should have been held to be vested, instead of contingent. More than this, the Williamson case is made, in part at least, to turn on the statement in the will that the remainder is to be taken "upon the death" of the life tenant. That this cannot be a determining factor in such cases, see Schrader v. Schrader, supra.

Some rules are not fairly settled in this state. For instance, in the following cases it is held that the various expressions used, show an intent on the part of the testator that the remainder shall not vest until after the expiration of the life estate. In Hadley v. Stuart, 62 Iowa 267, 268, the provision was:

"* * * that my real estate all be sold, and the proceeds arising therefrom be equally divided between all my heirs."

In McClain v. Capper, 98 Iowa 145, the provision was:

"When my youngest child arrives at full age, I desire that the real estate * * * be equally divided between my children [naming them], their heirs, or survivors of them."

In Baker v. Hibbs, 167 Iowa 174, 175, at the death of the wife of testator, the executor was ordered to sell the property and divide the proceeds equally among certain named parties. In In reWill of Wolber, 194 Iowa 311, the provision was:

"Upon the death of my said wife * * * be divided equally between my six children [naming them]."

It will be noticed that there is no devise whatever to these children, excepting an implied devise arising from the order to divide. In Taylor v. Taylor, 118 Iowa 407, the provision was that, at the death or marriage of the life tenant, the property was to be equally divided "between my children or their heirs." In Olsen v. Youngerman, 136 Iowa 404, 406, the provision was:

"The principal sum [in the hands of the trustees] shall be distributed between the survivors of said four children."

In Fulton v. Fulton, 179 Iowa 948, the wife was designated the life tenant, and the provision was:

"Upon the death of my wife, I direct that all my property, real and personal, shall be divided between my eight children * * * [naming them]. In case of the death of any of said children without issue living, then the share of such child shall be divided equally among the surviving children, or their legal heirs."

This case is wholly different from the case at bar, as will easily be perceived from the following quotation, which is the heart of the Fulton opinion:

"There is one feature of this case that is quite decisive, and we give it our first attention. It will be noted that, by the terms of the will, the testator directed that, upon the death of his wife, all his property should be divided among his children, etc. There is no other provision of the will whereby it purports to devise any property to any children. The devise to them is implied by the direction to divide, above quoted. In such a case, we have held repeatedly that the devise or gift is inseparable from the direction to divide; and where the directed division is, by the terms of the will, postponed to a future date, the gift is likewise postponed. In such a case the remaindermen take a contingent, and not a vested, remainder, where the will imposes the condition that the remaindermen survive the future event or have issue."

With the Fulton case, therefore, so far as the case at bar is concerned, we have no controversy, as there is no provision in the will before us directing a division of the property at any time. Whether or not, in the light of later cases cited herein, the Fulton case is to be followed, is of no concern to us in this case, because of the distinction above pointed out.

It is fairly deducible from the foregoing cases that, where the provision is that, at the expiration of the life estate, the property is to be sold and divided, or is to be divided in a certain way, the remainder is contingent, and not vested.

Apparently squarely contrary to this deduction, we said, in the case of Hiller v. Herrick, 189 Iowa 668, at 677:

"Nor is the direction to ``divide' or to ``sell and divide' between the ``children' or ``heirs' after the death of the wife, without more, any necessary obstacle to the vesting of the remainder," — citing Johnson v. Coler, 187 Iowa 734, and cases there cited.

See, also, Canaday v. Baysinger, 170 Iowa 414; Atchison v.Francis, 182 Iowa 37; Haviland v. Haviland, 130 Iowa 611; Blainv. Dean, 160 Iowa 708. We have called attention to these cases because most, if not all of them, have been cited by one party or the other to this case. But it is apparent on the face that neither of these two lines of authority has anything to do with the decision of the case at bar, because there is no provision in this will for a "sale" or "division" of this property, as there was in the cases cited. There is a specific devise of this property to a specifically named party of a life estate; and on the death of that party it is provided that the devised property shall descend to the child or children of such devisee in fee simple, share and share alike. The devise, therefore, covered by this paragraph of the will is a devise in fee simple, subject to the life estate. The will then provides that, if the remaindermen die, leaving no surviving child or children, then and in that case, the specific real property is to go in fee simple, share and share alike, to the surviving children of the testator; and further, that, if any of said children die, leaving a child or children surviving, said child or children shall take in equal shares, as representatives of their deceased parents.

As we read this will, it seems that the intent of the testator was to give to the children of Nettie A. Wilson a fee-simple title to this property, subject to the life estate in the mother. It so says in plain English, and why should we construe it otherwise? The will further provides that, if Nettie A. Wilson dies without children, then, in that case, the property is devised to the brothers and sisters of Nettie A. Wilson, in fee simple. On the other hand, on the death of Nettie A. Wilson, she leaving child or children, any such child or children are substituted to the share given her under the will.

The sum total of this is that Nettie A. Wilson took a life estate, but if, at her death, she left a child or children, then such child or children would take the share given to Nettie A. Wilson under the will. So far, therefore, there can be no misunderstanding as to the intent of the testator.

The question before us, however, is one step further advanced than this: Nettie A. Wilson is living, and the mother of three living children, and it is the share of one of these children (C.C. Wilson) that is sought to be held under the attachment in this case; and the question is whether the share of C.C. Wilson was a vested or a contingent remainder.

Under the terms of the will, if Nettie A. Wilson should die at the present time, the will by its terms vests the title to this property in her children, and the defendant herein would be the owner in fee of a one-third interest in said property. In effect, therefore, Nettie A. Wilson has such estate in said property that, if she should die without child or children, the title would pass to her brothers and sisters in fee. Each of her children now living has a vested interest in said property, subject to be defeated if they do not outlive their mother. It is apparent from the terms of the will that the interest of each one of these children in this real property is vested. The gift or grant to them contains no condition precedent to the vesting of the title. It is directed to them, and certain. Since the property is designated, and they are of the class designated in the will, they stand ready to take at any moment the particular estate becomes vacant. The grant or gift is direct to them, and it is without any condition precedent whatever. There is, however, a condition subsequent: that is, that they must be alive at the date of the death of the mother, or the estate will pass to others. It is, therefore, a case where the will vests a specific estate, the possession and enjoyment of which are deferred.

It is a fairly well established rule that, where a remainder is limited to a definite class of beneficiaries, such a remainder vests as soon as any one of that class is in being, subject to being reopened to admit those who later come within the class description, and subject to being divested as to those members of the class who subsequently die. Sleeper v. Killion, 182 Iowa 245; 1 Tiffany on Real Property (2d Ed.) 498; The Rule Against Perpetuities, Gray (2d Ed.), 82, 83; 4 Kent's Commentaries (14th Ed.) 246; Tiedeman on Real Property (4th Ed.), Section 302; 23 Ruling Case Law 533, Section 77.

This being applied to the facts before us, the remaindermen after the life estate of Nettie A. Wilson, are designated as her children, and they are all in being at the present time; hence their interest must be a vested interest, subject, of course, to being defeated in event they do not outlive the mother.

Another rule that receives recognition in practically all of our cases where this question has been before the court is that, if there is a condition precedent to the vesting, then the remainder is contingent; but if the gift is free from a condition precedent, even though it bears a condition subsequent, the remainder is vested. Or, to put it another way, if the conditional element is incorporated into the description of the remaindermen, the remainder is contingent; but if, after a vested interest is given, a clause is added divesting it upon a certain event, the remainder is vested until the condition operates, if ever. We quote this with approval, in substance, in Horner v.Haase, supra. It is the rule announced by Gray in The Rule Against Perpetuities (2d Ed.) 81; and under this bequest in this will, there is no condition incorporated in the description of the remainderman (C.C. Wilson), but there is a condition subsequent, — that is, if he does not outlive his mother, his interest in the property becomes divested.

In Callison v. Morris, 123 Iowa 297, we had a will very similar in import to the one under consideration. We there said:

"Nor was it necessary to the vesting of the remainder that Jonathan M. Morris survive his mother. ``It is the present, fixed right of future enjoyment whenever the possession becomes vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determined, that distinguishes a vested from a contingent remainder. When the event on which the pending estate is limited must happen, and when, also, it may happen before the expiration of the estate limited in remainder, the remainder is vested.' * * * It is therefore apparent that the remainder vested notwithstanding the language of the will, which, it is argued, created a contingent remainder. There is nothing in the language itself manifesting an intention to postpone the gift, and it is the general rule that a ``limitation will never be construed as creating * * * a vested one.' Tiffany on Real Property, Section 121; 2 Underhill, Section 861. The latter author says, under the rule ``by which a modern will speaks as of the date of the death of the testator, every gift to a person who is alive at that date vests at once, in the absence of an expression of an intention that the vesting shall be postponed. It will be presumed, when the testator does not expressly or by implication indicate that the vesting of the title to his bounty is to be postponed, that he means it to vest at once upon his death.'"

In Archer v. Jacobs, 125 Iowa 467, at 479, we said:

"But none of these contingencies affect the vesting of the remainder in the sons, as the only representatives in being of the class to which the remainder is given. It is true, the will is open to such construction that the remainder vested in the sons of Mrs. Walling may be divested by their death, pending the continuance of the life estate; but, as will be noted by reference to cases last above cited, and many others to the same effect, this does not render the remainder contingent, for, up to the last moment of their lives, their capacity to take the possession, were it to become vacant, is unimpeachable."

In Shafer v. Tereso, 133 Iowa 342, at 347, we quoted and approved the Archer case, as follows:

"Generally speaking, when there is a person in being who would have an immediate right to the possession of the lands should the life tenancy now terminate, such person has a vested remainder. If, however, something more than the duration of the particular estate stand between the remainderman and the right to immediate possession, if there be some unperformed or unfulfilled contingency which would prevent his taking possession, were the life tenancy now to terminate, — then his remainder is contingent. In other words, it is the present capacity of taking effect in possession if the possession were now to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder."

Generally speaking, precedents are of little value in determining questions of this kind, because of various combinations of words that are used in making devises of this character, and each case must be decided on its own facts.

Without further attempt to harmonize or review our opinions, I would reverse this case.