Eggleston v. Swartz ( 1911 )

The following opinion was filed December 6, 1910:

SiebecKER, J.

The provisions of the will were construed ¡by the circuit court as giving to the widow of the testator a life estate and to each of bis four children named in the will a conditional fee terminating at tbeir death, and that the fee so' devised to his four children by the will passed on the death of either of them to such children of such devisee as were then living, and in default of children to the brothers and sisters-of the devisee. This construction is assailed by the appellant, the mortgagee of Samuel, upon the ground that it appears from the contest of the will that the testator intended by the-devise in fee of the land to each of his children, and in case of the death of either of them without issue to the other persons designated,. that such death of either of his children should refer to death during the testator’s lifetime. The tes- , tator at the time of making these provisions in his will was-nearly seventy-five years of age, in failing health; his wife was then living, twelve years his junior, in good health; his children were then occupying the pieces of land respectively devised to them; and Samuel and his wife lived separate and had no children. The provision in question is that if either of his children die “without issue remaining alive,” then the land devised to him or her should “go to his or her brothers- and sisters equally,” but, in case of such child dying leaving “children then living,” it should go to such children in equal shares. In both of these conditions the testator uses language which clearly tends to show that he had in mind a purpose to have his lands go to such persons of the classes named by him as might be living when the contingency happened, namely, the death of either of his said children to whom he devised the land. The phrase “without issue remaining alive,” in case of the death of either child, naturally imports, in the connection in which it is used, that he referred to their deaths at any time. This phrase points directly to a time when a death of either of the testator’s children might occur. It is also more definite in import than the phrase “without issue” used in such connection. This latter phrase, when so used, is held to apply to and to control a situation as here presented under sec. 2046, Stats. (1898), as stated in Webber v. Webber, 108 Wis. 626, 631, 84 N. W. 896, namely, “when a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words ‘heirs’ or ‘issue’ shall be construed to mean heirs or issue living at the death of the person named as ancestor.” The latter part of the clause of the will here presented, namely, “but in case of them having children then living,” clearly refers to the same event, namely, the time of death of either devisee, and must be held to refer to the same time as the preceding •clause. The import of this condition in the will, when applied to the circumstances of the testator at the time of making it, supports the claim that the testator had no intention of declaring that the contingency upon which his grandchildren were to take, namely, the death of the primary devisee, was a death of any of his children occurring before his own. Ilis expectation of outliving any of them seemed slight under the circumstances, and he would naturally not expect to accomplish his object by making his own death the condition for transmitting his land. That this was his purpose is emphasized by the conditions of the gift which includes afterborn children within this class. These features of the will are sufficient to show that the testator intended to dispose of his ■estate by giving his widow the use and income thereof during her life, and to each of his children a conditional fee with a remainder over to the children of each of such devisees as were living at the death of their ancestor, with the contingency, in case either of such devisees died without leaving any children surviving him or her, that the remainder should ■then go over to his or her brothers and sisters in equal shares. Under these provisions of the will the children of Samuel living at the time of his death constituted the class designated in the will to whom was given the real estate devised to Samuel. The devise to Samuel in fee was limited by the gift over to his children, or, if he should leave no children surviving him, then to his brothers and sisters. Upon. Samuel’s death, under the facts shown, his children took title in fee-simple absolute under the testator’s will. This result excludes the idea that the death referred to in the clause under consideration referred to a time within the life of the testator’s widow, to whom was given the first life estate in the premises. Oases bearing on the propositions involved in the foregoing considerations are: Webber v. Webber, 103 Wis. 626, 84 N. W. 696; Chesterfield v. Hoskin, 133 Wis. 368, 113 N. W. 647; Litilewood’s Will, 96 Wis. 608, 71 N. W. 1047; Lovass v. Olson, 92 Wis. 616, 67 N. W. 605; Vanderzee v. Slingerland, 103 N. Y. 47, 8 N. E. 247; Hennessy v. Patterson, 85 N. Y. 91; Buel v. Southwick, 70 N. Y. 581; Tyson v. Tyson, 96 Wis. 59, 71 N. W. 94.

The estates created by the will do not suspend the absolute power of alienation for more-than two lives in being at the creation thereof. As declared in Tyson v. Tyson, supra:

“The principle is that, in order to make the future estate valid, the suspension of the power of alienation must under ■all circumstances terminate at or before the termination of the second life. It is not sufficient that it may so happen. It must so happen in every possible contingency.”

The statute is that “such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.” Sec. 2*)38, Stats. (1898). Applying these rules to the facts of the instant ease, we find that under the conditions imposed on the estates in land by the will there can be no absolute conveyance of the fee during the life of Samuel, but that at his death suspension of the Rower to- alienate terminates in every possible contingency, because those to whom the fee is given take it subject only to ■a possible life estate of the testator’s widow. She and Samuel were the only two persons in being at the creation of the estate in remainder in fee simple who had any interest In the land prior to the children of Samuel, to whom was given this future estate, dependent upon these precedent estates of the widow and the son Samuel. In no event, therefore, could there be a suspension of the power to convey this-property in fee-simple absolute under the provisions of the will for a longer period than that of the life of the testator’s widow and of his son Samuel. This satisfies the statute then in existence. Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650; Saxton v. Webber, 83 Wis. 617, 53 N. W. 905; Webber v. Webber, supra; Nellis v. Nellis, 99 N. Y. 505, 3 N. E. 59; Buel v. Southwick, supra.

The circuit court awarded the correct judgment.

By the Court. — Judgment affirmed.