Derickson v. Garden

The Chahcelioe.

The complainant in the bill in this-cause prays that the rights of the parties to the suit in the sum of $6,000 be ascertained and declared by a decree of the court;. and that the defendant Annie W. Garden be required to secure the said sum, or so much thereof as the complainant may be found entitled to receive at the death of the said Annie W. Garden, or that the same may be invested under the order of the court, so that so much of the principal thereof as the complainant may be held entitled to may be preserved intact until his right to the possession of the same accrues.

There is no dispute about the facts out of which the cause, real or supposed, arises.

Francis E. Garden by his will, dated August 28, 1858, devised and directed as follows : “ To my dear and well beloved wife, Annie W. Garden, I will and bequeath all of my property, both real estate and personal, not only what I now possess, but what I am hereafter to possess, for her to keep and •enjoy for life; but should she marry again, then said property to be considered exclusively settled on her alone, provided I die without an heir; but if previous to my death I should have an heir, then in that case that child to inherit the property at the mother’s death, provided she remain my widow, but should she marry-again, then in that case the child at once to receive the property,-—the mother to be its sole guardian, the second husband not to be able to touch either principal or interest, or to have any say in it whatever.”

The testator had no child previous to his death. He died without any child surviving him. Letters testamentary on the testator’s estate were granted to his widow.

The whole of testator’s estate consisted of a debt due from Isabella A. Garden, which, after deducting expenses, costs, and charges in probating the will, etc., which was contested, and in collecting said debt, was in clear balance $6,000. It is to procure a decision as to whom this balance under the will belongs to, that this suit has been instituted.

The testator left to survive him his widow, Annie W. Garden, one brother, William A. Garden, and one sister, Mary A. 0. Derickson, the wife of the complainant. William A. Garden, the brother, afterwards died, leaving a widow, who is his administratrix, and three children, viz., William A. Garden, Kate M. Garden, and Isabella A. Garden. The said Mary A. O. Derickson, the sister of the testator, has since his death also died, leaving to survive her her husband, the complainant, who is her administrator.

Has the complainant any interest in the personal estate of Francis It. Garden, and has he any right to invoke the protection of such interest by this court %

The superior court, in the case of Pepper v. Warrington, 4 Harrington, 55, decided that a bequest of personal property for life, without any further limitation of it over, is an absolute gift; and in the case of Savin v. Savin, the report of which is to be found in a note to that case, it was said that originally there could be no limitation over of a chattel, and a gift for life carried the absolute interest.

This is still the law as to such articles of personal property in which the use consists in the consumption. But when the law came to be settled with regard to executory devises, it was held, as a part of this peculiar and very technical branch of the law, that, in regard to such chattels as might be used without being consumed, a limitation after a life estate would be good by wray of executory devise. “ In this form, and only in this form,” say Clayton, Frame, and Comegys in their report, which was affirmed by the court, “ have we been able tO' find any judicial sanction for a departure from the old common-law principle, that a gift of a chattel for life is an absolute gift of it.” “ In no case has it been held,” they proceed to say, “ that the donor, grantor, or devisor of chattels for life,, by will, or otherwise, could retain any interest in the chattels-in himself, for his own benefit or for that of his personal representative, or could dispose of such interest to another, unless-in the form of executory devise made at the time of the bequest of the life estate.”

Let us apply these principles to the will of Francis R. Garden. An analysis of its provisions will serve to discover its proper meaning.

The first clause of the will is: “ To my dear and well beloved wife, Annie W. Garden, I will and bequeath all of my property, both real estate and personal, not only what I now possess, but what I am hereafter to possess, for her to keep and enjoy for life.” If the will had stopped here, there can be no doubt but the wife would have taken an absolute interest in the personal estate according to the decisions cited from our own reports. Such must be her interest unless something has been added to the above provision which lessens that interest. The next clause of the will, but in immediate connection with the former, is: “ But should she marry again, then said property to be exclusively settled upon her alone, provided. I die without an heir.” This does not limit the extent of the widow’s interest in the personal estate, but manifests the testator’s intention that it shall be settled upon her alone, and inferably that neither the second husband nor any other person should have any interest therein.

The next provision is: “ But if previous to my death I should have an heir, then in that case that child to inherit the property at the mother’s death, provided she remains my widow.” This does not reduce the widow’s estate absolutely, but only on a contingency which never happened and which cannot now happen.

The next clause is: “ But should she marry again, then in that case the child at once to receive the property, the mother to be its sole guardian,-—the second husband not to be able to touch either principal or interest, or to have any say in it whatever.” This proposed limitation.of interest in the widow was also upon a contingency which has never and which cannot now ever happen.

Wherever in the will there is any proposed limitation upon the absolute interest of Annie W. Garden, the wife of the testator, it is upon the birth of a child in his lifetime—an event which never happened and which cannot now happen.

The contingency failing which alone could possibly affect the absolute character of her interest in the personal estate bequeathed, it continues absolute, and there is no remainder or other interest in said personal property of the testator to be in any manner protected by a decree of this court.

The bill is dismissed, with costs.