Hill v. Hill

• Decision Date: 06 October 1911
• Docket Number: 17,079
• Citation: 132 N.W. 738,90 Neb. 43
• Parties: JAMES H. HILL, APPELLEE, v. JOHN W. HILL, JR., TRUSTEE, APPELLANT; SARAH E. HILL ET AL., APPELLEES
• Court: Nebraska Supreme Court

132 N.W. 738

90 Neb. 43

JAMES H. HILL, APPELLEE, v. JOHN W. HILL, JR., TRUSTEE, APPELLANT;

SARAH E. HILL ET AL., APPELLEES

No. 17,079

Supreme Court of Nebraska

October 6, 1911

APPEAL from the district court for Douglas county: ABRAHAM L SUTTON, JUDGE. Affirmed.

AFFIRMED.

Frank T. Ransom and Ellery H. Westerfield, for appellant.

O'Harra & O'Harra, Isaac E. Congdon and Henry E. Maxwell, contra.

OPINION

ROOT, J.

This is an action to require a trustee to pay to the plaintiff the net income of his alleged share of an estate; those defendants, who also contend that they are beneficial owners of shares of that estate, pray that the trustee be required to convey the entire estate to the equitable owners thereof. The cross-complainants prevailed, and the trustee appeals.

The instrument involved in this controversy is the last will and testament of Lew W. Hill, deceased, and is as follows "I, Lew W. Hill, hereby make and declare this my last will: I will and bequeath to my nephew, John W. Hill, Jr., in trust for my lawful heirs, all my estate, both real and personal, of every kind and nature, to be held by said trustee for the term of five years, and to be distributed among my lawful heirs at the end of such period. Dated this 13th day of July, 1908."

The testator, a wealthy bachelor residing in Omaha, executed the will during his last illness and three days before his death. After the estate was administered, the county court ordered the administrator with the will annexed to deliver to himself as trustee all of the estate, and he complied with the order. At the time the will was executed, Lew W. Hill's heirs presumptive were the plaintiff, then 73 years of age, the defendant John W. Hill, Sr., then 70 years of age, and two sons and a daughter, sole children of the testator's deceased sister, Mary Wilson, each of whom was past 30 years of age. All of those heirs survived the testator, and were parties to this action. The niece died after this suit was commenced, and the action has been revived in the name of her legal representatives.

The evidence is meager, but it appears therefrom that all of the testator's heirs were, and that the survivors are, competent to transact business, and that none of them are spendthrifts. The plaintiff is a man of but little means, and works at his trade as a painter. There is no proof to so much as suggest that the testator entertained unkind feelings towards any of his relatives.

If we understand the argument in the trustee's brief, his contention is that the will devises the estate to a class to be ascertained five years subsequent to the testator's death, at which time, and not before, the devisees, other than the trustee, take a vested estate; that preceding this event the trustee has the sole right to manage and control the estate; that the decree of the county court is a bar to any action having for its purpose the diversion of that estate from the possession of the trustee, and that in any event an action in equity will not lie.

We discover nothing in the will to suggest that the devisees did not take a vested present estate. The testator does not say that the devise is to those of his heirs who shall survive five years subsequent to his decease, nor does he by any condition, precedent or subsequent, restrict the distribution of his estate to his heirs in being at that time. The will contains but one sentence, and, by the identical words which devise a legal estate to the trustee, an equitable estate is devised to the testator's lawful heirs.

The general rule seems to obtain that a devise or bequest to "heirs at law" or "heirs" of a testator should be construed as referring to those who are such at the time of the testator's death, unless a different intent is plainly manifested by the will. Abbott v. Bradstreet, 3 Allen (Mass.) 587; Minot v. Tappan, 122 Mass. 535; Dove v. Torr, 128 Mass. 38; Cummings v. Cummings, 146 Mass. 501, 16 N.E. 401; Boston Safe Deposit & Trust Co. v. Parker, 197 Mass. 70, 83 N.E. 307; Allison v. Allison's Exr's, 101 Va. 537, 44 S.E. 904; In re Tucker's Will, 63 Vt. 104, 21 A. 272.

No special significance should be given to the fact that the testator did not name his heirs presumptive; the document evidences either extreme haste in preparation or a desire for such brevity that details were sacrificed to comprehensive terms. There is nothing in the record, other than the will, to suggest that the testator did not intend to permit his elder brother, who had outlived the scriptural span of life, to receive a part of the testator's estate, unless that brother survived his seventy-eighth birthday. The estate is of such magnitude that it is not necessary to take from the portion of one devisee for the benefit of another in order that the latter may be supported in reasonable comfort upon the income from the devise. There is nothing in the terms of the will or in the circumstances of the case to convince us that the testator did not intend to benefit every person who at the time of the testator's death was one of his heirs. It is argued, however, that time was annexed to the substance of the gift, and therefore the estate will only vest in those of the class who survive at the time fixed for distribution.

We may safely accept the rule quoted by the trustee from 2 Williams, Executors (7th Am. ed.) p. 515: "When a future time for the payment of the legacy is defined by the will, the legacy will be vested or contingent, according as, upon construing the will, it appears whether the testator meant to annex the time to the payment of the legacy, or to the gift of it." So, if the gift be independent of the direction to pay, the estate will ordinarily vest. As we have seen, the gifts in the instant case do not depend upon directions to pay or transfer at a future date, but are given by direct language in the present tense in a clause in nowise dependent upon the directions to distribute. The estates therefore are not contingent, but certain. 2 Jarman (Sweet) Wills (6th ed.) p. 1358; Theobald, Wills, p. 583; Kales, Future Interests, sec. 210; Ruffin v. Farmer, Adm'r, 72 Ill. 615; Marsh v. Wheeler, 2 Edw. Ch. (N.Y.) 156; Goddard v. Johnson, 31 Mass. 352; Andrews v. Russell, 127 Ala. 195, 28 So. 703.

The trustee contends that in any event he is entitled to the possession and control of the estate for five years subsequent to the testator's death, and that in the meantime none of the devisees should receive any part of the rents and profits growing out of the estate. There is some inconsistency in the attitude of the devisees; the plaintiff announces in his petition that he is content to receive a third of the net increase of the estate; the defendant, John W. Hill, Sr., in substance states in his answer that he is willing the trustee should continue in possession of the trust estate; whereas the nephews and the niece, who by representation contend for one-third of the estate, insist that the trust shall be dissolved and the entire estate delivered to the cestuis que trustent. The trustee is the son of John W. Hill, Sr., and it is more than probable that no serious conflict will arise between them, should it be determined that the decree of the district court should be affirmed. The plaintiff, while contending in his petition for the net income of his portion of the estate, in this court defends the decree of the district court. It will be observed that the will vests the trustee with no power and defines no duty which he is to perform, save that he is to "hold"...