In re Hartwig's Estate

• Decision Date: 10 December 1946
• Docket Number: 8636.
• Citation: 175 P.2d 178,119 Mont. 359
• Parties: In re HARTWIG'S ESTATE. v. HARTWIG. EICKEMEYER
• Court: Montana Supreme Court

175 P.2d 178

119 Mont. 359

In re HARTWIG'S ESTATE.

EICKEMEYER v. HARTWIG.

No. 8636.

Supreme Court of Montana

December 10, 1946

Appeal from District Court, First District, Lewis and Clark County A. J. Horsky, Judge.

Proceeding in the matter of the estate of W. J. Hartwig, deceased wherein Blanche Hartwig Eickemeyer interposed objections to the petition of W. B. Hartwig, executor of the estate of W J. Hartwig, deceased, for final distribution. From the decree of final distribution, Blanche Hartwig Eickemeyer appeals.

Reversed and property ordered distributed under the laws of succession.

Lester H. Loble, Henry Loble, Albert Anderson, Wellington D. Rankin, Arthur P. Acher, and Melvin E. Magnuson, all of Helena, for appellant.

William A. Brown, of Helena, and T. F. McFadden, of Dillon, for respondent.

BENJAMIN E. BERG, District Judge (sitting in place of Justice ANGSTMAN, disqualified).

W. J Hartwig died testate April 15, 1939, leaving, as his heirs at law, his widow Mrs. W. J. Hartwig, Wallace B. Hartwig, son, Charles B. Hartwig, a son, Elizabeth Hartwig McConnell, a daughter, Isabelle Hartwig Sutton, a daughter, John Hartwig and Annette Hartwig, grandchildren, the children, a son and daughter of his son Raymond, who pre-deceased testator.

The will of the deceased duly admitted to probate May 9, 1939, after providing for the payment of his debts and funeral expenses and the making of several specific legacies, gave to his wife, if she survive him, all his personal property, and provided that his son Wallace B. Hartwig should have a three-year option to buy the Hartwig Theatre in Dillon, Montana at a stated price. By clause 7 of the will he gave to his wife a life estate in all his real property, including the Hartwig Theatre, if it should remain in his estate. Clauses 8 and 9, the construction of which are in dispute, are as follows:

'Clause 8. In the event that may wife shall not be surviving at the time of my death, or if she shall survive then upon her death her life estate, in my real property shall cease and terminate. In either such event to-wit; the death of my wife without her assuming the life estate, or upon her death and the termination of the life estate, all my real estate and property in which may wife had or would have a life estate, I give, devise, and bequeath in trust to the executor of this, my last Will and Testament. The real estate thus devised, shall be held in trust for the period of ten years, from and after the death of my wife, if she shall survive me or from and after my own death, if my wife shall pre-decease me. My said executor, who is thus to become a trustee, holding the real property, shall have no power to alienate or convey the real estate or mortgage or hypothecate it (except to sell the Dillon Theatre under Clause 6) but he shall hold real property in trust, keeping the same rented and looking after and caring for the same, in a businesslike manner. After paying the expenses of handling the real property, so held in trust, together with his own expenses and a monthly compensation to himself of Fifty ($50.00) Dollars per month, my executor-trustee shall divide the net returns from the real property equally among my surviving children, heirs of the body, including my executor-trustee, Wallace B. Hartwig. If any child shall be deceased (including Raymond) leaving heirs of the body, such child or children, shall take the parent's part, taking per stirpes and not per capita. But if deceased without heirs of the body, that child's interest shall cease. The payment of this income from the real property to the children, shall be not later than annually, but may be monthly, quarterly or semi-annually, as those entitled shall unanimously agree, and so request in writing.

'Clause 9. At the end of the ten-year period during which my executor-trustee shall hold the title to my estate, as provided in Clauses 5 and 6 in this, my last Will and Testament, my real estate may then be sold at public or private sale as all of my then surviving children, heirs of the body, may determine. Any sale to be only by unanimous consent of all such surviving children, and at such end of the ten-year period, all cash and personal property that may be then in the hands of my executor-trustee and the proceeds from the sale of the real estate, if sale shall be made, or the real estate itself, if there shall have been no sale, I give, devise and bequeath and it shall be distributed in equal shares, share and share alike to my beloved children, Isabelle (Hartwig) Sutton, Elizabeth (Hartwig) McConnell, Wallace B. Hartwig and Charles B. Hartwig, and the children of my deceased son, Raymond J. Hartwig. The children or surviving child of my son Raymond to take or inherit only what would have been their father's part had he survived me. In the event that any of my children shall be deceased and shall leave surviving children, heirs of the body, such surviving child or children, heirs of the body (my grandchild or grandchildren) are to have and take their parent's part or interest, taking per stirpes and not per capita, but if deceased without heirs of the body that child's interest shall cease.'

Mrs. W. J. Hartwig died July 18, 1944, and Charles B. Hartwig died November 8, 1939, without issue. He left surviving him his wife, Blanche Hartwig, who later married and is the appellant Blanche Hartwig Eickemeyer.

In the Court below the appellant interposed objections to the petition for final distribution, and of these only one is of importance here, namely, 'that the last will and testament of W. J. Hartwig attempts to create a trust in direct conflict with the laws of the State of Montana, and particularly with Sections 6705 and 6706 RCM 1935 * * *.' The lower court overruled all the objections and decreed distribution of all the real property to Wallace B. Hartwig, trustee, pursuant to the terms of the will. From this decree Blanche Hartwig Eickemeyer appeals.

The sole question to be determined is: Do the terms of the trust created by Clauses 8 and 9 of the will suspend the absolute power of alienation of the property therein devised for a period greater than the continuance of the lives in being at the time of the creation of the limitations or conditions expressed in the trust? If they do, then the trust is void and, as to the property therein devised, W. J. Hartwig died intestate.

It will aid the understanding to first set forth the applicable sections of our civil code.

'A will is to be construed according to the intention of the testator. * * *.' Section 7016, Revised Codes of Montana 1935.

'The absolute power of alienation cannot be suspended, by any limitation or condition whatever, for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition. * * *.' Section 6705, Revised Codes of Montana 1935.

'Every future interest is void in its creation which, by any possibility, may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed.' Section 6706, Revised Codes of Montana 1935.

'The delivery of the grant, where a limitation, condition, or future interest is created by grant, and the death of the testator, where it is created by will, is to be deemed the time of the creation of the limitation, condition, or interest, within the meaning of this part of the code.' Section 6721, Revised Codes of Montana 1935.

'The suspension of all power to alienate the subject of a trust, other than a power to exchange it for other property to be held upon the same trust, or to sell it and reinvest the proceeds to be held upon the same trust, is a suspension of the power of alienation, within the meaning of section 6705.' Section 6733, Revised Codes of Montana 1935.

'A testamentary disposition to a class includes every person answering the description at the testator's death; but when the possession is postponed to a future period, it includes also persons coming within the description before the time to which possession is postponed.' Section 7036, Revised Codes of Montana 1935.

'Where a trust in relation to real property is expressed in the instrument creating the estate, every transfer or other act of the trustee, in contravention of the trust, is absolutely void.' Section 6796, Revised Codes of Montana 1935.

Stated affirmatively, the provisions of sections 6705 and 6706, supra, allow the suspension of the absolute power of alienation for the period during the continuance of lives of persons in being at the creation of the limitation or condition, and no longer.

Upon the death of Mrs. W. J. Hartwig July 18, 1944, if the trust be valid, title to the trust property vested in Wallace B Hartwig,...