In re Melcher

• Decision Date: 07 January 1903
• Citation: 54 A. 379,24 R.I. 575
• Parties: In re MELCHER et al.
• Court: Rhode Island Supreme Court

54 A. 379

24 R.I. 575

In re MELCHER et al.

Supreme Court of Rhode Island.

Jan. 7, 1903.

Application by Ellen S. Melcher and others for the construction of the will of Paran Stevens, deceased, on a case stated.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

Samuel R. Honey, George Zabriskie, and John S. Melcher, for Ellen S. Melcher.

Charles H. Koehne, Jr., and John A. Garver, for trust companies. Robert M. Franklin, for Alfred Wills. Andrew Jameson, Matthews Duncan, and John W. Sterling, for trustees.

STINESS, C. J. The case stated for an opinion sets forth that title to real estate in Newport is involved under a clause of the will of Paran Stevens, which gave said real estate to his wife for life, and then added: "Upon the decease of my said wife, the property by this and the preceding clause devised shall belong to my children, the descendants of any deceased child to take the share their parent would have taken if living, and if no descendants of mine survive my said wife, then said property shall belong and be delivered over by my executors to the same persons named as residuary legatees, in case of such failure of descendants, in the next clause of this will and in the same proportions."

Paran Stevens died in 1872, leaving Marietta Stevens, his widow, and three children— Mrs. Melcher, Mrs. Paget, and Henry L. Stevens. Henry L. Stevens died without issue in 1885, before the termination of his mother's life estate, leaving a will which gave one-half of his property to her, and one-half in trust for his sister, Mrs. Paget. Mrs. Stevens, the life tenant, died in 1895, leaving a will giving her property in trust for Mrs Paget.

The questions presented are whether the devisees of Henry L. Stevens took an undivided third of the real estate in question, and what are the respective interests of the parties therein? The answers to these questions depend upon the decision of the effect of the will of Paran Stevens as to the interest taken by Henry L. Stevens thereunder. On the part of Mrs. Paget it is claimed that he took a vested interest, which passed under his will; and on the part of Mrs. Melcher, that the estate did not vest in the children upon the testator's death, but if it did, it was only a vesting defeasible in respect to any child upon the death of that child prior to the termination of the life estate, whether with or without issue, in favor of the issue, if any; but, if none, in favor of the surviving children of the testator.

We quite agree with the counsel for Mrs. Paget that the legal effect of the provisions of a will, plainly expressed, must prevail over an implied intention. Chapin v. Hill, 1 R. I. 446; Perry v. Hunter, 2 R. I. 80; Derby v. Derby, 4 R. I. 414; Grant v. Carpenter, 8 R. I. 36. The first inquiry, therefore, is the legal effect of the terms of the will. This involves three things—the time of taking, the persons to receive, and the quantity of the estate devised. Upon these points we think that the will is explicit. The time when the interests of the children or their descendants were to attach was "upon the decease of my said wife." That is the focal point. That was the time when the interests were to be determined. The persons who were then to receive the property were the living children or their descendants, per stripes. The persons, therefore, who were to take, were uncertain. It could not be known which, if any, of them would be alive to take an interest in the estate. If one or more of the children did not live, the estate was not to go to their heirs, as heirs, nor to their assigns, but to certain described persons. For example, had Henry L. Stevens left children, a third interest would have gone to them, not as heirs of their father, but as devisees under the will. In this respect the will differs from that in Loring v. Arnold, 15 R. I. 428, 8 Atl. 335, where the remainder to A., B., and C, "their heirs and assigns," was absolute as to persons, and contingent only upon the death of the first devisee dying without leaving children. Hence the remainder was descendible, and so devisable.

The main contention, however, is upon the third element of the devise—the resultant quantity of the estate devised. On the part of Mrs. Paget, who claims under the will of Henry L. Stevens, it is urged that, by the terms of the will in question, said Henry took a vested estate, subject to be divested by the two contingencies (1) of his death before the life tenant, leaving issue him surviving; (2) the death of all issue of the testator before that of the life tenant. As neither of these contingencies happened, it is claimed that the estate was in him unimpaired. On the part of Mrs. Melcher it is claimed that the remainder was a contingent remainder, taking effect at the death of the life tenant, and so giving no interest to said Henry, prior thereto, which was either descendible or devisable. Both views have been ably and learnedly presented.

Cases upon the construction of wills and upon vested and contingent remainders have been too numerous and conflicting for an attempt to review or to reconcile them. Indeed, the task would be well-nigh impossible. In view of the fact that the case involves only title to realty in this state, and that the law applicable to it is settled by decisions of this court, we will confine our attention to such decisions. In Watson v. Woods, 3 R. I. 226, the devise was to a daughter, Mary, for life, remainder after her decease to her children and their issue; but if no issue, or in case of a subsequent failure of issue, then to other children of the testator. The terms of the gift were the same as in this case. It was held that it was the testator's intent to pass the estate to the descendants of Mary as long as there were any in being, and that until her decease her children could have no vested interest. In referring to the devise "after the decease of my said daughter," Brayton, J., said: "That language evidently contemplates the estates vesting at that time in the descendants of his daughter, such...