In re Socrates Beach's Estate

• Decision Date: 15 October 1930
• Citation: 151 A. 654,103 Vt. 70
• Parties: IN RE SOCRATES BEACH'S ESTATE
• Court: Vermont Supreme Court

151 A. 654

103 Vt. 70

IN RE SOCRATES BEACH'S ESTATE

Supreme Court of Vermont

October 15, 1930

May Term, 1930.

Wills---Construction---Testator's Intention---Consideration To Be Given Every Clause---Effect of Phrase "Possession, Control, and Management"---Term "Whole of Said Real Estate"---Vesting of Devised Estates---Presumption as to Words of Survivorship---Conditions Necessary for Estate To Be Held Contingent---Lapsed Devise----Construction Permitting Grandchildren To Displace Living Parent Not Favored---Vesting of Remainder in Fee with Postponed Enjoyment---Construction as to Whether Survivor of Two Grandchildren Entitled to Entire Income of Fund---Lapsed Legacy as Part of Trust Estate---"Issue"---Presumption as to Use of Term---Failure of Court in Decree To Specify Whether Beneficiary Took Vested or Contingent Remainder---Premature Decreeing of Principal of Estate---Extent of Decree Where Limited Estate or Interest Precedes and Determines Distribution of Principal.

1. In construing will, first and chief object is to ascertain testator's intention, from language used and from consideration of context of will and circumstances of making it.

2. Testator's intention when ascertained, so far as it may be legally carried out, governs.

3. Force and effect are to be given to every clause of will.

4. Words, "to have the possession, control and management thereof," in clause devising and bequeathing certain real and personal property to trustee, held to give trustee legal title to property during life of trust, making it part of trust estate to be administered by trustee with same powers and subject to same limitations as ordinarily pertain to trustees.

5. Where testator in disposing of certain real estate after termination of trust for benefit of his son and family divided such property physically in value into the north one-third in value and the south two-thirds in value treating each part separately, provision in clause after providing for disposal of income of north one-third, that if either of two grandchildren having life use of such income after death of testator's son without issue, died without issue, "whole of said real estate" should go "to issue of the other," held to refer only to north one-third, in view of intent disclosed by will.

6. Law favors early vesting of devised estates.

7. Law presumes that words of survivorship relate to death of testator, if fairly capable of such construction.

8. No estate will be held contingent unless positive terms are employed in will indicating such intention.

9. When language employed by testator annexes futurity to substance of devise, clearly indicating intention of testator to limit it to take effect upon a dubious and uncertain event interest is contingent.

10. Vesting of devise limited upon happening of a dubious and uncertain event is suspended until event happens, and, if devisee dies before happening of event, it is a lapsed devise.

11. Where vesting of interest in testator's granddaughter and her issue depended upon testator's son dying without being survived by children born after execution of will although no children survived him or were born after execution of will, event upon which vesting of estate depended being dubious and uncertain, because possibility of its occurrence was not precluded until after son's death, daughter of testator's granddaughter having died prior to death of testator's son, devise lapsed so far as she was concerned, and she took no vested interest in property during her lifetime.

12. Construction which permits greatgrandchildren to displace living parent is to be avoided unless such is plainly intention of testator.

13. Where will provided that, if testator's son died without issue thereafter born, which he did, income from certain real property should be equally shared by two grandchildren during their lives, and upon death of either gave to his or her lawful issue, if any, an undivided half in such property "in fee forever," but if either died without issue gave "whole of said real estate to the issue of the other," held that, notwithstanding that literal construction of such paragraph of will would, upon death of one of grandchildren without issue, immediately vest present possession of fee of whole of such parcel of real estate in issue of surviving grandchild, in view of scheme of testamentary disposition as disclosed by entire will, while such remainder in fee vested in grandchild's issue born after death of testator's son, upon son's death, enjoyment thereof was postponed until death of grandchild having life income.

14. Where will provided that, if testator's son died without issue thereafter born, which he did, income from certain real property, should be equally shared by testator's grandchildren during their lives, and upon death of either gave to his or her lawful issue, if any, undivided half in such property "in fee forever," but if either died without issue, gave "whole of said real estate to the issue of the other," held that upon death of one of such grandchildren not leaving issue, survivor was not entitled to whole of such income during life.

15. Devise of life income to grandchild with remainder over in fee to his lawful issue to take effect after termination of trust, held to lapse as to grandchild dying without issue during life of trust, and to become part of trust estate which upon termination of trust vested in surviving beneficiaries entitled by will to remainder of trust estate.

16. In absence of words in will to show that testator used word "issue" differently than its statutory sense as applied to descent of estates, which includes lawful lineal descendants of ancestor, presumption is that it was so used.

17. Question whether court erred in not specifying in its decree whether issue of testator's grandchild took vested or contingent remainder under will, held not properly before Supreme Court for consideration, since it would not arise at least until time for disposition of fee arrived.

18. Decreeing distribution of principal of estate before time of distribution has arrived, held improper.

19. When limited estate or interest precedes and determines distribution of principal, decree of limited estate or interest to person entitled thereto is proper, but decree should go no further.

APPEAL from decree of probate court for the District of Chittenden, distributing part of estate of Socrates Beach, Earle R. Davis, Probate Judge. Myra B. Powers and Harold B. Adams, appellants. The opinion states the case.

Decree of the probate court reversed, and cause remanded for further proceedings and decree not inconsistent with the views herein expressed. Neither party to recover costs in this Court. To be certified to the probate court.

NOTE.--When this case was first argued, at the May Term, 1929, it was assigned to MR. JUSTICE WILLCOX. At the May Term, 1930, it was ordered for reargument, and reassigned to MR. JUSTICE THOMPSON.

Clarence P. Cowles and J. H. Macomber, Jr., for the appellants.

J. Ward Carver (John G. Sargent of counsel), for the appellees.

Present: POWERS, C. J., SLACK, and THOMPSON, JJ., and GRAHAM, Supr. J.

OPINION

THOMPSON

Socrates Beach died November 5, 1904. He left surviving him two daughters, Myra B. Powers and Hattie B. Adams, a son, Joseph T. Beach, a grandson, Harold B. Adams, son of Hattie B. Adams, and a grandson, Charles A. Beach, and a granddaughter Emma L. (Beach) Hazelton, children of Joseph T. Beach.

He left a will, executed March 14, 1902, which contained provisions for the life support of his children and their spouses and of his grandchildren, with remainder over in fee to the "lawful issue," or "heirs," of his grandchildren.

He left certain real and personal property in trust for the support of his son Joseph and others, and for certain other purposes, said trust to terminate upon the decease of said Joseph. Included in said trust were certain lands with buildings thereon situated on the east side of Church Street in the city of Burlington, extending northerly from Bank Street, and herein referred to as the Church Street property.

The clauses of the will are not numbered, but we have numbered them consecutively for convenience. The clauses with which we are particularly concerned pertain to the disposition of the Church Street property after the decease of said Joseph T. Beach. Said clauses, so far as they are material, are as follows:

Clause 29. "If my son Joseph at his death leaves lawful children hereafter born, surviving him, I give and devise to them in equal shares the use during their lives of the north one-third in value of my Church Street real estate with remainder over in fee to their lawful issue in equal shares, forever."

Clause 30. "After the decease of my son Joseph, said trust shall end and all said trust estate then remaining shall be equally divided among my children and grandchildren then living, and the issue of any deceased grandchild per capita."

Clause 38. "If my daughter Myra survives my son Joseph, I give to granddaughter Emma L. Beach (Hazelton), during the life of said Myra one-fifth of the net income of two-thirds in value of my real estate on Church and Bank Streets * * *; and four-fifths of said income to said Charles A. Beach during his life subject to the support of his mother said Cora E.; and at the death of said Myra B. I give said Charles A. during his life the entire income of the said two-thirds in value of said real estate subject to the support of his mother, with remainder over in fee to his lawful issue in equal shares forever * * * subject to the support of Cora E. if the other provisions I have herein made for that purpose are insufficient."

Clause 39. (a) "If my son Joseph at his...