L'Etourneau v. Henquenet
| Decision Date | 23 December 1891 |
| Citation | 89 Mich. 428,50 N.W. 1077 |
| Parties | L'ETOURNEAU et al. v. HENQUENET et al. |
| Court | Michigan Supreme Court |
Appeal from circuit court, Wayne county, in chancery; CORNELIUS J REILLY, Judge.
Suit in equity by Louis J. l'Etourneau and another administrators, against August Henquenet and others, to remove a cloud from the title of real estate. Defendants had a decree, and complainants appeal. Reversed.
Eldredge & Spier, for appellants.
Barbour & Rexford, James J. Atkinson, William F. Atkinson, S. S. Babcock, T. M. Crocker, and Edward E. Kane, for appellees.
The bill is filed to remove a cloud upon title, and to obtain a construction of a will, which is quite fully set out in the opinion of my Brother MORSE. But two questions are involved, and they relate to the construction to be given to the third and eighth clauses of the will- First. Does the fee of the real estate devised by the third clause vest in the devisees therein named, upon the death of the testator? Second. If it did vest under the third clause, was it subject to be divested under the eighth clause, in case of the death of either of the devisees before the termination of the precedent estate devised to the widow? The answer to these questions must depend upon the intention of the testator, either as expressed or inferred or assumed, in accordance with the well-established canons of construction. The fundamental rule of construction is that the intention of the testator must be gathered from a consideration of the whole instrument together, giving to each part or clause due weight, as expressing some idea of the testator in the disposition of his property. The first and dominant idea of the testator, as manifested in this will, is that his wife, Clotilde, shall have a life-estate in possession of all his property, real and personal, with remainder over to his children, as therein set forth. The time of enjoyment of the remainder was postponed until the death of his wife. Section 5523 of Howell's Statutes enacts that "estates, as respects the time of their enjoyment, are divided into 'estates in possession' and 'estates in expectancy."' Section 5525 enacts that "estates in expectancy are divided into- First, estates commencing at a future day, denominated 'future estates;' and, second, 'reversions."' Section 5526 defines a "future estate" as "an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or the determination, by lapse of time or otherwise, of a precedent estate created at the same time." "When a future estate is dependent upon a precedent estate it may be termed a 'remainder,' and may be created and transferred by that name." Section 5527. We have here, then, under the third clause of this will, a vested future estate, within the very terms of the statute, devised to Sarah, Emily, and Eleanor.
The question now arises, was it the intention of the testator to make this vested future estate subject to be defeated by the contingency mentioned in the eighth clause? In the first place, it will be noticed that the habendum clause does not devise the estate absolutely to Sarah, Emily, and Eleanor, and their heirs and assigns, forever, unqualifiedly, but adds this significant qualification: "After the determination of the life-estate aforesaid." He made no such qualification in the habendum to his devise to Josephine, nor in the habendum to his two sons, in the fifth clause. After disposing of the remainder to certain of his children named, excluding Margaret, the daughter of his deceased son, Charles, he then makes such remainder subject to the following contingency: "And whereas, one or more of my said children may not survive me, or my said wife, I hereby order, direct, and devise the share of such devisee or devisees in such case to be equally divided among the remaining children herein named, and to their heirs, share and share alike." It is claimed that this clause is obscure, and open to two constructions. I do not so regard it. The testator was looking to the future. The question with him was, what provisions should be made with reference to these remainders in case either of his children named to whom he had devised the lands in remainder should die before he did, or before his wife, to whom he had granted the life-estate in possession? If such contingency should happen, he devises the share of such devisee or devisees to the surviving children named, to whom the share or shares had been given, and to their heirs, share and share alike. The obvious sense and meaning is that one or more of "my children may die before my will can take effect by my death," and he provided for that contingency should it happen; and it also occurred to him that one or more might die before they could come into possession by the death of his wife, and in either case he provided what should be done with the share of such children named,-it should go to the heirs of any such deceased child, share and share alike. He disinherited no child of his children named as devisees. He did not intend that Margaret should, in any event, share in the "worldly effects" left by him. He gave explicit reasons for that, and provided that, if she should survive him, she should be paid $10 by his executor out of his personal estate. Can it be supposed that, after making this declaration of his intent not to have Margaret share in his estate, he, by the next clause, admitted her to a share in the devises he had given to his children in case one or more died before he or his wife died? It seems to me that such a construction would be a forced one and quite contrary to the intention expressed.
Neither can I construe the language to mean that "my said wife may not survive me." This construction destroys the whole scheme of the will. The will can have no force unless there be an intermediate estate in his widow, and the legacies would all lapse. He did not intend that any of his property should be administered as intestate property. He disposed of the whole, and yet, to give this clause the construction contended for by counsel for defendant, causes these shares to be administered the same as intestate estates, and admits Margaret to share in the real estate, contrary to the will of the testator. The remainder to his children was subject to the limitation of the eighth clause. The devise to his children created a vested estate, subject to be defeated by the subsequent contingency stated in the eighth clause. As to the shares of any child or children dying before the death of Clotilde, they became a contingent remainder to the surviving children, and the heirs of any deceased child, at the termination of the precedent estate of Clotilde. As to such the precedent estates in remainder terminated on the death of such child, and a contingent remainder was created in the surviving children and the heirs of any deceased child. Such contingent remainder could not vest until the death of Clotilde, for until then it could not be known who would be entitled to it as heirs or survivors. In the language of the statute, it was contingent while the person to whom it was limited to take effect remained uncertain.
By the statute, contingent estates are made to depend upon two conditions,-one is while the person to whom the estate is given remains uncertain, and the other when the event upon which such estates are limited to take effect remains uncertain. In this case the event upon which they are limited to take effect must be uncertain, for the reason that one or more of the children, if the contingency happened, must die before his wife, Clotilde,-events which must happen, if at all, within a certain time; and it is the event, and not the time, that controls, in determining the question as to whether the remainder is contingent or vested. But they are contingent also while the person to whom they are limited to take effect remains uncertain, and that is the contingency in this case; for it was not known at the time the testator made his will, or at the time when he died, that Charles and Eleanor and Emily would each die before his wife, Clotilde, should die. And by the eighth clause he made the contingency to happen, not upon the time of distribution, but the contingency was annexed to the gift itself, and in such cases they have been regarded as contingent, and not vested, remainders. A vested estate, whether present or future, may be absolutely or defeasibly vested. In the latter case, it is said to be vested, subject to being divested on the happening of a contingency subsequent. Chapl. Suspen. � 57; Manice v. Manice, 43 N.Y. 303; Howell v. Mills, 7 Lans. 193; Kelso v. Lorillard, 85 N.Y. 177; Baker v. McLeod's Ex'rs, (Wis.) 48 N.W. 657; Burnham v. Burnham, Id. 661. And where there is a substituted devise, to take effect in case any of the class died during the precedent estate, the remainder is then vested in the existing members, subject to opening to let in new members, and to be wholly diverted in favor of the substituted devise as to the share of the member dying. Chapl. Suspen. � 59; Smith v. Scholtz, 68 N.Y. 41; Baker v. Lorillard, 4 N. Y. 257; Du Bois v. Ray, 35 N.Y. 162. In Carmichael v. Carmichael, 43 N.Y. 346, there was a devise to the testator's wife for life, and from and after her decease to testator's children who might then be living. The court held that "the estate does not vest in remainder until her [the widow's] death, and then it vests only in those children who shall be living at the time of her death." See, also, Hennessey v. Patterson, 85 N.Y. 91.
It remains to be considered what effect shall be given to the mortgages executed by Emily upon the property described in...
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