Randall v. Josselyn
| Decision Date | 21 September 1887 |
| Parties | CHARLES E. RANDALL v. LLOYD N. JOSSELYN. [IN CHANCERY.] |
| Court | Vermont Supreme Court |
BILL IN CHANCERY. Heard on bill and answer, December Term, 1886 ROWELL, Chancellor.
Decree that the court had jurisdiction; that the devise over, in case the son dies without children, etc., will take effect as an executory devise; that the orator has only a qualified or base fee in the land in question, but that the will doth give him power to sell and convey the same and give good title thereto; but if he do this, he must give the defendant a bond, with sufficient sureties, to be approved by the clerk of court, which shall be in the penal sum, double the amount for which the land is sold, and conditioned to account for and pay over the principal of the avails of such sale according to the terms and provisions of the will as herein construed.
Appeal by the orator.
Decree affirmed in part, and reversed in part. Cause remanded with a mandate.
William E. Johnson, for the orator.
The bill and answer call for a construction of the will. A fair construction gives the son power to dispose of this property.
The testatrix gave authority to the executor to sell during the son's minority if the son consented. Surely she did not expect him to have less sense as he grew older. There is nothing to limit the right to sell. Jones v. Bacon, 68 Me. 34, holds that an absolute power of disposal in the first taker of an estate renders a subsequent limitation repugnant and void. When the first taker has the power of disposal by deed or will, a devise over is void. Van Horne v. Campbell, 3 New Eng. Rep. 316. It was ruled in Ide v. Ide, 5 Mass. 500, PARSONS, J., that where it was the clear intention of the testator that the devisee should have an absolute property in real estate devised, a limitation over must be void. The following cases hold the same doctrine: Gifford v. Choate, 100 Mass. 343; Shaw v. Hassey, 41 Me. 495; Stuart v Walker, 72 Me. 146; Hale v. Marsh, 100 Mass 468; Brattleboro, Village of, v. Mead, 43 Vt. 556. The estate under the will vested in the orator.
French & Southgate, for the defendant.
The orator took but a life estate. The gift to him is subject to "conditions and limitations." The latter clause controls the prior language of the will. 2 Jar. Wills, 46; Smith v. Bell, 6 Pet. 84. The defendant took a vested remainder in himself and children to take effect on the termination of the orator's life estate, subject to be divested on the orator's having direct descendants living at his death. 2 Jar. Wills, 407, 411; 2 Redf. Wills, pp. 593, 626; Richardson v. Paige, 54 Vt. 373; Lovejoy v. Raymond, 58 Vt. 509; Doty v. Chaplin, 54 Vt. 361. In this case the remainder passes in the first instance to the defendant; and if he should die before the orator, then to his children. McCloskey v. Gleason, 56 Vt. 264. The rule of modern cases is to construe wills so as to create vested remainders, and not executory devises. 2 Redf. Wills, 612, 627, 643; 2 Jar. Wills, 483, 485; 2 Green. Cruise, 457, 468. The subsequent estate will be construed a remainder where it is possible. 2 Saund. 388, n. 9. A vested remainder cannot be barred by the orator's deed. 3 Green. Cruise, 519; 2 Saund. 388, n. 9.
The testatrix, Sarah S. Randall, devised and bequeathed all her estate, real and personal, to her son Charles E. Randall, who was her only child and heir, subject to the following conditions and limitations:
The will was duly probated. On the settlement of the executor's administration account there was left belonging to the estate of the testatrix certain personal property, a piece of land in Wisconsin, and a dwelling-house, out-buildings and land adjoining in Woodstock, Vermont, which were occupied by the testatrix as her homestead at the time of her decease. All the residue of her estate was on the 2d day of August, 1882, decreed by the Probate Court to the orator, the said Charles E. Randall, pursuant to the terms and provisions of said will, and he being then of full age received possession of the whole estate from the executor. He now desires to sell and convey the real estate situated in Woodstock aforesaid, if he has authority under the will to convey a good and perfect title to the same in fee; and brings this bill in chancery for the purpose of having the court determine what right and interest he has in the real estate in Woodstock under the will, and prays that he may be permitted to sell and convey the Woodstock premises on such terms as to the court may seem meet and proper. The decree of the Probate Court did not settle the question involved. The question arising, then, in the case is, what estate the orator, Charles E. Randall, took in the devised premises under the will of the testatrix. In determining this question the whole will must be considered, and all the clauses construed together. In no other way can the intention of the testatrix be ascertained. In construing the will the mind and intention of testatrix, if it can be discovered, must prevail, unless that intention is in conflict with some fundamental principle of law which ought not to be disregarded to meet the wish or caprice of the testatrix. There is a devise or gift to the orator as first taker, and a limitation over to the defendant Josselyn or his children and their descendants. Effect must be given to both, if consistent with the rules of law, if such was clearly the intent of the testatrix.
It is contended by the orator that the will gives him, as first taker, power to dispose of the whole estate, and that this power is inconsistent with, and therefore destructive of, the limitation over, and that as the limitation cannot be carried into effect he takes the whole estate in absolute fee simple.
There is no doubt of the rule that where there is an absolute power of disposition given by the will to the first taker, the limitation over upon his dying without children, etc., is void as being inconsistent with the absolute estate. The power of disposal vests the whole estate in the first taker. 4 Kent Con. 264.
But we think the orator's contention is not supported by the language of the will. The construction contended for would defeat the intention of the testatrix. The will, in the event of the decease of the testatrix before her son attains the age of twenty-one years, leaves the care and management of her whole estate to the executor during the son's minority, and gives the executor power during that time to change any of her property into money or other property for the benefit of the son, if both deem it best so to do. When the son reaches the age of majority, or at her decease, if thereafter, he is to have the control and management of her property, which she "gives to him and heirs absolutely, provided he has children or their descendants, who can inherit said property, or the avails of the same, from him at the time of his decease." No clause of the will gives the property to the son except upon the express proviso and limitation therein stated. It gives him the fee conditionally. In the event of his decease, without issue living, his interest in the estate is defeated, and the whole goes over to the nephew or his issue. The estate does not vest absolutely in the son unless he leaves issue at his decease who can inherit it from him. The "control and management" of the property which the will gives him, manifestly does not include power of disposal. It gives him the use, possession, superintendence and direction of the property and the power of exercising a general restraint over the same until the happening of the event that will determine who takes the property in fee simple absolute. The language of the will shows that the testatrix did not intend that her property should vest absolutely in her son on his attaining the age of majority with power of disposal. In direct and clear language she makes the estate given to him a conditional one and contingent during his life, subject to be defeated by his death without children or their descendants surviving him.
The will does not authorize or contemplate any change in her property after the son attains the age of majority. In the devise over the language is: "I will and direct that all my said property, or the avails of the same, if changed into other property or money, go to and become the property of my nephew," etc. The phrase, "or the avails of the same," in...
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