Rock River Paper Co. v. Fish

• Decision Date: 27 October 1881
• Citation: 47 Mich. 212,10 N.W. 344
• Court: Michigan Supreme Court
• Parties: ROCK RIVER PAPER CO. v. FISH.

10 N.W. 344

47 Mich. 212

ROCK RIVER PAPER CO. v. FISH.

Supreme Court of Michigan

October 27, 1881

Testator by his will provided as follows: "I give and bequeath to my beloved son Francis, when he arrives at the age of 21 years $3,000 and $1,000 annuaily thereafter until he arrives at the age of 25 years; and if at that time he shall have used what he has received, as above stated, in a judicious frugal manner, and not wasted and squandered it in the opinion of my executors hereunto appointed, he shall then receive $10,000 more; and if at the age of 30 years or sooner, if in the opinion of my said executors, he shall have managed and will continue to do so, what he has already received, in a judicious frugal manner, he shall receive $15,000 more; and if at the age of 35 years or sooner, if in the opinion of my said executors, he shall have and will still continue to use what he has received as before stated in a frugal, economical and judicious manner, he shall come into full possession of all my estate, personal and real, not otherwise disposed of by this will or otherwise. But if after having received $10,000 at the age of 25 years he shall have squandered and wasted what he has already received, or in the opinion of said executors he will waste and squander what he receives, he shall thereafter receive but $1,000 annually and all my estate, real and personal, not otherwise disposed of shall go to the legal issue or children of my beloved son Francis; but in case he dies without said issue or children then in that case it shall go to my legal heirs and representives equally according to law," etc. He then appointed five persons "as executors to carry ont the foregoing will, and they are to have the control and direction of my beloved son Francis, during his minority, and the above-named executors a majority of them, are authorized to choose their own successors in office."

Held that the will did not convey the estate to the executors named in trust, but only made them executors with certain additional powers, under which, in certain contingencies, the estate might be made to pass from the son to others. Until the contingencies happened the estate would not pass to the son, who was heir at law.

Of the five executors named only one qualified. He acted as sole executor for many years, and died without completing a settlement. The annuity of $l,000, was paid to Francis till he was of the age of 24, but no other payments were made to him. He died without issue at the age of 25 years and 3 months leaving a will by which his wife was made devisee of his estate. The acting executor never determined whether the conduct of Francis was satisfactory, or undertook to execute the power given by the will.

Held that assuming the power given by the will to be valid, it could only be executed by the five persons named, or by the number kept good as by the will provided; and that it could only be executed after the payments to be made to the son at and before the time of his reaching the age of 25 had been actually made. Therefore in this case the power to pass the estate from the son could never have been executed.

The provision for the son dying without issue, means his dying without issue after it had been determined by the executors as provided by the will, that the conduct and promise of the son are unsatisfactory; and that determination having never been made, and the son remaining owner at the time of his death, the estate passed under his will of the son to his devisee.

Error to Calhoun.

Lyman P. Perkins, for plaintiffs in error.

William H. Porter, for defendant in error.

COOLEY, J.

This action is ejectment, brought by the defendant in error to recover certain lands which in his life-time belonged to Joseph Sibley. Her title to the land she traces through the will of her late husband Francis M. Sibley who was the son and only heir at law of Joseph Sibley. No question is made that she is entitled to recover provided her husband was seized at the time of his decease. Joseph Sibley died September 7, 1864, and the questions of law arise upon his will, a copy of which is as follows:

"Know all men by these presents that I Joseph Sibley of the city of Marshall, county of Calhoun and state of Michigan, being of sound mind and memory, do make, publish and declare the following to be my last will and testament:

"Firstly. I will that all my just debts and funeral expenses be paid.

"Secondly. I give and bequeath to my beloved wife, Hannah, all my household goods and furniture, all my stock, farming tools wagons, etc., and the use during her life-time of all the lands, buildings and tenements I own at my

decease on section No. twenty-six, (26,) within the said city of Marshall; and also $20,000 at once, or $1,000 annually, at her election, during her life-time, to be paid her out of my estate.

"Thirdly. I will, if it is not done during my life-time, that lot No. 207, Group F, I own in the said city of Marshall cemetery be enclosed with a suitable iron fence, and a suitable family monument erected therein, under the direction of my beloved wife, should she be living, and if not, under the direction of my beloved son Frank.

"Fourthly. I give and bequeath to my beloved son, Francis M. Sibley when he arrives at the age of 21 years, $3,000, and $1,000 annually thereafter until he arrives at the age of 25 years; and if at that time he shall have used what he has received, as above stated, in a judicious, frugal manner, and not wasted and squandered it, (in the opinion of my executors hereunto appointed,) he shall then receive $10,000 more; and if, at the age of 30 years or sooner, if in the opinion of my said executors he shall have managed, and will continue to do so, what he has already received, in a judicious, frugal manner, he shall receive $15,000 more; and if, at the age of 35 years, or sooner, if in the opinion of said executors he shall have and will still continue to use what he has received, as before stated, in a frugal, economical and judicious manner, he shall come into full possession of all my estate, personal and real, not otherwise disposed of by this will or otherwise. But if, after having received $10,000 at the age of 25 years, he shall have squandered and wasted what he has already received or in the opinion of said executors he will waste and squander what he receives, he shall thereafter receive but $1,000 annually, and all my estate, real and personal, not otherwise disposed of, shall go to the legal issue or children of my beloved son, Francis M....