Savela v. Erickson (In re Savela's Estate)
| Decision Date | 27 July 1917 |
| Docket Number | No. 20441[225].,20441[225]. |
| Citation | 138 Minn. 93,163 N.W. 1029 |
| Parties | In re SAVELA'S ESTATE. SAVELA et al. v. ERICKSON et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Renville County; Richard T. Daly, Judge.
Petition by Henry J. Savela and others against Otto Erickson, as guardian, and others, for the amendment of a final decree of distribution. From a judgment of the district court, on appeal from a denial of the petition by the probate court, granting the petition, the guardian and others appeal. Affirmed.
Where a gift is made by will to a class of persons and immediate distribution is contemplated, the persons constituting the class are determined as of the death of the testator.
Where the bequest to the class is contingent, the members constituting the class are not determined as of any time earlier than the vesting of the estate.
Where a gift is to a class and the right of enjoyment is postponed, beyond the time that it vests in right, and until the termination of a preceding estate, the members entitled to take are determined as of the time when the gift to the class vests in enjoyment.
The probate court made a decree vesting in certain named persons a remainder left by will to ‘the grandchildren’ of the testator. One grandchild had been born after the death of the testator and before the decree. Of this fact the court had no knowledge. Another was born after the decree but before the estate vested in enjoyment in the grandchildren. The rights of these were not presented to the court and no provision was made for them. The court had power after the estate vested in enjoyment in the grandchildren to amend the final decree so as to protect the rights of these after-born children. Paul J. Thompson and Harold B. Ransom, both of Minneapolis, for appellants.
Frank Clague, of Redwood Falls, and Frank Hopkins, of Fairfax, for respondents.
John Savela died testate November 14, 1913, leaving a widow and several children and grandchildren. By his will he gave the possession and use of all of his property to his wife Elsa for life. After her death he gave a legacy to his daughter Anna, and ‘all the rest and residue’ to his son August, and provided that:
‘Should my son August die before the death of my beloved wife Elsa, then and in that case I give, devise and bequeath all of the said estate * * * in the following manner: Ten ($10.00) dollars * * * to my grandchild William Alfred Martin, and all the rest and residue of the said estate to my other grandchildren, to my daughter Anna, and to my foster son August M. Savela, to be divided among them share and share alike.’
August died May 9, 1915, before his mother, so that the residuary bequest to him never vested in enjoyment, and the residuary bequest to the grandchildren did become operative. On August 30, 1915, after the death of August and before the death of his mother, a final decree was entered in the probate court. Distribution was made, taking into account only grandchildren born before the death of the testator. There were fifteen of these, the children of two sons and two daughters. Eight were the children of a son Henry Savela. Two grandchildren, children of Henry Savela, were born after the death of the testator and before the death of his wife, one Irene D. R. Savela, born November 11, 1914, before the death of August and before the final decree, another, Earl D. H. Savela, born April 16, 1916, after the death of August and after the final decree. The widow Elsa Savela died June 9, 1916. Thereafter a petition was filed in the probate court to amend the final decree so as to include Irene and Earl in the distribution. The probate court denied the petition. On appeal the district court granted it.
The question is: As of what time are the grandchildren entitled to take to be determined-as of the death of the testator, as of the death of August, or as of the death of the widow? If as of the death of the testator, then neither Irene nor Earl can be included. If as of the death of August, Irene but not Earl is included. If as of the death of the widow, both are included.
1. We recognize the rule that a will usually speaks as of the death of the testator. Kottmann v. Gazett, 66 Minn. 88, 68 N. W. 732;Yates v. Shern, 84 Minn. 161, 86 N. W. 1004. But there are other well-settled principles of law to be considered in connection with this one.
The devise to the grandchildren is a devise to a fluctuating class. It is often stated in general terms that testamentary gifts to members of a class intend prima facie that class as it exists at the testator's death. Schouler, Wills, § 529. Where the question is whether the class as existing at the death of the testator or at some earlier time, as for example the date of the will, is intended, this rule is a satisfactory one and is generally accepted. Yates v. Shern, 84 Minn. 161, 86 N. W. 1004;Schaffer v. Kettell, 14 Allen (Mass.) 528;Matter of King, 200 N. Y. 189, 93 N. E. 484,34 L. R. A. (N. S.) 945,21 Ann. Cas. 412;Eberts v. Eberts, 42 Mich. 404, 4 N. W. 172. See Welch v. Blanchard, 208 Mass. 523, 94 N. E. 811,33 L. R. A. (N. S.) 1. But where the question is whether the class as at the date of the death of the testator or at some later date is intended, the rule is subject to so many modifications and exceptions, that there is little left to the rule.
Where an immediate gift is made to a class and the right exists to have the property distributed at once on the death of the testator, the persons constituting the class are determined as of the death of the testator. 40 Cyc. 1475; McLain v. Howald, 120 Mich. 274, 79 N. W. 182,77 Am. St. Rep. 597;Blain v. Dean, 160 Iowa, 708, 142 N. W. 418;Alsman v. Walters, 184 Ind. 565, 106 N. E. 879,111 N. E. 921. Some decisions state this to be true even though distribution is postponed. Smith v. Smith, 186 Mass. 138, 71 N. E. 314;Matter of Smith, 131 N. Y. 239, 30 N. E. 130,27 Am. St. Rep. 586;Yates v. Shern, 84 Minn. 161, 86 N. W. 1004. But if the latter proposition is applicable at all it is not applicable to facts such as are presented in this case.
2. The facts here are that at the time of the death of the testator, the interest of the grandchildren was a contingent remainder. G. S. 1913, § 6663; 2 Washburn, Real Property, § 1556; Minnesota Debenture Co. v. Dean, 85 Minn. 473, 89 N. W. 848. Whether they would take at all was contingent until the death of August. On his death, the right of the grandchildren to take became vested remainder. Archer v. Jacobs, 125 Iowa, 467, 101 N. W. 195;Matter of Allen, 151 N. Y. 243, 45 N. E. 554. See Johrden v. Pond, 126 Minn. 247, 148 N. W. 112.
It is a principle quite well recognized that, where a bequest to a class of persons is contingent, the members of the class entitled to take are not determined as of the death of the testator nor as of any time earlier than the vesting of the estate, for it is not to be supposed that the testator intended that the members of the class should be fixed before it is determined that there is to be a bequest. 1 Schouler, Wills, § 532a; Hawke v. Lodge, 9 Del. Ch. 146;Estate of Cavarly, 119 Cal. 406, 410, 51 Pac. 629;Estate of Henderson, 161 Cal. 353, 119 Pac. 496. It is clear then that the grandchildren benefited are not to be determined as of the death of the testator. This settles the case of Irene, but not of Earl. We must consider his case further.
[3] 3. There is a manifest disposition, in all cases where a gift to a class is not immediate and the bequest is not distributable at once, to let in those who become members of the class at any time before distribution is made. Schouler on Wills, §§ 529, 530. Some decisions looking for reasons, justify the rule in this manner:
‘Where there is no gift but by a direction to executors or trustees to pay or divide, and to pay at a future time, the vesting in the beneficiary, will not take place until that time arrivers.’ Folger, J., in Warner v. Durant, 76 N. Y. 133. Or ‘if futurity is annexed to the substance of the gift, the vesting is suspended; but if it appear to relate to the time of payment only, the legacy vests instanter.’ Denio, C. J., in Everitt v. Everitt, 29 N. Y. 39, 75;Phinizy v. Foster, 90 Ala. 262,7 South. 836.
In some cases it is said this rule applies to cases where there is no direct devise but the beneficiary takes by virtue of a direction to divide or convey. Benner v. Mauer, 133 Wis. 325, 113 N. W. 663;Cammann v. Bailey, 156 App. Div. 87,141 N. Y. Supp. 41, 48. These decisions all seem to introduce distinctions overrefined and rules difficult of application.
Many decisions hold that where there is a gift to a class, as children or grandchildren, and distribution to the members of the class is postponed, the gift vests in all members in existence at the testator's death, but so as to open and let in children who may come into existence at any time before the period of distribution. Tiff. Real Prop. § 122; 2 Washburn, Real Prop. § 1545; 40 Cyc. 1480; Doe v. Considine, 6 Wall. 458, 475, 18 L. Ed. 869;Byrnes v. Stilwell, 103 N. Y. 453, 9 N. E. 241,57 Am. Rep. 760;Dole v. Keyes, 143 Mass. 237, 9 N. E. 625;Archer v. Jacobs, 125 Iowa, 467, 478, 101 N. W. 195;Alsman v. Walters, 184 Ind. 565, 106 N. E. 879,111 N. E. 921;Scott v. West, 63 Wis. 529, 573, 24 N. W. 161,25 N. W. 18; Oppenheim v. Henry, 10 Hare, 441. See Minnesota Debenture Co. v. Dean, 85 Minn. 473, 478, 89 N. W. 848. We have no quarrel with this rule. The result harmonizes with the result attained by the great majority of decisions.
The fact is that, while courts differ in the line of reasoning followed, by far the greater number favor the rule that where a gift is to a class, as children or grandchildren, and the right of enjoyment is postponed beyond the time that the gift vests in right, and until the termination of a preceding estate, the members of the class entitled to take will be ascertained as of the time when the intervening...
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