Smith v. Dolan

• Decision Date: 09 May 1972
• Docket Number: No. 10967--,10967--
• Citation: 197 N.W.2d 416,86 S.D. 421
• Parties: Edward L. SMITH, Plaintiff and Appellant, v. James DOLAN et al., Defendants and Respondents. a.
• Court: South Dakota Supreme Court

Page 416

197 N.W.2d 416

86 S.D. 421

Edward L. SMITH, Plaintiff and Appellant, v. James DOLAN et al., Defendants and Respondents.

No. 10967--a.

Supreme Court of South Dakota.

Argued Feb. 24, 1972.

Decided May 9, 1972.

McCann, Martin & Mickelson, Brookings, for plaintiff and appellant.

Alan F. Glover, Brookings, for defendants and respondents.

BIEGELMEIER, Judge.

Plaintiff's action to partition real estate under SDCL 21--45 gave rise to this controversy. William H. Smith was the owner of 160 acres of land in Brookings County on the date of his death in 1933. In conformity with the terms of his will the county court entered a Decree of Distribution which distributed the land as follows:

'To John H. Smith * * * for his use and benefit during his life time, viz:

(here follows the legal description of the 160 acres and a tract in North Dakota) the said John H. Smith and his wife to have the use and benefit of said real estate during their lifetime and upon the death of said John H. Smith and his wife, the real estate to go to the heirs of the body of said John H. Smith, and if there be no heirs of his body, then the same to go to the children of said William H. Smith, deceased, by right of representation.'

The John H. Smith named in the decree as one of the life tenants was the son of the testator. He died July 10, 1951, leaving no heirs of his body. His wife, the other joint tenant, survived him; she died August 2, 1970.

The question involved is whether the time of ascertainment of the persons in the class of children is 1933, when testator died, July 10, 1951, when the life tenant John H. Smith died (which date the trial court determined was applicable), or August 2, 1970, the date his wife, the last life tenant, died. ¹

It is stated as a general rule of testamentary construction that absent clear and unambiguous indications of a different intention on the part of the testator, a class described as testator's heirs or next of kin to whom a remainder interest is given by will is to be ascertained as of the date of testator's death. The reason frequently given is the preference of the law for a construction which will vest an estate at the earliest opportunity. See 57 Am.Jur., Wills, §§ 1218, 1274, 1279; 28 Am.Jur.2d, Estates, § 286; 96 C.J.S. Wills § 932; 49 A.L.R. 177; 127 A.L.R. 604, and 169 A.L.R. 208, where voluminous authorities are collected. SDCL 29--5--27 adopts, as do others hereafter quoted, this commonlaw rule by providing: 'Testamentary dispositions * * * are presumed to vest at the testator's death.' This general rule, which favors early vesting, is not a rule of substantive law, but a rule of interpretation or construction which has been adopted by the courts as one means of ascertaining the intention of the testator as expressed in the will. 57 Am.Jur., Wills, § 1279; 28 Am.Jur.2d, Estates, § 252. It has been said the rule is subordinate to the testator's intention. See 96 C.J.S. Wills § 936.

The testator's intention is, of course, controlling, SDCL 29--5--1, and our task is to discover that intention, Briggs v. Briggs, 73 S.D. 500, 45 N.W.2d 62, and determine what meaning is to be given to the language used. ² In re Patterson's Estate, 69 S.D. 374, 10 N.W.2d 754, 149 A.L.R. 965. It has been said it is an endless and hopeless task to try to reconcile the judicial decisions on the various phrases of the persons who are to take property, whether the interest is vested or contingent and the time of ascertainment of the membership of the takers, Buchan v. Buchan, 254 Iowa 566, 118 N.W.2d 611, 100 A.L.R.2d 1063, and authorities, supra, and that precedents may be of little value, Burton v. Kinney, 191 Tenn. 1, 231 S.W.2d 356, 19 A.L.R.2d 366.

Two statutes define vested and contingent interests; they and others ³ noticed are:

SDCL 43--3--10. 'A future interest is vested when there is a person in being who would have a right, defeasible or indefeasible, to the immediate possession of the property, upon the ceasing of the intermediate or precedent interest.'

SDCL 43--3--11. 'A future interest is contingent while the person in whom, or the event upon which, it is limited to take effect remains uncertain.'

SDCL 29--5--28. 'A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or to be defeated.'

SDCL 29--5--29. 'A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect.'

SDCL 29--5--30. 'Where a testamentary disposition is made upon a condition precedent, nothing vests until the condition is fulfilled * * *'.

The court had occasion to consider the two statutes first cited in Murphy v. Connolly, 81 S.D. 644, 140 N.W.2d 394. There a 1914 decree distributed land to testatrix's son, Frank Carey, for life with remainder to his (the life tenant's) heirs. The issue between two judgment creditors of the life tenant's son was whether the remainder to the heirs of the life tenant vested on the death of the testatrix in 1914 or in 1929 when the life tenant died. The court held the remainder was contingent and vested only on the death of the life tenant, at which time the judgments became simultaneous liens. Who the heirs of Frank Carey might be at his death was uncertain. Here it was not only uncertain who the heirs of the body of John H. Smith would be, but until his death whether there would be any. As it happened there were no heirs. Under the statutes and authorities cited it is clear the words 'upon the death of said John H. Smith and his wife, the real estate to go to the heirs of the body of said John H. Smith' were a devise of a contingent remainder. ⁴ However, the testator did not intend title to revert to his estate and vest in testator's children at the time of his death. Use of the term 'by right of representation' indicates he expected some time to elapse and changes thus be made in the members of the class and, while under the law of succession the property would thus devolve, he desired to make that definite. If the ascertainment of the class of his children was to be ascertained as of testator's death, his son and life tenant, John H. Smith, would be entitled to his share of the very property in which he and his wife were only given a life estate. That also negates somewhat the intention of testator's death as the time of ascertainment. Cf. In re Rutan's Estate, 119 Cal.App.2d 592, 260 P.2d 111, and In re Wilson's Estate, infra, cited in Rutan. Having concluded the remainder to the heirs of the body of John H. Smith was contingent, the fee title or remainder did not vest at the time of testator's death. ⁵

Plaintiff claims the time of ascertainment of the persons entitled to take the remainder is August 2, 1970, when the last life tenant, Mary Jane Smith, died and not (as the trial court held) on July 10, 1951, when her husband, John H. Smith, died. He quotes SDCL 29--5--17 in support of his views. That section provides:

'Time relation of references to death or survivorship.--Words in a will referring to death or survivorship, simply, relate to the time of the testator's death unless possession is actually postponed when they must be referred to the time of possession.' ⁶

As California has the same statute, plaintiff then cites In re Winter's Estate, 1896, 114 Cal. 186, 45 P. 1063; In re Wilson's Estate, 1920, 184 Cal. 63, 193 P. 581; In re Hartson's Estate, 1933, 218 Cal. 536, 24 P.2d 171, and In re Rutan's Estate, 1953, 119 Cal.App.2d 592, 260 P.2d 111. The time for ascertaining the members of a class to whom a remainder is given and thus when title shall vest may be altered by statute. 57 Am.Jur., Wills, § 1279; 49 A.L.R. 180 for text of the Pennsylvania statute.

Mindful of the admonition in Burton v. Kinney, supra, that precedents may be of little value and that it is almost an endless, hopeless task to reconcile them (Buchan v. Buchan, supra) we review and consider them.

In Winter a life estate in a ranch was given to testator's wife, then it was to be sold and proceeds divided between his surviving brothers and sisters. The court, citing English and American decisions, held survivorship related to the time of the sale of the land and division of the proceeds. The court then quoted but apparently did not rely heavily, if at all, on § 1336, Civ. Code (our SDCL 29--5--17, supra) as it wrote:

'Whatever may be the meaning of the latter clause of this section, it is enough for the puropses of this appeal to say that it is not in conflict with any of the authorities above cited. Taken literally, it would seem to remove all doubt in this case that the words in the will referring to survivorship relate to the time of the sale of the ranch, since possession of the legacies (in money) to the brothers and sisters was actually postponed until such sale.'

The Wilson will gave a life estate to testatrix's only son, the remainder to his living children and, if none, "Then upon his (her son's) death * * * (it) shall be distributed among my heirs". On the date of the will testatrix had several brothers, sisters, nieces and nephews who, excluding the son who was her only heir, would then be heirs. The son died childless leaving his widow. Based largely on testatrix's use of the word 'heirs', the court held she did not intend her son to be within that term but meant her brothers, sisters, etc. The court stated this conclusion excluded the son from the term 'heirs' and denied the son's widow any share in the remainder. Then by dictum or an advisory opinion as to the disposition wrote:

'we think it clear that the intention was that they (the heirs) should be determined as of the date of the termination of the life estate. * * * If the heirs are to be determined as of the date of the termination of the life estate, as we think is the proper construction of the will * * *.' etc.

Section 1336 was not mentioned.

Hartson's will provided certain property be held...