State v. Holmes
| Citation | 115 Mich. 456,73 N.W. 548 |
| Court | Michigan Supreme Court |
| Decision Date | 04 January 1898 |
| Parties | STATE v. HOLMES ET AL. |
Appeal from circuit court, Kent county, in chancery; William E Grove, Judge.
Bill by the state of Michigan against Abbie S. Holmes and others for the construction of the will of Nelson Holmes, deceased. From a decree declaring void a conditional bequest to plaintiff and declaring Frank Nelson Holmes residuary legatee, the plaintiff and Abbie S. Holmes appeal. Decree modified. Fred A. Maynard, Atty. Gen. (Birney Hoyt, of counsel), for the State.
Butterfield & Keeney, for defendants Abbie S. Holmes and Adolph B. Mason.
Crane Norris & Stevens, for defendant Frank Nelson Holmes.
GRANT J. (after stating the facts).
The condition is precedent, not subsequent. The terms of the will are too clear upon this point to require much discussion. The title is not devised to be defeated by a breach of a condition subsequent, but is made to vest only upon the performance of a condition precedent. The state has no title or interest until it has complied with the condition. The learned attorney general cites many authorities, but none of them contain provisions similar to this. In Langley v Chapin, 134 Mass. 82, the conveyance contained the following clause: "This conveyance is made by us upon the condition that the Corbitant Mills, or its successors, will erect, or cause to be erected, upon its premises, a cotton factory, of not less than 20,000 spindles, within two years from the date hereof." It was held, "The clause attaches a condition to the estate conveyed." Under that conveyance, the title, with the right of possession, vested in the grantee, subject to be devested by noncompliance with the condition subsequent. The other authorities cited contain similar provisions. In this case no title can vest until the legislature, by appropriate act, has accepted the devise, and located upon it some public educational or charitable institution, and built suitable buildings therefor. The law of this state in regard to estates in possession and in expectancy is found in 2 How. Ann. St. �� 5523 to 5529, inclusive. The provisions controlling this case are sections 5530 and 5531, which read as follows: This statute was adopted in the state of New York in 1830. It was subsequently adopted in this state, verbatim et literatim, and is found in the Statutes of 1846. The construction placed upon this statute by the courts of that state has a controlling influence, and courts will presume that the legislature recognized and accepted such construction. Greiner v. Klein, 28 Mich. 11. The court of appeals of New York had passed upon this statute several times before its adoption here. Coster v. Lorillard, 14 Wend. 265; Hawley v. James, 16 Wend. 61; Hone v. Van Schaick, 7 Paige, 231; Irving v. De Kay, 9 Paige, 529. It has been before that court many times since. Yates v. Yates, 9 Barb. 324; Tayloe v. Gould, 10 Barb. 398; Tucker v. Tucker, 5 N. Y. 417; Rose v. Rose, 4 Abb. Dec. 108; Moore v. Moore, 47 Barb. 260; Garvey v. McDevitt, 72 N.Y. 556; Rice v. Barrett, 102 N.Y. 161, 6 N.E. 898; Cruikshank v. Home for the Friendless, 113 N.Y. 337, 21 N.E. 64; Haynes v. Sherman, 117 N.Y. 433, 22 N.E. 938; People v. Simonson, 126 N.Y. 299, 27 N.E. 380; Booth v. Baptist Church, 126 N.Y. 215, 28 N.E. 238; Trowbridge v. Metcalf (Sup.) 39 N.Y.S. 243. The rule established by these authorities is that the power of alienation, not based on lives, is void, and that the power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. It is said in Moore v. Moore: "In all the adjudicated cases upon this statute the courts have uniformly held that the period of suspension of alienation cannot be measured by time alone; that life must, in some form, be the measure of the period of suspension." In that case, suspension was for two years. In Rose v. Rose, it was for five years. Tested by this rule, the devise must fail. There are no persons in being who can convey an absolute fee in this land. If all the parties mentioned should now unite in a conveyance, the grantee would take only a life estate. The widow has only that interest to convey. The state has nothing to convey, for it has no interest until the conditions are accepted. The grandson has nothing to convey, and cannot have until the state refuses or neglects to accept the condition. The title to the land is left "swinging in abeyance," without protection, owner, or abiding...
To continue reading
Request your trial