Taylor v. Taylor

• Decision Date: 30 October 1902
• Citation: 92 N.W. 71,118 Iowa 407
• Parties: CHARLES E. TAYLOR v. J. W. TAYLOR et al, R. V. YARNELL, Intervenor, Appellee, AND R. A. CRAWFORD, Intervenor, Appellant
• Court: Iowa Supreme Court

92 N.W. 71

118 Iowa 407

CHARLES E. TAYLOR v. J. W. TAYLOR et al, R. V. YARNELL, Intervenor, Appellee, AND R. A. CRAWFORD, Intervenor, Appellant

Supreme Court of Iowa, Des Moines

October 30, 1902

Appeal from Polk District Court.--HON.S. F. PROUTY, Judge.

HENRY Taylor died testate December 4, 1882, owning about eighty-nine acres of land. His wife, Elizabeth Taylor, died January 20, 1900, and on the 3d day of March following suit in partition was instituted by one of their children and a decree entered on the 20th of the same month fixing the rights and interests of all parties to the action save those relating to the one-eighth found to be the share of F. M Taylor, against whom R. A. Crawford recovered judgment December 4, 1883, and R. V. Yarnell November 16, 1896. Taylor's interest, if any, in the land, was levied on and sold under the judgment of Crawford, and a sheriff's deed issued to him May 4, 1891. After the beginning of the action and about June, 1900, Taylor conveyed all his interest in the land to Yarnell in satisfaction of his judgment. Upon hearing the court declared Yarnell owner of the share devised to F M. Taylor, and Crawford appeals.

Affirmed.

Howe & Miller and Read & Read for appellee Yarnell.

Woodin, Nichols & Ayres for appellant.

OPINION

LADD, C. J.

--The first question raised on this appeal is, was the remainder, after the termination of the estate given the widow, vested or contingent? If vested, the share of one-eighth devised to F. M. Taylor passed under the sheriff's deed, prior to the widows' death, to Crawford; if contingent, it was not subject to levy, and Yarnell became the owner under a conveyance after the beginning of the action. The will reads: "I give, devise, and bequeath all my property, real estate described as follows [describing real estate in question], and personal property, to my wife, Elizabeth Taylor, for her use and control during her widowhood, and at her decease or marriage to be equally divided between my children or their heirs as the law directs, except that my son Charles E. Taylor is to be provided with a good span of horses, or their value (as he may choose), as soon as he begins doing business for himself." The widow died without marrying again. Were the remaindermen in being and ascertained at the death of the testator? "A remainder is contingent when it is so limited as to take effect to a person not in esse, or not ascertained, or upon an event which may never happen, or may not happen until after the determination of the particular estate." Robinson v. Palmer, 90 Me. 246 (38 A. 103). If the gift is immediate, though its enjoyment be postponed, it is vested; but if it is future, and is dependent on some dubious circumstance, through which it may be defeated, then it is contingent. Hence it has been said that the point which determines the vesting is not whether time is annexed to the gift, but whether it is annexed to the substance of the gift as a condition precedent. McClure's Appeal, 72 Pa. 414. And in Beatty's Adm'r v. Montgomery's Ex'x, 21 N.J.Eq. 324, it was declared that whether a legacy is vested or contingent depends upon the event, and not on the time. If the event is uncertain, the legacy is contingent, though the time is fixed; and, if certain, the legacy is vested, although the time is uncertain. The books are agreed that the law leans toward the vesting of remainders. Some of the rules of construction are mentioned in McClain v. Capper, 98 Iowa 145, 67 N.W. 102. These and others will be found somewhat elaborated in Goebel v. Wolf, 113 N.Y. 405 (21 N.E. 388, 10 Am. St. Rep. 464), and note; Bank v. Ballard's Assignee, 83 Ky. 481, (4 Am. St. Rep. 160); Manderson v. Lukens, 23 Pa. 31 (62 Am. Dec. 312); Ducker v. Burnham, 146 Ill. 9 (34 N.E. 558, 37 Am. St. Rep. 135). Reverting to the instrument under consideration, it will be seen that our conclusion necessarily depends on the effect to be given the words "or their heirs as the law directs." The last clause evidently means those heirs entitled to inherit under the laws of the state, and, had "and" been written in the place of "or," there could have been no doubt of the testator's intention of merely creating an estate of inheritance. To treat "or" as "and" in construing the will would render the whole clause meaningless, as without it the fee would have passed to the children. Section 2913, Code. But we are not permitted to reject clauses, nor arbitrarily to substitute one word for another. This can only be done when imperatively demanded in order to carry out the intentions of the testator. In Griffith's Lessee v. Woodward, 1 Yeates 316, it was said: "Courts of justice will transpose the clauses of a will and construe 'or' to be 'and' and 'and' to be 'or' only in such cases when it is absolutely necessary so to do to support the evident meaning of the testator. But they cannot arbitrarily expunge or alter words without such apparent necessity." Sir George Jessel illustrates in a ludicrous way the fallacy of changing the natural meaning of words in Morgan v. Thomas, 9 Q. B. Div. 645: "You will find it said in some cases that 'or' means 'and,' but 'or' never does mean 'and' unless there is a contest which shows it is for 'and' by mistake. Suppose the testator said, 'I give the black cow on which I usually ride to A. B.,' and he usually rode a black horse, of course the horse would pass; but I do not think that any annotator of cases would put in the marginal notes that 'cow' means 'horse.'" Nothing in the wording of the will or the situation of the parties indicates that the disjunctive "or" was by mistake made use of instead of the conjunctive "and", or that it was not designedly employed to express the real intention of the testator. In re Gilmor's Estate, 154 Pa. 523 (26 A. 614, 35 Am. St. Rep. 855.) No doubt there are decisions holding that in a devise to one or his heirs, issue, or the like, whatever the form of expression, the word "or" should be construed as "and." See cases collected in note to Janny v. Sprigg (48 Am. Dec. 557). On this subject Judge Redfield, in his work on Wills, says: "There is also a class of cases, somewhat numerous, where the word 'or' is interposed between the name of the first legatee or devisee and the heirs of such person,--as, to A or his heirs, forever, or in tail,--in regard to which there has been considerable discussion, and where there does not seem to be perfect coincidence. Some of the earlier cases where this occurs incline to treat the variation from the usual form of creating such limitations as merely accidental, and as not being intended to create any different estates. The cases where the word 'or' being interposed between the name of the first devisee or legatee and his heirs has been held to indicate the intention of substituting the latter in place of the ancestor are numerous, and, being more recent, as a general thing, and more in consonance with the words used, must be regarded as defining the most reliable rule." 1 Redfield, Wills, 486. In Salisbury v. Petty, 3 Hare 86, the vice chancellor held the word "or" in this connection to mean "in case of death of." In Girdlestone v. Doe, 2 Sim. 225, the bequest was of an annuity, after the enjoyment of it for life by another, to James Holman "or his heirs." After the testator's death, and while the life tenant was living, Holman assigned his interest in the annuity to Girdlestone. Holman died before the life tenant, and after the death of the latter Girdlestone brought suit to compel payment of the annuity to him. It was held that "or" must be construed as a disjunctive, and that, as the testator contemplated that Holman might die before the life tenant, he did not take an absolute interest in the annuity. See, also, Gittings v. McDermott, 2 Mylne & K. 69; Price v. Lockley, 6 Beav. 180; Doody v. Higgins, 9 Hare, App. 32; Speakman v. Speakman, 8 Hare, 180; In re Craven, 23 Beav. 333. In Robb v. Belt, 51 Ky. 643, 12 B. Mon. 643, the will provided that the widow should enjoy the use and control of the property so long as she remained unmarried, and that upon her marriage or death "the property is equally to be divided among my eight children, or their heirs legally begotten of their bodies." The court held that the word "or their bodily heirs" were to be taken as the designation of persons who were to take, or as words of purchase, and were equivalent to the words, "or such decendants of any that may be dead or may then be their heirs," referring to the time of the division of the estate. It was said: "But as the testator does not say 'among my living children', but 'among my eight children,' 'or' is proper to show and does show, as to some of them, there is an alternative devise in case of their death before the time referred to, and that in that event the heirs of the bodies of the deceased are to take in place of the deceased."

In Ebey v. Adams, 135 Ill. 80 (25 N.E. 1013, 10 L.R.A 162), the life estate was given to the widow, and upon her death the property directed to be sold. After providing for the payment of certain bequests, the will reads: "And the balance of the proceeds of my estate my executors are hereby directed to distribute among my children or their heirs, to wit [naming his six children], share and share alike, with this exception [payment of two $ 1000 each more than the others]." After reviewing the authorities, the court speaking through Shope, J.,...