Torpy v. Betts

• Decision Date: 06 March 1900
• Citation: 123 Mich. 239,81 N.W. 1094
• Court: Michigan Supreme Court
• Parties: TORPY v. BETTS et al.

81 N.W. 1094

123 Mich. 239

TORPY v. BETTS et al.

Supreme Court of Michigan

March 6, 1900

Appeal from circuit court, Ionia county, in chancery; Frank D. M Davis, Judge.

Action by Frank Torpy against Lenora Betts and others. Judgment for plaintiff, and defendants appeal. Affirmed.

W. H Mains and Geo. E. & M. A. Nichols, for appellants.

R. A Hawley, for appellee.

HOOKER J.

Lenora Betts was at one time the wife of one Torpy. She was afterwards married to John Betts. Frank and Grace Torpy were born to her while she was the wife of Torpy. Her marriage with Betts occurred in 1891, and he died in 1893, leaving a will containing the following provision, viz.: 'First. I do give and bequeath my entire real property of which I may die seised and possessed, and which now mainly consists of the east one-half (1/2) of the northwest one-quarter (1/4) of section thirty-two (32), town five (5) north of range six (6) west (being in the township of Sebewa county of Ionia, and state of Michigan), with all the appurtenances and hereditaments thereto, to my beloved wife, Lenora Betts, for the term and time of her natural life, with all the emoluments, gains, and profits accruing therefrom, with full authority during said lifetime to make any improvement or alteration in appurtenances of the said real property that she may desire. Upon the death of my said wife, Lenora Betts, then said real property is to become the property in fee simple of her son, Frank Torpy, subject, however, and the bequest is specially conditioned upon the payment by said Frank Torpy or his representatives of the full sum of five hundred dollars in money to Grace May Torpy, daughter of my said wife, Lenora Betts, or her legal representatives. In case, however, that either said Frank Torpy or said Grace May Torpy shall die and leave no issue before the death of my said wife, Lenora Betts, then, upon the death of my said wife, Lenora Betts, either said Frank Torpy or said Grace May Torpy, as may survive, shall take in fee simple the entire real property of which I may die seised and possessed. And in case both said Frank Torpy and said Grace May Torpy shall both die without issue before the death of my said wife, Lenora Betts, then and in that case only shall the said property go to such person, persons, or interest as shall be my said wife Lenora Betts' last will and testament, or otherwise by identure disposed of by her; it being my intention that in case of such death of both said Frank Torpy and Grace May Torpy, without issue to either, before the death of my said wife, Lenora Betts, then the life estate heretofore bequeathed to my said wife, Lenora Betts, shall become an estate in fee-simple absolute.' Grace married Stephen Hunt, and after the death of Betts they continued to live with the widow upon the premises. The bill in this cause was filed by Frank Torpy, who claims to be remainder-man in fee, to restrain waste, and to obtain a construction of the will. The defendants claim, under an answer in the nature of a cross bill, that the provision of the will that gives the fee to the complainant on the termination of the life estate is void under the statute which prohibits the suspension of the power of alienation for a longer period than the continuance of two lives in being at the creation of the estate. See Comp. Laws, �� 8796, 8797. If we were to hold, as contended by the defendants, that the condition requiring Frank Torpy to pay $500 to Grace is a condition precedent, the remainder does not vest in any one until the termination of the life estate. This is the necessary conclusion from the case of L'Etourneau v. Henquenet, 89 Mich. 432, 50 N.W. 1077. In that case it was said that the termination of such a remainder (i. e. a vested remainder) by death of the holder created a contingent remainder in the surviving children designated in the will, and the heirs of a deceased child, and that such contingent remainder 'could not vest until the termination of the life estate, because until then it could not be known who would be entitled to it as heirs or survivors.' In the present case there is no way of knowing who is to be entitled to the remainder in fee until the widow shall die. Upon the termination of the life estate the suspension of the power of alienation would at once end, because, if Grace or her issue should survive, it would be in the power of Frank Torpy or his surviving issue to vest the estate by payment, or an absolute conveyance could be made by a deed in which all parties interested should join. There are many cases cited in appellee's brief supporting the rule that the statute does not apply, when, under the terms of the instrument, it is certain that a title can be conveyed by the joint action of parties interested. Thus, in Murphy v. Whitney (N. Y.) 35 N.E. 930, 24 L. R. A. 123, where several brothers and sisters had entered into an agreement to hold land for their joint use, the share of each dying to vest...