Watson v. Riley

• Decision Date: 04 September 1917
• Docket Number: No. 19307.,19307.
• Citation: 164 N.W. 81,101 Neb. 511
• Parties: WATSON v. RILEY ET AL.
• Court: Nebraska Supreme Court

101 Neb. 511

164 N.W. 81

WATSON

v.RILEY ET AL.

No. 19307.

Supreme Court of Nebraska.

July 10, 1917.

Dissenting Opinions, Aug. 8, and Sept. 4, 1917.

Syllabus by the Court.

An option to purchase property of the estate, whether it be at an appraised value or at a price named or agreed upon, may be created by will.

A will, bequeathing to one of the four children one-fourth of the estate for life, with remainder over to her children, and to each of the other children one-fourth of the estate, concluded with a provision as follows: “It is my will that the said Emma L. Watson [one of the children] shall have the right to take the following described land [here follows description] for the sum of $50 per acre; the said Emma L. Riley [Watson] shall be allowed on the said purchase price of said land the sum of $12.50 per acre or if her bequest shall amount to more than the sum of $12.50 per acre then she shall be allowed upon the said sum of $50 per acre the sum of her entire inheritance to be deducted from said sum of $50 per acre.” A codicil contained the following words: “I give and bequeath to my daughter, Emma Watson, the strip [describing a narrow strip] in addition and as a part of the farm bequeathed to her in the said will, and on the same terms and conditions.” Emma accepted the devise and offers to pay to the other heirs the $50 per acre as provided in the will. This offer is declined by the other heirs. Emma brings suit to quiet title. Held, that by the acceptance and offer the title to the land vested in Emma, subject to the amount then due from her to the estate.

Appeal from District Court, Pierce County; Welch, Judge.

Action to quiet title by Emma L. Watson against Wilberforce W. Riley and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Morrissey, C. J., and Sedgwick and Hamer, JJ., dissenting.O. S. Spillman, of Pierce, Kelsey & Rice, of Norfolk, and Allen & Dowling, of Madison, for appellants.

M. H. Leamy, of Pierce, for appellee.

CORNISH, J.

Margaret Riley, by her will made February 20, 1906, bequeathed to Mary, one of her four children, “one-fourth of all the property, both real and personal, of which I may die possessed”; to Wilberforce, the same; to Alice, the same for life, with remainder over to her children; to Emma, the same. Then followed the words:

“It is my will that the said Emma L. Watson [the child above mentioned] shall have the right to take the following described land [here follows description, 160 acres] for the sum of $50 per acre; the said Emma L. Riley (Watson) shall be allowed on the said purchase price of said land the sum of $12.50 per acre or if her bequest shall amount to more than the sum of $12.50 per acre then she shall be allowed upon the said sum of $50 per acre the sum of her entire inheritance to be deducted from said sum of $50 per acre.”

Subsequently she made a codicil to her will, as follows:

“I give and bequeath to my daughter, Emma Watson, the strip [describing a narrow strip] in addition and as a part of the farm bequeathed to her in the said will, and on the same terms and conditions.”

Although, at the time the will was made, $50 per acre may not have been far from the value of the land, it is now worth about $150 per acre. The controversy, an action to quiet title, is over Emma's claim of right to the land at $50 per acre, under the will. The other heirs, defendants, contend that the will shows the primary intent of the testator to be an equal division of her property; that, if she had intended to limit the price of the land, she would have devised it to plaintiff, and provided that she pay a certain amount to each of the other children; that, if Emma's claim is right, then each is not getting one-fourth of the property--in fact, according to the terms of the will, but one-fourth of a fictitious or arbitrary estate; that the figures given in the last paragraph are illustrative of or a formula for distribution only, and were not intended to cut down or limit the estate which she was giving to the other three children; that the will had two main purposes, one an equal division, and the other to give Emma an opportunity to take the home farm; and that the last clause of the will, above quoted, is ambiguous.

We are of opinion that this contention is erroneous. In the first place, it is impossible to say that the primary object of the will was an equal division of the property amongst the children. Why did she limit Alice's share to an estate for life? People make wills to avoid equal division. The law does that without a will. The main object of a will is likely to be a purpose that, to strangers, may seem unfair. Mrs. Riley's moving purpose may have been to secure the homestead for Emma, at $50 per acre. Quite likely it was. That is the last clause in her will. Again, the argument proves too much. It renders nugatory this last clause; for, if the property is to be divided according to its value, that can only be determined by its highest selling value, and Emma has no preference over anybody else.

The argument that, if the testator wished to prefer Emma, she would have devised the land to her, charged with the portions going to the others, is unsound in this: Such was not her will. In such case, Emma must take or the will fails. She wished rather to give Emma the option to take, and expressed her wish in language clear enough. Of course, she had the right to prefer Emma, if she wished. The defendants argue that at the time she wrote the will she considered $50 per acre a fair estimate of the land's value. Let us suppose that is true. Then her will is consistent throughout. But, it may be said, she was mistaken, or did not anticipate a subsequent rise in price. Perhaps so. Prices might have gone down.

Is it still insisted that, if she had known, she would have had it otherwise, in order to accomplish an equal division? Well, if so, we will give you the short answer, advised by Chancellor Kent in such cases: Voluit sed non dixit. (She wished but said nothing.) Margaret Riley's case may have been, probably was, a very common one. She regarded her children equally, and would so divide her property; but yet she was attached to the old homestead, which bore the family name, did not wish it divided, or to go into the hands of strangers, and for some reason wished Emma to preserve it for family uses. So she gave Emma that privilege, honestly valued the land at $50 per acre, and in that way made an equal division. Such cases are numerous.

[1][2] The courts unanimously and without disagreement have held according to the rule stated in 40 Cyc. 2000:

“An option to purchase property of the estate, whether it be at an appraised value or at a price named or agreed upon, may be created by will.”

The rule is recognized in Fauber v. Keim, 85 Neb. 217, 122 N. W. 849. Deny the testator that power, and he could not make his real will. He may have the best of reasons. One piece of property--a store or a farm--may be adapted to the use of a particular child. He wishes to hold it intact, and to avoid controversy over its value; and, more important still, he may desire to make a preference. His valuation must go in the distribution, and if on his valuation the distribution is equal, then it is so in law, and there is no fictitious estate or repugnancy in the will. The writer knows of one will where no doubt the testator, dividing his property equally, thought his valuation on the homestead, bequeathed to one, might be from $5,000 to $10,000 too low. It turned out to be $5,000 too high. Testators know that conditions and their valuations will change; but that is their business. It generally happens. We know of no case, however, where the courts have permitted changed valuations to affect the will. The reason is that the intent must be drawn from the clear language of the will. Results, full of mischief, will follow when courts, not testators, make the will. Johnson v. Johnson, *81 Pa. 257, was a case very like the one in hand. There the testator, as here, divided his real property equally between his 12 children. He valued it at $6,000, and gave three sons the privilege of taking it at that price. The real estate became worth from $50,000 to $70,000. The court, without dissent, sustained the provisions of the will.

In the case in hand the codicil to the will should remove any doubt about its proper construction. There Mrs. Riley herself interprets the will as if it bequeathed the land to Emma upon certain terms and conditions. The real cause of the controversy in this case grows out of the increased value of the land since the time when the will was made. If the land value had remained at $50 per acre, or gone below that amount, there would have been no dispute. Once we fully and fairly recognize the right of the testator to fix the valuation of his property bequeathed for distribution, then the will presents no difficulty of construction. Strictly speaking, the present value of the land is a matter with which the court has absolutely nothing to do, any more than it has to do with evidence bearing upon the testator's affection for the several children. When the language is clear, the will speaks for itself. There is no ambiguity in the will.

The judgment of the trial court should be affirmed. Emma having elected to purchase the land at $50 per acre, title should be quieted in her, subject to the amounts due the other children, in accordance with the provisions of the will.

Affirmed.

DEAN, J. (concurring separately).

An option to buy real or personal property at a given price is everywhere recognized as a property right. It is so recognized in the law that pertains to the interpretation of wills. Mrs. Riley in express and coldly specific terms devised to her daughter Emma an option to purchase the home place at the price of $50 an acre. Her will also provides that Emma's distributive share in the land, $12.50 an acre, “shall be allowed on the said...