Weatherhead v. Stoddard
| Decision Date | 18 August 1886 |
| Citation | 5 A. 517,58 Vt. 623 |
| Parties | JAMES GALUSHA WEATHERHEAD, AP'T, v. EDGAR W. STODDARD, EX'R OF PHOEBE MARY HOPE WEATHERHEAD'S WILL |
| Court | Vermont Supreme Court |
Appeal from a decree of the Probate Court. Heard on an agreed statement of facts and the will of Alanson E. Weatherhead. September Term, 1885, ROYCE, Ch. J., presiding. Judgment affirming the decree of the Probate Court. The decree of the Probate Court was: "It is ordered and decreed by the court here that all the property and estate left in trust by the will of Alanson E. Weatherhead passes by the will of said Mary H. Weatherhead as her will directs, and that the balance of $ 5,783.19 remaining in the hands of said executor be held in trust by the said E. W. Stoddard during the life of Gertrude A. Lynde, now Mrs. Gertrude A. Hunt, and the annual interest and use thereof paid to her; after the decease of said Gertrude A. Hunt the principal to be paid and transferred to the residuary legatee named in the will of said deceased." "The fourth clause of the will commenced as follows: "And in case the said Phoebe Mary Hope Weatherhead shall decease before arriving at the age of eighteen years, then I give and bequeath to the said Lysander W. Howe, the sum of five hundred dollars in current money, in case he shall survive the said Phoebe, and the rest and residue of my estate, after the payment of the legacy aforesaid, to be divided as follows, to wit," etc. The other facts are sufficiently stated in the opinion of the court.
Affirmed.
James M. Tyler and Martin & Eddy, for the plaintiff.
The testator gave nothing to his daughter by the third paragraph in his will. By it the estate was given to the trustees for her benefit, and was not to vest in her except on the condition precedent that the trustees should adjudge it best that it should so vest, which condition has never been performed. It is claimed that the fourth paragraph is conclusive of the testator's intention to have his estate pass to his daughter when she was eighteen; but the fourth paragraph certainly did not give her the estate; it only disposed of it "in case the said Phoebe should decease before arriving at the age of eighteen years." There are but two bequests in the will, including the provision for the daughter's support, both of which are conditional: 1st. The bequest to the daughter, conditional on her becoming eighteen, etc., and on the trustees' judgment and discretion. 2d. The bequest to the persons and in the shares named, conditional that the daughter did not live to be eighteen, and perhaps that the estate did not vest in her in her life-time. 2 Will. Ex. 1081; 2 Red. Wills, 283. Conditions precedent are such as must happen or be performed before the estate can vest or be enlarged; they admit of no latitude; they must be strictly, literally, and punctually performed. It is a known maxim that when the estate is to arise upon a condition precedent, it cannot vest till that condition is performed. 2 Will. Ex. 1079; 1 Shep. Touch. c. 6. 117. "If the language of the particular clause, or of the whole will shows that the act on which the estate depends, must be performed before the estate can vest, the condition is of course precedent, and unless it be performed the devisee can take nothing." MARSHALL, Ch. J., in Finlay v King's Lessee, 3 Pet. 376. A devise to a daughter when she shall be married, does not vest meantime, but goes to the heirs. 2 Burn Eccl. 562, 576. A devise to a man when he shall marry testator's daughter does not vest till he marries her. 1 Keb. 802. Another rule is, when the legacy is given when the legatee attains a certain age, if the devisor directs the interest of the legacy to be applied in the meantime for the benefit of the legatee, there being an absolute gift of the interest, the principal will be deemed to have vested. See Patterson v. Ellis, 11 Wend 298; 2 Red. Wills, 232; Vawdry v. Geddes, 1 Russ. & M. 203; Atkins v. Hiccocks, 1 Atk. 500. The bequest was not made to Phoebe, but to the trustees for her benefit. It was not an immediate gift, the payment only being deferred, but both the bequest and the payment were deferred. There is no absolute gift of the interest to the daughter, that being given with the estate itself to the trustees with directions "to apply from time to time such portion, or if necessary, the whole of the income to the support," etc., as they deemed necessary. There was a bequest over if the daughter did not marry or live to be eighteen. Had the estate vested, the bequest over would have been defeated. If it be a condition precedent to a gift of a legacy or other interest that the trustees should exercise their power in favor of the object--whether the power require an appointment by them or merely their assent to the gift--no interest will vest in the donee until the power be duly exercised, and if the trustees refuse or neglect to exercise it, the gift cannot be enforced. Hill Trust, 490; Perry Trust, ss. 19, 20, 507; Pink v. De Thuisey, 2 Mad. Ch. 157; Malcolm v. O'Callaghan, Id. 349; French v. Davidson, 3 Id. 396; Walker v. Walker, 5 Id. 424; Wheeler v. Walker, 2 Conn. 196; Downer v. Downer, 9 Vt. 231; Sharon v. Simons, 30 Vt. 458; Ferre v. Am. Board, 53 Vt. 162; Bacon v. Bacon, 55 Vt. 243; Greenough v. Welles, 10 Cush. 571, Gibbins v. Shepard, 125 Mass, 541; 2 Red. Wills, 235; Lett v. Randall, 10 Sim. 112.
Haskins & Stoddard, for the defendant.
We claim that the estate of Alanson E. Weatherhead, by virtue of his said will, vested in the said Mary H. immediately upon his decease, subject to be defeated, only, in the event of her death before arriving of age. And that upon her arriving at the age of eighteen years, said estate became absolute in her, and would have descended to her heirs had she died intestate. The appellant, who was one of the trustees under said will, insists that no portion of this estate became the property of the said Mary; but just what construction he claims should be given to the will of said Alanson, and upon what legal grounds, we are in doubt. It was clearly the intention of the testator that his daughter and only child should have his estate in fee and possession, either in the event of her marriage, or when she became of age. If the said Mary H. had married and died under eighteen years of age, leaving children, would there be any doubt as to whom the testator intended to leave his estate? If the testator did not bequeath his estate to the said Mary in the event of her attaining the age of eighteen, then it passed to her as his heir at law; for it is clear that the said Alanson E. made no provision for the disposition of his estate, if his daughter did not take the same upon becoming of age. In either event the said Mary could dispose of the same by her will. Doe v. Lea, 3 T. R. 41; Ashby v. Palmer, 1 Mer. 296; Goodtitle, ex d. Hayward v. Whitby, 1 Burr. 229; Eastman v. Baker, 1 Taunt. 174; Doe, ex. d. Player v. Nicholls, 8 E. C. L. 144; Doe, ex. d. Cadogan v. Ewart, 34 E. C. L. 337; Doe v. Watson, 8 How. 263 (17 Curtis, 581); Cropley v. Cooper, 19 Wall. 168; Carpenter v. Heard, 14 Pick. 449; Key, Ch. ss. 171, 211, 218.
Alanson E. Weatherhead died testate in 1862, leaving only one child surviving him, Phoebe Mary Hope Weatherhead, then about two years old. His will was duly probated, and the third clause of it reads as follows:
"I give and bequeath all my estate, real and personal, to Galusha Weatherhead, Marcus Weatherhead, and Lysander W. Howe, to be held by them in trust for my daughter and only child, Phoebe Mary Hope Weatherhead; and I hereby direct the trustees above mentioned to apply from time to time such portion, or if necessary the whole, of the income from said trust estate towards the support, maintenance, and education of the said Phoebe Mary Hope Weatherhead; and when she shall arrive at the age of eighteen years, or in case she shall marry before arriving at the age aforesaid, then in either case the said trustees shall pay over to the said Phoebe Mary Hope Weatherhead the whole of said trust estate, or such portion thereof as in their judgment and discretion shall seem most for the benefit and advantage of the said Phoebe,--and I leave this matter to the best judgment and discretion of the aforesaid trustees."
By the fourth clause of his will, in case the said Phoebe died before eighteen, the testator disposed of all his estate by divers bequests over.
The said Phoebe was never married, and died testate at about the age of twenty-three. Her will was duly probated, whereby, after one or two small specific legacies, she gave the use of the residue of her estate to Gertrude A. Lynde--now Mrs. Hunt--for life, with remainder over.
Said trustees retained in their hands all of said estate, paying therefrom only what was necessary for the support and education of the said Phoebe, and never paid the same over to her after she became eighteen, acting in withholding it according to their best judgment and discretion, and as they deemed most for her benefit and advantage, and she never demanded it of them.
The plaintiff claims that by the terms of the will the taking of a vested interest in her father's estate by the said Phoebe was made to depend upon the judgment and discretion of the trustees' and as their judgment and discretion were never exercised in her favor by paying over the estate to her, that she never took a vested interest therein; while the defendant claims that she took a vested interest therein on the death of her father, subject to be...
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