Weller v. Noffsinger

• Decision Date: 19 January 1899
• Docket Number: 8622
• Citation: 77 N.W. 1075,57 Neb. 455
• Parties: JACOB J. WELLER v. PETER NOFFSINGER ET AL
• Court: Nebraska Supreme Court

77 N.W. 1075

57 Neb. 455

JACOB J. WELLER v. PETER NOFFSINGER ET AL

No. 8622

Supreme Court of Nebraska

January 19, 1899

ERROR from the district court of Richardson county. Tried below before STULL, J. Affirmed.

AFFIRMED.

Reavis & Reavis, for plaintiff in error.

References Kelley v. Kelley, 50 N.W. 334 [Wis.]; Roberts v Executors, 1 Disn. [O.] 180; Allen v. Craft, 109 Ind. 476; Stivers v. Gardner, 55 N.W. 516 [Ia.]; Van Osdell v. Champion, 62 N.W. 539 [Wis.]; Jordan v. Woodin, 61 N.W. 950 [Ia.]; Little v Giles, 25 Neb. 313; Ingersoll's Appeal, 86 Pa. St. 240; Doebler's Appeal, 64 Pa. St. 9; Nichols v. Eaton, 91 U.S. 716; Page v. Way, 3 Beav. [Eng.] 20; Piercy v. Roberts, 1 Mylne & K. [Eng.] 4; Rippon v. Norton, 2 Beav. [Eng.] 63; Cropley v. Cooper, 19 Wall. [U. S.] 167; Hart's Trusts, 3 De Gex & J. [Eng.] 202; Hanson v. Graham, 6 Ves. Jr. [Eng.] 239; Hammond v. Maule, 1 Coll. [Eng.] 281; Burrill v. Sheil, 2 Barb. [N. Y.] 471; Bayard v. Atkins, 10 Pa. St. 20; Provenchere's Appeal, 67 Pa. St. 463; Hanson v. Brawner, 2 Md. 102; Nixon v. Robbins, 24 Ala. 669; Goodtitle v. Whitby, 1 Bur. [Eng.] 234; Boraston's Case, 3 Coke Rep. [Eng.] 21; Mandlebaum v. McDonell, 29 Mich. 78.

F. Martin and C. Gillespie, contra.

OPINION

SULLIVAN, J.

This was an action of ejectment by Jacob J. Weller against Peter Noffsinger and Robert Williamson. Both parties claim under the will of Calista Blakeney, deceased, which was admitted to probate in the county court of Richardson county in 1891. The plaintiff relies on a title derived from an execution sale of the interest of Daniel H. Blakeney and Frank L. Blakeney in the property in controversy. The defendant Williamson claims to held the title to the property in trust, and the other defendant is his tenant in possession. The rights of the litigants depend upon a construction of the will by which, in the first clause, the testatrix devised and bequeathed to her husband, Daniel H. Blakeney, and to her son, Frank L. Blakeney, all her real and personal property, subject to the following conditions: "I wish all my just debts and taxes to be paid. I wish, and it is my will, that Robert Williamson, of said Nemaha precinct, hold said property in trust, and as trustee for my said husband and my said son, until my son, the said Frank L. Blakeney, shall arrive at the age of thirty (30) years. And then the said property, all the real and personal property belonging to my said estate, shall be divided equally between my said husband, Daniel Blakeney, and my said son, Frank L. Blakeney, each to share equally and alike in the division of the same, and the same to be theirs, their heirs and assigns, forever. In the interval of time intervening between my death and the date when my said son, Frank L. Blakeney, shall reach the age of thirty (30) years, as above, it is my will that the said trustees shall collect the rents, issues, and profits of my said estate and divide the sum remaining, after paying all taxes, charges, and expenses incident to the proper care of said estate, equally between my said husband, Daniel Blakeney, and my said son, Frank L. Blakeney. But neither my husband nor son shall be permitted or allowed to further incumber said estate, or put any charge or lien upon the said estate during said interval of time that shall intervene between my death and the period when my son Frank shall reach the age of thirty (30) years, as aforesaid. Nor shall said estate be subject to any debts contracted by either my said husband or son, other than the said balance in the hands of said trustee after paying said charges and expenses, taxes, etc." The will also declares that the testatrix intended thereby "to put said property in trust as above" until her son should reach the age of thirty years, at which time it is provided the entire estate "shall be and vest" in the husband and son and be divided equally between them.

The first proposition for which plaintiff contends is that, as purchaser at the execution sale, he acquired the title of Daniel Blakeney, as tenant by the curtesy, of the property in dispute. We do not think he did. By a written indorsement on the will Daniel H. Blakeney consented to its provisions, and by his subsequent conduct he very clearly renounced the rights secured to him by the statute. In McBride's Estate, 81 Pa. 303, it is held that the husband's right of curtesy is lost by joining in, or consenting to, a will made by his wife. And in Tobias v. Ketchum, 32 N.Y. 319, it was decided that if the rights given by the will are inconsistent with those conferred by the law, the acceptance of one is, by necessary implication, an abandonment of the other. While the provisions of the will in favor of Mr. Blakeney are not expressly declared to be in lieu of curtesy, yet there is such manifest repugnance between his testamentary and his statutory rights that both cannot possibly co-exist. By accepting the benefits of the will he elected to surrender his rights under the statute. To hold otherwise would defeat the obvious purpose of the testatrix in disposing of her property. The trust in favor of Williamson and an estate by curtesy in Blakeney could not stand together. To the claim that Blakeney could not release his estate by curtesy to the prejudice of creditors, it is only necessary to remark that the record before us does not disclose that he had any creditors at the time the release became effective.

The next contention, and the one upon which plaintiff mainly relies for a reversal of the judgment against him, is that the Blakeneys, the execution defendants, were invested with the legal title to the land in question, and that Williamson as trustee, took nothing more than a right to collect the rents, pay taxes, make repairs, and account annually for any surplus remaining in his hands. To this proposition we cannot assent. It is true Mrs. Blakeney did not, in express terms, grant the legal title to Williamson, but her intention that he should possess it is shown in the most unmistakable manner. No rule of law is better settled, or more in accord with good sense, than that which requires the intention of the testator to be ascertained from a liberal interpretation and comprehensive view of all the provisions of the will. No particular words, no conventional forms of expression, are necessary to enable one to make an effective testamentary disposition of his property. The court, without much regard to canons of construction, will place itself in the position of the testator, ascertain his will, and, if lawful, enforce it. The devise to the husband and son is declared to be subject to the condition that Williamson shall "hold said property in trust and as trustee" until Frank shall reach the age of thirty years. The trustee is to collect the rents, pay the taxes, charges, and expenses incident to the proper care of the estate, and account for the balance. The trust is to continue until 1901, and then "vest absolutely." The declaration that the property is to vest absolutely at a fixed date denotes with moral certainty the intention of the testatrix that it should not so vest before that time, and is alone sufficient to warrant us in holding that the execution defendants never possessed the legal title to the land in controversy. But there is another imperative reason for the conclusion, and that is, that Williamson could not effectively discharge the duties imposed on him by the will without being invested with the legal title. In Tobias v. Ketchum, supra, it is said: "The authority to rent and lease, to repair, and to insure, by necessary implication, vests the trustees with the legal title. They must not only execute leases, but enforce them; put in tenants and dispossess them, the proper performance of which requires the title of the estate. So to repair there must be such a right of entry and control in the trustees as to give them complete dominion; and to insure involves the necessity of ownership, for the policy must be ...