William A. Harris v. Joel B. Harris's Estate
| Decision Date | 17 May 1909 |
| Parties | WILLIAM A. HARRIS ET AL. v. JOEL B. HARRIS'S ESTATE |
| Court | Vermont Supreme Court |
January Term, 1909.
APPEAL by William A. Harris and others from a decree of probate court making final distribution of the estate of Joel B Harris, deceased, testate. Trial by court at the March Term 1907, Rutland County, Powers, J., presiding. Judgment pro forma, on the facts found, affirming the decree of the probate court, excepting the correction of a manifest error in computation. The appellants excepted. The opinion states the case.
Judgment of the county court is affirmed. Let the case be certified to the probate court.
Butler & Moloney and F. S. Platt for William A. Harris et al.
Present ROWELL, C. J., MUNSON, WATSON, and HASELTON, JJ.
The late Joel B. Harris executed his last will April 16, 1891, and executed a codicil thereto the following day, April 17, 1891. About six months later, that is October 19, 1891, he died. By his will he left his entire estate to his sons, Charles P. Harris and William A. Harris, in trust for certain declared purposes. Among other things that the trustees were to do they were to carry out his directions in respect to the support and comfort of his wife, Mary G. Harris, and to pay certain annuities and legacies. The provision for his wife was partly by way of an annuity. The 13th article of the will was as follows.
The testator had the children and the grandchild named in the article of the will just quoted. The grandchild was the daughter of a child who had died long before the making of the will. Throughout this opinion she will, in general, be included among those spoken of as children. His widow remained unmarried and reached the age of 75 years January 18, 1905. The children were then all living, but Harriet Lester Harris died about a year and five months thereafter, the exact date of her death being June 27, 1906. This was before the decree of distribution and before the trustees presented to the probate court their final account. All parties interested appealed from the decree and this case is here on exceptions, by all parties, to the judgment of the county court. Actual distribution has, therefore, not yet been made.
In the distribution ordered by the probate court and followed in the county court, the estate of the daughter Harriet was made one of the distributees. It is claimed by Charles P. and Susan that this was error. Stress is laid upon the word "then" in the article of the will directing the trustees to divide the estate "so soon as may be" into equal shares and to distribute it among those then surviving of the offspring name. It is claimed that the "then" referred to relates to whatever time may be indicated by the words "so soon as may be." But the "then" in question is the third of a series each of which clearly relates to the time when the widow reaches the designated age. If the words "so soon as may be" were omitted the meaning of the paragraph in question would not be changed, for the division and distribution could not be made anyhow until so soon as might be after the happening of the event which determined who the distributees should be. The actual payments could not be made, whatever the condition of the estate, instantly upon the happening of the determinative event, and the words "so soon as may be" indicate nothing more than the desire of the testator that the possession and enjoyment of their own should be withheld from the legatees no longer than might be necessary. It is true that the gifts in question are made only by words directing division and distribution. But notwithstanding this, and assuming, what we do not hold, that the words "so soon as may be" are words of postponement, still, as such assumed postponement relates merely to the situation and character of the estate and the convenience of the trustees, the vesting of the legacies was not postponed but their possession and enjoyment only. Weatherhead v. Stoddard, 58 Vt. 623, 5 A. 517, 56 Am. Rep. 573; Tucker's Will, 63 Vt. 104, 21 A. 272, 25 Am. St. Rep. 743; Scofield v. Olcott, 120 Ill. 362, 11 N.E. 351.
In harmony with what has been said is the rule that the law favors the early vesting of estates; a rule which is subordinate only to the prime rule in the construction of wills that the intention of the testator, so far as it may be legally carried out, is to govern. Weatherhead v. Stoddard, 58 Vt. 623, 5 A. 517, 56 Am. Rep. 573; Burton v. Provost, 75 Vt. 199, 54 A. 189; Jones v. Knappen, 63 Vt. 391, 22 A. 630, 14 L.R.A. 293; Tucker's Will, 63 Vt. 104, 21 A. 272, 25 Am. St. Rep. 743.
It will be noted that the Tucker case involved the consideration of the force of the adverb "then" as used in the will there construed.
The will, as is argued, expresses the general purpose that, so far as might be, the testator's "surviving children" should share equally in his estate. But the testator certainly did not contemplate that they would all die at the same time. Some would inevitably survive others. The will was made in 1891 when his wife was 61 years of age. If she should remain unmarried until she reached the age of 75 years, his children who lived beyond that time were the "surviving children" intended. The daughter Harriet, who never married, survived to the end of that period, and for a year and five months longer; and during that year and five months, the closing period of her life, she had the right to, though not the possession of, her equal share, which she might have disposed of by will if she had chosen, but which, by dying intestate, she allowed to go to her mother.
Had the will provided that if any of the testator's children should die before "receiving" his share of the trust estate such share should go over, a different, but very interesting, question would arise. There is strong authority for saying that in such case the child's estate would take his share if the child lived until such share became in law "receivable." But the question last suggested does not here arise. An equal share in the fund to be distributed vested absolutely in the daughter Harriet at the time when her mother reached the age of 75 years and the trust terminated.
Mary G. Harris was the second wife of the testator, and Charles and Susan were the offspring of his first wife. The provisions made by the testator for his wife were expressed to be in lieu of any claim on her part for anything out of his estate not provided for by the will whether by way of dower, homestead, assignment or otherwise, and were made a condition that she should claim nothing from his estate except under the will. The testator considered, as the will states, that he had made a better provision for his widow than the law would make and that she would save a part of her yearly income, and such saving he requested her to divide "from time to time or at her decease" equally among all his surviving children and the children of his deceased children, and he provided as follows:
"It is my will that my son Charles, and my granddaughter Susan, offspring of my first wife, shall each receive the same ultimate benefit from my estate as the children of my second marriage, whether my wife shall abide by the provisions of this instrument or shall waive them and take the provisions made for the widow by the laws of any state; and to that end I direct that if my said wife shall, under the laws of any state, claim and receive from my estate any property or money otherwise than under the provisions of this will, or of some codicil thereof, then shall the said Trustees set apart out of the general fund of my estate, a sum at least equal in value to two-fifths of the amount so received by my said wife outside the provisions of this will, which special fund shall be held and invested until after the decease of my said wife."
In the body of the will the testator makes the further direction that if his wife shall not by gift or will make the requested equal distribution of the property in her possession derived from him or his estate, then the trustees before mentioned shall distribute the special fund set apart in such manner as to effectuate the desired equalization.
In the codicil to his will the testator says with regard to any special fund that it "shall not be held until the decease of my said widow, but shall be divided into equal shares between my son Charles and my granddaughter Susan, so soon as possible after...
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