Williams v. Fundingsland

• Decision Date: 05 November 1923
• Docket Number: 10505.
• Parties: WILLIAMS v. FUNDINGSLAND.
• Court: Colorado Supreme Court

221 P. 1084

74 Colo. 315

WILLIAMS v. FUNDINGSLAND.

No. 10505.

Supreme Court of Colorado

November 5, 1923

Rehearing Denied Jan. 7, 1924.

Error to District Court, Kit Carson County; Arthur Cornforth Judge.

Action by L. O. Fundingsland against Rees Williams. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Irwin & Friend, of Denver, for plaintiff in error.

Louis Vogt, of Burlington, and Allen & Webster, of Denver, for defendant in error.

CAMPBELL J.

The parties made a written contract whereby plaintiff Fundingsland, agreed to sell, and defendant, Williams, agreed to buy, certain lands in the state of Kansas; the seller therein covenanting to furnish an abstract of title showing 'the title to be good and marketable.' The buyer paid $2,000 of the purchase price when the contract was signed but refused to pay the remainder when due, on the ground that the abstract furnished showed the title to be substantially defective. This action is by the seller against the purchaser to descover the unpaid balance of the purchase price, and the defendant counterclaims for recovery of the partial payment made.

Trial was to the court without a jury, on a stipulation of facts which recited that, if therefrom the court found the title was good and marketable, judgment should be rendered for plaintiff, otherwise for the defendant, as prayed. Having found the title to be marketable, the judgment went for the plaintiff.

Title is deraigned and based upon conveyances made by Susie E Hudson, widow, and her four children. Their title came through the last will of James Bullock, deceased, father of Mrs. Hudson. Thereby Bullock's residuary estate, which includes the lands in question, was devised, one-half thereof to his son, William, and one-half thereof to his daughter, Susie E. Hudson, for their natural lives, and a possible second life estate to the surviving wife of the former, and the surviving husband of the latter, with remainder over to the bodily heirs of the son and daughter respectively. The clause of the will (pertaining to the daughter) reads:

'And my daughter Susie E. Hudson, shall take the undivided half of the real estate for life, and at her death the said title shall vest in _____ and her said bodily heirs shall own the same, as if she had died intestate owning the same, except I especially will and bequeath to her husband should she leave a husband surviving her, that he take one-third part of the real estate for his use and benefit during his natural lifetime, only, that is, a one-third part of the real estate of said Susie E. Hudson, or the part so falling to her for life.' (Italics ours.)

At the time the will was executed, and also at the death of the testator, James Bullock, his daughter Susie had then a living husband. This husband died about two years after the testator's death. Susie is still living and unmarried, and is 66 years old.

It will be observed from the foregoing excerpt that there were two possible life estates created: One life estate was to Susie Hudson, and, if her husband survived her, another life estate to him, with the remainder over to the bodily heirs of Susie at the death of the last life tenant. The rule is familiar that a remainder must have some precedent particular estate to support it. In 21 C.J. p. 990, it is said:

'Any number of particular estates, each less than the fee, may precede the remainder, in which case each estate in the series will be a remainder to all the estates which precede it, and a particular estate to all which follow.'

By this will the remainder was to the bodily heirs. Two possible particular estates preceded the remainder--one to the daughter, Susie, for her natural life; the other, for his natural life, to a husband surviving her.

The question for decision here is whether 'husband' in the sentence, 'except I especially will and bequeath to her husband should she leave a husband surviving her,' is restricted to the husband which she had at the time the will was made and when the testator died, or whether it may include a second surviving husband whom she may marry after the death of her first husband.

It is the contention of the plaintiff that these words must be construed as referring solely to the first husband, while defendant maintains they should be construed as meaning any husband that might survive her. The paramount rule in the construction of a will is to ascertain from the instrument in its entirety the intention of the testator; and, if that intent is not prohibited by law, it is the duty of the courts to give effect thereto. All rules or canons of construction are but aids in arriving at the intention, and they must never prevail as against that intention when it is clear or manifest. Bacon v. Nichols, 47 Colo. 31, 105 P. 1082; Miller v. Weston, 25 Colo.App. 231, 246, 138 P. 424; 28 R.C.L. p. 211, §§ 173, 174, 175.

Ordinarily 'wife' or 'husband,' in a will, means the person who at the time of its execution, or at the death of the testator, then sustains the relation of 'wife' or 'husband' to the one named. The word 'widow' or 'widower' is said to be of wider import than 'wife' or 'husband.' It involves no fact in existence at the date of the will, and the relation is not created until the death of the one named, and the person sustaining that relation is to be ascertained as of the time of the death of the testator, which gives rise to, or creates, the relation.

Meeker v. Draffen, 201 N.Y. 205, 94 N.E. 626, 33 L.R.A. (N. S.) 816 Ann.Cas. 1912A, 930, relied upon by both parties, is authority for neither. Indirectly, it may tend to uphold defendant's contention in that the opinion cites with approval Schettler v. Smith, 41 N.Y. 328, which is, in one statement therein, in harmony with defendant's claim here. But, in this Meeker Case 'widow,' not 'wife,' was the word that led the court to say that, 'Such wife as may...