Wilson v. Linder

• Decision Date: 29 July 1910
• Citation: Wilson v. Linder, 18 Idaho 438, 110 P. 274 (Idaho 1910)
• Parties: WILLIAM E. WILSON et al., Appellants, v. ANTHONY D. LINDER et al., Respondents
• Court: Idaho Supreme Court

110 P. 274

18 Idaho 438

WILLIAM E. WILSON et al., Appellants, v. ANTHONY D. LINDER et al., Respondents

Supreme Court of Idaho

July 29, 1910

ACTION TO DETERMINE ADVERSE CLAIM-"RULE IN SHELLEY'S CASE"-CONSTRUCTION OF WILL-LIFE ESTATE-CONTINGENT REMAINDER.

(Syllabus by the court.)

1. Under the provisions of sec. 4538 of the Rev. Codes, an action may be maintained by a remainderman for the protection of a contingent remainder as against one who claims an estate or interest in the property adverse to such remainderman.

2. Under the provisions of sec. 3076 of the Rev. Codes, the common-law rule, generally known as the "Rule in Shelley's Case," has been abrogated, and the term "heirs" has been changed from a word of limitation to one of purchase.

3. The cardinal rule to be applied in the construction of a will is to gather the intent of the testator from the language he has employed in the will, and this intent is to be ascertained from a full view of everything within the "four corners of the instrument." This rule must be understood and applied in connection with that other rule to the effect that a clearly expressed intention in one portion of the will is not to yield to a doubtful construction in another portion of the instrument.

4. Where a testator provided by a will as follows: "My son Jesse shall have the home place. [Here follows a description of the property.].... But should my son Jesse die without any wife or children, the property herein conveyed to him shall be equally divided between my other four children, or their heirs, share and share alike"-held that the devisee, Jesse Wilson, took a limited estate only subject to the vesting of an absolute and fee simple title on his leaving surviving him at the time of his death a wife or child, and that the remaindermen had only an expectancy which might be vested in them as an absolute estate upon the contingency of Jesse Wilson dying without either wife or child.

5. Where a contingency named in a will upon which an absolute estate may vest in one devisee as against another is unlimited as to time and is such a contingency as may never occur either prior or subsequent to the death of the testator, and may also occur at any time, the contingency should not be limited by construction to the period prior to the death of the testator so as to exclude therefrom the possibility of that contingency happening during the period subsequent to the death of the testator and prior to the death of the devisee.

APPEAL from the District Court of the Third Judicial District, for the County of Ada. Hon. Fremont Wood, Judge.

Action by plaintiffs to determine the respective interests of several parties to real estate. Judgment for defendant. Plaintiffs appeal. Reversed.

Reversed and remanded. Costs awarded to appellants.

Cavanah & Blake, and E. J. Dockery, for Appellants.

The provisions of sec. 4538, Rev. Codes, are very broad, and authorize any person, whether in possession or out of possession, whether holding the legal title or equitable title, to bring his action against another who claims an estate in real property adverse to him, and he may in such action have the adverse claim determined and settled. (Coleman v. Jaggers, 12 Idaho 125, 118 Am. St. 207 85 P. 894; German-Am. Savings Bank v. Gollmer, 155 Cal. 683, 102 P. 932, 24 L. R. A., N. S., 1066.)

The rule in Shelley's Case has been abrogated by sec. 3076, Rev. Codes, which is identical with sec. 779, Civil Code of Cal. (Barnett v. Barnett, 104 Cal. 298, 37 P. 1049; Whiting v. Whiting, 42 Minn. 548, 44 N.W. 1030.)

Even in states where the rule in Shelley's Case still obtains it has been held that words of similar import to that contained in the will in the case at bar convey to the first taker only a life estate. (Nes v. Ramsay, 155 Pa. 628, 26 A. 770; Taylor v. Taylor, 63 Pa. 481, 3 Am. Rep. 565; Peirce v. Hubbard, 152 Pa. 18, 25 A. 231. See, also, Golladay v. Knock, 235 Ill. 412, 126 Am. St. 224, 85 N.E. 649; Cousino v. Cousino, 86 Mich. 323, 48 N.W. 1084, Dunn v. Sargent, 101 Mass. 336.)

The only possible persons who could be injured by the petitioner's not giving a bond would be the executor and the creditors of the estate. The facts show that the creditors could not possibly be injured, and this being true, of course the executor could not be injured.

"The question whether a bond should be given by any of the parties to a partial distribution is one entirely within the discretion of the court below." (In re Levinson's Estate, 98 Cal. 654. 33 P. 726.)

Ira E. Barber, for Respondents.

The will in this case devised an absolute estate to Jesse Wilson. "Shall have" passes the absolute interest of the testator. (Fairclaim v. Guthrie, 1 Call (Va.), 7; Chapman v. Turner, 1 Call (Va.), 280 1 Am. Dec. 514.)

Having vested an absolute estate, in order to limit it or diminish it requires words as certain and unequivocal as those used in vesting the estate, and the words, "die without wife or children" as used in this will referred to a death of devisee during the lifetime of the testator. (Reeves v. School Dist., 24 Wash. 282. 64 P. 752, and cases cited; Howard v. Carusi, 109 U.S. 725, 3 S.Ct. 585, 27 L.Ed. 1089; McClellan v. MacKenzie, 126 F. 701, 61 C. C. A. 619; Carpenter v. Hazelrigg, 103 Ky. 538, 45 S.W. 666; Eberts v. Eberts, 42 Mich. 404, 4 N.W. 172; Prendergast v. Walsh, 58 N.J. Eq. 149, 42 A. 1049; In re Herrick's Estate, 12 N.Y.S. 105; Davis v. Davis, 118 N.Y. 411, 23 N.E. 568; Bailey v. Ross, 66 Ga. 354; Kelly v. Meins, 135 Mass. 231; Prosser v. Hardesty, 101 Mo. 593, 14 S.W. 628; Fields v. Whitfield, 101 N.C. 305, 7 S.E. 780.)

"Be distributed" in a will gives a vested fee. (Williams v. Williams, 73 Cal. 99, 14 P. 394; In re Creighton, 12 Neb. 280, 11 N.W. 313; Robinson v. Fair, 128 U.S. 53, 9 S.Ct. 30, 32 L.Ed. 415; Thomson v. Tracy, 60 N.Y. 174-180.)

Courts in all cases of doubt construe conditions as subsequent rather than precedent, so that the estate may vest at the earliest possible moment. (1 Dembetz on Land Title, 23-160.)

A grantor cannot destroy his own grant, however much he may modify it or load it with conditions. One having granted an estate in a deed, no separate clause, even in the same deed, can operate to nullify it. (2 Devlin on Deeds, 2d ed., 838a; Maker v. Lazell, 83 Me. 562, 23 Am. St. 795, 22 A. 474; Cosby v. Newby, 30 Ky. Law Rep. 1375, 101 S.W. 306; Crews v. Glasscock, 32 Ky. Law Rep. 913, 107 S.W. 237; Wilkins v. Norman, 139 N.C. 40, 111 Am. St. 767, 51 S.E. 797.)

The intent of the testator does not always govern the construction of wills. There are rules of law which control their construction. (Bernstein v. Bramble, 81 Ark. 480, 99 S.W. 682, 8 L. R. A., N. S., 1028, 11 Ann. Cas. 343; Ide v. Ide, 5 Mass. 500; Jackson v. De Lancey, 13 Johns. (N. Y.) 538, 552, 7 Am. Dec. 403.)

The estate cannot be construed to be a life estate because there are no words of limitation sufficient to limit it to that kind of a tenure. The proper words to be used in creating a limitation are "while," "as long as," "until" and "during." (Vanatta v. Brewer, 32 N.J. Eq. 268, 6 Morr. Min. Rep. 358.)

Where a granting clause conveys in fee simple, a subsequent clause that the land shall revert on the death of one of the grantees is void. (Palmer v. Cook, 159 Ill. 300, 50 Am. St. 165, 42 N.E. 796; Marsh v. Morris, 133 Ind. 548, 33 N.E. 290.)

One who has no title to land cannot maintain a bill to remove a cloud from the title. (Coel v. Glos, 232 Ill. 142, 83 N.E. 529, 15 L. R. A., N. S., 413; Pulliam v. Cherokee etc. Co., 52 Cal. 605; Cox v. Bird, 65 Ind. 277.)

The court must, in order to give integrity to its orders, follow the statute strictly. (Alcorn v. Buschke, 133 Cal. 655, 66 P. 15; Letellier's Estate, 74 Cal. 311, 15 P. 847; Alcorn v. Brandeman, 145 Cal. 62, 78 P. 343; Baker v. Wood, 42 Ala. 664; Pearson v. Pearson, 46 Cal. 611; In re Austin's Estate, 50 Hun. 604, 2 N.Y.S. 875; Grafenreid v. Kundert, 23 Ill.App. 440.)

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

This action was commenced for the purpose of determining an adverse claim to certain real property. It is alleged in the complaint that James Wilson died in Ada county in March, 1899, leaving a last will and testament which was thereafter duly admitted to probate; that William E. Wilson, Charlotta Calhoun, Emma Linder, Lizzie Everett, and Jesse Wilson, all of whom are sons and daughters of James Wilson, and Myrtle Goble, a grand-daughter, are named in the will as devisees and legatees of the testator; that, among other things, the will provided as follows: "That my son Jesse shall have the home place. [Then follows description.] . . . . But should my son Jesse die without any wife or children, the property herein conveyed to him shall be equally divided between my other four children, or their heirs, share and share alike." During the course of administration, application was made for a decree of partial distribution, and the petition was granted and the decree was entered by virtue of which the real estate described in the complaint herein and involved in this litigation was distributed to the parties entitled thereto in accordance with the terms and conditions of the will and in the identical language of the will itself. It is further alleged that one of the devisees, Lizzie Everett, has conveyed all her interest in the property described to Norman Gratz, and that the plaintiffs are the owners of and entitled to an undivided three-fourths interest in the property in controversy, subject only to the conditions of the will, namely, that if Jesse Wilson should die without leaving a wife or child, the property mentioned and described shall be equally divided between the other devisees named in the will.

It...