Winn v. Tabernacle Infirmary

Lumpkin, J.

(After stating the foregoing facts.) The construction of this will is not free, from difficulty. In a few brief sentences have been combined some of the most intricate and difficult subjects in the law. The will touches upon bequests of entire income, conditions precedent and subsequent, charges upon income, trusts, a devise in remainder of realty and a bequest of personalty, with the only proviso stated in that connection that the-testator’s daughter should receive a Christian burial. And in another item (not copied in the judgment of the court below) is contained a power of sale and reinvestment by the executor.

General rules of construction avail little in such a case. It may be stated that the cardinal rule of construction of a will is to “seek diligently for the intention of the testator, and. give effect to the same, as far as maybe consistent with the rules of law.” Civil Code, § 3324. A condition precedent requires performance before the estate vests; a condition subsequent may cause a forfeiture of a vested estate. The law inclines to construe conditions to be subsequent rather than precedent, and to be remediable by damages, rather than by forfeiture. Ib: § 3137. If a condition is strictly precedent, so that unless it happens no estate vests, reasons why the condition did not happen will not serve to vest a title. A distinction has sometimes been made between a bequest of personalty and a devise of realty in this regard. But our Code does not seem to recognize such a distinction. Civil Code, § 3080. If a condition is subsequent, and the title has vested subject to be divested in the event of the non-performance of the condition, and such, condition becomes impossible of performance by an act of God, non-performance is excused, and the estate which has vested in the grantee will not be divested.

In Nunnery v. Carter, 5 Jones Eq. (58 N. C.) 370 ( 78 Am. D. 231 ), it was declared that if personal property is bequeathed upon a condition which before the- time of performance becomes impossible to he performed, the property vests in the legatee upon the death of the testator, unless it appears that the performance of the condition was the sole motive' for the making of the bequest. It was also held, that where personal property was bequeathed to a son on condition that he take care of his mother during her lifetime, this was a condition subsequent, involving a continuing duty, *384 and tlie title vested in the legatee, to he divested upon his failure to take care of his mother.

But after these general rules have been stated, and considered with others which might also be recited, we return to the ultimate question, what did this testatrix intend by the will before us ? By item three she bequeathed to the Tabernacle Infirmary and Home for Helpless "Women (the name of which was afterwards changed/ to the Tabernacle Infirmary and Training School for Nurses) “all the income of every character.” By item four it was declared that the'consideration upon which “this bequest” was made “and a condition precedent to same” was that the institution should maintain • the child of the testatrix during her' life, giving her a home in such institution, and earing for her “as comfortably as the facts and circumstances of the case will warrant, even to the extent of all the income from my estate, if necessary.” While the words “condition precedent” were used, in the same sentence provision was made for the úse by the institution, for the support of the child, of so much as might be necessary, even to the extent of the entire income. The duty was not the performance of a single act, to be followed by the vesting of the estate, but it was continuing in its character during the child’s life; and it was contemplated that the income bequeathed would be consumed at least in part. In spite of the use of the expression quoted, it does not appear to have been the testamentary intent that the title to the income should be left unvested and in the air, under a strict condition precedent. Performance is also spoken of as “an obligation.” The fifth item declared, that, upon the death of the child, all of the testator’s property should “vest absolutely” in the institution. Here the only condition mentioned is “provided” a decent Christian burial shall be given to the child. This item made no reference to the support of the child. The sixth item provided that “in the event the institution shall cease to exist, or shall cease to operate the works of benevolence along the lines that are now followed, then and in that event all benefits conferred upon said institution by this will shall cease, and the property of my estate shall be vested in my executor to hold for the benefit of my child during her life.” The statement that, in the event named, the benefits should “cease,” carries with it the implication that they had previously begun; .and the provision that then “my estate shall be vested in my executor” *385 indicates that it had not previously been vested in him for the purpose named, but somewhere else. This was plainly a condition subsequent, and inconsistent with the idea that the whole legacy was dependent on a condition precedent.

From a consideration of the entire will, we think that the testatrix had in view two things, the support of her child and a gift to a benevolent institution. The legacy was not purely in the nature of a conveyance of bargain and sale upon condition precedent. Even the support of the child was to be only “as comfortably as the facts and circumstances of the case will warrant.”

It follows from what wé have said, that when, after the child had been taken into the institution and supported for some three years, she became so violently insane that it was necessary to have her committed by due proceedings to the State asylum for treatment, this did not operate to so render impossible a condition precedent as to destroy the estate or interest of the institution; nor did it give tire executor a right to recover the entire estate as for breach of condition.

Whether or not the support of the child at the asylum is a charge upon the income of the estate, and whether the authorities of the asylum, or a guardian or next friend of the child, have any right to have it so applied, or whether she is such a pauper patient that her maintenance devolves on the State (Political Code, § 1429 et seq.), are questions not determined in the court below and therefore are not decided by us. The only question urged before us was as to whether the plaintiff had a right to recover the estate. Judgment affirmed.

All the Justices concur.