Woodard v. Woodard

Salinger, J.

I. In the preliminary statement found in the argument for appellants, there is language which might be construed to claim that both the will at bar and the codicil thereto are violative of our statute rule against perpetuities, and that both are void for this and still other reasons. Considering the argument for the appellants as a whole, we incline to the view that the codicil, rather than the original will, is attacked. We are, at all events, of the opinion that none of the objections urged nullify the original will. That will provides:

(a) That the executor invest to best advantage and pay one fourth of the net income to four named grandchildren during their respective lives.

(b) At the death of each or either of said grandchildren, the executor shall pay to the child or children of such deceased grandchild one fourth of the then estate, “absolutely and without qualification.”

(c) If such deceased grandchild die without issue, then the portion that would- have gone to his issue, had he left any surviving, shall remain in control of the executor, and of its net income he shall pay one third to each then surviving grandchild, during life.

(d) At the death of either of the then said surviving grandchildren, one third of the share created because another grandchild died without issue, shall go to the issue of the grandchild who died leaving issue, “absolutely and without qualification.”

We may assume, for present purposes, that everything found in the brief is intended to present an attack upon the will, and so assume that, if the will stopped at the point thus far stated, that such attacks are well made. But the intent of the testator, as it may be ascertained from the *1181 whole of the instrument, is the will: and in addition to what has been set out, the will has a clause which, in terms, declares it to be the intention that each of said four grandchildren have one fourth the net income for life; that, at the death of each grandchild, one fourth of the then estate go absolutely to the issue of such grandchild, and, if any grandchild die without issue, the “portion” of that grandchild shall go as is provided concerning the one fourth share, — i. e., income for life to the grandchildren, and at their death, or that of either of them, the principal to any issue left by such deceased grandchild or grandchildren. Once more assuming that all in the brief is an attack, and we' find the following arguments against the validity of the will:

1-a

When the gift is in trust, and is, as to the donee, found only in a direction to the trustee when to pay over or transfer, the gift does not vest until transfer or payment is made.

Remainders : bequests implied from mere direction to pay. To this we have to say that, said interpretative clause in the will being held to be the will, this is a case wherein the gift is made, not alone in the direction to pay, but elsewhere, and in the substantive part of the will. Where that is so, the great weight of authority is that no perpetuity is created. See In re Crane, 164 N. Y. 71 ( 58 N. E. 47 ); Leake v. Robinson, 2 Mer. 363; Smith on Executors, Par. 314; Batsford v. Kebbell, 3 Ves. 363; Moore v. Smith, 9 Watts (Pa.) 403; Howe v. Hodge, 152 Ill. 252 ( 38 N. E. 1083 ); In re Bartholomew, 1 M. & Gord. 354; Olsen v. Youngerman, 136 Iowa 404 ; Page on Wills (1901), Sec. 669, page 784; Shafer v. Tereso, 133 Iowa 342 . The most that results is a vesting subject to defeasance if the beneficiary die before the time at which the executor is directed to pay over or transfer. Shackey v. Homer, 87 Neb. 146 ( 127 N. W. 145 ). On fair analysis, McClain v. Capper, *1182 98 Iowa 145 , Wilhelm v. Calder, 102 Iowa 342 , Thorndike v. Loring, 81 Mass. 391 , Stevens v. Stevens, (Ky.) 54 S. W. 835 , Kountz’s Estate, 213 Pa. 390 ( 62 Atl. 1103 ), and Beatty’s Admr. v. Montgomery’s Exr., 21 N. J. Eq. 324, hold nothing counter to this.

2. Remainder: withholding use and possession. We have to add what controls on this point and others: to wit, that if, on construing, a doubt arises as to whether a contingent or a vested remainder is intended, it is an elementary rule that the doubt shall be resolved in favor of vesting. See Ross v. Ayrhart, 138 Iowa 117 ; Shafer v. Tereso, 133 Iowa 342 ; Taylor v. Taylor, 118 Iowa 407 ; Arche r v. Jacobs, 125 Iowa 467, at 476 ; Williamson v. Field, 2 Sanf. Ch. (N. Y.) 533, at 552; Gray v. Whittemore, 192 Mass. 367 ( 78 N. E. 422 ), — which we select from a multitude. An amplification or application of the rule is that, where all the limitations are to the direct descendants of the testator, it is a circumstance which warrants the inference that vested, rather than contingent, remainders were intended to be created. Gibbens v. Gibbens, 140 Mass. 102 ( 3 N. E. 1 ); Stanwood v. Stanwood, 179 Mass. 223 ( 60 N. E. 584 ); Bancroft v. Fitch, 164 Mass. 401 ( 41 N. E. 661 ); Gray v. Whittemore, 192 Mass. 367 ( 78 N. E. 422 ); Shafer v. Tereso, 133 Iowa 342 . In the light of said interpretative clause, and of this rule of construction, the most that can be said, up to this point in the discussion, is that not more than use, enjoyment, and possession is postponed. And such postponement does not delay the vesting of the title, and hence is not within the prohibition of the statute. That this is so is held in cases too numerous to be cited, and we select Phillips v. Harrow, 93 Iowa 92, 97 , citing Section 381, Perry on Trusts (5th Ed.); Archer v. Jacobs, 125 Iowa 467 ; and Kountz’s Estate, 213 Pa. 390 ( 62 Atl. 1103 ). True, under this will, it might be more years after the death of testatrix than are specified in the statute before her great *1183 grandchildren would come into possession, use, and enjoyment. That would manifestly be so if the ancestor had leased the property for 999 years. Yet such a lease is no restraint upon alienation, and, therefore, does not offend the statute. Starcher Bros. v. Duty, 61 W. Va. 371 ( 56 S. E. 527 ); First Nat. Bank v. Sioux City Term. R. & W. Co., 69 Fed. 441 ; Sioux City Term. R. & W. Co. v. Trust Co., 82 Fed. 124 ; In re Rubbell Trust, 135 Iowa 637, at 644 ; Todhunter & Williamson v. D. M., I. & M. R. Co., 58 Iowa 205 . It follows that, unless something not yet discussed avoids it, the great-grandchildren took title on the day the testator died, and, of course, no perpetuity was created. And see Meek v. Briggs, 87 Iowa 610, 614 ; Sherlock v. Thompson, 167 Iowa 1 ; Jordan v. Woodin, 93 Iowa 453 ; Williamson v. Field, 2 Sanf. Ch. (N. Y.) 533, at 552; Stout v. Stout, 44 N. J. Eq. 479 ( 15 Atl. 843 ); Archer v. Jacobs, 125 Iowa 467, at 479 ; Brown v. Lawrence, 57 Mass. 390, at 397 .

1-b

3. Remainders: uncertain remaindermen. The next claim is that, when the will was executed, it could not be known what great-grandchildren would be in being when the time for payment or transfer arrived, ¿nd, therefore, the remainder is contingent. Assume that the time when a will is made is not affected by the time at which codicils are executed. Still, when the original will was executed, the following named great-grandchildren of testatrix were in being, and capable of. taking: Earl Woodard, Paul McMahill, Lisle Allely. This disposes of this point against appellant. These being then in esse, and having present capacity to take, then, though it cannot be known that any great-grandchild would be living when the life estate in the grandchildren lapsed, the remainder is vested. Tiffany on Modern Law of Real Property, Par. 120-b; Fair v. Angus, (Cal.) 60 Pac. 442 ; Williams on Real Property, 267; Doe v. Considine, 73 U. S. *1184 458 ; Green v. Harvey, 1 Hare 428; Shafer v. Tereso, 133 Iowa 342 ; Archer v. Jacobs, 125 Iowa 467 . See, also, Beatty’s Admr. v. Montgomery’s Exr., 21 N. J. Eq. 324; Robinson v. Palmer, 90 Me. 246 ( 38 Atl. 103 ); Jackson v. Jackson, 127 Ind. 346 ( 26 N. E. 897 ); Kinkead v. Ryan, 64 N. J, Eq. 454 ( 53 Atl. 1053 ); Kountz’s Estate, 213 Pa. 390 ( 62 Atl. 1103 ); Fearne on Contingent Remainders, 215, and See. 180; Taylor v. Taylor, 118 Iowa 407 ; Gray v. Whittemore, 192 Mass. 367 ( 78 N. E. 422 ).

4. Wills: opening vested estates to let in after-born children. II. We have thus far assumed the existence of several objections to the will. As we understand it, the only attack really pressed is this: Appellants urge what we hold is an elementary rule: to wit, that it does not suffice that it might turn out the vesting of title has not been deferred too long, but that, to sustain the will, it must be made to appear affirmatively that in no possible contingency can vesting be delayed beyond statute time; whereupon, they contend that no such affirmative showing is made, because one child has been born to a grand child since testatrix died; that testatrix has now been dead more than six years; and that it is possible other grandchildren will be born, 15 or 16 years from now. The existence of that possibility must be conceded. But the making such concession does not settle what its effect is. Under the law, the possibility of after-born heirs, of the class to whom bequest is made, does not make who are remaindermen uncertain, or the remainder contingent, and, therefore, the will void for uncertainty, nor make a will that does not exclude the possibility that vesting is deferred beyond statute time. The only effect that the possibility of after-born heirs has upon the devise to their class is that such birth in part divests the estate vested in others of the class and in being when the will was made, to the extent of letting in the after-born as an equal sharer with these others. *1185 It is held, in Fair v. Angus, (Cal.) 60 Pac. 442 , that, where an estate is granted to one for life, and to snch of his children as shall be living after his death, a present right to the future possession vests at once in such children as are living, subject to open and let in after-born children, and to be divested as to those who shall die with issue. And see Croxall v. Shererd, 5 Wall. (U. S.) 288; McArthur v. Scott, 113 U. S. 340 (5 Sup. Ct. Rep. 652); Gilman v. Reddington, 24 N. Y. 9 ; Brown v. Lawrence, 3 Cush. (Mass.) 390, 397; Blanchard v. Blanchard, 1 Allen (Mass.) 223; Lewis on Perpetuities, 455; Blackburn v. Blackburn, 109 Tenn. 674 ( 73 S. W. 109 ); Hubbird v. Goin, 137 Fed. 822 ; 2 Washburn on Real Property (5th Ed.) 599; White v. Williamson, 2 Grant’s Cas. (Pa.) 249; Fosdick v. Fosdick, 6 Allen (Mass.) 41; Hall v. Hall, 123 Mass. 120 ; Appeal of Coggins, 124 Pa. 10 ( 16 Atl. 579 ), which so holds where children were born to the grandchildren of the testator after the death of the testator. Randell on Perpetuities, 48. We said, in Westcott v. Binford, 104 Iowa 645, at 654 , that the fact that it cannot definitely be known who are the heirs or devisees of an ancestor until this ancestor dies, will not create in any devisee a larger estate than the testator intended him to have; and we held, in Archer v. Jacobs, 125 Iowa 467 , that, where a testator bequeathed one fourth of his entire estate to his daughter for life, the same, upon her death, to go share and share alike to her children, that, on the death of the testator, such children then in being took a vested remainder, unaffected by the possibility of after-born persons entitled to share" therein.

That the possibility of after-born children does not affect the validity of the will is settled in this jurisdiction,- and in line with the very-great weight of authority. An extended investigation has found nothing to the contrary, except Stout v. Stout, 44 N. J. Eq. 479 ( 15 Atl. 843 ), unless as much may be claimed for Lockridge v. Mace, 109 Mo. 162 *1186 ( 18 S. W. 1145 ); Brown v. Columbia Fin. & Trust Co., 123 Ky. 775 ( 97 S. W. 421 ); Hall v. Hall, 123 Mass. 120 ; Hubbird v. Goin, 137 Fed. 822, at 831 ; and Lawrence v. Smith, 163 Ill. 149 ( 45 N. E. 259 ). We think that none but the Stout case are, on careful analysis, against the rule herein announced. Be that as it may, as said, the rule, now declared is settled here, and in harmony with the very great weight of authority.

5. Perpetuities: withholding estate during minority. III. Does the codicil make the bequest to the great-grandchildren void ? It provides that, if said grandchildren, or either of them, leave issue which, at the time of the death of the ancestor, has not attained majority, then the portion of the estate which, under the will, is to go to such surviving minor child or children, shall be retained by the executor until such child attain majority; and that, at majority, the executor shall pay over to said minor his share, plus accumulations from investment during minority, after deducting payments made for maintenance and education of the minor.

What we have said as to the will applies to the codicil. But the latter raises one question that does not arise as to the will. It will be noticed that, under the codicil, a situation may arise under which the executor is required to retain the share of some great-grandchild or great-grandchildren until it or they reach majority, and it is manifestly implied that he is directed not to pay over such share until then. Now, that here is a contingency resting upon the death of a grandchild or grandchildren does not, of itself, negative the vesting, at the death of testatrix, in great-grandchildren of the share dependent upon the death of the grandchild or grandchildren. Beatty’s Admr. v. Montgomery’s Exr., 21 N. J. Eq. 324; Archer v. Jacobs, 125 Iowa 467, at 479 . So the only remaining question is whether the direction to retain said share “until” its owner becomes of *1187 age makes the bequest to that owner so contingent and uncertain as that it creates, or may prove to create, a perpetuity. We have to say, first, that, if this were true of such share, it would affect nothing but that share. Archer v. Jacobs, 125 Iowa 467, at 479 ; Lawrence v. Smith, 163 Ill. 149 ( 45 N. E. 259 ); Dean v. Mumford, 102 Mich. 510 ( 61 N. W. 7 ). Finally, as has been seen, the direction not to pay over or transfer until the donee attain majority, does not, even as to the one share, affect its vesting at the death of the testatrix, unless no gift is made, except it be by the provision that no payment or transfer shall be made until majority is attained. As has been shown, the time for distribution is, in this codicil, not of the substance of the gift, but a limitation upon when possession, use, and enjoyment of a gift made shall be given. See also Atchison v. Francis, 182 Iowa 37 .

It follows the decree below must be — Affirmed.

Preston, C. J., Ladd and Evans, JJ., concur.