Haab v. Schneeberger

Grant, J.

(after stating the facts). It is apparent that the testator intended to die testate as to all his property. The will mentions and disposes of all his personal and real estate. It makes devises and bequests to his widow, to his daughter and grandchildren. The will gives his widow the income from all his estate, both real and personal, so long as she remains unmarried, and of the personalty, devised in trust, during her life. It is immaterial what name we attach to the estate devised to the widow. It seems unimportant whether we call it an estate during widowhood, or a life estate terminable if she should marry. It is an estate of which she was given the immediate possession and enjoyment, to be used and enjoyed by her for life, provided she did not marry, and to terminate provided she did marry. It is the contention of the appellant defendants that the testator intended to devise no interest to his daughter and her children, unless his widow should remarry. It is significant‘that the only provision made for his daughter is the life estate in the land and the personal property upon the farm. The complainant had always lived at home, while his two sons left upon attaining their majority. He intended that she should live with, and take care of, him and his wife as long as they should live. The lease executed between the testator and complainant’s husband provided for this. He had given her nothing during his lifetime, while it is conceded that he had given to each of his sons 120 acres of land, a team of horses each, and other property. Laying aside the surrounding circumstances, however, which were shown aliunde, the question is presented: Does the *587 intent of the testator appear from the four corners of the instrument ? If it does, the circumstances aliunde are of no consequence. As already stated, his intention to provide for his daughter by a life interest in the farm and the property thereon, after the termination of his wife’s estate, is manifest. This being so, it would seem to follow that the method by which that estate devised to his wife was terminated is of little consequence. The probability of her marriage after she was 64 years of age was very remote. Widows seldom marry after that age. This fact is recognized as of some importance in some of the early authorities. If the testator had intended to devise to his living son, Joseph, and the heirs of his deceased son, John, an interest in the farm, either as a contingent or vested remainder, he naturally would have inserted some provision showing that intent. I cannot escape the conclusion that the testator supposed he had disposed of this farm to his widow, his daughter, and his daughter’s children. His sons were the children of his first wife, who must have died when they were young. Complainant was the daughter and only child of his second wife.

Jarman, in discussing vested and contingent remainders, says:

“Where a testator makes a devise to his widow for life, if she shall so long continue a widow, and if she shall marry, then over; the established construction is that the# devise over is not dependent on the contingency of the widow’s marrying again, but tabes effect, at all events, on the determination of her estate, whether by marriage or death.” 3 Jarman on Wills (5th Am. Ed.), 414.

In Luxford v. Cheeke, 3 Lev. 125, the devise was “to the wife for life if she does not marry; if she does, that his son, Humphry, shall enter and have the land in tail.” She did not marry, and the court held that the devise was an estate tail with remainders, and that “the words shall be read and taken thus; if she marry, Humphry to enter presently; if she does not marry, then Humphry shall have, hold, and enjoy them to him and the heirs males of *588 his body, with remainder over.” The same will was before the court in Brown v. Cutter, Raymond, 428, and it was there held that there was no contingent remainder, but an estate vested in the testator’s son to take effect in possession upon the marriage or death of the widow.

In Browne v. Hammond, Johns. Eng. Ch. 210, the testator devised real estate and bequeathed all his residuary personal estate to his wife for her sole and separate use so long as she continued to be his widow; but, if she should marry again, his will was that the said property was to be sold and the proceeds of such sale to be equally divided between his children, their heirs and assigns, share and share alike, as tenants in common. At the date of the will he had two children, named Elizabeth and Mary Anne. Elizabeth died in the testator’s lifetime, leaving two children, infants, who were made defendants. The widow died without having remarried. It was held that “ the devise or bequest ovér, though in terms made upon the marriage of the donee of the preceding estate, is to be extended by implication, so as to take effect on the determination of that estate by death.”

Under a similar provision in Underhill v. Roden, L. R. 2 Ch. Div. 494, decided by the chancery division of the high court of justice in England, it was held that, the widow having died without remarrying, the gift over of the real estate took effect upon her death.. The court in that case quoted with approval the decision in Browne v. Hammond, supra, and also the following language in Eaton v. Hewitt, 2 Drewry & Sm. 184, 192:

“ It is a rule now well established that where a testator gives to a woman a life interest if she so long remains unmarried, and then directs that in the event of her marrying the property shall go over to another, although according to the strict language, the gift over is expressed only to take effect in the event of the marriage of the tenant for life, the gift over is held to take effect, even though the tenant for life does not marry.”

In Metcalf v. First Parish in Framingham, 128 *589 Mass. 370 , the provision in controversy was the following clause of the testator’s will:

“ I give and bequeath unto George P. Metcalf, in trust and confidence, however, one hundred shares of the stock of the Pittsburg, Port Wayne and Chicago Railroad Company, for the benefit of Nancy Green, sister of my deceased wife, and William Green, husband of said Nancy, for and during their natural lives, as follows: First, during the life of said Nancy, the net income of the same shall be paid over semi-annually to said Nancy. In case said Nancy should die before said William, then at the decease of said Nancy said trustee shall transfer one-half of said stock in equal parts to said Association and said Home. The income of the remainder shall be paid to said William as aforesaid during his natural life. Second. In case said William should die before said Nancy, then at the decease of said Nancy the whole of said stock shall be transferred in equal shares to said Association and said Home, and said trust estate shall cease. ”

The conclusion reached by the court, in an opinion by Chief Justice Gray, is thus stated:

“ The result is, that the legal effect of the 10th article is to create, first, an equitable estate for life in the wife in the whole fund; second, an equitable estate for life in the husband in one-half of the fund; and, third, subject to these equitable life estates, a vested remainder in the whole fund in the charities.”

The court there stated the settled rule in England to be:

“ A devise or bequest to a widow for life, if she shall not marry, and, if she shall marry, then over to another person, gives the remainder to him, if she dies unmarried.”

Similar language of a testator in Bates v. Webb, 8 Mass. 458 , was held to convey a vested remainder.

Where the provision of the will was:

“I give and bequeath unto my beloved wife, Mary Resler; the whole of my estate, both real and personal, during her widowhood, or in other words, while she bears my name, but if she chooses to marry then it is my wish *590 that the whole of my estate, both real and personal, shall be given to my daughter, Éve Resler, and her heirs forever,”

—it was held that the devise was during her widowhood with a vested remainder to the daughter. Farmers' Bank of Alexandria v. Hooff, 4 Cranch, C. C. (U. S.) 328. It is there said:

“The estate is expressly during her widowhood; and at the termination of that estate, it is as expressly given to his daughter in fee. According to the literal construction of the will, the devise to the daughter was to take effect only upon the marriage of the widow, an event which might never happen, and if that strict construction could be given to the will, the remainder to the daughter would be contingent. But would such a construction be consistent with the intention of the testator ? ”

Our conclusion, therefore, is that the testator by clause 1 of his will devised the entirety of the land. Upon his death the widow took a life estate terminable upon remarriage, his daughter took a life estate after the termination of the widow’s estate, either by marriage or death, and the children of the daughter took a vested remainder in fee. If it were permissible to consider the facts and circumstances under which this will was executed, there could be no possible doubt as to the intention of the testator. We said, speaking through my Brother McAlvay, in Foster v. Stevens, 146 Mich. 142 :

“In the construction of wills no hard and fast rule can be applied to all cases alike. The peculiar facts and circumstances of each case must be considered, and from them the court must determine the rules of construction to be adopted.”

The will made no provision for his son, Joseph, but only for his children. His son, John, died years previous to the making of the will, and the final distribution of the trust estate is the only provision made for his children. This would show an unequal distribution of his property. The conceded facts are that when his sons married they *591 left his home and started in the world for themselves. The father gave to each a farm and considerable personal property. He had given his daughter nothing. When these conceded facts are considered, the will, as above construed, resulted in an equal distribution of his property. We are not prepared to say that these facts and circumstances might not be considered in ascertaining the intent of the testator. Inasmuch, however, as we have reached our conclusion from the “ four corners ” of the instrument, it is unnecessary to determine the question.

The decree is affirmed, with costs.

McAlvay, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.