(specially concurring).
I concur.
This is a Will contest between Rosa Hanvey, a cousin of Mary E. Martin, deceased, but a stranger to the Will, and the Boys Ranch, a charitable corporation. My sympathies are with the.Boys Ranch, but the law is not. If any reasonable legal basis could be found to support the trial court’s judgment, I would affirm.
The only issue is this:
Under controlling rules of law, can this Court transform a conditional residue provision in the FOURTH paragraph of the Will, which condition did not occur, into an unconditional residue provision?
The FOURTH paragraph set forth in Judge Donnelly’s opinion is unambiguous. If Mary died simultaneously with her mother, the residue of her estate would pass to the Boys Ranch. The simultaneous death did not occur. She failed to provide for the disposition of her estate in the event she and her mother did not die simultaneously. The Boys Ranch wants us to delete the conditional portion of the FOURTH paragraph. One case is cited to support its position. In re Smith’s Will, 111 N.Y.S.2d 565 (1952).
The Will provisions were similar to those in Mary E. Martin’s Will. Without reference to any rules of law or citation of cases, the surrogate judge said:
Each [husband and wife] wanted the survivor to take the property of the first to die, and each wanted the persons named in the third paragraph to take the surviv- or’s estate. Only by so reading the will may effect be given to all its provisions. * * * The express language of the will, as interpreted herein, is effective to dispose of testatrix’ property. [Id. 567.]
The surrogate judge read the Will, concluding that the simultaneous death condition in the third paragraph of the Will was an aberration. Even though the residue provision was conditional upon simultaneous death, an event that did not occur, the judge disregarded the conditional portion of the third paragraph.
A dissenting opinion in In re Estate of Dickerhoff, 267 So.2d 388 (Ct.App.Fla.1972), conceded that “if taken literally,” the simultaneous death condition was controlling but the judge said:
[M]y dissent is based upon the view that the language should not have been taken literally when to do so does violence to logic and reason and produces a result which appears (at least to me) to be contrary to the clear intent of the testatrix. [Id. 389.]
If a district or appellate court used “logic and reason” to determine a testator’s intent, multitudinous differences would result. Language used in various provisions of the Will would, by analytical process, establish what the court thought was the testator’s intent. It would express the intent of the court, not the testator’s intent. One of the rules of logic is: “Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.” Broom, Selection of Legal Maxims (5th Am.Ed.1864) at 113. This is an ancient and still vital maxim which tells us that when reason ceases, the rule ceases. In other words, when the reason for the rule of “logic and reason” is to express the intent of the court, reason ceases. So does the rule. We should not follow In re Smith’s Will and the dissent in Dickerhoff. We should not disregard the following condition of the FOURTH paragraph:
In the event that my death should occur simultaneously with my beloved mother, Mary M. Martin * * * then it is to be presumed that my said mother * * died first, and the paragraph herein denominated second shall lapse and be inoperative * * * *
Paragraph by paragraph, by an analytical process, Boys Ranch struggled to effect this deletion. At the Fourth paragraph, it relied upon Lewis v. Lewis, 61 N.M. 337, 300 P.2d 791 (1956). In Lewis, the residue of the estate was given to three sons “and to the heirs of their body per stirpes.” To effect the intent of the testatrix, the court changed the word “and” to “or” so that the Will read “or to the heirs of their body.” The court said:
The words “and” and “or” are frequently used interchangeably to effectuate the testator’s intention. [Id. 339, 300 P.2d 791.]
The Boys Ranch claims:
In like manner * * * as in Lewis, paragraphs “SECOND,” “FOURTH” and “SEVENTH” of Mary E. Martin’s Will express the intent to dispose of her entire estate and pass nothing intestate.
The similarity escapes me. The interchange of “and” and “or” to effect testatrix’ intent does not approach the deletion of the simultaneous death clause which included the lapse of the Second paragraph.
The same result comes by way of the application of Lindley v. Lindley, 67 N.M. 439, 356 P.2d 455 (1960), to paragraph Sixth.
The Boys Ranch relies on Torres v. Abeyta, 42 N.M. 665, 84 P.2d 592 (1938), for the proposition that “Mary E. Martin can logically be presumed to have changed her Will during the six years since her mother’s death had she not already provided for a contingent devisee.” Not so. Based upon “reason or motive” of making a bequest, the court said it was “not the sole reason for the bequest, because, if so, it seems likely that she would have changed her will.” [Id. 671, 84 P.2d 592.] Its argument is another method by way of “logic and reason” to avoid the condition precedent of the simultaneous death clause. Torres did, however, quote the general rule:
“A condition precedent is one that must be fulfilled before an estate can vest.” [Id. 671.]
The general rule is that a “contingent” Will takes effect only if the contingency happens or occurs, but is defeated by the failure or non-occurrence of the contingency. Torres, supra; Jackson v. Estate of Jackson, 249 Ark. 749, 460 S.W.2d 799 (1970); Wilson v. Higgason, 207 Ark. 32, 178 S.W.2d 855 (1944); Walker v. Hibbard, 185 Ky. 795, 215 S.W. 800 (1919), 11 A.L.R. 832 (1921); Annot., When will deemed contingent, 11 A.L.R. 846 (1921), Supplemented, 79 A.L.R. 1168, superseded, Annot., Determination Whether Will is Absolute or Conditional, 1 A.L.R.3d 1048 (1965); Succession of Martin, 262 So.2d 46 (La.App.1972); Methodist Church of Sturgis, Inc. v. Templeton, 254 Miss. 197, 181 So.2d 129 (1965); Glover v. Reynolds, 135 N.J.Eq. 113, 37 A.2d 90 (1944), aff’d 136 N.J.Eq. 116, 40 A.2d 624 (1945); Meszaros v. Holsberry, 84 So.2d 565 (Fla.1956); American Trust & Safe Deposit Co. v. Eckhardt, 331 Ill. 261, 163 N.E. 843 (1928) (where simultaneous death did occur); Re Searl, 29 Wash.2d 230, 186 P.2d 913 (1947), 173 A.L.R. 1247 (1948).
Mason v. Mason, 268 S.E.2d 67, 68 (W.Va.1980), puts the rule in this fashion:
A will may be conditional or absolute, depending on the language used and whatever can be devined about a testator’s intent in its usage. If the language is clearly conditional, a court must determine whether the language represents the inducement or occasion for making the will, or whether it is a condition precedent to the operation of the document.
The court points out, however, that inducement or motivation “arises primarily about wills that make reference to death while traveling or from illness.” [Id. 69.] In contingency Will cases, the simultaneous death clause is a condition precedent to the operation of the document.
In Matter of Estate of Gardner, 615 P.2d 1215 (Utah 1980), the testatrix stated in her olographic will that she intended to leave her estate to her daughters. This was followed by a provision that the daughters take over the mother’s share “ ‘In the event my husband precedes me in death Intention being clear, the Will was held to be absolute, not conditional. A careful scan of Mary’s Will discloses no intent to give the residue of the estate to the Boys Ranch free of the simultaneous death contingency.
McDonald v. Clermont, 107 N.J.Eq. 585, 153 A. 601, 603 (1931), puts it bluntly:
No matter how certain we may feel that the testator has omitted to make a certain provision through oversight, and that he would have made the provision if he had thought of the contingency, nevertheless, if he did in fact overlook it and fail to make it, the court cannot make it for him.
* * * * * *
I think there is scarcely any doubt that, if the testator could be called back to life and interrogated, he would say that he desired the son’s issue to take, under the contingency which happened. But he cannot now say it; and he did not say it in his will, and this court cannot say it for him. It is regrettable, but, after all, it is the testator’s own fault. The law throws all possible safeguards about the execution of a will, so a man may be sure that his property will go in accordance with what he provides in his will; but the law cannot — or at least does not — compel a man to have his will drawn by some one who knows how.
* * * * * *
PER CURIAM.
The decree order appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice Chancellor Buchanan. [Id. 153 A.2d at 604.]
When a condition precedent is not fulfilled and the Will does not vest the residuary estate, the Will is inoperative and void. Decedent’s estate passes according to the rules governing intestacy. The decedent’s estate descends to Rosa Hanvey, Mary E. Martin’s sole heir at law, under the laws of descent and distribution. Dickerhoff, supra; Jackson, supra; Succession of Martin, supra; Glover, supra; McDonald, supra.
I concur in Judge Donnelly’s opinion.