Farnam v. Farnam

Park, C. J.

(dissenting).—I cannot concur in the views expressed by the majority of the court in regard to the disposition of the principal of the estate contained in the fifth clause of the will in question. The majority hold that the principal vested by right in the grandchildren of the testator, as a class, at the time of the testator’s death.

I think no estate in the principal could vest by the terms of the will before the death of the last survivor of the testator’s children, and, if Mrs. Farnam should then be living, not before her death.

Although the testator had nearly two million dollars of property to bequeath to his wife, children and grand*292children, still, not contented with dividing this enormous estate among them, he conceived and cherished the scheme of doubling the amount before any disposition of the principal should be made. This he sought to accomplish after his death by adding to the principal of his estate a.large proportion of its yearly income till the death of the last survivor of his wife and children.

The testator was in the seventy-ninth year of his age when the will was made. He had five children then living, the eldest of whom was forty-one, and the youngest twenty-nine. It was highly probable, almost certain, that some one of them would live to be as old as himself—would live at least forty years after his death.

Such being the case, the testator must have expected that his great estate would, and therefore intended that it should, accumulate forty years at least before the time would arrive for the termination of the trust, and before the words “I give, devise and bequeath all the estate which shall then be held in trust under this will to my grandchildren who shall then be living,” would take effect.

I am wholly unable to see how it is possible for these words to convey, at the death of the testator, the beneficial interest in the principal of the estate, as the majority of the court hold. It seems to me the testator labored to make it clear beyond the possibility of a doubt, that the' time when the bequest would take effect was when the trust should terminate at the death of the last survivor of his wife and children. Up to this time he had devised and bequeathed the legal estate in fee simple to his trustees by a previous clause in the will, and now, on the death of “ the last survivor,” &c., he declares that the legal estate in fee • simple. which he had transferred to the trustees shall terminate, and then he devises and bequeaths the entire estate, legal and equitable, in fee simple to his grandchildren who shall then be living, &e.

For greater precision and seemingly to put the matter beyond all doubt, he repeats the word then or its equiva lent a number of times. “ At the decease, &c., this *293trust shall cease ”; “ at the decease, &c., I give.” The word and, between cease and give, is used to supply the words “at the decease, &c.,” and save a repetition of them. “ And ” always signifies an addition to what precedes. The testator says “At the decease of the last survivor, &c., this trust shall cease.” But this is not all that shall then take place. The testator goes on to say “and” (that is, in addition to my putting an end to the trust,) “ I give,” &e. Hence, if we supply in words all that is understood by the word “ then ” and its equivalent, we shall have in the sentence expressing the gift the following: “ At the decease, &c., this trust shall cease ; at the decease, &c., I give all the estate, which at the decease, &e., shall be held in trust under this will, to my grandchildren who shall, at the decease, &c., be living..

And further, by the terms of the will manifestly the legal estate in the trustees did not pass, and could not have passed, to the grandchildren on the death of the testator. This is conceded. And it must further be conceded that on “the death of the last survivor,” &e., it will, for tlie first time, pass to the grandchildren then living, by the words “ I give, devise and bequeath.” These are the only words in the will that make any disposition of the principal estate to • the grandchildren. And here they cany the entire estate in fee simple to such of the grandchildren as shall then be living, and to the living issue of those who shall then be dead. Is it possible that these words had the effect to transfer the equitable interest in the principal estate to the grandchildren on the death of the testator, when here, forty or fifty years afterwards, the same estate is clearly and unmistakably transferred to them, together with the legal' estate ?

Again, the testator, in the fifth clause of the will, places himself at the death bed of the last survivor of his wife and children, and upon his or her death declares that all the object he had in view in trusteeing his property, in order that he might transmit to his descendants an enormous estate, has now been accomplished. He has no more need *294of trustees, and therefore he says “ the trust shall cease, and I give, devise and bequeath all the estate” now held by the trustees, to my grandchildren now living, “ and to their heirs forever.” He at that time, in legal contemplation, uttered the words of gift.

Again, the article we are considering goes on to say—■ “ but if any grandchild of mine shall have died, leaving a child or children surviving at the expiration of said trust, such child or children shall take the share that his, her or their parent would have been entitled to if living.”

“Would have been entitled to if living” presupposes that his, her or their parent had' never been entitled to the share, owing to his death before the time when the shares are given by the will. These words show clearly that the testator never supposed that he had given to his grandchildren a vested interest in his estate which would take effect at the time of his death. And, indeed, so to do might be ruinous to the scheme the testator had in view in trusteeing his property, which was, as we have seen, to transmit to his descendants a vast estate. A vested interest in the grandchildren could be alienated or attached for debt, and it might be that when the vast estate, with all its accumulations for many years, should be ready for distribution in the far future, strangers to the blood of the testator might come in and claim it. The testator had fourteen grandchildren living at the time of his death, the eldest of whom was but eleven years of age. During the forty or fifty years that the trusteeship in all probability would have to continue, their number would be doubled or trebled, while death in the meantime would remove some of them, and they would wait with great impatience for the time to arrive when they should come into possession of their estates; and many of them would become discouraged and sell their interests at any price for ready money, preferring to do so rather than wait till old age to get more, and in the mean time run their chances of dying and getting nothing. It would seem therefore that, to carry out the scheme of the testator to a successful termination, it *295was necessary to give to the grandchildren only a contingent interest, incapable of vesting. This the testator must have known, and in the making of his will acted with reference to it accordingly.

But it seems to me clear, from the language of the bequest, that the interests of the grandchildren in the principal estate of the testator are merely contingent. Their interests depend altogether upon the uncertain event of their being alive at the death of the last survivor. The gift is only to grandchildren then living. To be then living is essential to the right to receive any of the estate. It is a condition precedent. It distinguishes the grandchildren who will take from those who will not take. As well might a child of A claim a bequest made to a child of _B, as for a grandchild to claim under this bequest who was not then living. If the testator had said—“ At the death of the last survivor of my wife and children I give, devise and bequeath all my estate to my grandchildren,” and had stopped there, then, inasmuch as the description would apply to all the grandchildren, and the event on the happening of which they were to take was certain to occur at some time, it might be said that the grandchildren took vested interests in the principal estate at the death of the testator. The distinction between a vested and contingent interest is this. If the event is certain to happen on which the interest is made to depend, and the taker is certain, the interest is vested. But if the event is uncertain ever to occur, or the person to take is uncertain, then in either case the interest is contingent. This distinction is clearly stated in Alfred v. Markes, 49 Conn., 473.

It seems to me that here lies the error in the opinion given by the majority of the court. They treat the case as though there was no uncertainty in the persons to take, whereas, the will leaves it wholly uncertain who will take the estate at the death of the last survivor, &c.

The fifth clause of the will provides as follows with regard to the children of the grandchildren:—“ If any grandchild of mine shall have died leaving a child or children *296surviving at the expiration of said trust, such child or children shall take the share that his, her or their parent would have been entitled' to if living.” Here the will gives the share that would have come to the deceased parent, had he been living at the death of the last survivor, &c., directly to the child or children of such parent. The child or children take as purchasers, as much so as though they were the child or children of strangers. The phrase, “ such child or children shall take the share that his, her or their parent would have been entitled to if living,” was used merely as descriptive of the interest they would take directly from the will as purchasers.' They inherit nothing from their parent. He had nothing for them to inherit. This position does not admit of a question. Now, let us take the case of one grandchild, which will illustrate many cases that may-occur. A was born riot long after the death of the testator. He grows up, marries, and has a child B. B grows up, marries, and has a child <7. Thus three generations come into being after the death of the testator and before-the death of the last survivor, &e. They are all living. Who can tell to which of them the bequest will carry á portion of the principal estate, if eventually it will carry any to either of them? Manifestly it is all uncertain by the terms of the will whether either of them will take; much more which of them, if either. If A happens to be alive at the death of the last survivor, &c., he will take. If A is not then alive, but B is, B will take. If A and B are both dead, but Q is then living, (7 will take. If all are then dead, none will take. It is the uncertainty of the taker that makes the interest ,in the grandchildren merely contingent ;—contingent from the death of the testator t-o the death of the last survivor, &e., when it will become vested in parties unascertainable before the time arrives.

It. seems to me that this view of .the ease is fully supported by the authorities in this state and elsewhere. In the case of Alfred v. Marks, 49 Conn., 473, a devise was made to M. in-fee, coupled with a proviso that if he should die without children a portion of the property should go to-*297the heirs of W. It was held that the heirs of W. took only a contingent interest. In the case of Bristol v. Atwater, 50 Conn., 404, an estate was left in trust for Mrs. Denman, remainder to her children in fee; but if she should leave no children, then the estate was given to the other children of the testator in equal shares or to their issue, the children of such as were deceased, whether of children or grandchildren, to take the share which their deceased parent would have had. It was held that the interest in the other children of the testator was contingent till the death of Mrs. Denman. This case seems decisive of the one in question.

In the case of Wheeler v. Fellowes, 52 Conn., 238, the testator gave his property to executors in trust for the payment of the income to his children during their lives, and when the youngest of the testator’s grandchildren should arrive at the age of eighteen' years the principal of the trust estate was to be .divided in fee equally among the grandchildren, “and if any of them shall have deceased leaving children or other descendants, then such children or other descendants shall take the share that would have belonged to his or her deceased parent or ancestor, had he or she then been living.”' The court held that the interest in the grandchildren or other descendants was contingent till the youngest grandchild should arrive at eighteen years of age. This case is strikingly like the one under con sideration.

In the case of Brown v. Williams, 5 R. Isl., 309, the de vise was to trustees for the use of the testaltor’s daughter M. for life, remainder to her issue, and if she died leaving no issue, then as follows:—“ I give and devise the aforesaid described lands and premises to the children of my daughter A., not only those who are now born but also those that may be born, to be equally divided between them, share and share alike, or to the issue of deceased children that shall be alive at the time of my daughter M.’s decease; the children of a deceased child to take the same share their parent,' if living, would have taken, the which I do *298hereby give to them, their heirs and assigns forever.” The court held that the interest of the children of A. and their issue was contingent till the death of M. This case is another strikingly like the one in question.

In the case of Thomson v. Ludington, 104 Mass., 193, a testator by will gave his estate to his widow during her life or widowhood, and at her decease or marriage to such of his children as should then be living, share and share alike, to them and their heirs forever. One of the daughters of the testator survived him, but died before the death or marriage of the widow, leaving a son born in the life time of the testator. The court held that the-deceased daughter of the testator had only a contingent interest that could not be inherited by the son.

In the case of Hall v. Hall, 123 Mass., 120, a testator, whose daughter and her children survived him, by his will bequeathed a certain sum in trust to accumulate till his grandchildren respectively should attain the age of thirty-five years, when a proportionate part of the fund and accumulation, divided by the number of grandchildren then ’living, should be paid over to each of them. It was held by the court that under this bequest the grandchildren of the testator took only contingent interests, which could not vest till the grandchildren respectively arrived at the age of thirty-five years.

In the case of Colby v. Duncan, 139 Mass., 398, the testator, after making several bequests, gave the income of the remainder of his estate to his wife during her life ; the will then proceeding as follows:—“ And after the decease of my said wife I give, devise and bequeath all my estate, real, personal and mixed, to my children who may then be living, in equal shares; and in case either of them shall have died, leaving legal heirs, then such heirs shall be entitled to the share which their deceased father or mother would‘have been entitled to-if living; to hold to them and their respective heirs and assigns forever.” The court held that the interest of the children of the testator during the life of the wife was merely contingent. Judge Allen, in *299giving the opinion of the court, said:—“The devise is clearly limited to the children who may be living at the decease of the testator’s wife, and until that event happens it cannot be ascertained who will take.” This case, in all essential particulars, is like the one under consideration.

I think the interest the grandchildren have in the principal estate of the testator is merely contingent; and, if so, then it is clear that the disposition the testator attempted to make of it is void by the statute against perpetuities. This the majority of the court concede, and the question is too clear for discussion.

In this opinion Loomis, J., concurred.