Opinion
No. 49/546.
07-18-1921
SAYRE v. KIMBLE et al.
Samuel P. Hagerman, of Blackwood, for defendant Evin T. Kimble. Joseph W. Wilson, of Camden, for defendant Enos Kimble.
Bill for construction of will by Florence Sayre against Enos Kimble and others. Will construed.
Lewis Starr, of Camden, for complainant.
Samuel P. Hagerman, of Blackwood, for defendant Evin T. Kimble.
Joseph W. Wilson, of Camden, for defendant Enos Kimble.
LEAMING, V. C. The will of Lewis F. Kimble, after making several bequests, provides as follows:
"Sixth. I also give and bequeath to my brother Enos Kimble the income from 423-426-427 Chestnut St., and 1136 Broadway and the interest on the Camden Fire Association stock also the interest on fifteen thousand ($15,000). The same to be held in trust during his lifetime. He is to keep the said properties in good repair and pay all taxes water rents and city claims against the same.
"Seventh. I give and bequeath all the rest of my property both real and personal of whatsoever kind and where ever found to my two brothers Enos Kimble and Evin T. Kimble to share and share alike to them and their heirs forever.
"Eighth. Should Enos Kimble depart this life all his income is to go to my brother Evin T. Kimble during his lifetime.
"Ninth. At the death of Enos and Evin T. Kimble the whole estate is to go to my niece Florence Kimble to her and her heirs forever.
"Tenth. Should my niece Florence Kimble depart this life then the whole estate to go to my two brothers Enos Kimble and Evin T. Kimble to share and share alike to them and their heirs forever."
Pursuing the cardinal rule of construction that all of the provisions of a will must be considered and if possible given effect, it seems clear that testator's intent was to give to Enos Kimble the income of the property named in the sixth clause of the will during his lifetime, and in the event of the death of Enos before Evin T. Kimble to give that income to Evin during his lifetime; the residue of testator's estate, including the reversion of the property already referred to, testator obviously intended to go to Enos and Evin in fee simple subject to the provision that at their death it should go to Florence Kimble in the event of her surviving them, and not otherwise.
I find nothing in either the rules for the construction of wills or in any recognized restriction of estates which may be created through testamentary provisions that in any way militates against giving full and complete effect to that intent.
Although by the seventh clause of the will an absolute estate in fee in the residuary estate is expressly given to Enos and Evin, it was testator's privilege to limit that estate by a subsequent valid provision that the estate should go over to another person upon the happening of a specified contingency. An estate in fee, when so limited, is still a fee for the reason that it will last forever if the contingency does not happen, but so long as it is possible that the contingency may happen, it is a determinable fee. In the adjudicated cases the contingencies on which determinable estates in fee have been most frequently considered and declared to exist under the provisions of wills will be found to have been the death of the first devisees without issue; but it has also been held that estates whose continued duration depend upon the survivorship of the devisee beyond the life of some other person are also determinable fees. 30 Am. & Eng. Enc. Law (2d Ed.) 752. Indeed it seems impossible to distinguish in principle the two classes of contingencies referred to.
This right of limitation of an estate in fee is surrounded by appropriate restrictions. Since an executory devise is indestructible by the act of the owner of the precedent estate it necessarily follows that if the first devisee is clothed by the will with the right to convey in fee simple so as to destroy the attempted limitation over, the limitation over is void. Nor will a testator be presumed to have intended by subsequentexpressions and limitations to cut down or condition a fee simple estate which has been clearly given, and accordingly the intention of testator to limit over in such circumstances must be clear; but when made clear by the provisions of a subsequent clause of a will the precedent estate in fee may be thus limited over.
My conclusion is that Enos Kimble and Evin T Kimble enjoy in the residuary estate of Lewis P. Kimble, deceased, a vested estate in fee subject to be divested at their death and vested in Florence Kimble in the event of her surviving them both. This conclusion is consistent with the principles defined in Patterson v. Madden, 54 N. J. Eq. 714, 36 Atl. 273.