Opinion
No. 94310.
1942-12-30
WINTERS NAT. BANK & TRUST CO. OF DAYTON v. CULLEN et al.
Munger & Kennedy, of Dayton, for Winters Nat. Bank & Trust Co. Landis, Ferguson, Bieser & Greer, of Dayton, for Ruth Lee Smith Schelin, Julie C. Smith and Helen Smith Sullivan.
Action by the Winters National Bank and Trust Company of Dayton, Ohio, as trustee under the will of Owen Smith, deceased, against Ruth Jerusha Connelly Cullen and others to determine heirship under decedent's will.
Decree in accordance with opinion.
Affirmed 58 N.E.2d 702.Munger & Kennedy, of Dayton, for Winters Nat. Bank & Trust Co. Landis, Ferguson, Bieser & Greer, of Dayton, for Ruth Lee Smith Schelin, Julie C. Smith and Helen Smith Sullivan.
Shaman, Winer & Schulman, of Dayton, for May Otis, Guardian of Lydia Smith, incompetent.
Doyle & Lewis and Harold A. James, all of Toledo, for Florence Shelby Reese and Bessie E. Shelby Roberts.
WISEMAN, Judge.
This matter comes on to be heard on the petition of the Winters National Bank and Trust Company of Dayton, Ohio, as trustee under the will of Owen Smith, deceased, to determine the heirship under decedent's will which was admitted to probate in the Probate Court of Montgomery County, Ohio, on February 24, 1892.
In order to determine the heirship the court is required to construe certain items in the will of the decedent. Counsel in this case have submitted elaborate and helpful briefs. The court has given serious consideration to the contentions made by counsel representing the various parties in interest, and has examined the authorities cited in the briefs.
The will of the decedent was executed on July 23, 1886, and the decedent died on February 20, 1892. At the time of the execution of his will, and on the date of his death, his next of kin consisted of a son, Willis P. Smith, and a niece Mary D. Smith, whom he had legaly adopted. The testator, at the time of his death, left brothers and sisters of the whole and half blood surviving. In his will, after providing for the payment of his just debts and the payment of a legacy in the sum of one hundred dollars, provided as follows in item three:
‘The balance of my property shall be held by my executor in trust to be disposed of as follows: One half of said property said executor shall hold and invest in the most advantageous manner possible in trust for my son Willis P. Smith and out of the earnings thereof or from the principal if necessary shall pay for the support and maintenance of my said son from time to time at intervals of not longer than one month such sums as in the judgment of said executor his necessities and wants may require but no portion of said property or money shall be transferred or paid into said Willis P. Smith's own hands or placed within his control.
‘I make this provision in his case because he has no knowledge of the value of money and would not know how to take care of it or use it properly for his own benefit.
‘The other half of said property said executor shall transfer or pay to my niece and adopted daughter Mary D. Smith provided she shall have attained the age of twenty-five years at the time said estate is ready for distribution. Should she not then have attained that age said executor shall hold and invest said property in trust for her until she shall arrive at said age of twenty-five years at which time said property shall be transferred or paid over to her and during the time he so holds her said property in trust he shall pay over to her from time to time from the earnings or principal thereof such sums as he may deem necessary for her support. At the death of my said niece should she die without issue and before the age of twenty-five years or before said property is turned over to her as above provided I desire that my executor shall hold said property in trust for my said son Willis P. Smith under the same conditions as are required with reference to the provision hereinbefore made for him. Item four of his will reads as follows:
‘If at the death of my said son any portion of the funds or property held in trust for him as aforesaid shall remain unconsumed I direct that in case my son leave no issue of his body such portion shall be transferred or paid to my said niece Mary D. Smith provided she shall then have arrived at the age of twenty-five years of if she shall not then have arrived at said age said property shall be held in trust for her in the manner and under the same conditions as herein provided with reference to her share of my estate and when she shall arrive at said age said property shall be turned over to her. Should my son however die leaving issue said property shall pass to and inure wholly to the benefit of such issue.’ Item five reads as follows:
‘Should any of said property remain unconsumed in the hands of my executor at the death of both said Willis P. Smith and Mary D. Smith, I direct that the same shall be transfereed or paid to my legal heirs.’
The evidence in this case shows that the testator's niece and adopted daughter, Mary D. Smith, died, unmarried and without issue, before arriving at the age of twenty-five years; that his son Willis P. Smith, died, unmarried and without issue, on January 13, 1942; that a substantial amount of the trust estate remains unconsumed in the possession of the successor trustee, The Winters National Bank and Trust Comapny of Dayton, Ohio, which is required to be distributed under the provisions of the will of the testator.
The testator in item five of his will provided that ‘Should any of said property remain unconsumed in the hands of my executor at the death of both said Willis P. Smith and Mary D. Smith I direct that the same shall be transferred or paid to my legal heirs.’ For the purpose of making distribution, the court must determine who are the ‘legal heirs' of the testator. In order to determine this question, the court is required to find when and in whom the estate vested. Did the remainder vest in the ‘legal heirs' of the testator on the date of his death, or did it vest on the date of the death of Willis P. Smith? If the remainder vested on the date of the death of the testator, a question would arise as to whether his heirs were his son and adopted daughter, or his brothers and sisters of the whole blood. If the remainder vested as of the death of Willis P. Smith which occurred on January 13, 1942, the testator's ‘legal heirs' were his brothers and sisters of the whole and half blood, or their descendants. The statute of descent and distribution was, in the meantime, amended taking effect on January 1, 1932, and is now Section 10503-4 of the General Code of Ohio, which places brothers and sisters of the whole and half blood in the same class of heirs, the estate being distributed to them in equal shares, or to their lineal descendants, per stirpes.
On the date of his death in 1892 the next of kin of the testator, under the statute of descent and distribution as it existed at that time, were his son and adopted daughter; and if the son and adopted daughter were eliminated under the statute as it existed at that time the next of kin and ‘legal heirs' of the testator would have been his brothers and sisters of the whole blood, to the exclusion of brother and sisters of the half blood.
In Vol. 41, O.J., Sec. 543, p. 663, it is stated that ‘The terms ‘heirs', ‘heirs of the body’, ‘heirs at law’, ‘lawful heirs', and the like, whether used in the singular or plural, signify, in their strict and technical import, the person or persons appointed by law under the Statute of Descent and Distribution to succeed to the estate in case of intestacy.’ The authorities cited in support of this proposition of law are so numerous that the court finds no necessity to cite any cases in support thereof.
In determining the time at which the remainder vested, the court is required to determine the character of the remainders created in the will of the testator. In order to do this, the court is required to ascertain the intention of the testator. The cardinal rule in all will construction suits is to ascertain the intention of the testator and give effect thereto. In 41 O.J., Sec. 467, p. 590, the rule is stated as follows:
‘The cardinal rule of interpretation of a will is to ascertain and give effect to the intention of the testator, which has been variously declared to be the paramount rule, the primary guide, the sole guide, the guiding spirit, and the polar star. This intention will be followed unless the testator attempts to make disposition contrary to some rule of law or public policy. To that end all rules of construction are to be followed only as they are seen to be aids to a determination of that intention, and no rule, however sanctioned by usage, may be applied to a thwarting of a testator's intention.’ In Sec. 468, p. 599 of the same work it is stated:
‘While, as shown in the preceding section, the purpose of construction as applied to wills is unquestionably to arrive at the intention of the testator, that intention is not that which existed in the mind of the testator, but that which is expressed by the language of the will. The question always before the mind of the court must be not what should the testator have done, but what did he do, and what did he mean by the words which he actually employed.’
In determining this issue, the court has in mind the rule of construction that the law favors the vesting of the estate on a date as early as possible; and likewise the rule of construction that as between a condition precedent creating a contingent remainder, and a condition subsequent creating a vested remainder subject to be divested, the law favors the later. However, all rules of construction must yield to the cardinal rule, which is that the intention of the testator as gathered from the whole will controls. In the final analysis the court must determine the intention of the testator from the provisions of the will itself, and give effect thereto.
In the will under construction the testator provided that one-half of the trust estate should be held for his son, Willis, said trust being in the nature of a spend-thrift trust. The trustee was given power to consume the corpus for the benefit of the cestui que trust. The other half was placed in trust for the benefit of his niece and adopted daughter, Mary, and he directed that said property be transferred to her when she attained the age of twenty-five years. The testator then provided that should she die before arriving at the age of twenty-five years, and without issue, the property should be held in trust for his son, Willis under the same conditions applicable to the property left to him in trust. In item four the testator then provided that if any of the property remained unconsumed at the death of his son and in case his son left no issue of his body, such unconsumed property should be transferred or paid to Mary, provided she should then have arrived at the age of twenty-five years or, if she had not yet arrived at said age said property to be held in trust under the same conditions as provided with reference to her share of the trust estate, and that said property should be turned over to her when she arrived at the age of twenty-five years. The testator also provided that should his son die leaving issue, said property should pass to and inure wholly to the benefit of such issue. Finally, the testator provided that should any of the property remain unconsumed at the death of both Willis and Mary, the same should be transferred or paid to this ‘legal heirs.’ It will be noted that the testator did not state that should Willis and Mary die without issue the property should pass to his legal heirs. The will of the testator was drafted by an experienced lawyer, but it is very obvious that a number of important situations were not convered by the draftsman.
The court must construe this will from its four corners, and cannot ascertain the intention of the testator by giving emphasis to one provision to the exclusion of all other provisions. If item five stood alone, unquestionably the leagl heirs would have taken a vested remainder as of the date of death of the testator. However, in items three and four the testator created what is commonly called cross remainders. In construing the will the court cannot place itself in the situation as it existed on the date of the death of the son, Willis, but must place itself, insofar as possible, in the shoes of the testator at the time of the execution of his will, giving effect thereto as of the date of his death. It is very obvious that the testator had in mind the creation of a life estate for his son, Willis, out of one-half of a trust estate in all events; and, if Mary should die without issue before arriving at the age of twenty-five years, a life estate in the whole was created in favor of Willis, and if Willis died leaving issue said property was to pass to such issue. Likewise, the testator provided that one-half of the trust should pass absolutely to his niece and adopted daughter, Mary, upon her arriving at the age of twenty-five years, but should she die without issue before arriving at said age, said property should become a part of the trust held for the benefit of Willis. There is no provision in the will for the passing of the property in case Mary died under the age of twenty-five years leaving issue.
It is very apparent that the purpose uppermost in the mind of the testator was the giving of protection to his son, Willis, during his life, providing an income to him in the nature of a spend-thrift trust. Also, it is just as apparent that the purpose of the testator was to give one-half of the trust property to Mary, and in case of the death of Willis without issue the whole of the trust estate to her upon her arriving at the age of twenty-five years. It is further apparent that it was the purpose of the testator to give the one-half of the estate placed in trust for Willis, to his issue; and it is just as apparent that he intended, in case Mary died without issue before arriving at the age of twenty-five years, survived by Willis, to give the whole trust estate to the issue of Willis, if he left such issue.
In other words, a number of situations under the express terms of the will may have arisen which would have placed one-half or all of the trust property in the name of Mary absolutely; or one-half or all of the trust property in the issue of Willis. The fact that these contingencies did not arise does not relieve the court of considering the contingencies in determining the intention of the testator. The one-half of the trust property, and under certain conditions the entire trust estate, could have passed in fee simple to persons other than the ‘legal heirs' of the testator as used in item five of his will. It is clear that certain contingencies existed which could have prevented the estate from passing to such ‘legal heirs.’ Did such contingencies create a condition precedent to the passing of the property to testator's ‘legal heirs' as used in item five, or were such contingencies in the nature of conditions subsequent which would have permitted the ‘legal heirs' of the testator to take a vested remainder subject to be divested in the event a situation arose which would have permitted the fee simple title to pass under other provisions of the will.
In. 41 O.J., Sec. 709, p. 834, conditions precedent and subsequent are defined as follows:
‘Conditions are of two kinds, namely, conditions precedent and conditions subsequent. A condition precedent is a condition upon the happening of whch an estate will vest. A condition subsequent defeats an estate already vested. There are no technical words to distinguish between conditions precedent and conditions subsequent; whether they are one or the other depends on the intent of the person creating the condition.’
In 23 R.C.L, p. 550, it is stated:
‘If the remainder is limited after an intervening contingent remainder in fee, and, if the life tenant dies without issue surviving, then to the testator's heirs at law, the alternative remainder to the latter, which can take effect only in the event of the life tenant dying without issue, is a contingent remainder.’
In the case at bar the testator created alternative remainders, either to the issue of his son, Willis, or in the ‘legal heirs' of the testator. The text just quoted has particular application to the facts in this case.
Again in Vol. 3, Restatement of the Law of Property, Sec. 270(d), the rule in regard to future interest is stated as follows:
‘When property is limited by an otherwise effective conveyance ‘to B for life if B dies without issue, then to C’, or by other words of similar import, then, unless a contrary intent of the conveyor is found from additional language or circumstances, the interest of C can become a present interest, if, but only if, B is unsurvived by issue at the time of his death.'
In Ohio National Bank v. Boone, 139 Ohio St. 361, 40 N.E.2d 149, 150, 144 A.L.R. 1150, the syllabus reads as follows:
‘The law favors the vesting of estates at the earliest possible moment, and the remainder after a life estate vests in the remainderman at the death of the testator, in the absence of a clearly expressed intention to postpone the vesting to some future time.’
In that case there was a will giving a life estate with power to consume, and the unconsumed portion upon the death of the life tenant was to be paid to ‘my heirs share and share alike.’ The court held that the remainder was vested in the testator's heirs who answered that description under the statute of descent and distribution in force at the time of his death. The court further held that this rule was applicable unless a contrary design on the part of the testator is plainly apparent. The court in discussing the law of remainders as we find it in Ohio, 139 Ohio St. 361, 40 N.E.2d on page 152 holds:
‘The criterion of a vested remainder is the present capacity to take. So, when there is a person in being who would have the right to possession immediately upon the termination of the particular intervening estate, the remainder is vested. In re Hutchison, 120 Ohio St. 542, 549, 166 N.E. 687, 690. It is not the uncertainty of actual enjoyment, but the uncertainty of the right to enjoyment that makes a remainder contingent. Smith v. Block, 29 Ohio St. 488, 497. The law favors the vesting of estates at the earliest possible moment, and it is well settled in Ohio that a remainder after a life estate vests in the remainderman at the death of the testator, unless an intention to postpone the vesting to some future time is clearly expressed in the will.’
139 Ohio St. 361, 40 N.E.2d on page 154 the court held:
‘Since the law strongly favors the immediate vesting of estates, and since no factor stood in the way of realization by the ultimate beneficiaries except the right of Helen M. Quinn to benefit from the estate so long as she lived, it would seem but logical to say that time was affixed only to the enjoyment of the gift in remainder, whatever might be its amount at the termination of the life estate. We are therefore of the opinion that the interest in remainder vested at the death of the testator in such person or persons as then answered the description of his heirs within the statute of descent and distribution existing at such time.’
In Tax Commission v. Oswald, 109 Ohio St. 36, on page 52, 141 N.E. 678, on page 682, the court, in discussing vested and contingent remainders, held:
‘The further inquiry is necessary as to whether the same are vested or contingent remainders. A remainder is vested when there is a present fixed right to future enjoyment. A remainder is contingent which comes into enjoyment or possession on the happening of some uncertain event.
‘The further distinction is, however, to be borne in mind that it is not the uncertainty of enjoyment in future, but the uncertainty of the right to that enjoyment, which marks the distinction between a vested and contingent remainder.’
In the case of Peck, Trustee, v. Chatfield, 24 Ohio App., 176, 156 N.E. 459, wherein the testator devised the property to the trustee with power to sell and use the income of the principal for support of the servant for life, and then to a daughter for life and on her death to her son on his attaining majority, the court held that the son took only a contingent remainder, and in discussing vested and contingent remainders the court on page 181 of 24 Ohio App., on page 460 of 156 N.E. quotes from Richey, Ex'r v. Johnson, 30 Ohio St. 288, 289, as follows:
‘If the contingency is attached to the thing, or right given, or the person to take, the interest is contingent; if it is attached to the time when the thing or right is to be enjoyed, it is vested, the contingency referring merely to the payment or division. In the former case it is in the nature of a condition precedent, which is the consideration of the gift; but in the latter, it is the mere postponement of payment of what is due by absolute right.’
The court, in applying this rule of law to the will under construction, held:
‘There was no vested interest, in the sense of a present right of enjoyment, to any person capable of future reception, or upon the happening of an event certain. There was no present right of future enjoyment given, nor was it given to a person who had the present capacity to take and enjoy it, let the contingency happen when it may. The right did not depend solely upon the death of Eliza Wade Chatfield. It depended on whether or not there was any property within the provisions of the will, and upon whether or not William H. Chatfield, Jr., was in being and had arrived at the age of twenty-one years.’
Again in Vol. 16, Ohio Jur., Sec. 98, p. 479, a contingent remainder is defined as follows:
‘A contingent remainder is one where the estate in remainder is limited either to a dubious and uncertain person, or upon the happening or a dubious and uncertain event, so that the particular estate may chance to be determined and the remainder never take effect. It is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent. Where there is neither an immediate right of present possession nor a present fixed right of future possession, a remainder is contingent.’
A criterion of a vested remainder is the present ability to take, and the test of the power to alienate has also been applied in determining whether a remainder is vested or contingent. See Millson v. Drake, 37 Ohio App. 559, 175 N.E. 34. The court does not see fit to review all the cases cited by counsel in their briefs. The court believes it is sufficient to quote only from several opinions and several works distinguishing between vested and contingent remainders.
In the case at bar, the court finds that the ‘legal heirs' of the testator as used in item five of his will, at the date of his death had neither an immediate right of present possession nor a fixed right at that time of future possession. In other words, such heirs did not have the present fixed right of enjoyment at the date of his death. The right of enjoyment was uncertain. This uncertainty did not relate to the actual enjoyment, but to the right of future enjoyment.
It is contended by counsel that the fact that the life tenant is a member of the class of heirs who may take, or is the sole heir of the testator, would not prevent a vesting of the remainder as of the date of death of the testator. In certain cases the courts have been required to hold that a vesting of the remainder took effect as of the date of death of the testator, and that simply because a life tenant who had been provided for in the will was a memeber of the class who took the remainder, would not change a vested remainder into a contingent remainder. However, where the life tenant is the sole heir at low of the testator, and the testator provides that upon the death of the life tenant the estate should be distributed to his heirs at law, the courts have only recently attempted to preserve a vested remainder in the heirs at law as of the date of death of the testator by holding that it must have been the intention of the tesator to give the estate to such persons as would be his heirs at law had the life tenant not survived. This is a typical example which gave rise to the old familiar statement that hard cases make hard law.
In Vol. 3, Restatement of the Law of Property, Sec. 308(k), this proposition of law is stated as follows:
‘If a person to whom a prior interest in the subject matter of the conveyance has been given is the sole heir of the designated ancestor at the death of such ancestor, there is some incongruity in also giving such person all the interest under the limitation to ‘heirs' or ‘next of kin’. The incongruity is especially great when the will conveys property ‘to B and his heirs but if B dies without issue to my heirs' and B is the sole heir of A. Thus, the fact that in such cases B is the sole heir of A at the death of A tends to establish that A intended his heirs to be ascertained as of the death of B, so that B is prevented from sharing in the limitation to the heirs of A.’
In the case at bar, in determining the intention of the testator to either create a vested or contingent remainder in his ‘legal heirs' as of the date of his death, the court has a right to take into consideration the incongruity which would arise if the court were to construe the remainder as vesting as of the date of the death of the testator. In occurs to this court that in the absence of words to show a contrary intent, a construction of the will whereby the class of persons who would take as ‘legal heirs' of the testator as of the date of death of the life tenant, would be more in accord with the intention of the testator than to find that under a vested remainder the ‘legal heirs' of the testator should be determined as of the date of the death of the testator but requiring an exclusion of certain heirs at law and the protection of others.
The court finds that the testator did not intend to give a vested interest in the trust in his legal heirs as of the date of his death. Obviously, the testator had in mind a purpose to give the use of his property to Willis and Mary with certain limitations, and under certain conditions the fee to Mary or to the issue of the body of Willis. The testator expressed his primary purpose and almost his entire testamentary intent in items three and four of his will. There is nothing in item five which indicates that the testator intended to change what the court construes to be a contingent remainder, into a vested remainder in his ‘legal heirs' as of the date of his death. Apparently, the testator intended item five to be a ‘catch-all’ to avoid intestacy. The fact that his heirs at law as of the date of death of Willis P. Smith in 1942, embrace brothers and sisters of the half as well as of the whole blood does not affect the testamentary intent. It is sufficient for the court to determine that it was the intention of the testator to give only a contingent remainder in his ‘legal heirs' as of the date of the death of Willis P. Smith.
Accordingly, the court finds that the legal heirs of Owen Smith as of the date of the death of Willis P. Smith are entitled to the distribution of the unconsumed portion of the trust fund; and under the law of the State of Ohio existing at that time, brothers and sisters of the whole and half blood, or their descendants, per stirpes, are entitled to the distribution thereof.
The costs of this proceeding will be assessed against the estate.
Counsel will draw the proper entry.