A will contained the following provision:
"It is my will and desire that my said homestead shall be kept
and continued as the home and residence of my daughters so long as
they shall remain single and unmarried. I therefore first after the
death of my wife will and devise the said estate to my said
daughters being single and unmarried and to the survivor and
survivors of them so long as they shall be and remain single and
unmarried and on the death or marriage of the last of them then I
direct that the said estate shall be sold by my executors and the
proceeds thereof be distributed by my said executors among my
daughters living at my death and their children and descendants
(
per stirpes)."
The testator had three sons and five daughters, all of whom were
living when the will was made. The will contained provisions for
testator's wife and sons. Four of the daughters married and had
children; only one of them married before testator's death, and her
children were born subsequently. One daughter remained single and
survived all her sisters. Nine years after testator's death, the
widow having also died, a decree was entered in a suit in which the
daughters alone were parties, directing that the property be sold
and proceeds divided among the daughters. In a suit brought
subsequently by a purchaser to quiet title against claims of
grandchildren of the testator,
held that:
Page 224 U. S. 225
The provision in the will for the sale of the homestead was for
the protection of testator's daughters, and the word "living at the
time of my death" may not be disregarded, and the daughters had a
vested remainder in fee not defeasible as to any of them by her
death leaving descendants before the expiration of the preceding
estates.
Although the clause is elliptical, and the provision for
representation is not fully expressed, the court finds from this
and other provisions in the will that the intent of the testator is
clear, in providing for his daughters and their children and
descendants
per stirpes, to establish the right of those
daughters who survived him as of the time of his death and to
provide for the representation of any who might previously die.
The purchasers under the decree in the previous suit for sale
and division of proceeds acquired a good title under the
decree.
33 App.D.C. 242 affirmed.
The facts, which involve the construction of a will disposing of
real estate in the District of Columbia, are stated in the
opinion.
Page 224 U. S. 232
MR. JUSTICE HUGHES delivered the opinion of the Court.
This is an appeal from a decree of the Court of Appeals of the
District of Columbia, which affirmed a decree in favor of the
complainant, the Washington Loan & Trust Company. The suit was
brought to quiet title, and the question concerns the construction
of the fifth clause of the will of Washington Berry, who died in
1856. This clause relates to the testator's homestead -- the
property known as Metropolis View, containing about 410 acres in
the District of Columbia -- and is as follows:
"Item 5th. It is my will and desire that my said homestead shall
be kept and continued as the home and residence of my daughters so
long as they shall remain single and unmarried. I therefore, first
after the death of my wife, will and devise the said estate to my
said daughters, being single and unmarried, and to the survivor and
survivors of them so long as they shall be and remain single
and
Page 224 U. S. 233
unmarried, and on the death or marriage of the last of them,
then I direct that the said estate shall be sold by my executors,
and the proceeds thereof be distributed by my said executors among
my daughters living at my death, and their children and descendants
(
per stirpes), and I hereby reserve to my heirs the family
vault and burial ground, embracing half an acre of ground, and
having the said vault as a center, and on such sale as aforesaid by
my executors I earnestly enjoin on my sons or some of these sons to
purchase the said homestead, that it may be kept in the
family."
The will was executed in 1852. The testator had three sons and
five daughters, all of whom were living at that time, and they,
with his wife, survived him. Four of the daughters married and had
children; only one of them was married before the testator's death,
and her children were born subsequently. One daughter, Eliza Thomas
Berry, remained single and survived all her sisters, dying in 1903.
The testator appointed his wife and one of his sons executors and
trustees; the widow acted as executrix, but the son declined.
Soon after the death of the testator, the widow removed from the
homestead, and neither she nor any of her unmarried daughters
occupied it again. During the War, the estate suffered much injury;
the vault was destroyed and it was necessary to remove the bodies
it had contained; the rent and profits were not sufficient to pay
taxes or to provide for repairs, and the property fell into a
delapidated condition.
The testator's widow died in 1864. In the following year, a suit
was brought by three of the married daughters and their husbands in
the Supreme Court of the District of Columbia to have the property
sold and the proceeds divided among the daughters, save the
proceeds of the burial ground and vault, which the bill asked to
have distributed among the heirs at law. The other children
Page 224 U. S. 234
of the testator, with the spouses of those that were married,
were parties defendant. There were, then living, three
grandchildren by the daughters, but they were not parties of
represented. All the defendants, save one married daughter, who was
a minor and answered by guardian, submitting her rights to the
court, consented to the decree. Eliza Thomas Berry, the unmarried
daughter, stated in her answer that she relinquished "upon the sale
of the estate in the bill mentioned her right to the possession and
enjoyment thereof whilst unmarried," and consented "to the
distribution of the proceeds of sale as prayed." The case was
referred to the auditor to take testimony and report whether the
sale would be for the advantage of the infant defendant. He
reported that the property was an unfit residence for the unmarried
daughter; that the land generally was poor and unproductive as a
farm; that the testator had used it as a mere place of residence,
and it was fit only, as a whole, for a man of fortune; that the
burial place had been demolished and the buildings and fences were
out of repair, and that it was a fit case for a sale.
In October, 1865, the court entered a decree for sale,
appointing for that purpose two trustees, who were authorized to
divide the estate and to sell it in parcels if his were found
advisable. The division was made accordingly, and certain lots were
sold at public auction. Subsequently, upon the petition of two of
the daughters and their husbands, stating that they had children to
support, and were in need of the money that would come from the
sale, the court ordered the trustees to sell the residue of the
estate, and sales were made at public auction, which were confirmed
by the court in October, 1868, and the proceeds were distributed
among the five daughters of the testator. In the long period of
years since that time, the property has been divided into many
separate parcels, which have been the subject of conveyances,
Page 224 U. S. 235
it being assumed that a valid title passed under the court's
decree.
In 1906, suit was brought in the Supreme Court of the District
of Columbia by the children of the daughters of the testator,
against the children of the deceased sons, averring that, on the
death of the unmarried daughter, Eliza T. Berry, in 1903, the
entire equitable interest in the property vested in fee simple in
the complainants; that their rights and interests had not been
affected by the decree in the former suit or by the sales that had
been made under it. It was prayed that trustees might be appointed
in the place of those named in the testator's will, to whom the
legal title should be transferred. Decree was passed and trustees
were appointed by the court on February, 20, 1907.
Thereupon Henry P. Sanders brought this suit against all the
parties in the suit above mentioned, including the trustees, to
quiet the title to a portion of the land which he had derived, by
mesne conveyances, through the sale made under the decree passed in
1868, and he alleged that he, and those under whom he claimed, had
been for thirty-five years in exclusive and continuous possession,
relying upon the validity of their title acquired
bona
fide for a valuable consideration. Mr. Sanders died in 1907,
appointing the Washington Loan & Trust Company executor and
trustee of his last will and testament, by which the real property
in question was devised, and an order was made substituting this
company as complainant.
It is contended by the appellants that, under the provision of
the fifth item of the will, the proceeds of the sale, which the
testator directed to be made of the property, should be distributed
"among his daughters and their children and descendants, as those
classes should exist when all of the daughters should be dead or
married." The appellee insists that, at the death of the testator,
the
Page 224 U. S. 236
daughters took a vested remainder in fee, "to take effect in
possession on the marriage of all of them, or the death of the last
unmarried daughter."
On examining the scheme of the will, we find that the testator
made separate provision for his three sons, on the one hand, and
for his five daughters, on the other. While he contemplated the
marriage of his children, and the birth of issue, he did not seek
to tie up his property for the benefit of his children's
descendants. The testator made no provision whatever for
grandchildren or for the descendants of his children, save as it
was made in the clause in question and in the residuary clause.
To each of his sons he devised a tract of land. The devise was
to the son, his heirs and assigns. In the case of two of the sons,
it was made on condition that the son and his heirs should convey
to the testator's daughters the son's interest in certain real
estate, and in case the conveyance were not made within two years,
the devise was not to take effect, and the property was to go to
his daughters living at his death, share and share alike. There was
a slight difference in the wording of the conditional devises to
the daughters; in the one, they were described as "my daughters
living," and in the other as "my daughters living at my death."
After thus providing for the sons in the first three items of the
will, the testator adds that he annexes to their several
estates
"this limitation, that, if either of them shall die without
leaving lawful issue, that the estate of each one, or both, if more
than one, shall go to the survivor or survivors, his and their
heirs."
We have no occasion to consider the effect of this provision
upon the devises to the sons, but it may be noted that there was no
gift to the children or descendants of the sons, nor did the
testator undertake, in case all the sons died without leaving
issue, to devise the property to the children or descendants of his
daughters.
By the fourth item of the will, the testator gave to his
Page 224 U. S. 237
wife for life, in case she survived him, the homestead estate --
the property here in question -- together with certain money and
securities, subject to the maintenance and education of his five
daughters, while unmarried, and to the provision that each
daughter, on marriage and birth of issue, should receive one-sixth
part of the personal property bequeathed. When the condition was
satisfied by birth of issue, the daughter took her share
absolutely. Then followed the fifth clause above quoted, under
which this controversy has arisen. And to this was added the
residuary clause -- item sixth -- providing as follows:
"I direct that my executors shall divide and distribute all the
rest, residue, and remainder of my personal estate among my
children at my death, and the descendants of such as may have died
during my life to take a parent's part."
In the disposition of the homestead, the testator explicitly
states his purpose. He was planning for the protection of his
daughters. He desired the property to be the home of his widow so
long as she lived, and that, after her death, it should continue to
be the home of his daughters while they remained unmarried. When
this object had been attained, the property was to be sold and the
proceeds divided.
These avails were to be distributed "among my daughters living
at my death and their children and descendants (
per
stirpes)." The words "living at my death" may not be
disregarded. They are not to be eliminated in the interest of a
construction which would leave the clause as though it read
"among my daughters who shall be living at the time of the death
or marriage of my last unmarried daughter and the children and
descendants (
per stirpes) of such of my daughters as may
previously died."
At the time of the death of the testator, his five daughters
were living, and none of them had children or descendants. By the
definite language of the
Page 224 U. S. 238
clause, these daughters were then ascertained and identified as
those entitled to the immediate enjoyment of the property on the
termination of the preceding estates. They therefore had a vested
remainder in fee.
Croxall v.
Shererd, 5 Wall. 268,
72 U. S. 288;
Doe v.
Considine, 6 Wall. 458,
73 U. S.
474-477;
Cropley v.
Cooper, 19 Wall. 167,
86 U. S. 175;
McArthur v. Scott, 113 U. S. 340,
113 U. S. 380;
Hallifax v. Wilson, 16 Ves. 171. The fact that the
property was directed to be sold, and that they were described as
distributees of the proceeds, did not postpone the vesting of the
interest. "For many reasons," said this Court by Mr. Justice Gray
in
McArthur v. Scott, supra, (pp.
113 U. S. 378,
113 U. S.
380),
"not the least of which are that testators usually have in mind
the actual enjoyment, rather than the technical ownership, of their
property, and that sound policy as well as practical convenience
requires that titles should be vested at the earliest period, it
has long been a settled rule of construction in the courts of
England and America that estates, legal or equitable, given by will
should always be regarded as vesting immediately, unless the
testator has by very clear words manifested an intention that they
should be contingent upon a future event. . . . Words directing
land to be conveyed to or divided among remaindermen after the
termination of a particular estate are always presumed, unless
clearly controlled by other provisions of the will, to relate to
the beginning of enjoyment by the remaindermen, and not to the
vesting of the title in them. . . . So, a direction that personal
property shall be divided at the expiration of an estate for life
creates a vested interest."
In
Cropley v. Cooper, supra, the testator bequeathed
the rent of his house to his daughter for her life, and it was
provided that, at her decease, the property should
"be sold, and the avails therefrom become the property of her
children or child, when he, she, or they have arrived at the age of
twenty-one years, the interest in the meantime to be applied to
their maintenance."
When the testator
Page 224 U. S. 239
died, his daughter, who survived him, had one son about three
years old. It was held that the son took a vested interest at the
death of the testator. The Court said:
"A bequest in the form of a direction to pay at a future period
vests in interest immediately if the payment be postponed for the
convenience of the estate or to let in some other interest. . . .
In all such cases, it is presumed that the testator postponed the
time of enjoyment by the ultimate legatee for the purpose of the
prior devise or bequest. A devise of lands to be sold after the
termination of a life estate given by the will, the proceeds to be
distributed thereafter to certain persons, is a bequest to those
persons, and vests at the death of the testator."
The question remains whether the interest vested in the
daughters was defeasible on condition subsequent. That is, whether,
on death of a daughter before the determination of the preceding
estate, leaving descendants, her interest was to be divested and
her descendants were to take by substitution.
What, then, was the intent of the testator in providing for the
children and descendants of daughters per stirpes? If the clause be
considered to import a condition subsequent, providing for a
divesting of the interest of the daughters who survived him, and a
substitution of their children and descendants, it would
necessarily follow that the children and descendants of daughters
who died before him would be excluded from participation. It is
difficult to suppose that this was his purpose. That his daughters
might marry and die, leaving children, before he died, was
undoubtedly contemplated. At the time of his death, one of his
daughters had already married. If she survived him, she was to have
a share in the property. Did the testator intend that, if she died
after his death, and before the time for distribution, her interest
was to be divested in favor of her children and descendants, and if
she died before the testator, her children and descendants were
Page 224 U. S. 240
to be barred? Or, if it had happened that three of the daughters
had married and died during the testator's lifetime, having
children, and another daughter had married and died after the
testator, were the children of the latter daughter to share in the
avails of the property, on the death of the last daughter,
unmarried, to the exclusion of all the other daughters' children?
It is not to be thought that the testator designed such a purely
arbitrary selection unless the words forbid a different
interpretation.
The language of the clause is not of this imperative character.
As well might it be said that it required the conclusion that the
daughters and their respective children and descendants were to
take concurrently. But this would not be a sensible construction,
and it would seem to be equally contrary to the intention of the
testator to imply a condition subsequent, and thus not only to make
defeasible the interest which passed to the daughters, but to shut
out the children and descendants of daughters who predeceased
him.
The clause is obviously elliptical, and the provision for
representation is not fully expressed. Taking the context and the
entire plan of the will into consideration, we believe that what
the testator had in mind was to establish the right of his
daughters, who survived him, as of the time of his death, and to
provide for the representation of any of his daughters, who might
previously die, by her children and descendants. So construed, the
disposition is a natural one, and representation of the same sort
is accorded as that provided for in the next paragraph, when, in
giving to his children the residuary personal estate, the testator
fully defined the representation intended by stating that "the
descendants of such as may have died during my life" were "to take
a parent's part."
We are of the opinion that the remainder in fee which vested in
the daughters, all of whom survived the testator, was not
defeasible as to any of them by her death, leaving
Page 224 U. S. 241
descendants, before the expiration of the preceding estates. As
already stated, all the daughters were parties to the suit brought
in 1865, and all consented to the decree, save the married daughter
who was under age, and whose interests were duly protected by the
court. It follows that the purchasers under the decree acquired a
good title.
The complainant was entitled to the relief sought.
Decree affirmed.