# Opinion — Johnson v. Washington Loan & Trust Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1912
- **Citation:** 224 U.S. 224

## Text

Soe sy % ¥ io id ” a a

JOHNSON v. WASHINGTON LOAN & TRUST
COMPANY.

APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF
COLUMBIA.

No. 40. Argued December 8, 1911.—Decided April 1, 1912.

A will contained the following provision: “It is my wil! 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 de-
vise the suid 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 execu-
tors 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 chil-
dren 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 quict title against claims of grandchildren of the
testator, held that:

PEGS LEE LILLIES SETI AEA SEL ILE OE EOD TC EELS FONT IRR wt per mate ee

JOHNSON v. WASHINGTON L. & T. CoO. 225
224 U.S. Argument for Appellants.

The provision in the will for the sale of the homestead was for the pro-
tection of testator’s daughters, and the words “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 pre-
viously 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 dis-
posing of real estate in the District of Columbia, are stated
in the opinion.

Mr. A. 8. Worthington for appellants:

Appellants contend that by the words—“‘On the death
or marriage of the last of them (testator’s five daughters)
then I direct that the said estate shall be sold by my ex-
ecutors and the proceeds thereof be distributed by my said
executors among my daughters living at my death and
their children and descendants (per stirpes),” testator
meant that the proceeds of sale which he directed to be
made 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.
Appellee contends on the other hand that the testator
meant that the proceeds of sale should be divided among
his daughters and their children or descendants as those
classes existed at the time of his death; and that as none
of his daughters had any children at that time the daugh-
ters took the entire remainder after the termination of
the life estate of the widow of the testator.

VOL. ccxx1v—15

226 OCTOBER TERM, 1911.
Argument for Appellants. 224 U.S.

Where the intention of a testator is plain, rules of con-
struction are not to be resorted to for the purpose of de-
termining that the testator did not mean what he has said
in his will. Clark v. Boorman’s Executors, 18 Wall. 502;
Robison v. Female Orphan Asylum, 123 U. S. 702, 707;
Travers v. Reinhardt, 205 U.S. 423; Line’s Estate, 221 Pa.
St. 374; Hood v. Penna. Society, 221 Pa. St. 474, 479.

The language of this will is so plain that no resort is
necessary to rules of construction adopted in construing
ambiguous devises. Burnside v. Wall, 9 B. Mon. 318.

In this case there was not only a preceding life estate
in the widow, but an estate till marriage only in the four
daughters who did not remain single. After their marriage
no one had a right of possession in Metropolis View except
Eliza T. Berry so long as she lived.

Nothing in the will tends to sustain the contention of
the appellee as to the proper construction of Item 5th.

There is no rule of law as to the construction of wills
which requires the court to overthrow the manifest inten-
tion of the testator in this case as to the persons who
should share in the distribution which he directed to be
made when he should have no living unmarried daughter.

When in a will there is no direct gift of property to the
beneficiaries, but merely a direction that after the ter-
mination of a preceding life, or other particular estate,
it shall be divided among or paid to certain classes of
beneficiaries, in the absence of anything in the instrument
to indicate a different intention, only those of the classes
described who survive till the time fixed for the distribu-
tion will participate therein. O’Brien v. Dougherty, 1
App. D. C. 148; 2 Williams on Executors, 6th Am. ed.,
1232. ;

When the only gift is in a direction to pay at a future
time, and the will does not otherwise indicate any inten-
tion to make a present gift, the remainder will generally
be construed contingent. 1 Jarman on Wills, 6th Am. ed.,

JOHNSON v. WASHINGTON L. & T. CO. 227
224 U.S. Argument for Appellants.

star page 757, note 2; Hoghton v. Whitgreave, 1 Jac. &
Walk. 146; Brograve v. Winder, 2 Vesey, Jr., 638; Jones v.
Colback, 8 Vesey, Jr., 38; Nichols v. Guthrie, 109 Tennessee,
536; Richey v. Johnson, 30 Oh. St. 288, 296; 2 Williams on
Executors, 514; Hawkins on Wills, 232; Jarman on Wills
(as quoted in 118 Illinois, 403), and Beach on Wills, § 120;
McClain v. Capper, 98 Iowa, 145; Benner v. Mawer, 113
N. W. Rep. 663; McCartney v. Osburn, 118 Illinois, 403-
423; Bates v. Gillett, 132 Illinois, 287, 299; Matter of Baer,
147 N. Y. 348; Stoors v. Burgess, 101 Maine, 26, 34; Dough-
erty v. Thompson, 167 N. Y. 472; Matter of Crane, 164 N. Y.
71, 76; Lewisohn v. Henry, 179 N. Y. 352; In re Hogarty,
62 App. Div. 79; Hale v. Hodson, 167 Massachusetts, 397 ;
Hobson v. Hale, 95 N. Y. 588; Dary v. Grau, 190 Massa-
chusetts, 482; Boston Safe Deposit Co. v. Blanchard, 196
Massachusetts, 35; Reilly v. Bristow, 105 Maryland, 326;
Rosengarten v. Ashton, 228 Pa. St. 389.

That a remainder is vested on the death of the testator
does not necessarily determine that the devisee, his heirs
or assigns shall be entitled to the property which is the
subject of the gift, since the estate so vested may be di-
vested by the death of the devisee before the determina-
tion of the preceding particular estate. 2 Wash. on Real
Property, star pages 263, 530; 24 Am. & Eng. Ency. 405;
23 L. R. A. 642, note; 27 L. R. A. (N. S.), 454, note.

Assuming that the intention of this testator was that
the distribution involved was to be made among his
daughters and their children and their remote descendants
as those classes should exist, not when he died but when
the distribution was to take place, it becomes wholly
immaterial whether the chance which each daughter haj
of being in existence when that time came gave her a purely
contingent interest, or a vested interest subject to be
defeated by her prior death leaving children or other
descendants to take her distributive share in her place.
Myers v. Adler, 6 Mackey, 515; Richardson v. Penicks,

228 OCTOBER TERM, 1911.

Argument for Appellants. 224 U.S.

1 App. D. C. 261; Carver v. Jackson, 4 Pet. 1; Crozall v.
Shererd, 5 Wall. 268; Blanchard v. Blanchard, 10 Allen,
227; McArthur v. Scott, 113 U. S. 340; Thaw v. Ritchie,
136 U.S. 519; Hine v. Morse, 218 U.S. 493.

Poor v. Considine, 6 Wall. 458; Cropley v. Cooper, 19
Wall. 167, can be distinguished, and the reasons given for
the conclusion reached in those cases lead to a directly
opposite conclusion from that which is maintained for
the appellee here. See Mitchell v. Mitchell, 126 Wisconsin,
47, 49; Cripps v. Wolcott, 4 Maddock Ch. 12; Hearn v.
Baker, 2 K., K. & J. 386; 69 English Rep. 831.

The same principle was applied in Stephenson v. Gullan,
18 Beav. 590; Knight v. Poole, 32 Beav. 548, and Hoghton
v. Whitgreave, 1 Jac. & W. 146. See also 1 Jarman on
Wills, 6 Am. ed., star page 547; Peter v. Beverley, 10 Pet.
532, 563; Cropley v. Cooper, 19 Wall. 167, 174; Robertson v.
Guenther, 241 Illinois, 511; and see note in 25 L. R. A.
(N. 8.) 887, 904, containing complete review of the nu-
merous cases in which the question has been whether
language similar to that used in that case and in O’Brien v.
Dougherty, supra, makes the interest taken by the ‘“‘sur-
viving”’ beneficiaries vested or contingent. About one
hundred cases are cited in the note. It was held in all
that the remainder was contingent, and except in seven
cases where it was held that it was vested subject to
be divested by the death of the beneficiary before the
termination of the preceding estate. Hudgens v. Wilkins,
77 Georgia, 555; Blanchard v. Blanchard, 1 Allen, 223;
In re Seamen, 147 N. Y. 69; Nodine v. Greenfield, 7 Paige,
655; Parker v. Ross, 69 N. H. 213; Smaw v. Young, 109
Alabama, 528; Acree v. Dabney, 133 Alabama, 437.

The rule of construction, that a construction which may
result in partial intestacy is to be avoided, does not apply
in this case.

The language of a will which gives property to certain
persons and to their children upon the happening of a

es a ek a ke ee he i Ci set te rs ol) font Gite eee eee eee re ee cr a ated

JOTINSON v. WASHINGTON L. & T. CO. 229
224 U.S. Argument for Appellants.

future event should not be distorted into a gift to those
persons to the exclusion of their children because of the
possibility that they may not have any children. Augustus
v. Seabolt, 3 Mete. (Ky.) 155; Matter of Disney, 190 N. Y.
128.

When there is a devise to parent and children—as to
parent and descendants—without more, the parent takes
a life estate with remainder to such children or descend-
ants. Ward v. Grey, 26 Beaven, 485; Jeffery v. De Vitre,
24 Beav. 296; Jeffrey v. Honeywood, 4 Madd. Ch. 397;
Hall v. Hall, 78 Atl. Rep. 971; Hood v. Dawson, 98 Ken-
tucky, 285; 33 S. W. Rep. 75; Noe’s Admr. v. Miller,
Excr., 31 N. J. Eq. 234; Stiles v. Cummings, 50 S. E.
Rep. 484; Logan v. Hall, 43 8. W. Rep. 402; Ballantine v.
Ballantine, 152 Fed. Rep. 775; Forest Oil Co. v. Crawford,
23 C. C. A. 55; Barclay v. Platt, 170 Illinois, 384; Kuhn v.
Kuhn, 78 8. W. Rep. 16.

The interests of the children of Washington Berry’s
daughters were not in any wise affected by the proceedings
in Equity Case No. 500 or by the conveyances made
by the trustees appointed in that case. McArthur v.
Scott, 113 U. S. 340; Bennett v. Hamill, 2 Sch. & Lef. 566,
577; Masie v. Donaldson, 8 Ohio, 377, 381; Long v. Long,
62 Maryland, 33; Marshall v. Augusta, 5 App. D. C.
183, 194; Gedges v. Western Baptist Theological Institution,
13 B. Mon. 530; Harris v. Strodl, 132 N. Y. 392, 397; Firth
v. Denny, 2 Allen, 468; Hinkley v. House of Refuge, 40
Maryland, 461; Lowell v. Charlestown, 66 N. H. 584;
Sawyer v. Freeman, 161 Massachusetts, 543; Estate of
Delaney, 49 California, 76; Matter of Lorenz’s Estate, 76
N. Y. Supp. 653.

The authorities cited by counsel for the appellee on the
subject of acceleration do not support his claim that the
failure of a preceding estate by renunciation of the de-
visee thereof has the same effect as the death of the devisee
where that would be inconsistent with the scheme of the

230 OCTOBER TERM, 1911.
Argument for Appellee. 224 U.S.

will. Blatchford v. Newberry, 99 Illinois, 11, 57; Coltman
v. Moore, 1 McA. 197, do not support appellee’s contention
in this case.

Mr. B. F. Leighton for appellee:

The remainders were vested. Testator’s direction for
a sale of the property and a division of the proceeds among
his daughters living at his death was equivalent to a
limitation of the title in fee to them, and they could have
elected, on testator’s death, to take the property instead
of the proceeds to be derived from its sale. Poor v. Con-
sidine, 6 Wall. 472; Cropley v. Cooper, 19 Wall. 167; Haupt-
man v. Carpenter, 16 App. D. C. 524; Fearne on Contin-
gent Remainders, 351; Goodlittle on Whitby, Ist Burrows,
232.

The legal presumption arising from the making of the
will itself is that the testator intended to dispose of all of
his property, and not die intestate as to any of it. This
presumption must prevail unless overborne by the terms
of the will itself. Given v. Hilton, 95 U.S. 591; Snyder v.
Baker, 5 Mackey, 455.

The first taker is always the favorite object of testator’s
bounty, and, as such, entitled to every implication. Barber
v. Pittsburgh &ce. Ry., 166 U. 8. 100; and see Inglis v.
Sailor’s Snug Harbor, 3 Pet. 118; Sheriff v. Brown, 5
Mack. 172.

Taking per stirpes is taking by descent, and is the only
mode of succession known to the common law. 2 Black-
stone’s Comm., ec. 32, p. 517.

Where the distribution is to be per stirpes, the principle
of representation will be applied to all degrees; children
never take concurrently with their parents. 2 Jarman
on Wills, 5th ed., marginal page 100, and 3 Id. 174; Dengel
v. Brown, 1 App. D. C. 423.

A bequest to A and his children when A has no children,
either at the time the will is made or when it takes effect

JOHNSON ». WASHINGTON L. & T. CO. 231
224 U.S. Argument for Appellee.

at the testator’s death, vests the absolute property in A.
Van Zant v. Morris, 25 Alabama, 292. :
The binding force of the rule is recognized in Akers v.
Akers, 23 N. J. Eq. (8 Green) 26; Nightingale v. Burrell,
15 Pick. 104; Moore v. Leach, 5 Jones’ Law (N. C.), 88;
Jones’ Ex. v. Jones, 13 N. J. Eq. 236; Johnson v. Johnson,
MeMullan’s Equity (S. C.), 345; Reader v. Spearman, 5
Richardson (S. C.), 88; Chrystie v. Phyfe, 19 N. Y. 345,
354; Hamlin v. Osgood, 1 Redf. 411; Torrance v. Torrance,

4 Maryland, 11.

A descendant is one who proceeds from the body of
another, however remotely. The word is coextensive
with issue, but does not embrace others not of issue. Estes
v. Gillett, 132 Illinois, 287, 297; Tichnor v. Brewer’s Exrs.,
98 Kentucky, 349; and see also Baker v. Baker, § Gray,
101, 120; Barstow v. Goodwin, 2 Bradf. 413, 416; Haupt-
man v. Carpenter, 16 App. D. C. 524; Myers v. Adler, 6
Mackey, 515; O’Brien v. Dougherty, 1 App. D. C. 148; Rich-
ardson v. Penicks, 1 Aup. D. C. 261; Thaw v. Ritchie, 136
U.S. 519; McArthur v. Scott, 113 U.S. 340; Williamson v.
Field, 2 Sanford’s Chancery, 608; Crozxall v. Shererd, 5
Wall. 288; Linton v. Laycock, 33 Oh. St. 128; Tayloe v.
Mosher, 29 Maryland, 454, cited and followed in Fairfax
v. Brown, 60 Maryland, 50.

In cases of doubt as to whether a remainder be vested
or contingent, it is a circumstance of weight in favor of
its being the former, where the beneficiaries are the chil-
dren of the testator. Boston Safe Deposit Co. v. Blanchard,
196 Massachusetts, 35; Smith v. Bell, 6 Pet. 68. The in-
tention of the testator expressed in his will shall prevail,
provided it be consistent with the rules of law. 158. & R.
195; Hawkins on Wills, 2d ed., 222; Allender v. Kep-
linger, 62 Maryland, 12; Sheriff v. Brown, 5 Mackey, 176;
Vaughan v. Headfort, 10 Sim. 641.

The intention of the testator is the first rule of construc-
tion to which all other rules are subsidiary. Earnshaw v.

232 OCTOBER TERM, 1911.

Opinion of the Court. 224 U.S.

Daly, 1 App. D. C. 218; De Vaughn v. De Vaughn, 3 App.
D. C. 50.

Tested by the decided cases of this jurisdiction, as well
as upon principle, the remainder devised to the daughters
of Washington Berry is vested and not contingent.

Under the circumstances the court had the power, and
it was its duty, to accelerate the time named by the testa-
tor in his will for the sale of Metropolis View. Coliman v.
Moore, 1 MacA. 197; Trustees v. Morris, 36 S. W. Rep. 2;
Estate of Rawlings, 81 Iowa, 701; Randall v. Randall, 85
Maryland, 431; Woodburn’s Estate, 151 Pa. St. 586; Fer-
guson’s Estate, 138 Pa. St. 208; Schulz’s Estate, 113 Michi-
gan, 592; Vance’s Estate, 141 Pa. St. 201; Slocum v. Hogan,
176 Illinois, 539; 1 Jarman, 5th ed., 574; Blatchford v.
Newberry, 99 Illinois, 11; Coover’s Appeal, 74 Pa. St. 143.

As to the doctrine of stare decisis, as applied to titles
of real property, see Middleton v. Parke, 3 App. D. C. 149.

Mr. Justice Hucues 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 home-
stead shall be kept and continued as the home and resi-
dence 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

JOHNSON v. WASHINGTON L. & T. CO. 233
224 U.S. Opinion of the Court.

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 ..irpes) and I
hereby reserve to my heirs the family yault and burial
ground embracing half an acre of ground and having the
said vault as a centre 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 befor 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 execu-
trix, but the son declined.

Soon after the death of the testator, the widow removed
from the homestead and neither she nor any of her un-
married 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 dilap-
idated 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

-urial ground and vault, which the bill asked to have
distributed among the heirs at law. The other children

234 OCTOBER TERM, 1911.

Opinion of the Court. 224 U.S.

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 or 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 this 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 convey-

SPE Le ee PENS; NOI RIAN a GOELLER GI BEEP ALTA Tie ie IE

JOHNSON v. WASHINGTON L. & T. CO. 235
224 U.S. Opinion of the Court.

ances, 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 testa-
ment by which the real property in question was devised,
and an order was made substituting this company as com-
plainant.

It is contended by the appellants that, under the pro-
vision of the fifth item of the will, the proceeds of the
sale, which the testator directed to be made of the prop-
erty, 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

/

pptetesip cnr cx spmecmnarmeummerane genneanrosemmense EEE LER IESE IE FOLIO YS OME EL, PERG

236 OCTOBER TERM, 1911.

Opinion of the Court. 224 U.S.

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 condi-
tional 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 limita-
tion 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 occasioa to consider the effect of this pro-
vision 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

aaa LIOR OR POR YEMEN NOLS tA OEP EE FENRIS NA IN RON NNR HE

JOHNSON v. WASHINGTON L. & T. CO. 237
224 U.S. Opinion of the Court.

wife for life, in case she survived him, the homestead
estate—the property here in question—together with cer-
tain 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 Mice
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 ex-
plicitly states his purpose. He was planning for the pro-
tection 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 pro-
ceeds divided.

These avails were to be distributed ‘‘among my
daughters living at my death and their children and de-
scendants (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 have pre-
viously died.” At the time of the death of the testator,
his five daughters were living, and none of them had chil-
dren or descendants. By the definitive language of the

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238 OCTOBER TERM, 1911.

Opinion of the Court. 224 U. 8.

clause, these daughters were then ascertained and identi-
fied 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. Crozall v.
Shererd, 5 Wall. 268, 288; Doe v. Considine, 6 Wall. 458,
474-477; Cropley v. Cooper, 19 Wall. 167, 174; McArthur
v. Scott, 113 U.S. 340, 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. 378, 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 im-
mediately, 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 cenveyed 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 remainder-
men, and not to the vesting of the titlein them. . . .
So a direction that personal property shall be divided at
the expiration of an estate for life creates a vested inter-
est.”” In Cropley v. Cooper, supra, the testator bequeathed
the rent of his house to iis 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

NEG LENE IESE LES LE, OLE LLL EL BOLI LOLI IES! BOLLE LES LEST IGE ION ELE LY

JOHNSON »v. WASHINGTON L. & T. CO. 239
224 U.S. Opinion of the Court.

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 testatur. The court said
(p. 174): “A bequest i 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 pre-
sumed 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 termina-
tion 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 the death of a daughter—before the
determination of the preceding estates—leaving descend-
ants, 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 subse-
quent, 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

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240 OCTOBER TERM, 1911.

Opinion of the Court. 224 U.S.

to be barred? Or, if it had happened that three of the
daughters had married and died during the testator’s
lifetime, leaving 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 exclu-
sion 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 chil-
dren 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 be-
lieve 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 nat-
ural 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

SHARPE v. BONHAM. 241
224 U.S. Opinion of the Court.

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 in-
terests were duly protected by the court. Jt follows that

the purchasers under the decree acquired a good title.

The complainant was entitled to the relief sought.
Decree affirmed.

al

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0457%3A2. Public record. Not legal advice.