Johnson v. Washington Loan & Trust Company/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 therefor 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), 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 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, 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 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 deivse the property to the children or descendants of his daughters.

By the fourth item of the will, the testator gave to his 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 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, 288, 18 L. ed. 572, 579; Doe ex dem. Poor v. Considine, 6 Wall. 458, 474-477, 18 L. ed. 869, 874, 875; Cropley v. Cooper, 19 Wall. 167, 175, 22 L. ed. 109, 113; McArthur v. Scott, 113 U.S. 340, 380, 28 L. ed. 1015, 1027, 5 Sup. Ct. Rep. 652; Hallifax v. Wilson, 16 Ves. Jr. 171, 10 Revised Rep. 146. 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 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 twentyone years, the interest in the meantime to be applied to their maintenance.' When the testator died, his daughter, who survided 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 preceeding estate, leaving descendants, her interest was to be devested 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 devesting 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 devested in favor of her children and descendants, and if she died before the testator, her children and descendants were 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 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. 

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