McCLELLAND v. ROSE et al., 208 F. 503

SHELBY, Circuit Judge (after stating the facts as above). There is apparently much conflict in the authorities construing wills. This comes from the fact that forms of expressions in wills are often nearly alike, yet varying in minute shades of meaning. But, of all legal instruments, wills are the least to be governed in their construction by the settled use of technical legal terms. Referring to these conflicts and uncertainties, it was said by Mr.

Justice Miller that: “It may well be doubted if any other source of enlightenment in the construction of a .will is of much assistance, than the application of natural reason to the language of the instrument under the light which may be thrown upon the intent of tlie testator by the extrinsic circumstances surrounding- its execution, and connecting Hie parties and the property devised with the testator and with the instrument itself.” Clarke v. Boorman’s Executors: 18 Wall. 493, 502, 503 (21 L. Ed. 901).

The ultimate practical question involved in this controversy is as to the ownership and the right to the possession of the testator’s estate. The plaintiff claims it as devisee under the will, and, in the alternative, as sole heir at law. The plaintiff is the testator’s only child, and, if the will be not considered, he would he the owner as sole heir. If the will fails to dispose of any interest in the property, that interest would pass to the plaintiff as the testator’s sole heir. The defendants — the testator’s collateral kin — claim the estate under the will and codicil.

They claim that, properly construed, the will and codicil gives the estate to them, depriving the plaintiff of any right to it. There is a dispute as to what interest was devised by the will as originally executed, and also a controversy as to the effect of the codicil on the will as first written. Both the will and the codicil must, of course, be construed as one instrument; but the true meaning can be best ascertained by an examination, first, of the will as originally executed, and, then, by an examination of the codicil to see what changes it effects.

Disregarding the codicil for the present, items 4 and 8 are the parts of the will that would be controlling. They are as follows: “Item 4.

I give and bequeath to my beloved son, Peter McClelland, Junior, should he survive me, all the residue of my estate, real, personal and mixed, to be received, however, and enjoyed by him only in futuro, upon the terms, conditions, incumbrances, trusts and stipulations herein provided for, which said estate shall be held by my executors, controlled and managed as herein provided, in trust for my said son, Peter, for twenty-five years from and after my death, before the same shall be turned over to my said son, except such provisions and legacies as are herein made for the support and maintenance of my said son during the said period of twenty-five years, should he live so long.” “Item 8.

Upon my death, and after the probate of this will, as aforesaid, my said executors accepting and qualified to act, as aforesaid, are hereby authorized and empowered to take possession of my entire estate, whether in money, real estate, personal or mixed, and the same to keep and hold in their possession and care, upon the trusts, terms, and conditions herein provided for, for the full period of twenty-five years after my death, should my son, Peter, live so long; and at the expiration of twenty-five years my said executors shall turn over to my said son, Peter, if living, the entire residue of my estate, whether money, real, personal, or mixed, with the increase and accretions to the same as provided for herein, after paying the charges of every kind and legacies herein provided for out of the same; but should my son, Peter, die before the expiration of said period of twenty-five years after my death, or before I do, then it is my desire that said trusts shall end, and that my heirs at law shall take my estate clear of the trusts, charges, and incum-brances herein created, according to the laws of the state of Texas, and that my executors turn the same over to them, charged, however, with the bequests to my wife, if living.” Item 4 is a clear gift and bequest of the estate to the plaintiff, with a provision that it is to be held and controlled by the testator’s executors in trust for his son for 25 years after the testator’s death before it shall be turned over to the plaintiff.

Item 8 contains art express provision that, at the expiration of the 25 years after the testator’s death, if his son is then living, the executor “shall turn over to my said son, Peter,” the entire estate. The 25 years since the testator’s death having expired, if there had ^een no codicil, the executors or trustees would be required to now surrender the entire estate to the plaintiff. The last lines of item 8 contain a devise over, should Peter, Jr., die before the expiration of 25 years after the testator’s death, and it is upon this language that the defendants base their claim.

But Peter did not die within the 25 years — he lived beyond the stipulated period, and is still living. There is no bequest over whatever unless the testator’s son, the plaintiff, die before the expiration of the period of 25 years; and it is difficult to see how it is possible for the defendants to derive any interest or title from a devise based on a contingency which did not, and now cannot, occur. Peter, Jr., not dying within the 25 years, the devise over is wholly inoperative.

Item 5 provides for monthly installments for Peter, Jr., “until he shall have come into possession of my estate as herein provided”; the intention being to afford him a support till the expiration of the 25 years. It is contended by the plaintiff that the language employed in items 4 and 8 vests in him, subject to the trust created by the will, an equitable estate in fee defeasible by an executory devise over. Revised Statutes of Texas 1879, § 551; Britton v. Thornton, 112 U. S. 526, 532, 5 Sup. Ct. 291, 28 L. Ed. 816; Seay v. Cockrell, 102 Tex. 280, 115 S. W. 1160; Laval v. Staffel, 64 Tex. 370; Chase v.

Gregg, 88 Tex. 552, 32 S. W. 520. This contention is not material as to issues necessary to be decided now, as the testator died leaving the plaintiff sole heir, and the contingency upon which the devise over depended not having occurred, and there being no other devise of the estate, if it did not pass in fee to the plaintiff by the will, subject to the trust, it so passed to him by inheritance on the testator’s death. Pie is entitled to the protection of his rights by the courts, whether he obtains them the one way or the other. This brings us to the consideration of the codicil.

There is nothing in the codicil which revokes, or is in conflict with, the devise made by item 4. The codicil contains no words that can be construed as a bequest or devise to the defendants.

The following is the only part of it which effects any change in the will which is relevant to the question here involved: “I further desire to continue the trusts created herein in my executors for and during the natural life of my son, Peter; but, if ill their judgment he is provident and careful, they may make such advances out of the estate as they may think right and proper, over and above the provisions made herein for him and in said will.” The effect of this clause is to extend the trust from the time of the expiration of the 25 j^ears after the testator’s death till the death of the plaintiff, and to allow the executors to make additional advances to the plaintiff.

The trust, therefore, did not terminate, giving the plaintiff the right of possession at the expiration of the 25 years, but is a continuing trust during his life. The estate and interest conferred on the plaintiff by item 4 is not affected otherwise than cutting off his right to possession at the end of the 25-year period. The plaintiff appears to be, both by the will and the codicil, the chief object of the testator’s bounty and solicitude. It does not seem to be denied that the trust created by the will to last 25 years was valid. We cannot see why it cannot be extended for the donee’s life.

There is no reason in the recognized nature of property and in the owner’s right of disposition why a testator “who gives without any pecuniary return, who gets nothing of property value from the donee, may not attach to that gift the incident of'continued use, of' uninterrupted benefit of the gift, during the life of the donee.

Why a parent, or one who loves another, and wishes to use his own property in securing the object of his affection, as far as property can do it, from the ills of life, the vicissitudes of fortune, and even his own improvidence or incapacity for self-protection, should not be permitted to do so, is not readily perceived.” Nichols, Assignee, v. Eaton et al., 91 U. S. 716, 727 (23 L. Ed. 254); Wallace v. Campbell, 53 Tex. 229.

We see nothing in the language of the codicil continuing the trust for the life of the plaintiff which deprives him of any estate conferred on him by the will or by law, or which confers on, or gives to, the defendants any interest in the estate. The effect is, of course, to deprive the plaintiff of the right of possession at the end of the 25-year period, fixed by the will. It continues to protect him during life against ill fortune, and probably against his own incompetence and incapacity. Our attention has been called to a number of cases which relate to the will we are construing.

We have carefully examined them all, and do not find that any one of them is controlling as against the rights of the plaintiff determined by this opinion. Comment on them here would serve no useful purpose. There are several questions discussed in the briefs that we do not deem it necessary or advisable to decide. Some of them may arise on the further consideration of the case in the court below, and others after the death of the plaintiff. A demurrer has been sustained, and the bill dismissed. If the plaintiff is entitled to any relief on the aver-ments of the bill, the decree must be reversed.

We are of the opinion that, on the averments of the bill, the plaintiff is the owner of the estate devised and in controversy, subject to the trusts created by the will; that the defendants — testator’s collateral kin — have no interest, under the will, in the same; and that the plaintiff, the averments of the bill being admitted or proved, should have a decree to that effect. The decree is reversed and the cause remanded, with instructions to overrule the demurrer, and for further proceedings. Note. — The following are the eases referred to: Prather et al. v. McClelland, 76 Tex. 574, 13 S. W. 543; Prather v.

McClelland (Tex. Civ. App.) 26 S. W. 657; McClelland v. McClelland (Tex. Civ. App.) 37 S. W. 350; Wood et al. v. McClelland et al. (Tex. Civ. App.) 53 S. W. 381; McClelland v. McClelland, 46 Tex. Civ. App. 26, 101 S. W. 1171; Sanger v. Rovello et al., 173 Fed. 1022, 97 C. C. A. 669.