Bradley v. Bradley
Bradley v. Bradley
Dissenting Opinion
John W. Bradley at the time of executing his last will and testament had three sons, Henry, Joseph, and Otis Bradley. After making certain specific bequests the testator devised to his said three sons certain bequests as contained in item 5 of his will. Henry Bradley died after the testator’s death, leaving one child, Huron Bradley, the plaintiff in the court below and the defendant in error here. Huron became twenty-one years of age in November, 1921, and demanded of the executor of his grandfather’s will that one third of the estate devised to the aforementioned legatees be set apart to him free from all restrictions and limitations, contending that under the terms of the will he is en
Item 5 of the will in part provides that “ said sons are to have and enjoy and possess said property only for and during their natural lives, and after their death the same shall go to and vest in their children, share and share alike, the children of said sons mentioned, each, upon the death of the father, to have a oné-third ■ interest in remainder in all of said property; none of said property, except as hereinafter set forth shall be sold, conveyed or encumbered, or divided until the remaindermen each shall become twenty-one years of age.” There is no suggestion in the above item that the executor, who is clothed with certain trusts, is to continue as such for the protection of the remaindermen. And in the same item of the will it is declared to be the purpose of the testator “ to give my sons a life-estate, in the income, profits, rents, and interest derived therefrom my estate, and at their death, or either of them, (italics ours) their children shall inherit a fee-simple title in remainder, with the limitations as to a sale or division as mentioned and in manner and form as hereinbefore set forth.” The executor is to divide the income among the sons, but the will gives him no authority to divide the income with the children of the sons. On the contrary the above clause of the will provides that at the death of the sons, or either óf them, their children shall inherit a fee-simple title in remainder. The law favors the vesting of remainders in all cases of doubt. Civil Code (1910), § 3680. The above language creates a lifé-estate in trust for the sons, with a legal remainder in fee to their children. I am of the opinion that upon the death of one of the sons his child, or children, takes a remainder in fee simple in his deceased parent’s interest or share of the propertj^, free from the trust imposed upon the executor with reference to the life-estate; and therefore, after the death of one of the life-tenants, the executor lias no right to hold or manage the remainder interest of such remainderman. As to-that share in the estate the executor’s duties are at an end. The testator in the fifth item of his will made it clear as to when a division of his estate should be made, that is, “ at their [the sons] death, or either of them,” and further, “ the children of said sons mentioned, each, upon the death of the father, to have a one-third-
■ In reaching the above conclusion I am not unmindful of the able and ingenious argument made by counsel for plaintiffs in error that the verb “reach” as used in the will is plural, and that the subject “ each ” as used in the will must also be plural, and that the word “ each ” as used mpans “ all ” distributively, or, what amounts to the same thing, “ every one ” taken collectively. It is argued that the word “ each,” as used in the above item of the will, can not mean “ any one,” because the verb is plural, and the pronouns “ their ” and “ they,” as used in the same sentence, refer to the noun “ each,” and it is argued that if the word “ each ” as used meant “ any one,” then the verb should have been “ reaches,” and “his or her” would have been used in the place of “their” and “they.” A sufficient answer to the above is'that if the testator had meant the word “ each ” to mean “ all ” of his grandchildren, he probably would have used that word; but he did not do so, but used the above language which, though not grammatically correct, perhaps, expresses clearly the intention of the testator as held above. See, in this connection, the definition of the word “ each,” as adopted by the courts in the following eases: State v. Maine Central R., 66 Me. 488, 510; Beck & Pauli Lith. Co. v. Evansville B. Co., (supra); Re Penny’s Est., 159 Pa. 346 (28 Atl. 255, 256).
Two provisions of testator’s will, outside of items 5 and 11, are referred to in the majority opinion as throwing light upon testator’s intention. One is -that the testator’s direction that his executor be paid $100 per annum for his services as. executor; and the other, that the testator’s grave should be kept up by his executor out of the income from his estate. It is apparent that the latter direction could not be complied with indefinitely, or else it would
Opinion of the Court
(After stating the foregoing facts.)
Upon a motion for a rehearing the court is of the opinion that the judgment previously entered in this case should be vacated and set aside, and that the judgment of the trial court in overruling the demurrer to the plaintiff’s petition was error and ■ should be reversed. Counsel for plaintiff in error stress the point that the provisions of the eleventh item of the will are entitled to the weightier consideration in determining the wish and intention of the testator, because it is the testator’s “last word” upon the subject here involved. Counsel for defendant in error urge, in support of the judgment of the lower court, the equally well-recognized principle that the intention of the testator is to be ascertained by a consideration of each and every portion of the ■testament —everything within the four corners of the paper. We
Only one of the sons of the testator has died. It' appears that this particular son left an only child, the present plaintiff; but if •another of the testator’s sons should die leaving more than one child, one of whom was a minor and another who had reached majority, there would have to be more than one division of the ■estate by sale or in kind as these two children might determine, ■each deciding the question at different times before one of the one-third shares devised per stirpes by the testator could be distributed. Nothing is clearer to us than that the testator had a fixed plan by which his sons should have merely a life-estate and that his grandchildren should have the fee in remainder, — a fixed fee but with possession postponed until all the grandchildren should reach the •age of twenty-one years. This intention as bespoken in item ■eleven is consistent with the provision in item five of the will that the executor collect the income and divide the same annually; it is consistent, with the provision in item seven wherein the testator ■expresses his “ will and desire ” that his estate'“ be kept together ” and administered at all times so as to reap the best results and
The meaning of many words is determined by the time, circumstance, the occasion, the place and the subject-matter; and the use of the word “ each ” as synonymous with, or at least as a substitute for, “ all ” is not unusual, and has frequently been judicially recognized; and it is not difficult for us to give it that meaning in this case, when such meaning harmonizes with every provision of the will, and no other definition will so assimilate itself with the other provisions of the will as to make clear' the intention of the testator. Mr. Justice Holmes, speaking for the court in the recent Country Bank case, American Bank & Trust Co. v. Federal Bank, 256 U. S. 350, 358 (41 Sup. Ct. 499, 65 L. ed. 983), says, as to the meaning of the word “ right“ But the word ‘ right ’ is
The learned trial judge erred in not sustaining the demurrer, and in not dismissing the petition; and the judgment must be
Reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.