801

et al T. II'ISHER et

at'

(Olrcnlt Court of Ai>peaIs, Fourth Circuit.

Febl'WU'1' 'f, 1894.)

No.

55.

WILLS-DEVISES-ALTERNATIVE CONTINGENCIES-PERPETUITIES.

A devise to trustees for the purpose of division among the children of testator's son, (a person in being,) if he should have any, and In case he should die "without lawful issue," then to other persons mentioned, is a devise upon an alternative contingency; and even if the first devise 11 void, as creating ll. perpetulty, the second wlll take efl:ect it the son dies without having had any lawful issue.

Appeal from the Circuit Court of the United States for the Dis' trict of West Virginia. This was a bill filed by Elma Perkins and others against Maria P. Fisher and others, to review a former decree of the circuit court. Oertain defendants demurred to the bill generally. The circuit court sustained the demurrer and dismissed the bill. Complainants appealed.
Henry 1. Fisher, a prominent lawyer of West Virginia, departed this U:fe on - - day of January, 1883, leaving a last will and testament, with codicils, the last whereof is dated 25th January, 1883. The will, with ita codicils, was presented and admitted to probate in the manner required by law, and Charles E. Hogg and L. F. Campbell, the executors named therein, duly qualified as such. The following is a copy of said wlll. The only codicil bearing on this case is the second. In it he revokes the bequests to the children of John Heisner, and his sister, Mrs. Choon, contained in the third clause of the wilL "Point Pleasant, Mason County, West Va., "Monday, January the 20th, 1879. "I, Henry J. Fisher, of the town, county, state aforesaid, being of sound mind and disposing memory, do make and declare this to be my last will and testament, hereby revoking all former wills and codicils by me at any time made. I hereby devise and bequeath my whole estate, real, personal, and mixed, wherever situated, to Charles E. Hogg and L. F. Campbell, of the town, county, and state aforesaid, in trust for the uses and purposes hereinafter mentioned, namely: "First. For the support of my son, Henry J. Fisher, Jr., in the manner find lIS hereinafter directed. This:r do on account of my said son's condnct,-he having been all his life neglectful of my true interests, and also extrnvagant and wasteful,-and for the further reason that I cannot bear to see my estate wasted, which I have only been able to accumulate by'the most rigid economy, diligence, and industry, practiced during my whole life; and, although I know it is nonsense to provide for those whom I have never seen, and forsooth may never see, still I cannot bear to see my property wasted through the drunkenness, contrariness, and sloth of my said son. "And, in order that my said son may not be able to sell any reversionary interest in my said estate, I hereby direct my said trustees not to allow bim an annual stipend, but to dole out to him a bare SUbsistence, and if he does not choose to eke It out by professional exertions or otherWise, let him live "I am now old and infirm, and this my last will and testament is made Is accordance with a long-eherished purpose, and in some degree correspondent with a former will and codicils, which I have preserved to Elhow my intention to preserve my property against my said son's habits of :waste and extravagance.
J

hard.

Rehearing denied, February 16,

v.59F.no.8-51

802

FEDERAL REPOR'l'EBj

vol. 59,

"My son's wife is furnished, at my expense, with a house and .lot in Point Pleasant, and all 1:lutt, needl'l' to, is to make a little to eat, drink, and wear; and 1 mention this in order that my son may be restricted in his allowance by, my said trustees. . : · "Second. The accumulations of my estate sllall be invested in good interestbearing securities, and the accumnlatlons thereof shall themselves be invested in like good interest-bearing securities; and if my said son should have any lawful children, my property shall be equally divided among them, giv" ing t()the girls at marriage, and to the boys at twenty-four years of age, and when one gets his share there shall be no other further division as to that matter, ,nor shall a:death disturb the arrangement, but the interest of the dbe deceased shall go' to augment the shares of those' who have not then received,their shares. "Third. And in case' my said sonahall die without lawful issue, 1 desire his widow. be comfortably supported out of my estate during her wldowhOod, and,the residue of my estate that is not required for a comfortable support of my son's widow during her widowhood, as aforesaid, I desire of as1:ollows: One-fourth thereof Mrs. Henrietta Fowler, mynatdi'lll daUghter; 'one-fourth thereof to the lawful chlldren of Nicholas Perkins!'byhis present'wlfe;one-fourth thereof to the children of John Heisnet, deceased, of Gallipolis, Ohio; and the remaining one-fourth to the sister,Sqphia ehoen, "These devises and bequests are made In subordination to my wife's right of dower. "Andiwhereas, Nicholas PerJdns and family are now occupying a part of my farm .adjoining Long's farm, down to Crooked creek.bridge, and near the town of Point Pleasant"and bas made .some improvements thereon, I desire my said trustees to allow him to live on and farm such part of said land untll, in their judgment and discretion, he is fully and liberally paid for his said labor and improvements. ."And whereas, I have invested a part of my earnings in Virginia bonds, for whmb 1 have paid from ninety-five cents to one hundred cents on the dollar previously to the war, and have exchanged some coupons since for bonds w;bich were scaled one-third, upon the promise that they should be punctually paid,-upon' which bonds, though due, not one cent has evel' been paid, and very little .of the interest thereon,-Ihereby require my said trustees to petition: the general assembly of Virginia, at every session thereof, to pay the said trustees of my estate what is justly due me from that state, remindIng said general assembly that 1 lost my negroes by the war,as well as they, my estate being subjected to rapine and plunder, and my person to priva-. tion, hards1:lips, and distress; and I request them, my said trustees, to expend twenty dollars of my estate, if necessary, in getting such petitions printed and presented. "I desire my said trustees to have a fair and reasonable compensation fol' their care and labor in managing and caring for my estate, and desire that they act as my executors; also, that no bond be required of them. "This will 1 have drawn in dupllcate, the original of which I have delivered to Charles E. Hogg; one of my said trustees and executors, and the duplicate 1 1:lave kept myselt· .. Witness my hand and seal this the day and year first above written. "Henry J. Fisher. [Seal.]" On 24th April, 1884, Henry J. Fisher, the son of the testator, filed his blll in the cirCUit court of the United States for the district of West Virginia, seeking to set aside the said will, and to have the same declared void and of no effect, on the follOWing grounds: "That prior to the death of the testator he had married his present wife, and he had at the· time of the death of: the testator no children born of his marriage, nor has he now any children born of his marriage; that the devises and bequests to his unborn children, respectively, to wit, the boys at the age of 24 years and the girls at marriage, create perpetuities inhibited by law, and are void for remoteness; that the devise to Mrs. Henrietta Fowler, who has sinre intermarried with George Blackburn, DOW dead, being dependent on the same contlngen-

PERKINS V. FISHER.

803

des mentioned In the devises and bequests to the unborn children of your orator, are also void; that the devises and bequests to the children of Nicholas Perkins by hia present· Wife, being dependent upon the same contingencies mentioned in the devises and bequests to the unborn children of your orator, are aloovold; that the testator died intestate as to one moiety of his estate." To this bill Charles E. Hogg and L. F. Campbell, executors and trustees, were made defendants, as well as Henrietta Blackburn, Nicholas Perkins, and Susan, his wife, and their children, Elma Perkins, Shelly Perkins, Lila Perkins, Mary Perkins, and Eugene Perkins. All of these children were then under the age of 21 years. The defendant trustees and executors demurred to the bill, in which the other defendants joined. The demurrer was overruled. Whereupon the executors 111ed an answer, and default was taken against the other defendants. Upon hearing, the court, on 21st January, 1885, held "that the devises and bequests In the will contained of the testator's whole estate, real, personal, and miXed, wherever situated, to Charles E. Hogg and L. F. Campbell, as trustees, as therein mentioned and described, operate as a resulting trust for the complainant, Henry J. Fisher, as testator's sole hell' at law, and that the latter Is entitled to a conveyance from said trustees of all the real estate of the testator, and to theimmediate possession and enjoyment of the whole of the testator's estate, real, personal, and mixed, wherever situate, subject, however, to the testator's widow's right of dower, and to her distributive share in the pel"sonal estate." The order to the executors and trustees to convey and deliver the whole estate to the son was then made, and. they were enjoined from any further intermeddling with the estate. Henry J. Fisher, the younger, took possession of all the estate of his father, the testator, and departed this life in June, 1887, leaving his wife, mentioned in said will, surviving him, and never having had any children by his marriage. On 6th June, 1890, the bill of review In question was filed by Elma Perkins and Shelly Perkins, who are ·of full age,-the latter attaining age in October, 1890,-and Lila Perkins, Mary Perkins, and Eugene Perkins, who are under age, and who slte by prochein ami, their father. To this bill of review are made defendants the widow of Henry J. Fisher, the testator, the trustees and executors named in his will, Henrietta Blackburn, Nicholas Perkins. Maria P. Fisher, widow and executrix of Henry J. Fishel', the son, certain alienees of the said Henry J. Fisher, the son, of property after the date of the former decree, and certain heirs at law of Henry J. Fisher, the father, -all of them having been served. The bill seeks a review of the decree of 21st January, 1885, for the following alleged errors of law, apparent on the face of the decree: "First. Overruling the objection and demurrer to said bill, because Maria P. Fisher, a beneficiary under saId will, was not made a party to said origInal cause. "'Second. In overruling the demurrer to said bill for want of equity therein. "Third. In holding that the devises and bequests in the second clause of the said will ann testament, contained, dated 20th January, 1879, to the lawful children of Henry J. Fisher, the son, were void, as creating perpetuities and being too remote. The said clause was and is valid, because it does not create a perpetuity; the proper construction of the will being that. as soon as the children of the complainant, Fisher, were born, the property of the said testator at once vested in said children, the possession and control thereof being postponed only until the events named therein should occur. "Fourth. In holding the contingent devise to those plaintiffs who are the lawful children of the said Nicholas Perkins by his then present wife void, as said contingency simply depended upon the death of a person then in being without lawful issue. "Fifth. In holding the first clause of the first codicil to the said will void, as it creates an interest Inuring to the benefit of these complainants immediately upon the death of said testator." Mrs. Maria P. Fisher, widow of Henry J. Fisher, appearing, filed a petition in the cause, which, however, does not bear upon the present aspect

804

FEDERAL REPORTER,

vol. 59.

o-f ,the case. :The defendants claiming nnder deeds made by Henry J.' Fisher, the-so-n, :demur to the bill generally. The heirs at law of the testator permit the bill to go by default. ,The court below sustained the demurrer and dismIssed the bill of review, because, upon consideration thereof, the. court is of that the second clause of the said, will of Henry J. Fisher, deceased, is in violation of the rule against perpetuities, and is therefore null andvoi<L The assignment of errors sets this up as'error, and also that, even if this second clause be void for' remoteness, the third clause, is a separate and independent one, not controlled by the second, pro. that, in case the sGndie without lawful. issue, one-fourth of the estate shalLgo to the complainants in the bill of review, and this contingency has hap,pened, and is not too remote. ':/.'helilt:atute .of West Virginia provides that "every limitation in any deed or will, contingent upon the dying of any person without heirs, or heirs of his body, or issue, or issue of the body, or children, or offspring, or descend· ant, Gr other relation shall be construed a limitation to take effect when such personrshall die not having such heir or issue or child or offspring or descendant or other relation, as the case may be, living at the time of his or born to him within ten months thereafter, unless the intention of such be plainly declared on' the face of the deed or will creating it" See, also, Schultz v. Schultz, 10 Grat. 358.

Okey .Johnson" for appellants. V. B. Archer,for appellees. Befbre.GOFE, Circuit Judge, and SEYMOUR and SIMONTON, District J ' SIMONTON, District Judge, (after stating the facts as above.) The leariied judge WhO heard .this case in the circuit court was of.. the'opinionthl:J,tthe second clause of this will created a perpetuity. On this ground he held that the will was void, and directed the· executors t()surrender the whole eState to the heir at ll:J,w.' . that this is the, legitimate construction of the second let us examine' the' correctness of the conclu'sion drawn therefrom. We confine ourselves to the terms of the will proper; The effect of the codicils will be noticed hereafter. Where a previous disposition of property in will is void by law, or, becomes impossible, it does ,not follow that a subsequent disposition of it in the same will will fail, although it be expressly made to follow the void or impossible disposition. In Robison v. OrphahAsylum, 123 U. S. 703, 8 Sup. Ct. 327, the testator gave the. income of' his estate to his wife for her life. He then gave said income to his two sisters, or that one of them who should be living at the death of himself and of his wife, and he directed that at their death the income of the whole estate be divided into three equal parts, and be given to three several charitable societies. The two sisters died before the testator. The wife survived him, and claimed the whole estate, insisting that inasmuch as the provision for the sisters lapsed, the deviSe to the societies dependent on "it failed also. The supreme court sustained the gift to the three societies. In Avelyn v.Ward, 1 Vest Sr. 420, testator devised his real estate to his brother and his heirs on the express condition that he should, within three months after testator's death, execute a release of aU demands on his estate, but if the brother should neg-

a

PERKINS V. FISHER.

80,6>

lect to give such release, the devise should be null and void, and in such case testator devised the estate to W., his heirs· and assigns, forever. The brother died in testator's lifetime. Lord Hardwicke held that the gift over took effect. In delivering his opinion he says that he knew of no case of a remainder or a conditional limitation over of a real estate, whether by way of a particular estate, so as to Ie-ave a proper remainder, or to defeat an absolute fee before by a conditional limitation, but, if the precedent limitation by what means soever is out of the case, the subsequent limitation takes effect. . In the case of Warren v. Rudall, 4 Kay & J.. 603, a devise tQ a' charity, which is void by law, with a gift over in the event that the inhabitants are not willing to carry out the scheme, Wood; V. Ch., sustained the devise over, notwithstanding that the devise to the charity was void by law. "I cannot," said he, "see any substantial distinction between the case of a devise to a nonentity,. if the nonentity should die under 21, or, again, of a devise over after the death of a deceased person, if the deceased person should fail to do a certain act, and the case before me of a devise to a charity which cannot take, followed by a devise over in the event of that charity omitting to perform a certain act." This case went into the house of lords, and is reported as Hall v. Warren, 9 H. L. Cas. 420. Lord Campbell, then chancellor, and Lords Cransworth, Wensleydale, and Kingsdown all concur in sustaining the devise over, notwithstanding that the first devise was void by law. In Cambridge v. Rous, 25 Beav. 414, (Sir John Romilly, master of the rolls,) there was a gift of property to trustees to invest and pay the yearly dividends to the sister of testatrix during her life, i and at her death to divide the said property equally among her sister's children when they should severally and respectively attain the age of 27 years. If the sister died not leaving any child or children at the time of her death, or in case of the death of all the children under 27, the will gave the whole property to certain relations of testatrix. Held, notwithstanding that the provision for the children was too remote, the devise over was good, the sister having died without children. ' In Monypenny v. Dering, 2 De Gex, M. & G. 145, before St. Leonards, Ld. Ch., (devise in trust for A. for life, and after his decease in trust for his first son for life, and after the death of such first son in trust for the first son of the body of such ,first son and the heirs male of his body, and in default of such issue in trust for all and every other son and sons of the body of A., severally and successively, according to seniority, for like interests and limitations as hereinbefore directed respecting the first son and his issue, and in default of issue of the body of A., or in case of his not leaving any at his decease, in trust for B.,) the learned chancellor held that the limitation to the unborn son of an unborn son of A. was void, but that the devise to B. was good in the alternative event, which happened, of A. not leaving any issue at his death. In the fifth edition of Jarman on Wills,: by

806

FEDERAL REPORTER,

vol. 59.

BigelQW, (v:ol1Jme 1, p. 285,) the doctrine is stated, and the English in the text. court of .Massachusetts, in Jackson v. Phillips, 14 The Allen, 572, lay down the· same .vule. The. court says:
"The general rule is that it any estate,. legal or equitable,is given by deed or w1ll to any person In the. first instance, 8lIld then over to another person, or even .to a PllbUc charity, upon happening of a contingency which ma:y bYpOsslbility not take place withIn It Ufe or lives in being and twentyone years afterwards, the gift is void, as tending to create a perpetuity. · · * It, therefore, .be limIted 'upon a sIngle event, which may or may not happen within the prescribed period, it Is void,and cannot be made good by the actual happening of the event wIthin that period; but if the testator dlstln<!tly makes hIs gIft over to depend upon what is sometImes Called an alternative contingency, or upOn either of two contingencies, one of which may be too remote and the other cannot be, its validity depends on the event. Or, In other words, If he gives his estate over on one contingency, whIch must happen, If at all, within the limit of the rule, and that contingency does happen, the validity of the dIstinct gift over will not be affected by the consIderation that, upon a different contingency, which might or mIght not happen wIthin the lawful limit, he makes a disposition of hIs estate whIch would be void for remoteness. The authorities on thIs poInt are conclusIve."

The case of Armstrong v. Armstrong, 14 B. Mon. 333, sustains the same position. . Jarman states the principle and draws the distinction. ''Where the gift over is to arise On an alternative event, one branch of which is within, and the other is not within, the prescribed limits, so that the gift over will be valid or not according to the event," (1 Bigelow, Jarm. Wills, [5th Ed.] p. 285;) or, as it is put in the Massachusetts case above cited, if the gift over be upon an alternative contingency, if one of the alternatives be not too remote, and the event transpires, so as to malre the gift Over available if deemed valid, such gift will be supported, notwithstanding the fact that the other alternative is too remote," (Jackson v. Phillips, supra.) If we examine the language of this will we will find that the testator disposes of his estate upon an alternative contingency. Grieved by the unfilial conduct of his son, the. testator gives him by the will proper no interest in his property which would be subject to his disposition. He creates in him no particular estate with a limitation over; consequently, if that limitation be too remote, no absolute estate can vest in him as the first taker. He leaves him subject to the discretion of, and at the mercy of, his executors and trustees. Turning from him, he gives the fee in his realty and the absolute estate in his personalty to these trustees, so that the whole property may be kept together and preserved until his ultimate wishes regarding it shall have been accomplished. The burden of the trusts remains on them, and their heirs and representatives, until the happening of one or the other of two events. He selects as the objects of his bounty: First. The children of his son, should such children come into being. "If my said son should have any lawful children, my property shall he equally divided" between them, etc. Second. "In case mY" said son shall die .without lawful issue," he provides for

PERKINS V. FISHER.

807

those named in the third clause, which next succeeds. The language of this clause does not impinge upon the rule as to perpetuities. The statute of West Virginia limits the generality of the expression. And it would seem that, even without this statute, the limitation over would be good. The words, "in case my said son shall die without lawful issue," immediately follow a clause making a gift to the lawful children of the son, should he have any. "It is well settled," says M:r. Jarman, "that words importing failure of issue, following a devise to children in fee simple or fee tail, refer to the objects of that prior devise, and not to issue at large." 3 Rand. Jarm. Wills, (5th Ed.) p. 256. In Treharne v. Layton, in Ex. Ch. chamber, L. R. 10 Q. B. 459, testatrix gave her estate, real and personal, to M. for her sole use during her life, and after her death to her children in equal parts, and in case M. die leaving no issue, the whole- property to go to the next of kin; held, affirming the queen's bench, that the words "leaving no issue" must be construed as "having had no issue." See, also, M:aitland v. Chalie, 6 Madd. 250. And the same construction is put on the words "without leaving." They are held to be the same as "without having" by Jessel, M:. R, in Re Jackson's Will, L. R. 13 Ch. Div. 194. Between these two classes, the testator had a marked preference in favor of his son's children. If they came into existence, the other class could not take anything. And he postponed any ultimate disposition of his estate to the last moment of the possibility of their coming into existence,-the death of his son. Only upon this alternative, the death of his son without lawful issue, or, we may say, never having had lawful issue, could this postponed class take. So intent was he that his whole estate and its usufruct should be preserved for the possibility of children of his son, the testator made no provision for the wife of his son, notwithstanding his evident regard for her, until she should be· come the widow of his son. Here there is clearly an alternative: If my son has lawful children, the whole of my property to them: in case Illy son should die without lawful issue,-without having had lawful issue,-this selfsame property, charged with a proper support of his son's widow, goes to the postponed class. Whatever may be the construction of the second clause, be it valid or not, yet, under the terms of the third clause, so long as any descendant of the testator existed, the class mentioned in this third clause could take nothing. This case, therefore, comes within the distinction made by Lord St. Leonards, Ch{lllcellor, in M:ony· penny v. Dering, 2 De Gex, M. & G. 182:
"If the gift in question can be read as a gift in the alternative, that in case there is no issue living at the death of the brother, the estate is to go over, then effect may be given to it, consistently with Beard v. Westcott, 5 Taunt. 393, Turn. & R. 25, and every other authority, because the estate over would not be carried under the limitation at the expense of any person whom the testator intended to take, and no objection on this ground could consistently be raised."

We are of the opinion that the decree of 21st January, 1885, was premature because, at that time, the son being alive, non constat

808

i'EDERA.L REPORTER,

vol. 59.

whether or. not be would die Without lawful issue. The case at that time came within Jackson v. Phillips, 14 Allen, 573. . In that case the court says:
·"Nelther: James Jackson nor· Mrs. PalInerls entitled to a present equitabl.; estate in fee. But l1$ James, though now unmarried, may marry and have .children.who survive him, and as Mrs. Palmer's children may survive her, -in either of which cases haif of the income of the share would, by the will, gdto such children during their lives, and the betlUest over to the charity be tOQremote,-the validity and etrect of that bequest cannot now be determined. If the contingency upon which it is valid should hereafter occur, ...,.namely, the death of testator's son and daughter, respectively, .leaving no whoie remainder of the shQ.rewill then go to the charity."

This course should have been followed here. We are also of the ·opinion that the decree sustaining the demurrer to the bill of review is erroneous, in that the third clause of the will presents an alternative event, and can go into operation even if the second clause be void; and that the testator did not die wholly intestate. The"testator, in Codicil No.2 of his will, revoked the provision, made in the third paragraph of his will, of one-fourth of the residue to the children of Sophia Choen, and of another fourth to the children of John Heisner. These are fourths of the residue of his estate, after a comfortable support for the widow of his son during her widowhood is secured. Subject to this charge, these two-fourths have been undisposed of by the testator, and to that extent went to the son as heir at law; The decree is reversed, and the case is remanded for such other proceedings as may be proper and consistent with this opinion.
RECTOR v. FITZGERALD. Court of Appeals, Eighth Circuit. January 29, 1894.) No. 287.
LISIPENDENS-BILL OJ!' REVIEw-Tum OF FILING.

A finai decree dismissing a bill of complaint filed by Rwas entered on May 2, 1881, and an appeal from such decree was dismissed for failure to prosecute it on December 6, 1881. On February 29, 1884, F. took a mortgage on lallds atrectedby the litigation, from the grantee of the defendant who had prevailed in said suit. On April 29, 1884, R filed a bill of review against F. and his grantor to reverse the decree dismissing the bill of complaint for error appearing on the record. Heldl: (1) That as F. was a purchaser in good faith after the lapse of the term at which a final decree in favor of his grantor had been rendered, his title could not be atrected ·by a decree rendered on a bill of review subsequently filed: (2) that a bill of review will not be regarded as a continuation of the original suit so as to atrect with notice a person purchasing the property in controversy in good faith from the successful party, after a final decree, and without notice that oR bill of review is intended to be filed; (3) that, unless special reasons exist to excuse delay, a bill of review mUSt be filed within the time llmited by la:w for taking an appeal, and, as the bill of review filed by R. was not exhibited until after the time allowed by section 1008, Rev. St., for taking an appeal, it could in no event be entertained in the present case as against F.

,Appeal from the Circuit Court of the United States for the East.:evnDistrict of Arkansas. Affirmed.
1