Deets v. Riggins

Shehan, J., delivered the opinion of the court. Dr. David T. Benson died on May 31st, 1934, testate. He left surviving him his widow, Anna B. Benson, and three daughters, Elnora, Leona and Gladys. Leona married Wilson G. Deets, and Gladys married one Bampley, and after his death married B. Baymond Behmoff, Elnora marrying one Biggins. ⁵²¹ Mrs. Benson died on February 21st, 1925 and on November 15th, 1936, the daughter Leona died, leaving no children.

She left a will in which she gave all her property and estate to her husband, Wilson G. Deets, the appellant. Dr. Benson in his will left all of his estate to his v/ife during her lifetime, and from and after her death his property was devised and bequeathed, one fourth to his daughter Leona, one fourth to his daughter Gladys, and the remaining one half to his daughter Elnora. Gladys has two children, Ann Isabel Rampley and Janet Street Rampley, infants, who were made parties to this suit. The proper construction of the eighth paragraph of the will of Dr. Benson is the subject of the controversy in this case.

It provides that: “Eighth: Should either of my daughters, Leona Deets or Gladys Rampley, die before my daughter Elnora Benson, and they leaving no children, then what share of my estate they received is to be given to my daughter Elnora Benson.” With respect to this section of the will of Dr. Benson, the appellant contends that the devise and bequest to Leona Deets gave to her a vested estate absolutely and in fee in one fourth of the estate of her father, and this passed to him under the will of his wife, and that her sister, Elnora Riggins, took no interest therein. The contention of the appellees is that this disposition of the estate gave a valid executory devise to Elnora Benson (Riggins) and upon the happening of the contingencies mentioned in the will, the interest of Leona ceased and her one fourth interest became the property of Elnora. The chancellor accepted that view, and from the decree, awarding the one fourth interest of Leona Deets to Elnora Riggins, Wilson G. Deets appealed. Therefore, the single question presented in the record is whether Leona Deets took a fee or absolute estate in the one fourth of her father’s property, or did the eighth paragraph of the will create an executory devise to Elnora, vesting in her this one fourth interest upon the death of Leona Deets, leaving no children. ⁵²² The law relating to devises of this character was laid down in the early case of Dallam v. Dallam’s Lessee, 7 H. & J. 220 , where it was said that, “An executory devise, unlike a remainder, needs no particular estate to support it; but no limitation can be good as an executory devise, unless it be on a contingency, that must happen, ,if at all, within a life or lives in being, and twenty-one [years] and a fraction of a year afterwards.

And if it'be limited in an event, which may not happen within the prescribed limits, as upon an indefinite failure of issue, it is void; for the possibility at its creation, that the event, on which it is made to