Jewell v. Pierce

Estates of Deceased Persons—Construction of Will—Decree of Distribution Conclusive—Merger of Will.—A decree of distribution of property under a will involves a judicial construction thereof, and, if not appealed from, is conclusive as to the effect of the will, the provisions of which were merged in the decree, and as to the rights of all heirs, devisees, and legatees claiming any portion of the estate, and they can no longer contend for any different construction of the will from that imported by the terms of the decree.

Id.—Devise in Fee to Grandson—Contingent Devise to Heirs of Testatrix —Death of Grandson without Issue—Construction Fixed by Decree.— Whether a construction might be given to a will devising lands in fee to a grandson, followed by a contingent devise thereof to the heirs of the testatrix, in the event of the grandson “dying without leaving lawful issue him surviving,” so as to refer those words solely to the death of the grandson in the lifetime of the testatrix, cannot be considered or decided, where the decree of distribution distributes the estate to “said grandson, his heirs and assigns forever, and, in event of the death of the said” grandson, “leaving no lawful issue him surviving, then all the property, real and personal, herein distributed to the heirs of the said deceased” testatrix, thereby judicially construing the will as devising to the grandson an estate in fee defeasible upon the contingency of his dying at any time without leaving any lawful issue surviving him, with a remainder in fee to the heirs of the testatrix limited upon this contingency.

In.—Conditional Limitation—Executory Devise—Contingent Remainder —Common Law—Code Provisions.—At common law, such a disposition of property by will would be termed a conditional limitation by way of au executory devise, but under the system prevailing in this state may be denominated a contingent remainder. An executory devise was, at common law, in the nature of a contingent re- . mainder, and could be created only by will; but as a coutingent remainder could not be created upon a fee, a devise, of a fee qualified by a devise over of the same estate to another upon the happening of a contingency or the breach of a condition, was upheld as an executory devise. Under sections 095, 709, 773, and 778 of the Civil Code, a future contingent estate in fee may be limited upon a precedent estate in fee, upon a contingency happening within the period allowed by the code, and may be denominated a contingent remainder, which is to be deemed a conditional limitation of the precedent estate.

Id.—Distribution to Heirs not Named—Collateral Attack—Executory Limitation.—The failure to name the persons and proportions in which an estate is distributed to the heirs of the testator does not render the decree void or subject to collateral attack; and where, at the time of the entry of the decree of distribution, the .event upon which the estate of the heirs -was limited to take effect was uncertain and contingent, and might never happen, and it was impossible for the, court to ascertain the individuals who would constitute the heirs upon the happening of that eveut, the principles applicable to a decree of immediate distribution to persons who may be named and the proportion .to which each may be entitled have no application.