Chapter § 1.4 Rules of Construction and Other Rules Relating to Remainders

• Jurisdiction: Washington

§1.4 RULES OF CONSTRUCTION AND OTHER RULES RELATING TO REMAINDERS

The following rules relate generally to the classification and operation of future interests. In general most rules of construction are rules of presumed intent. The general policy, as will be seen, is to give effect to the party's or parties' intention. When that intention cannot be discovered the rules of construction are adopted.

Some rules, especially the doctrine of worthier title, may not accurately reflect the probable intention of most grantors.

(1) General rules

With respect to wills the axiomatic rule is that the intention of the testator, as determined from the instrument and the circumstances, is to be given effect. Shufeldt v. Shufeldt, 130 Wash. 253, 227 P. 6 (1924). Basically the same notion applies to deeds; the parties' intention is to be given effect. However, in doubtful cases the deed is construed against the grantor and for the grantee. Hodgins v. State, 9 Wn. App. 486, 513 P.2d 304 (1973).

(2) Vesting preference

In Shufeldt v. Shufeldt, 130 Wash. 253, the court added a number of additional sub-rules to be used to clarify intention:

(1)	Early vesting is favored.
(2)	Vested is favored over contingent.
(3)	Postponement of payment is not necessarily postponement of vesting.

All of these sub-rules are variants or corollaries of the preference of the law for vested as opposed to contingent interests. A number of reasons have been suggested for this preference, including the destructibility rule (now probably gone), the problem of unintentional disinheritance of a child's descendants (now typically solved by lapse statutes), and avoidance of perpetuities problems. The rule has several corollaries:

(a) Conditions will not be implied. In a conveyance "O to A for life, then to B," it might be that O wanted B to take only if he survived A, but the nonimplication corollary keeps B's interest vested.

(b) An interest will be treated as vested at the earliest possible moment. Thus a devise to "B at age 21" may be regarded as vested, with distribution postponed, allowing B's heirs to take if he dies under 21.

(c) When a case is doubtful, an interest will be treated as vested subject to divestment rather than as contingent. Thus a condition subsequent will be preferred. This may be significant when the rule against perpetuities can cause problems. In the inter vivos gift "O to A for life, then to A's widow for life, then to A's children, but if any are not surviving to their issue," the interests of each child or issue could be contingent on surviving A's widow and thus invalid (as perpetuities), or the children's interest could be vested on each child's birth, thus saving the gift for children.

The vested/contingent determination, unless the language is absolutely clear (and perhaps even then), will continue to be very case-specific.

The presumption against intestacy also may have an effect in future interests. Gifts of contingent interests in a residuary clause leave a reversion in the testator to pass by intestacy. Construing the remainder as vested eliminates the reversion and the partial intestacy. Also, when there is any doubt, an interest will be regarded as present rather than future. In re Lemon's Estate, 47 Wn.2d 23, 286 P.2d 691 (1955); see also Estate of Smith, 40 Wn. App. 790, 700 P.2d 1181 (1985).

(3) Merger

Merger is not, strictly speaking, a rule of construction. This doctrine finds more application in mortgage and landlord-tenant cases than when future interests are concerned.

Basically, the rule provides that when a person holds two vested legal estates with no intervening interest, the estates merge. For example:

January 1: O to A for the life of A.

January 5: O dies, devising his residuary estate (which includes the reversion following A's life) to A.

A's life estate and the reversion merge to form a fee simple absolute.

Merger in a case like this usually is considered to be a positive rule of law rather than a rule of construction. That is, merger is probably unavoidable. In the landlord-tenant area, and in mortgages, it is sometimes suggested that merger...