1 F. Cas. 16 | U.S. Circuit Court for the District of Massachusetts | 1854
The question presented for the decision of the court is, whether John and Jacob Kittredge took estates tail under the will of their father, John Kittredge. The devise to them is in the following words:—
“I give to my sons, namely, John and Jacob Kittredge, all my lands and buildings in Andover aforesaid, (excepting the land I gave to my son Thomas aforesaid,) which buildings consist of dwellings, houses, barns, corn-house, grist-mill, and cider-mill, all -of every denomination; also all my live-stock
“Item. It is my will that if either of my •.said sons, namely, John or Jacob Kittredge, should happen to die without any lawful heirs of their own, then the share of him who may first decease shall accrue to the other survivor and his heirs.”
Independent of the last clause, by which the estate is given over, I am of opinion that the sons would have taken an absolute estate in fee-simple. 1. Because one of the devi-sees, John Kittredge, is made executor of the will, and is required to see that all t.'v testator’s debts and legacies be paid, out of that part of the testator’s estate devised to himself' and his brother Jacob. This is a charge on John, personally, in respect of the ■estate given to him, as was held in Doe v. Snelling, 5 East, 87; Lithgow v. Kavenagh, 9 Mass. 161; Wait v. Belding, 24 Pick. 129. The distinction is between a charge to be paid out of rents and profits only, and a charge to be paid by the devisee at all events cut of the estate in his hands. In the last case, the devisee takes a fee, though, undoubtedly, it may be cut down to an estate tail by words showing that intent. Slater v. Slater, 5 Term R. 335. As this would give a fee-simple to John, and as the intent of the testator is clear, to have the two take the same estate, the estate of Jacob would necessarily be held to be a fee simple also. See Lord Ellenborough, in Roe v. Daw, 3 Maule & S. 518. 2. Among the legacies given by the will is, the maintenance of Sarah Dwinel, until she should arrive at the age of eighteen years, “out of that part of my estate I give my sons John and Jacob Kittredge.” If only life estates were given to John and Jacob, both might die before -the legatee became of that age, and thus the clearly expressed intention of the testator be defeated. 3. The testator directs his debts and legacies to be paid “out of that part of my estate I have given to my two sons, John and Jacob Kittredge.” It is held in Massachusetts, in conformity with many decisions elsewhere, that if the testator had a fee, a devise of his estate carries a fee. The word “estate” if not controlled by some other language of the will, being construed to designate the quantity of interest, and not merely the corpus of the subject of devise. Godfrey v. Humphrey, 18 Pick. 537.
Now, though this use of the word “estate” occurs only in the clause charging the debts and legacies, and not in that employed to make the gift, yet the intent of the testator may as well appear in the former, as in the latter clause. Indeed, all those cases, in which it has been held, that a charge upon the devisee of a gross sum, or of debts and legacies, implies a gift of more than a life-estate, are authorities to show that the testator's intent to give a fee may be found in such a clause. And if it may be inferred from the duty created by such a clause, why not also from the language employed in creating that duty; provided that language is sufficient to show, that the testator understood that he had given an estate in fee to his sons? If a devise, which, by its terms, would carry only an estate for life, is followed even in another part of the will, by language which shows the testator believed he had given a fee, a fee will pass, because the iutent of the testator is to govern, and that intent is to be collected from the whole of the will.
This testator, in referring to what he had given to his two sons, calls it “that part of my estate.” There are many cases in which it has been held, that the word estate is to be construed to refer to the testator’s interest in the land devised, although coupled with other words which could refer only to the particular land, the subject of the devise. Thus, “my estate consisting of thirty acres of land, situate in the parish of A-;” “my estate in the occupation of B-,” cany a fee; 2 Pow. Dev. 413. Here the words “estate situate,” &c., mean not only the land, but the interest of the testator therein; so in the case at bar, “that part of my estate” means, not only the particular tracts of land before described, but the interest of the testator in those tracts of land. The question is. whether he intended to devise to each son an estate tail general, with cross remainders in fee. or a fee-simple conditional, with an executory devise over; and this depends on the iutent of the testator to provide for a definite or indefinite failure of issue.
If the first taker was to have a fee-simple, and the estate is given over on a definite failure of issue, that is to say, in this case, a failure at the decease of the first taker, then the limitation over may take effect as an executory devise, because the contingency is determinable within those reasonable limits established by law to prevent perpetuities. This has been the law since the case of Pells v. Brown, Cro. Jac. 590.
I know of no question which is involved in so much doubt, and has been the subject of so many conflicting decisions as this one concerning the definite or indefinite failure of
The case of Parker v. Parker, 5 Mete. [Mass.] 134, was cited as controlling the case at bar. I do not think it can be so considered. I think that case was determined upon two points. 1. That by the true construction of the whole will taken together, the sons took no more than an estate tail. 2. That the rule in Purefroy v. Rogers, required the estate limited over, to take effect by way •of contingent remainder. It is true, that the rale settled in Purefroy v. Rogers, 2 Saund. 388, has been often recognized in this country, and especially in Massachusetts. Hawley v. Northampton, 8 Mass. 3; Nightingale v. Burrell, 15 Pick. 110; Parker v. Parker, 5 Metc. [Mass.] 134. That rule as laid down by Lord Hale is, that “where a contingency is limited to depend on an estate of freehold, which is capable of supporting a remainder, it shall never be construed to be an executory devise, but a contingent remainder only, and not otherwise.” But this rule does not operate until it is ascertained what the particular estate is, and that it is capable of supporting a contingent remainder.
I do not understand it to be a rule of construction, to be used in determining what particular estate the testator intended to devise, but a rule of law which determines the kind of estate which must be deemed to be limited over after the particular estate intended to be devised has been ascertained. And, therefore, I have not allowed it to have any weight in this case. The difficulty which I find in assenting to this decision of Parker v. Parker, arises from two considerations. The first is, that the limitation over is clearly upon a definite failure of issue, because the first taker must not only die without issue, but he must die before he arrives at the age •of twenty-one. If he survives the age of twenty-one years, the estate is not to go over, although the next day he should die without issue. In that event, the estate is to go to his heirs general, for he leaves no heirs of his body, and the estate is not to go over; it must therefore go to his heirs general, if he lias more than a life-estate; and accordingly it has been decided in many eases, that if the limitation over be upon the contingency of dying under age and without issue, the first taker has a coa ditional fee-simple and not an estate tail.
Mr. Justice Story so held in Lippott v. Hopkins, [Case No. 8,380,] where the cider authorities are all cited; and more recen fly the same rule is laid down and acted ou in Glover v. Monckton, 3 Bing. 13; Doe v. Johnson, 16 Eng. Law & Eq. 550; Barnitz v. Casey, 7 Cranch, [11 U. S.] 456, and also in Ray v. Enslin, 2 Mass. 554, and Richardson v. Noyes, Id. 56. This distinction between a definite or indefinite failure of issue, was not adverted to by either the counsel or the court in Parker v. Parker. It is not easy to reconcile this decision with that of Richardson v. Noyes, 2 Mass. 56; but if there is any discrepancy, it touches the question, what estate was intended to be given to the first taker.
As I am satisfied, that under ti-¡s will the sons were intended to have a fee; and as the provisions of this will are substantially different from those in the case of Parker v. Parker, so far as respects the estate of the first taker, I do not consider that case can apply to this one. In Hawley v. Northampton, 8 Mass. 41, Mr. Chief Justice Parsons says: “Now it seems to be settled, that a devise to one and his heirs, and if he die without issue, or without leaving issue, then to another, creates an estate tail in the first devisee with a remainder over, when the limitation over can take effect as a remainder, unless there are other words to control this construction.” This rule, with its qualification, being in conformity with the earlier cases in Massachusetts, and with the whole current of decisions in England, and with very numerous decisions elsewhere, I consider to be the law of Massachusetts, and that the difficult inquiry in this case arises under the qualification of the rule; and is, ■ whéther there are in this will words sufficient to render inapplicable this rule of construction.
Before adverting to some of the most important cases on this subject, I think it may be said with truth, that the American courts, while .^ey have recognized the rule, have shown a strong disposition to lay hold on pretty slight expressions in the will to defeat its operation; a tendency which has been effectually sanctioned, not only in several states in this country, but in England, by legislation which abolishes the rale altogether. A review of the American cases on this subject would occupy too much space. I will refer to some of the most important. Anderson v. Jackson, 16 Johns.
Let us now turn to this will to see whether the testator intended to give the share of each son over, if he should die without issue living at his decease, or upon an indefinite failure of issue. His words are, that if either of my said sons should happen to die without any lawful heirs of their own, then the share of him who may first decease, shall accrue to the other survivor and his heirs. The words “without any lawful heirs of his own,” cannot be construed literally, because the contingency provided for, is the survivorship of one who would necessarily be a collateral heir; heirs of his own must, therefore, be construed to mean lineal heirs of his own. Lewis, Perp. 311; 2 Jarm. Wills, 238.
The question is, whether this failure of lineal heirs was to be on the decease of the first taker, or at any time afterwards. 1 am of opinion that it was a definite and not an indefinite failure of issue which was thus provided for, and for the following reasons: — First. There can be no doubt that a fee-simple and not a fee-tail is devised over. The devise is to “the other survivor .and his heirs;” yet, this is called the share of him who may first decease. If the word ‘.‘share” is construed to mean the - quantity of interest in the particular land which was devised to him who may first decease, it would follow, that, inasmuch as a fee is given over from the first taker, a fee was devised to the first taker; such a deduction is but the converse of the reasoning by which a fee is held to pass under a devise of the testator’s estate. That reasoning is, that the word estate means the interest of the testator, and as he had a fee-simple, a fee-simple is given. Here a fee-simple is given over, and it is designated as the share of the.first taker; if that means the estate or quantity of interest of the first taker, the testator has, in effect, described it as a fee-simple, by giving it over as such. I do not perceive any good reason why the word “share” may not be thus interpreted. In Pettywood v. Cook, Cro. Eliz. 52, where there was a devise in fee to three persons, in severalty, and if either of the devisees should die without issue, the survivors should enjoy “totam illam partem,” it was held only a life-estate was given 'by those words; but Willes, Ch. J., in Moone v. Heaseman, Willes, 143, says, he should have decided otherwise, as does Lord Ellenborough, in Bebb v. Penoyre, 11 East, 162, who was inclined to the opinion, that the words “my half part,” would carry the interest of the deviser. In Denn v. Balderston, Cowp. 257, there seems to have been no doubt felt that the words “their property and share in the premises,” would carry the whole estate: and the use of the phrase, “share and share alike,” is habitual among conveyancers to designate an equal division of the subject, both as to quantity of estate as well as the corpus or thing devised. So in Paris v. Miller, 5 Maule & S. 408, the words being “my share of the Bastile and other estates,” it was held that the word “share” denoted the interest in the thing devised. Without undertaking to say that a devise over of a fee, by the name and description of the share of A. B., necessarily imports that A. B. took a fee, I think it has a tendency to show such was the understanding of the testator, which may or may not be sufficient, according to the particular phraseology of the will in question.
Second. This gift to the two sons includes personal as well as real estate. The assumption, that the testator intended to limit over personal estate, consisting of tools and utensils, bonds and other choses in action, and cattle and horses, in the event of an indefinite failure of issue, is very violent; a similar state of facts in Richardson v. Noyes, 2 Mass. 56, led Mr. Justice Sedgwick to declare that such a supposition was absurd. I am aware that there is considerable weight of authority in favor of the position that this difficulty is to be got over by holding, that two different limitations were intended; that as to realty the testator intended an indefinite, and as to the personalty a definite failure of issue. This resort seems to be countenanced by Parsons, Ch. J., in Hawley v. Northampton, 8 Mass. 39. He refers to some of the authorities which support it; others are: [Sheffield v. Lord Orrery,] 3 Atk. 288; [Crooke v. De Vandes,] 9 Ves. 203; [Ryder v. Gower,] 6 Brown Parl. Cas. 309; [Den v. Shenton,] 2 Chitty, 662; [Mazyck v. Vanderhorst,] Bailey, Eq. 48. But I apprehend that the number as well as the weight of the authorities is the other way. [Addlington v. Cann,] 3 Atk. 147; [Morgan v. Surman,] 1 Taunt. 289; [Campbell v. Harding,] 2 Russ. & M. 390, denying the
In this will the limitation over is not simply to the survivor, but to “the other survivor.” To construe “survivor” here to mean simply ■“other,” would deprive it of all force. It is to be observed, too, that it is only the share of him “who may first decease”' which is given over. These words certainly add to the strength of the word survivor. That word naturally imports the one who shall be alive at the decease of the other. Here, then, the testator in describing the subject of the devise over, has called it the share of him who may first decease; and in describing the one who is to take, has used a word which indicates that he is to be alive when the estate goes over. It seems to me that the natural construction is, and the real meaning of this testator was, that if one of these sons should die without issue in the lifetime of the other, the other was to have the whole. If this contingency should not happen, the testator desired to make no further provision on the subject.
To declare this or any other construction of this clause to be free from doubt, or in entire harmony with all the authorities, would prove nothing but want of reflection or examination. All I can venture to affirm is, that after deliberate and attentive consideration of the will, and of the rules of construction which seem to me applicable to it, the best opinion I have been able to form is, that by way of executory devise, the share of the son first dying without issue in the lifetime of the other, was to go over to that survivor, and that, subject to this contingency, each took a fee-simple.
