Annable v. Patch

20 Mass. 360 | Mass. | 1825

Wilde J.

delivered the opinion of the Court. It is difficult to ascertain with certainty the meaning of a will so unskilfully drawn as this is which is now depending. Whether it was the intention of the testator to give an estate tail to Sarah Annable, or an estate in fee simple to her and her children as tenants in common ; and if the latter, whether he intended to provide for all the children, or for those only who were living at the time of making the will, or who might be living at the time of his decease, does not distinctly appear by the language of the will, and must therefore be determined by rules of construction.

The intention of the testator is to be regarded, if clearly expressed, although he may be ignorant of technical language, and may use it improperly;¹ but if the intention is left doubtful, the will must be construed according to the legal import of the words of the devise.

These words are, “ I give all the remainder of my estate, both real and personal, to my daughter Sarah Annable, and the children born of her body, including all my wife has the improvement of during her life after her decease.”

The case must turn upon the construction to be put on this clause of the will. The legal import of it is clear. The words “ children born of her body,” are words of purchase and not words of limitation. It was so decided in the case of Buffar v. Bradford, 2 Atk. 220. The words in that case were, “ to my niece Buffar, and the children born of hei body ;” and the court held they were words of purchase, although the niece, at the time of making the will, had no child.² Unless therefore it appears from other parts of the will, that it was the intention of the testator to give an estate tail to his daughter, we cannot construe these words as words of limitation. This intention most clearly does not appear; and there is nothing therefore to control the legal import of the words. "

But it has been argued, that if Sarah did not take an estate tail, she and her children took as joint tenants. But the St. 1785, c. 62, § 4, [see Revised Stat. c. 59, § 10,] is decisive on this point. It is no valid objection, that the will took effect before the passing of this act. The statute extends to past grants and devises in express terms, and its operation is not to impair any vested right. It serves rather to render the tenure more beneficial. No estate had vested in any survivor previous to the passing of the act, and therefore from and after that time, Sarah and her children held as tenants in common, whatever might have been the construction of the devise before.

As to the question, whether the children born after the will was made, can come in for their shares, we think that they may. “The children of her body” meant all the children she might have. This will not appear to be a strained construction of the words, when it is observed that as to part of the property the devise was prospective, it being of a remainder after a life estate to the widow. If the devisor had intended to limit his bounty to the children living when he made his will, he would have named them, or used words to show that he meant so to limit it.

We are therefore of opinion, that it was the intention of the testator that all the children should take under the will in equal shares with the mother. This intention may be carried into effect according to the rules off law. As to that part of the will in which a life estate was given to the widow, Sarah and the four children living at the decease of the testator took a vested remainder, which remainder may open to let in the afterborn children, according to the case of Dingley v. Dingley, 5 Mass. R. 535. As to the residue of the estate, it vested in Sarah and her four children, on the death of the testator. But it was a qualified fee, and so limited as to admit the claims of the afterborn children, and they may hold by way of executory devise. Fearne’s Cont. Rem. (6th ed.) 399. There can be no legal objection to such a conditional limitation. It was formerly held in some cases, that an executory devise to a person not in esse was void, but it has been long settled that such a devise is good. Stephens v. Stephens, Cas. Temp. Talb. 228 ; Fearne, 495.

No question as to the personal estate is now before us, but there seems no doubt, that the afterborn children are entitled to their shares by way of executory devise, so that the intent of the testator, if we have rightly interpreted it, may in all respects be fulfilled.

Judgment for the demandant.

1 See Ingell v. Nooney, 2 Pick. (2nd ed.) 366 and notes

2 Parkman v. Bowdoin, 1 Sumner, 366; Jones v. Davies, 4 Barn. & Adol. 43; Ray v. Enslin, 2 Mass. R. (Rand’s ed ) 563, n. (a), and the cases there cited.