| S.C. | Apr 23, 1878
The opinion of the Court was delivered by
The testator, after giving to his wife his “ entire estate, real and personal, during her lifetime,” continues as follows: “ I wish my wife to enjoy this estate during her life; at her death to go to my daughter, Emma Julia. Should my daughter die without issue, I wish my entire estate to be divided equally among,” &c. The wife is dead — the daughter is alive, “ without issue.” The question is, what estate does she take under the will of her father? It is admitted that by the words “at her death to go to my daughter” the “ entire estate', real and personal,” passes to the daughter at the death of the wife in fee. But it is contended that the estate in fee is defeasible upon the daughter dying al any time without issue. In the opinion of the Court the time of the death contemplated by the testator when he used the words “should my daughter die without issue ” must be during the lifetime of the wife — the life tenant.
It is unnecessary, and, indeed, impracticable, when the amount of business before the Court is unusually great and the time at its disposal limited, to discuss those principles of law and natural reason by which the true intention of the testator in every case' is to be ascertained. It is unnecessary, because in this instance the intention of the testator is derived from the application, as was said by Chancellor Wardlaw in Evans vs. Godbold, (6 Rich. Eq., 39,) of settled rules of construction, framed to define the general intention
In that Chapter (L) of 2 Jarman on Wills, which treats of “ words referring to death, coupled with a contingency and to what period they relate,” on marginal pages 693-4, the following will be found: “ Where the two concurrent or alternative gifts are preceded by a life or other partial interest, or the enjoyment under them is otherwise postponed, the rule is to apply the words in question to the event of death occurring before the period of possession or distribution. In such case the original legatee, surviving that period, becomes absolutely entitled.” — Da Costa vs. Keir, 3 Russ., 360; Galland vs. Leonard, 1 Swanst., 161; Evans vs. Godbold, 6 Rich. Eq., 26; Schopper vs. Gillam, 6 Rich. Eq, 83 ; Anderson vs. Smoot, Speer Eq., 312.
There seems, indeed, to be no real difference between the present case and that of Vidal vs. Verdier, (Speer Eq., 402,) in which the rule stated was followed. In that case there is a subsequent provision in Peter Bennett’s will which is not contained in this will. It directs how the property shall go to the children of the legatee, who occupies the position of Emma Julia in this qase, in the event that legatee should die leaving children ; but it had nothing to do with the case, and is only alluded to by the Chancellor as corroborative of the conclusion at which he arrives upon other grounds.
The circuit decree by Chancellor Dunkin and the opinion by Chancellor Harper dispose of every question which could arise in this case. In Bennett’s will the sentence upon which the question hinges is “ but in case of the death of my nephew, James Felix Vidal, without his leaving a lawfully-begotten child or children,” then over. In the present case the words are “should my daughter die without issue.” The word “should” is subjunctive, and certainly is equivalent to the words “in the event of” or “in case of.”
It is needless to discuss the questions, however, as a mere comparison will show, in a moment, the close resemblance between the wills and the direct application of all that was said in that to the present case. It was held that the gift, after the death of the wife, was an absolute gift in remainder after the estate for life; that the subsequent provisions amounted only to contingent limitations over on the death of the legatee, and that the expression must be con
It is an absolute estate subject to defeasance on the happening of a particular event. That contingency had become impossible upon the death of the life tenant. And that, we think, is the right determination in the present case.
In the cases of Yates vs. Mitchell and DeHay vs. Porcher, heard together, (1 Rich. Eq., 265,) Chancellor Harper says of Vidal vs. Verdier: “That case was decided upon this principle, that when a testator, giving in remainder after an estate for life, uses one set of expressions denoting that the remainderman is to take an absolute estate and another set of expressions limiting him to an estate for life with remainder to his issue, and a limitation over in the event of not having issue, this apparent repugnance may be reconciled by restricting the dying without issue to the lifetime of the tenant for life, thus permitting every part of the will to have its proper effect.” If he dies during the lifetime of the tenant for life leaving issue, the issue will take as purchasers under the will; if without issue, the limitation over will have effect; but if he survives the tenant for life, the estate is absolute. Such is, in every case, a reasonable and probable intention; and in that case there were circumstances to satisfy me very fully that such was the actual intention.”
By parity of reasoning the same conclusion must be attained in the case before us.
The Act of 1853 (Rev. Stat., 443,) is applicable to this case and removes any distinction which might otherwise have been made between this and that of Vidal vs. Verdier. The language of the will and the circumstance that it was dictated by the testator, as it is said, in extremis, go very far to show that it was not his intention to dwarf or cripple the estate of his only child for the benefit of a class stated so generally, and, further, to show that when he had given his whole estate to his wife for life and then to his daughter, he regarded himself as having fully disposed of his estate, unless a particular contingency should occur, which he next proceeds to contemplate by providing that it should then go over to the Horl-becks one-half and to the Blums one-half — his family and his wife’s family.
The estate has passed from the trustees and is vested in the daughter. We consider that to be the final disposition contemplated by the testator in the event that his daughter survived her mother. Coeteris paribus, “ the Court,” as was said by the Chancellor in the circuit decree in Evans vs. Godbold and by Lord Brougham in Havery vs. McLauchlin, “ the Court inclines to a construction which favors the early vesting of estates and against a construction which divests an estate already vested.”
The judgment of the Court below is affirmed and the appeal dismissed.