24 Tenn. 505 | Tenn. | 1844
delivered the opinion of the court.
The bill is filed in this case by the executor of Peter R. Booker, deceased, for a construction of his will.
After having devised to his wife and to each of his children various legacies, the testator says: “Should any of my children die without coming to maturity, or die without issue, either before or after coming of age, or should leave issue, which issue should die before coming of age, in either of these events such portion of my estate so bequeathed to sucli child or children is to be equally divided between my surviving children.”
The principal ground of controversy in this cause is upon the construction of the above recited clause of the will. Henry L. Booker, one of the sons of the testator, married, and died without issue then living, but a child born after his death died a
In the case of Forth vs. Chapman, (1 P. Williams, 663,) Lord Chancellor Macclesfield took a distinction between an executo-ry devise of real and personal property; holding, that in the former case, the words “dying without issue” made an estate tail, because the words meant an indefinite failure of issue; but that with respect to personal property which was transient and perishable, the testator could not have intended a general failure of issue, and therefore in regard to that species of property the testator must have meant, without issue at the death of the first taker.
This distinction has been recognized in many subsequent cases. The question, therefore, as to the meaning of these words in the will, is a question of intention; and although an artificial legal sense has been affixed to the words “dying without issue,” so that taken alone they mean an indefinite failure of issue; yet any clause or circumstance in a will which indicates or implies such intention, will confine the sense to a dying without
Having thus before us, the rule of construction, by which we are to determine the meaning of the words “dying without issue,” we will turn our attention to the clause of the will under discussion.
The testator provides that if any of his children “die without issue, or should leave issue, which issue should die before coming of age, in either of these events such portion of my estate so bequeathed to such child or children is equally to be divided between my surviving children.”
In this clause the testator seems to have specially intended to postpone the limitation to the longest period the law would allow, and to provide that the contingency must happen within the time. The devise is to his children; but if any of them die without issue, or if such issue die before coming of age, then over, &c. Here the contingency must happen within the period of a life in being and twenty-one years after. For if a child die, leaving issue, which issue dies before comingof age, the death of such issue must necessarily be within twenty-one years and nine months of the death of the parent.
Upon a dying without issue, the estate is to be equally divided between the surviving children. These words “surviving children” are very expressive of the testator’s intention. In the event contemplated, the estate bequeathed to such child is to be equally divided between the surviving children. These terms in such juxtaposition show that “child” and “children” are employed in the same sense, to express a like relation to the testator. Besides, the term “children” expresses the immediate offspring of the parent: neither in its vulgar or its legal sense is it expressive of remote descendants: to make it so mean it must be coupled with other expressions which will give to it such a signification. Here there are no such expressions; on the contrary, the entire clause is pregnant with evidence that the term “children” is used in its appropriate sense to signify the immediate offspring of the testator. The contingency, then, is to happen within the life of some of the testator’s children, and is therefore definitely restricted within the time the law allows.
It is insisted, that as by the will Albert Booker manifestly has an unlimited power of disposition over the property devised to him, we are to suppose the testator intended to place all his sons in like circumstances, and therefore that he intended Henry, should also have a like power of disposition. No such legal inference can be drawn from the-devise to Albert as the one here insisted on. We cannot tell what motives the testator-may have had in creating a distinction in the estate devised to his sons. If the argument were sound in this case, it would be applicable in any case of a will, where a difference would exist in the devises to the testator’s children; and we should be •called upon to remodel men’s wills, instead of expounding the meaning of the words they have 'employed.
We therefore think, that as it regards Hénry L. Booker, the executory devise is good, and that his brothers and sisters také the estate which was given him in his father’s will.
In the concluding clause above quoted, it seems clear that the testator intended to give an absolute power of disposition of the estate after Albert should arrive at twenty-five years of age. When it is said, he is not to dispose of it until he arrived at the age of twenty-five years without the consent of the executors, it is implied that he may dispose of it, with their consent, before he is twenty-five, and that after he arrives at that age he may make such disposition without their consent. We cannot more clearly express our approbation that a thing may be done, than to forbid it except upon the happening of a certain event. All men would understand that upon the event happening, the right to do the thing had been granted. It would have been absurd for the testator to limit the right to dispose of the property unless the executors consent, or unless he arrive at twenty-five years, if he did not intend that upon either of these occurring he might dispose of it. In the case of Jackson vs. Bull, (10 John. R. 19,) the testator devised to his son Moses and to his heirs and assigns forever a lot of land, and then added, that in case his son should die without lawful issue, the property he died possessed of he gave to his son Young.
The Supreme Court of New York decided, that the limitation over by way of executory devise was void, because repugnant to the absolute power of disposal given by the will to Moses, who was thereby enabled to defeat it.
The same principle is decided in the Court of Errors of New York, in Jackson vs. Robins, (16 John. R. 537,) upon a like provision in the will of Lord Stirling.
It is true, in this case the devise is not, as in those cases, to the devisee and his heirs and assigns forever; but the property is devised to his son Albert, and that by our act of 1784 is to be deemed and construed to-be a devise in fee simple, unless by some part of the will it appears that the testator intended to convey an estate of less dignity. Unquestionably, the words used in this will much more strongly express the testator’s intention to give a power of disposition, than do the words in the New York cases, by the devise to heirs and the devise over
We therefore think the executory -devise, so far as it relates to Albert's portion of the estate, is void; b'ut that it is good as to the bequests to Henry which had-been made in the preceding part of the will. But this limitation does not touch the residuary clause, nor does it apply to the specific legacies subsequently given, except in such cases as the restriction is again repeated in reference to those legacies specially. This is plainly the intention of the testator; for having first given to his wife, and then to each of his children successively, specific legacies of land and negroes, he then adds the'clause in question, in which he provides that if any child should die without issue, the portion “so bequeathed” is.to be equally divided between the surviving children. The words “so bequeathed” relate specially to the bequests that had been made in the preceding clauses of the will, and have no relation to, or influence over subsequent devises.
The subsequent portions of the will and the codicils sufficiently indicate that this was the intention of the testator, if the meaning of the clause in question were less clear and needed such aid.
The testator had a large estate, and he intended to place a portion of it under such restrictions as to provide a sure support for his children, and to protect them from the casualties or mismanagement by which estates are so frequently squandered, and at the same time he did not choose to tie up the whole estate from the free enjoyment and disposition of his legatees.
But the second residuary clause in the will provides, that “after the coming of age of my youngest child, and the allotting to each the portion herein bequeathed, it is my desire that the
Inasmuch as Henry died before the youngest child came of age, his devisees are excluded from taking any portion of the residuum by the limitation to the children then living.
But in the codicil,.the testator in the third item devises to his son Henry 2000 dollars of his stock in the Union Bank, in discharge of Henry’s claim for work done on the Franklin and Columbia Turnpike road. In the fifth item he gives his sons James and Henry 640 acres of land in Desoto county, Mississippi, and 640 acres in Lafayette county, Mississippi, as compensation for the trouble and responsibility of executing his will.
These bequests are free from the limitations of the will; and as Henry qualified and acted as executor, the devise to him of the 640 acres of land vested on his qualification as executor, and, together with the 2000 dollars of Union Bank stock, was his absolute property at his death, and passes by his will.
The decree must be reversed, and modified as herein indicated.