122 A. 454 | Conn. | 1923
The fundamental question of law presented by this reservation for the advice of this court is what estate did each of the testator's children take in the portion given to each by his will. If the answer be that each took an estate in fee simple, it will be decisive of all the questions stated for determination.
The rules governing the construction of wills are so well settled and familiar that it is unnecessary to repeat them specifically. Chancellor Kent's brief statement is applicable to the present case: "The intention of the testator is the first and great object of inquiry; and to this object technical rules are, to a certain extent, made subservient. The intention of the testator to be collected from the whole will, is to govern, provided it be not unlawful, or inconsistent with the rules of law. The control which is given to the intention by the rules of law is to be understood to apply, not to the construction of words, but to the nature of the estate — to such general regulations in respect to the estate as the law will not permit; as, for instance, to create an estate tail, to establish a perpetuity, . . . or to annex a condition that the devisee in fee shall not alien. To allow the testator to interfere with the established rules of law, would be to permit every man to make a law for himself, and disturb the metes and bounds of property." 4 Kent's Commentaries (14th Ed.) *535.
In the second clause of this will it appears that the testator understood that he had the power to limit an estate he wished to give to an estate for life, and that he knew what language should be used to create such an estate. In apt words he clearly expressed his intention to give his wife only a life estate in the particular property described; he did not leave his intention to be inferred from words of doubtful construction. It appears in the third clause that he also understood *651
that he had the right to say what should become of this property after his wife's death; and in simple words he clearly declared his intention that it should go to his son Edward, "his heirs and assigns forever." He used no words of limitation or condition of any kind. He made known his intention in appropriate terms commonly used to create an estate in fee. No good reason appears or has been suggested why he used these simple terms if he intended to give his son only a life estate, instead of the same explicit terms he had just before used when he evidently intended to give a life estate to his wife. In the fourth, fifth and sixth clauses of his will the testator provided for his other children, and gave and devised to each a designated portion of his property in terms that neither express nor imply an estate for life only. It is true that in these clauses no words of inheritance were used; but such words are not necessary to carry the fee where the estate is created by will. The words "give and devise," or either of them, would be held sufficient. Houghton v. Brantingham,
If, however, it clearly appeared that such was his purpose, it was beyond his power to make it effective by such terms as he adopted and used in his entire will. "Also, if a feoffment be made upon this condition, that the feoffee shall not alien the land to any, this condition is void, because when a man is infeoffed of lands or tenements . . ., he hath power to alien them to any person by law. For if such a condition should be good, then the condition should oust him of all the power which the law gives him, which should be against reason, and therefore such a condition is void. . . . And the like law is of a devise in fee upon condition that the devisee shall not alien, the condition is void." 2 Coke upon Littleton (Ed. 1853) 222 b., 223 a., Sect. 360. That rule is still observed. 1 Swift's Digest, 94; Cleaveland, Hewitt Clark, Probate Law Practice, § 430; Tarrant v. Backus,
The terms of the eighth clause, whatever doubts they may raise or whatever inference they may imply or suggest, are not as express and positive, or as clear and decisive as the words of the clauses of the will which give the estates in fee. For this reason, those estates were not cut down by that clause. If, however, the terms of that clause expressly and positively indicated the testator's intention to limit the estates he had plainly given by subsequent conditions in total restraint of alienation, his intention can have no effect, because such conditions are illegal and void.
Looking at the whole will to ascertain the intention of the testator, we see that he disposed of his entire estate, and had in mind no possible remainder; and it is evident that he meant no part of it to become intestate. But if it should be held that the children took only life estates, the remainders would become intestate estate. Such a construction would thwart the intent of the testator and violate the established rule that courts will endeavor to avoid a construction of a will which will result in partial intestacy. Weed v. Scofield,
Moreover, if it should be held that by the eighth clause of his will the estates of the children were limited to estates for life, followed by devises of the remainders to their heirs, the devises would evidently contravene the statute of perpetuities which was in force when this will was made and when this testator died. Such a construction will not be adopted whenever it is possible to make a construction that will render the devise valid. Wolfe v. Hatheway,
In the sixth clause of the will the testator gives certain real property to his son James in fee simple. In the seventh clause he seems to attempt to impose certain conditions or restrictions upon the gift. Apparently he intended to direct his executrix to withhold the described share of James if he continued his intemperate habits and to give him only $5 as his full share of the estate. But he did not indicate clearly who should decide whether James continued his intemperate habits, or when a decision should be made, nor attempt to dispose of his share if he continued such habits. The words "shall be set to him" suggest that he had in mind some action by the Court of Probate which would strip James of the estate in fee which vested in him at his father's death. However construed, the terms of this clause are repugnant to the terms of the sixth clause, and they are also uncertain and indefinite. It is merely an attempt to give to some one not designated, at some time not fixed, in a contingency not specified, authority to determine how a part of the estate shall be disposed of. For these reasons we think this clause is void. Bristol v. Bristol,
We conclude, as we have already declared, that each of the children of the testator Michael Murphy, on his death, took an estate in fee simple in the real property given to each of them and described in the third, fourth, fifth and sixth clauses of the will; that none of these estates was defeated or cut down by any subsequent clause of the will; and that the seventh clause was void and is of no effect.
The Superior Court is advised to render its judgment accordingly.
No costs in this court will be taxed in favor of any party.
In this opinion the other judges concurred.