Chrystie v. . PhyfeChrystie v. . Phyfe
The lot of land in controversy between the parties to this action, is on the northerly side of Fulton street, in the city of New York. It was the property of the late Thomas Mackaness, at the date of his will and at the time of his death. The will was dated on the 15th of February, 1806,
“Fourth, I give and devise unto my said daughter, Margaret Thornton Mackaness, her heirs and assigns forever, my dwelling-house and lot of ground distinguished by number thirty-two, adjoining Partition street in the city of New York, with the appurtenances; but if my said daughter, Margaret Thornton Mackaness, shall die unmarried and without leaving a child her surviving, then I give, devise and bequeath the said last-mentioned dwelling-house and lot of ground, with the appurtenances, and also all such other parts of my real and personal estate as by this my will are given, devised and bequeathed to her, to my daughters Elizabeth Harvey and Mary Prowitt, their heirs and assigns forever, in equal parts to be divided. But if my said daughter Margaret Thornton Mackaness shall die, either before or after my decease, leaving lawful issue, then I do give, devise and bequeath the part and parts, share and shares of my real and personal estate, by this my will given, devised and bequeathed to her, unto such child or children, if one only to him or her solely, and his or her heirs and assigns forever, if more than one, to them, their heirs and assigns forever, equally to be divided between them, share and share alike, and in case my said daughter, Margaret Thornton Mackaness, shall die without lawful issue, and if at her death either of my said daughters Elizabeth Harvey and Mary Prowitt shall then be dead, and shall have a child or children then living, I give, devise and bequeath the part or parts, share or shares of my real and personal estate by this my will devised and bequeathed to their respective mothers so being dead, to such child or children, if one only, to him or her the whole, and to his or her heirs and assigns forever; and if more than one, to them their heirs and assigns forever, in equal parts to be divided.”
The testator‘s daughters Elizabeth Harvey and Mary Prowitt each had a husband living at the time when the will was made.
Upon the death of the testator, his daughter Margaret entered into possession of the dwelling-house and lot in Partition (now Fulton) street devised to her. She afterwards intermarried with Charles Ludlow, by whom she had three children. She survived her husband and two of their children, who died in early infancy: she died on the 27th of June, 1853. Her only child who survived her was her daughter, Elizabeth Ludlow, who subsequently married Thomas W. Chrystie, and they are the plaintiffs in this action. On the 17th of May, 1815, the said Charles Ludlow and his wife Margaret (then late Margaret Thornton Mackaness) executed and delivered to the late Duncan Phyfe a conveyance in fee of the said dwelling-house and lot in Fulton street, for the consideration of $9,250. He thereupon entered into the possession of such premises and continued to occupy them until this action was instituted, which was originally against him, and upon his death was continued against the defendants, who, with the exception of William Vail, are his heirs-at-law. The plaintiffs contend that Duncan Phyfe acquired by the conveyance to him only an estate for the life of Mrs. Ludlow, while the defendants insist that he obtained the fee simple absolute.
In the construction and application of wills, and especially of those containing complicated provisions, the following are reasonable and well-settled rules:
The intentions of the testator shall prevail if they are consistent with each other and conformable to the principles of law:
The language used shall receive its ordinary interpretation, except where some other is necessarily or clearly indicated:
Where words are equivocal that explanation shall be given which will preserve consistency, in preference to one which would create inconsistency:
If possible, some effect shall be given to each distinct provision rather than that it should be annihilated:
Where at first a special, and subsequently a general term is used, plainly having reference to the same matter, the latter should be limited to the former, and
Where, after the application of liberal principles of interpretation, there is yet a palpable contradiction between two directions as to the same matter, the latter should prevail.
Some of these rules are applicable to the case under consideration; and under them I should not think that there could be much difficulty or doubt, but for the reasoning of the learned judge who gave the prevailing opinion in the Supreme Court.
In the first and second clauses of the will the testator devises portions of his real estate to his two elder daughters, both of whom were then married and had children; to one of them directly, and to the other through trustees: both expressly during life. In the devise to his third daughter, in the first sentence of the fourth clause, he gives the dwelling-house and lot of ground in Fulton street, to her, “her heirs and assigns forever.” The change of phraseology is material, and clearly indicates a different intent from what had been expressed before. The testator evidently designed to give some preference to his third daughter; probably as he might leave her in a comparatively unprotected state, and possibly from a
If I am right in my conclusion that the testator‘s daughter would have had the fee if she had married, determinable only upon her leaving lawful issue, then it is not necessary that any provision in the will should be distorted so as to carry a presumptive fee, in order to prove his consistency. We are at full liberty to construe his language according to the ordinary rules. The testator, in the next sentence after that giving an eventual estate to the two eldest daughters, in the building and lot in Fulton street, provides, that if his daughter Margaret should die, either before or after his decease, leaving lawful issue, then he gives, devises and bequeaths the part and parts, share and shares of his real and personal estate, by his will given, to her, unto such child or children: if one only, to him or her solely, and his or her heirs and assigns forever; if more than one, to them, their heirs and assigns forever, equally to be divided between them, share and share alike. This, in the event which has happened, is the most important provision. If it be clearly expressed, as I think it is, it must prevail, whether it qualifies or contradicts the previous gift. (1 Jarm. on Wills, 411; Co. Litt., 112, b; 2 Atk., 372; 5 Ves., 243; 6id., 100; 2 Taunt., 109.) The actual intent cannot be doubted. It was that, if his daughter should leave a child or children, he, she or they should take the remainder in fee. It was contended by the counsel for the defendants, that this clause was inserted merely to prevent a lapse which might otherwise have happened if the daughter had died in the lifetime of the testator. But if so, why use the words either before or after his decease? He could not have mistaken their meaning. They are clearly and strongly expressed. Terms of art may be, and frequently are, misunderstood by those who have not made them their study. But the words “either” and “before or after,” are understood by any one at all
It was insisted in behalf of the defendants, that even supposing that there were expressions in the will which of themselves would indicate an intent to give to the testator‘s daughter, Margaret, a life estate only, if she should leave children, yet the devise to her children would constitute the whole an estate tail in her, within the rule in Shelly‘s case. The rule established in that case, and which prevailed in this State until the Revised Statutes of 1830 commenced operation, was, that where an estate of freehold was limited to a person, and in the same instrument there was a limitation, either mediate or immediate, to his heirs, or the heirs of his body, the word “heirs” was to be taken as a word of limitation; or in other words, the ancestor took the whole estate comprised in those words: if it was to the heirs of his body, an estate tail; but if to his heirs generally, a fee simple. The word “heirs” was construed as a word of limitation, and not of purchase. The reason of the rule was, that if the heir should take as a purchaser, he would defraud the lord of the fruits of his tenure, to which he would have been entitled upon a succession as heir. Upon the subsequent abolition of feudal tenures, the reason for the rule no longer existed, but the rule itself remained. As it had become a rule of property, it would have been wrong to abolish it; but the reason for it having ceased, courts have not been inclined to extend it, as in most cases it was opposed to the actual intent of the testator. Hence it has not been applied to any case, except where the words used to designate the secondary devisees, were words of limitation, such as ‘heirs,’ or ‘issue of the body;’ and even in cases where those words were mentioned, the rule was inapplicable if the devise was only to a designated portion of them. In the case
The contingency is, her leaving issue; but the devise is to her child or children, and to him, her or them as the stock or stocks of their descent, and not as the stock of the mother. In such cases “child or children” are never deemed words of limitation. There is one class of cases, and one only, in which the term “children” is considered as a word of limitation; that is, where there is a present devise to one and his children, when he has no children at the time. There if the word “children” should be interpreted as words of purchase, future children could not take at all, and in order that the will of the testator may operate favorably to them and not confine the gift to the parent for life, “children” is then deemed a word of limitation. (Wild‘s Case, 6 Rep., 17.) There are other cases, however, in which it has been held that a devise to one and her heirs, “say children,” gave her a life estate only, with remainder to the children. (Crawford v. Trotter, 4 Madd., 361.) Jarman, in his addition to Powell on Devises (vol. 2, 502), says that where there is a devise to A. and his wife, and after their death to their children, it is now admitted, on all hands, that it gives an estate for life to the parents, with remainder to the children for life.
If so, words of inheritance superadded to the children would not enlarge the estate of their parents. In the matter of Sanders (4 Paige, 293), Chancellor WALWORTH decided that the term “children,” in its natural sense, is a word of purchase, and it is to be taken to have been used as such, unless there are other expressions in the will which show that the testator intended to use it as a word of limitation only. In Rogers v. Rogers (3 Wend., 503), the Court for the Correction of Errors decided that, when there was a devise to A.B. during his natural life, and, after his decease, to the children of his body lawfully begotten, followed by a habendum clause, “to have and to hold unto A.B. for and during his
Upon the whole, I am satisfied that the primary devise to the testator‘s daughter Margaret was reduced by the restrictions subsequently imposed upon it, and the events which subsequently happened, either to a determinable fee or a life estate, and that in either case the devise over to her child upon her death carried upon that event an estate in fee to her daughter Mrs. Chrystie.
The judgment at the general term must be reversed, and that rendered at the special term must be affirmed.
JOHNSON, Ch. J., and SELDEN, ALLEN, GRAY and GROVER, Js., concurred in this result.
Concurrence Opinion
I wish to add a few words in confirmation of the construction which Judge COMSTOCK has given to the clause limiting the estate to the testator‘s other daughters, in case his daughter Margaret should die “unmarried and without leaving a child, her surviving.” According to the argument of the plaintiffs’ counsel both circumstances were essential to enable the executory limitation in favor of the other daughters to take effect, namely, that Margaret should die either without ever having been married, or without leaving a husband, as well as without leaving a child surviving her; so that if she were married, though she died childless, her sisters, or their issue, would not take as devisees, but the estate would descend, if
If the question were to be determined upon the primary language alone, I should, I think, concur in the conclusion arrived at by Judge COMSTOCK. The sentence seems to me to be elliptical. What the writer meant to say, I presume, was: “If my said daughter Margaret shall die unmarried and” also if she shall die “without leaving a child her surviving, then,” c. But however this may be, and admitting that the language here is equivocal, yet, when the testator came again to speak of the contingency upon which the property was to go to the other branches of his family, he leaves no doubt but that the event was the death of his daughter Margaret without issue surviving her, without any reference to the question whether she had ever been married. I am in favor of affirmance.
Judgment reversed.
Dissenting Opinion
I consider the decision of this case made by a majority of my associates plainly erroneous; and, as briefly as I am able, I will proceed to state the grounds on which my dissent is placed. On the part of the plaintiffs it is claimed that by a provision in the fourth clause or section of the will of Thomas Mackaness, the premises in question, in case his daughter Margaret should die leaving children, were devised directly to such children; in other words, that her children were to take as purchasers, and not by descent from their mother. One of the plaintiffs is the daughter and only child of Margaret, and they claim solely under this alleged devise. In order to maintain their title, they must show either, (1) That the devise of the same premises to the testator‘s daughter Margaret was of a mere life estate; or (2) If that devise was in fee, then that it was a fee of such a peculiar character that it was not descendible to her children, if she should leave any; in other words, that the same fourth clause
The very learned and discriminating counsel for the plaintiffs has himself altogether rejected the theory that in the primary devise to Margaret, her heirs and assigns, a mere life estate was given to her. I agree with him in that respect. But some of my associates, who vote to reverse the judgment, if I understand them, think differently. That question will, therefore, be first examined; assuming for this purpose that the alternative is between a life estate in Margaret on the one hand, and a fee determinable only on the event of her leaving no children on the other.
By the clause under consideration, the testator, in the first place, devised the premises in question to his daughter Margaret, “her heirs and assigns forever,” with a limitation over, in the event of her dying unmarried and without issue, to her sisters or their children. If the devise had stopped here there would not have been room for the slightest hesitation in saying that Margaret took a fee, and not a life estate merely. The devise to her and her heirs, with the limitation over, would together constitute a fee determinable on the event specified. It was once a question whether a devise of this nature did not create, or was not an attempt to create, an estate tail. But that point has long been settled (Fosdick v. Cornell, 1 John., 440; Jackson v. Anderson, 16 id., 382.) The material thing
But the testator, after thus devising, in plain terms, the fee to Margaret and then to her sisters contingently on her failing to leave children, proceeded to make a provision concerning such children, if she should leave any. That provision has some peculiarity of phrase which has occasioned whatever there may be of doubt in the case. He declared that, if his daughter Margaret should die “either before or after his decease leaving lawful issue,” then, not merely the particular estate mentioned in the fourth clause now in question, but the part and parts, share and shares, of real and personal estate,” given to her by the whole will, should go to such child or children, their heirs, c., if one only to him or her solely, if more than one, then “equally to be divided between them, share and share alike.” This provision, however obscure in other respects, has one clear and intelligible purpose, about which there can be no difference of opinion. As the law was at the time the will was made, if Margaret had died before the testator, the devise of the fee to her would have lapsed entirely,
A construction which concedes a fee to the children of Margaret as purchasers, and to her only a life estate, of course requires us to strike out the clear and precise words of inheritance contained in the devise to her. Can this be done? A glance at the other dispositions of his estate made by the testator, will show that it cannot. He had two other daughters who were married. In the first clause of the will he gave to one of them a dwelling-house and lot “during her natural life,” on her decease to her children, who might then be living, and their “heirs and assigns forever.” If there should be no such children, then he gave the same house and lot to the husband “during his natural life,” and on his decease then over to the testator‘s other two daughters (Margaret being one), their “heirs and assigns forever;” and there was a further limitation to their children in fee, in case they, or either of them, should be dead at the time when the preceding limitation should take effect. In the second clause other real estate was devised to trustees for the benefit of his other married daughter “during her natural life,” and on her decease the same estate was given to the use of her children, and to the “heirs of their bodies forever.” This was plainly an attempt to create an estate tail. The second clause also contained contingent limitations in fee, in favor of the testator‘s other two daughters and their children. In the third clause certain other real and personal estate was given to the testator‘s wife and to his unmarried daughter Margaret “during their joint natural lives,” and the natural life of the survivor; and in case the daughter survived the wife, then the same real and personal estate was given to Margaret, “her heirs and assigns forever.” In the fifth clause he gave all his real estate in Nova Scotia to his three daughters, their “heirs and assigns forever.” The sixth and seventh clauses contained some bequests of personal estate which need not be specified. In the eighth and last clause the testator, amongst other things, disposed of all the residue of his estate, giving to his wife, to Margaret, and to one of the married daughters, each a fourth part, declaring, in each instance, the devise and bequest to
Now, the other parts of the will which have just been referred to, support, very decisively, the construction which the precise and technical words of inheritance contained in the fourth clause are, in themselves, entitled to receive. It cannot fail to be observed that the testator, throughout his will, expressed himself in very plain and unambiguous language, in regard to the different estates and interests which he intended to create. When he designed to give a life estate he said so in the most exact language, and when an estate of inheritance he employed the very words adapted to that purpose. It is true, that in all parts of the will there is great redundancy of expression tending to obscure the general sense, but the quantity of estate intended to be given to each devisee is, nevertheless, defined in terms, the meaning of which is free from all doubt. When we find then, that in the particular devise now in question, the testator used the language upon which the law, according to universal understanding, raises a fee, and moreover the very language employed for that purpose in nearly every other clause in the will, it would seem impossible to conclude that any other estate was intended.
And there is still another argument entitled to great weight, to be derived from a general survey of the will. In nearly every clause an estate of inheritance in the various parcels of the testator‘s lands, and in some of them absolute interests in his personal property, are given directly or contingently to his daughter Margaret, and in no instance a mere life estate. Now, referring once more to the provision in the fourth clause, concerning her children, we find that it includes not only the house and lot, which is the subject of the general controversy, but whatever estate or interest is given to her by the will at large in any portion of the testator‘s property. If, therefore, that provision is allowed to reduce the fee in this house and lot, so plainly devised to her, to a mere life estate, it must have
The difficulties above stated, in the way of considering the devise to Margaret as one of a mere life estate, are so great that the counsel for the plaintiffs, in the argument before us, wisely rejected that construction. He conceded that a fee was given to her, and yet claimed that her children, if she should have any, took the same fee, not by descent from her, but by a direct devise to them to take effect as soon as she died. This, too, is the view taken in the opinion of my brother STRONG, so far as I am able to comprehend him. It remains to be seen how a result so curious and remarkable is attained. The process is as follows: The devise over to the sisters of Margaret and their children was contingent on her dying “unmarried and without leaving a child.” The argument for the plaintiffs is, that the word “and,” as here used, creates a double condition, so that it must be performed in both its branches before the devise over could take effect. In other words, Margaret must die both unmarried and without a child or else the sisters and their children were not to have the estate. According to this construction Margaret took a fee under the devise to her determinable in one aspect, on not marrying, and in another on having children if she married. Thus, the limitation in favor of the sisters would at her death determine her fee if she never married, and the one in favor of her own children would determine it provided she married and left children. Between these two contingencies another was possible, to wit, marrying and having no children, and in this way only was it possible that the so-called fee given to her might not terminate with her life. It is conceded that she took a fee, and this is the construction on which that concession depends. Reading the will in this way, the fee would be displaced at her death in either of two events: 1st, if she never
This construction, I suppose, is worthy of a serious consideration, or it would not have engaged the favorable attention of some of the judges of this court. But for that difference in opinion I should have thought it a proposition too plain to require an argument, that the testator designed to give the estate to the sisters of Margaret or their children, on the single contingency of her dying without leaving lawful issue. I ought, perhaps, to concede that his intention would have been more grammatically expressed, if the word “or” instead of “and” had been used in expressing the condition on which the devise over was to take effect. But every lawyer knows that in wills and other instruments one of these connectives is often used where the other would express the intention with more exactness and precision. (Fairfield v. Morgan, 5 Bos. Pull., 38; Jackson v. Blanshan, 6 John., 54; Sayward, v. Sayward, 7 Greenl., 210.) The courts have uniformly adhered to the intention, even at a slight sacrifice of the grammar. In the limitation before us, the intention of the testator does not admit of a doubt. If his daughter Margaret never married she could not have lawful issue. She might marry and still have none, and that was the precise event on which the estate was to go over to other objects of the testator‘s bounty.
If we adopt the construction contended for on the part of the plaintiffs, these are the results: If Margaret had no children in consequence of never marrying, the sisters or their children were to take the estate on her decease. But if she had none in consequence of sterility, they were not to have the estate. So if she married and lived in a state of vestal seclusion from her husband, that would be a performance of the condition so as to defeat the limitation over. If, on the other hand, she fulfilled the primary design of that institution, and became the mother of children, the penalty would be the loss of the fee, under the limitation over in favor of those children. No example of such a will is found in the books,
Then as to the limitation in favor of the children of Margaret, if she should leave any, I have already, in refuting the construction which gives to Margaret a mere life estate, explained the object of that provision. Let us now look at it again in view of the fee which is conceded to her under the primary devise. What kind of a fee is this, if the plaintiffs are right in saying that the children were, in any event, to take the same fee as purchasers, and not by descent from their mother? Such a fee was never heard of before. It is very common to give a life estate to a son or daughter, with remainder in fee to issue. But a devise of a fee to the first taker, with an executory limitation in fee to his or her issue I have never seen. The fee is often given over to others by way of executory limitation, on failure to leave issue, but such a limitation over to the issue, after a fee to the ancestor, would be a disposition of property somewhat grotesque and remarkable. So there are instances, almost innumerable, of fees at the common law, and of attempts to create fees, since our statute abolishing entails, descendible only in a direct line to issue or descendants. These are known as estates tail. But a fee transmissible to remote or collateral kindred, yet incapable of descent to issue, is an estate hitherto without a name. I do not deny that such an estate can be created. But it needs at least one example of the kind in all the books in order to render plausible a construction which imputes to the testator a design
There is another view which is decisive against this construction. The concession of an estate given to Margaret, which could endure beyond her lifetime, is entirely upon the idea that the limitation to her sisters would be defeated if she married although she left no issue. Every other possible event, as we have seen, would terminate her interest when she died, and so reduce it to a mere life estate. If she did not marry, the estate on her death was to go to her sisters. If she married and had children it was to go to them (so the plaintiffs insist) not by descent but by the direct gift of the testator. These limitations must take effect, if ever, at the time of her death, and would, of course, reduce her estate to one for life, but for a third possibility, to wit, dying without issue after being married. Now if the testator, in that event, meant that the estate should not go to the sisters, we cannot be mistaken in supposing that he meant the same thing in respect to the sisters’ children. These children were to stand in place of their mothers, if the latter should happen to die before the decease of Margaret; in other words, before the limitation over could take effect. Let us mark, then, the language of this substituted devise. It is if in case Margaret should die ”without lawful issue,” the sisters should be dead leaving children, then their (the sisters‘) shares were to go to such children. Here is no double condition. The sisters’ children were, in the event of their mothers’ death, to take the estate on the single contingency of Margaret‘s “dying without lawful issue,” whether she married or not. No one, I am sure, will contend that the contingency is single as to the children and double as to their mothers. The former were simply to take the place of the latter; and inasmuch as the precise language of the provision renders it certain that the former were to take on the single event of a dying without issue, so we may be certain of the same intention in regard to the latter. I do not see how this can be made plainer.
What then is the result? If, as the plaintiffs insist, the
I think the judgment should be affirmed.