3 Binn. 476 | Pa. | 1811
Richard Clayton deceased, by his last will and testament dated 15th November 1770 devised as follows. “ I give and bequeath unto Sarah Evans wife of James “ Evans, and granddaughter of my sister Margaret Jones, “ and to her children, the plantation they now live upon, be- “ ing the same tract of land I bought of Jacob Jones, con- “ taining one hundred and seventy-one acres, for the use of “ her the said Sarah Evans during her life, and immediately “ after her decease to be equally divided among the survi- “ ving children of her the said Sarah EvansR A legacy of 10/. was given to the testator’s nephew Richard Clayton, who was his heir, and 40/. a piece to each of his children. In a codicil dated the day after the will, there is the following clause. “ And as for and concerning the plantation I have “ bequeathed to Sarah Evans wife of James Evans, for the “ benefit of her the said Sarah Evans and her children, my “ will is that the timber thereof shall be preserved, and not “ destroyed by any person or persons whatever, firewood and “ fencing, being for the use of the said plantation, excepted.” Did the children of Sarah Evans take an estate for life or in, fee simple? That is the point for our decision.
That the intention of the testator shall be carried into effect, if not contrary to law, even though such intention shall not be expressed in the usual form, is a principle not to bé controverted; but such intention must appear by the words of the will, and not by conjecture. It is also a settled principle, that a devise of land to a person in general terms, without words of limitation, or any other words shewing an intent to give more than an estate for life, shall pass no more than an estate for life, unless it can be fairly inferred from other parts of the will, that more than an estate for life is intended. For instance, if the devisee is ordered to pay a sum of money to another person, it may be fairly inferred that a fee simple was intended, because otherwise the devise might turn out to be an injury rather than a benefit. It has been often said, that it may be reasonably supposed the testator intends a fee simple in every case, in which there are no expressions to the contrary; that
The last and strongest argument in favour of a fee simple, is
The codicil is to be considered in conjunction with the will. I do not think the direction about the timber very material; but if it has any operation, it is against a fee simple, because a direction that a devisee in fee should not cut timber, would be inconsistent with the nature of the estate, and therefore void. My reason for not thinking it very material, is, that it is not clearly expressed to whom this direction is addressed, whether to Sarah Evans or her children.
The question before the court rests on the true construction of the last will of Richard Clayton deceased,' dated 15th November 1770, and the codicil thereto dated the day following. The material clauses are as follow. “ I give “ and bequeath unto Sarah Evans, wife of James Evans, and “ granddaughter of my sister Margaret Jones, and to her “ children, the plantation they now live upon, being the same “ tract of land I bought of Jacob Jones, containing one hun- “ dred and seventy-one acres, for the use of her the said Sa- “ rah Evans during her life, and immediately after her de- “ cease to be equally divided among the surviving children of “ the said Sarah Evans.” In the codicil it is said, “ And as “ for and concerning the plantation I have bequeathed unto “ Sarah Evans, wife of Janies Evans, for the benefit of her “ the said Sarah Evans and her children, my will is, that the “ timber thereof shall be preserved, and not destroyed by “ any person or persons whatsoever, firewood and fencing, “ being for the use of the said plantation, excepted.” There are no introductory words shewing the intention of the testator to dispose of his estate, either by the will or codicil; nor are there any residuary devisees appointed by either instrument. The privileges out of the real estate devised to the widow, are confined to her state of widowhood. Sarah Evans the devisee died in the possession of the premises, leaving five children, one of whom has died intestate. The four surviving children have made partition, and twenty-nine acres and thirteen perches have been assigned to Elizabeth, who intermarried with the plaintiff in error, as her full purpart and share of the lands devised as aforesaid. She is also dead, and the suit is brought to recover the possession of the twenty-nine acres and thirteen perches, by John Clayton, who has proved himself to be the heir at law of the testator. The question to be decided, is, whether the children of Sarah Evans named in the will, took an estate in fee simple in the said plantation, or only an estate for life.
On the part of the plaintiff in error, it has been strongly contended, that the intention of a testator as disclosed in his will, according to the plain meaning of his words in their common sense and understanding, is the paramount rule of construction; and that where the devise is conformable to
The defendant’s counsel fully admit, that the intention of the testator is the governing principle in the construction of wills; and that there is no magic in any particular form of words, whereby his meaning may be effectuated; though it is indispensably necessary that his intention should be clear and manifest, from the expressions he has made use of. Independently of human laws, there is no natural right of succession to lands. The statutes of 32 Henry 8. c. 1. and of 34 and 35 Henry 8. c. 5. in England, gave the general power of aliening lands by will. It is agreed, that great indulgence is given in the construction of wills, the law considering the party in extremis et inops consilii. Though no words of limitation are added to a devise of lands, yet if there are expressions of equal import, as the words forever, my estate, paying such a sum of money, &c. the law will enlarge the gift accordingly. But the settled rule is, that the heir at law is the favourite of the law and of equity; and is not to be disinherited without express words or necessary implication. Amhl. 583. If the intention of the testator be doubtful, whether the devisee shall take in fee or not, the rule shall take
By discarding settled rules of construction, and adjudged cases on wills, a judicial tyranny will be established, and this branch of the law be thrown into confusion and uncertainty. No counsel can advise his client; under a controverted will no man can purchase with safety.
Many cases occur in the books, where there is a devise to one for life, the reversion over to others equally to.be divided between them, and the latter have been held to take an estate for life only. Peiton v. Banks, 1 Vern. 65., Bowes v. Blackett, Cowp. 235. The words “ share and share alike'''’ are held to be tantamount to “ equally divided betxveen them"; and the word “ share" was held to express the thing devised, and not the quantity of the estate. Middleton v. Swain, Skin. 339., which was affirmed in parliament. Show. Pari. Ca. 207. One devised several parcels of land to his several children in tail, and if any of them should die before twenty-one or unmarried, such child’s part to go to the surviving children; adjudged, that the survivors should have such share for life only. Woodward v. Glassbrook, 2 Vern. 388. Devise of all my lands and goods after debts and legacies paid, to A and B my children equally to be divided between them; held that an estate for life only passed to them in joint-tenancy. Dickens v. Marshal, Cro. El. 330. As to the legacy of 10/. devised by the present will to the heir at law, the court of Common Pleas were clearly of opinion that a small pecuniary legacy to the heir is not sufficient to exempt a case from the general rule of law, which declares that a gift to a man of lands, without expressing for what estate, vests only an estate for life. Roe ex dem. Callow et al. v. Bolton, Black. Rep. 1045.
The remark, that general introductory words, evincing a disposition to dispose of all the temporal estate, are the mere acts of the scrivener, either proves too much or nothing whatever. Assuredly the will is drawn by him; but if he does not with correctness reduce to writing the intent of the deceased, or uses unapt and improper words, whose legal operation is opposed to the will of the testator, what human tribunal governed by known and fixed rules of decision, can apply the remedy?
I feel no difficulty whatever in the decision of the present case, either on principle or precedent. An act of the legislature (passed on the 28th January 1777) has declared, that the common law and such of the statute laws of England, as had theretofore been in force, except as is thereafter excepted, shall be in force and binding on the inhabitants of this state. The rule relied on by the plaintiff is frequently asserted, in the English books, which are evidence of the common law. This court, and I think I may safely add, every other court of justice in the government both before and since the American revolution, have adopted it. In Busby v. Busby, 1 Dall. 226., we find these expressions of Shippen president of the Common Pleas. “ The intention of the testator is said “ to be the pole star, to guide the construction of wills. But “ there are two qualifications to this rule. 1st, That this in- “ tention must not clash with the rules of law, and 2d, that w where legal technical terms are wanting, the intention to “ supply them must be clear and manifest from the words “ and expressions in the will.” I cannot see on what grounds the judiciary would be authorized to change the strong uni.
But independently of the act of 1777, could we either with propriety or convenience to the public peace and safety, change the system of law on this subject? As to myself, I. find the decisions of our own courts an insuperable obstacle in my way; and I frankly declare, that I am not prepared to go the whole length of declaring independence of the decisions of the English courts, previous to the 4th July 1776, subjecting the Construction of a will to technical rules. My habits, grown rigid during the period of half a century of my life, imperiously interdict the measure. I have been taught to consider those judicial determinations as a system of refined wisdom matured by experience, which it would be highly dangerous now to unsettle. I view them as establishing the landmarks of property, which it would be unjust now to vary or remove. In a particular instance my individual wishes may lead me to desire, that the devise was couched in different terms, in order to accomplish my ideas of the supposed intent of the testator. I will construe a will, ’and imply an intention not expressed therein in words particularly; but I will not from arbitrary conjecture, though founded-on the highest degree of probability, add to a will or supply the omissions. I go as far as I can, when I repeat the language of an English judge. “ I will depart from the techni- “ cal sense of words, to effectuate the intention of a testator, “ as far as possible without violating the rules of law.” In matters of positive right, I must submit to and follow those ancient and invariable maxims, qua relicta sunt et tradita. 3 Bl. Com. 436. It is of not so much moment what the law is, as that it should be known and settled. When this takes place, every citizen is bound to conform to it; and when a case of seeming hardship occurs, wherein I may think the will of a testator has been disappointed, I console myself with the reflection, sic- voluit sed non dixit. It is most congenial to the spirit of a government of laws, that known rules should determine the conduct of their tribunals of justice, and the steps of their judges be measured. The observation applies with peculiar force to the case of wills, wherein different and contradictory intents often appear on the face of
The established rule is thus laid down by lord Mansfield. in Loveanes on. the demise of Mudge v. Blight et ux., Cowp. 355. “ Where there are no words of limitation, the court “ must determine in the case of a devise affecting real estate, “ that the devisee has only an estate for life; because the “ principle is fully settled and established, and no conjecture “ of a private imagination can shake a rule of lawf If the “ intention of the testator is doubtful, the rule of law must “ take place; and so if the court cannot find words in the “ will sufficient to carry a fee. Though they should them- “ selves be satisfied beyond the possibility of a doubt, as to “ what the intention of the party was, they must adhere to “ the rule of law.”
The observations of the defendant’s counsel abundantly satisfy my mind, that the intention of the testator to grant a fee simple to the children of Sarah Evans in the lands in question, was at least doubtful; and the authorities they have cited fully confirm this remark. See also Moone lessee of Fagge v. Heaseman. Willes 141.
I am therefore of opinion that judgment should be enter* ed for the defendant in error.
The language of this will is not that of a learned or half learned person, but evidently of the testator’s own writing, without a single word through the whole that savours of an affectation of scientific terms; for I consider the words “ heirs and assigns” annexed to the gift of the “ negro boy” devised to the wife, as slipping in of course, from, having used it, or seen it used in a bond or promissory note, where being unnecessary, we have it with
But to come to the terms that are used in the devise under which the defendant claims. These are found in the will, and in the codicil. But before we undertake to consider these, let there be premised an observation on the
But it is alleged that the codicil qualifies, and shews that a fee was not intended, viz. “ As for and concerning the “ plantation, my will is, that the timber thereof shall be pre- “ served, and not destroyed by any person or persons what- “ soever, firewood and fencing excepted.” What can this relate to, but to the life estate to the mother, with which estate such a restraint is perfectly consistent? So far from evincing a qualification of the interest in the tract that was afterwards to be divided, it proves to me the solicitude of the testator to preserve it with wood land as it was, in order that it might be subdivided with convenience of timber to the children, when, on the death of the mother, they came severally to enjoy it. At all events it is nothing more, fairly construed according to what we know of the care of an uncle, than a caution or direction in the use, and not a qualification of the interest in the estate. It would be an unnatural appropriation of the terms to give them that effect.
Now for authority, as it is called; though I will acknowledge, I set little store by the early decisions, when it was a
I had taken it that the decision in French v. M'llhenny, though without the Chief Justice, yet by force of number, if not by weight of judgment, had become a precedent in our decisions. But in the case of French v. M'Ilhenny there was more difficulty in making out a fee than in this. Here I take it there is plain sailing. The words “ for life” used in the devise to the mother, omitted in the devise to the children., is as much as to say, to them not for life, but altogether. This is the reasoning of Justice Wilmot,who delivered the opinion of the court in the absence of lord Mansfield, as reported in 3 Burrow 1539. “ Devise to Clement Boreham "for and during the term of his natural life, followed by a “ devise to Sarah Boreham of another tenement. But in the “ devise to Sarah, he omits the words, for and during natural “ life; which words it must be supposed he would have “ inserted in case he had intended to give her only an estate “ for life, because he had just before done so in the prece- “ ding devise to Clement. It is plain that by giving it to her “ generally, without having any such restrictive words as he “ had before added to his devise to Clement, that he meant “ to give her the absolute property. Pie meant to devise it M ut bona et catalla, as a man unacquainted with the law “ might very naturally do.” So far Justice Wilmot; and if any one will examine the devises to which he refers, he will find the argument holds more strongly in the devise here; because in the devises there, there were distinct devisees, and distinct subjects of devise in distinct sentences; here he will find the devise to the wife and children to be of the game subject, and in the same sentence.
In the case of French v. M'Ilhenny it is to be noticed that the devise for life was but of one half of the plantation; and as to the remaining half, it had not a life estate to support it, and to make it a remainder of the fee simple. As to the half therefore, it must be considered as given nakedly, without any part hewn out; and to have been held to be a fee, by the mere force of the words bequeath the plantation. It is true that in that case we had the word estate in the introductory part of the will, which was noticed by me, not that I laid any stress upon it in my own mind, but as referring to the English decisions which have laid stress upon it in some cases. For the truth is, I have always thought the argument drawn from the word estate, effects, settle See. &c. whether introductory, or in the devise itself, to be but a quibble; and to have been adverted to in these decisions as a way of getting over a rule of construction which had better been set aside. It is on the same principle that slight matters have been laid hold of, collateral to the devise itself, to take the case out of the general rule, such as the devisee paying even a small sum, say forty shillings.
The heir is said to be favoured by the common law; but queere, whether he is so under our laws, where the right of primogeniture has been abolished or abridged from the earliest period, and the proprietary grants, and the statutes of distribution, and decisions of the courts, and the policy oí the whole law, look to alienation and subdivision of property. But the devise in this case to a stranger, savouring of the testamentum inoffeiosum, I should be disposed to favour the heir; for I would look to the estate as coming from the ancestors, and the right of the testator to devise, as subject in a degree to this consideration, in which the law of descent may find some reason for its policy. In this case the devise is to a sister's children. It is by an uncle to orphans. It is of a plantation of his own acquisition, and which did not descend to him; it being the same tract of land, as he himself recites, which he bought of Jacob Jones. No claim therefore could be grounded on the acquisition of an ancestor, and the interest of a common stock. He was free therefore to dispose of it,
Judgment affirmed.