7 Barb. 590 | N.Y. Sup. Ct. | 1850
One question made upon the argument, and to be determined, is whether the descendants of the children of the testator, who by the terms of the will were to share in the residuary portion of the estate, were the descendants of those children who should die before his death, or of those who should die at any time before the time appointed for the final division of the estate. For if the bequest is to the children who shall be living at the expiration of the ten years after the death of the widow of the testator, and the descendants of those who shall die before that time, to the exclusion of those in esse at the death of the testator, it is clearly invalid. The estate would vest in the devisees at the time contemplated for the division, and not before; and until that time the absolute power of alienation of the real estate, and the absolute ownership of the personal property, would be suspended. And such suspension not being limited to the duration or continuance of two lives in being at the creation of the estate, or death of the testator, the devise would, for that reason, be void. (1 R. S. 723, §§ 14, 15. Id. 773, § 1. King v. James, 16 Wend. 61. Coster v. Lorillard, 14 Id. 265. Irving v. DeKay, 9 Paige, 521.) If the language of the will imports a present bequest of property to be distributed at a period subsequent to the death of the testator, those persons in esse at the time of his death, answering the description of the devisees named in the will, will take vested interests, subject, however, to open and let in others who may come into being and belong to the class at the time appointed for the distribution. (Collin v. Collin, 1 Barb. Ch. Rep. 630.) Whether the rule can apply to the devise of a
The intent of the testator is to be gathered from the words employed by him; and a literal construction should be put upon the clause, so as to uphold it if possible, and carry into effect that intent. If the words used are ambiguous, and susceptible of more than one interpretation, that interpretation should be given them which will uphold the devise consistently with the rules of law and the manifest intent of the testator, ut res magis valeat quam per eat. (Co. Litt. 36 a.) The will speaks at the death of the testator; and there is nothing in the language of the bequest indicating an intent to postpone the vesting of the estate in the beneficiaries to a future period. The party to take under a will should, if possible and consistent with the terms of the will, be determined at the death of the testator; and the estate should then vest in interest, unless there be clear evidence of an intention to the contrary. ( Wrightson v. Macauley, 14 Mees. & Wels. 214; S. C. 4 Hare, 487. Dor dem. Winter v. Perrott, 3 M. & Scott, 586.) If the clause is read without reference to the last paragraph, postponing the final division of the estate, no question can arise as to the palpable intent of the testator to vest the residue of his estate not before disposed of, at once, in his children living at the time of his death, and the descendants of such as had before then died. There is no other time to which the vesting of the estate in the devisees can be referred. No intermediate estate is carved out, no trust is created. The bequest is direct, absolute, and unconditional. It is true that upon the idea that the testator is speaking at the time of his death, the language employed to designate the descendants of his children who shall take the share of their ancestor, is not strictly accurate, in the view now taken of the devise. Actually speaking at that time, the testator would
If the clause of the will now under consideration suspends the absolute ownership beyond the time prescribed by this act, it is void. If absolute ownership means nothing more than a vesting of the property, with a right of alienation, without the right _ of possession, then the restriction upon a division of the estate is not in conflict with the statute. But if the term used in the statute includes not only the property but the right to actual, immediate and unconditional possession, then the clause is repugnant to the statute and is void. For beyond all question the condition contemplates the possession of the personal property by the executors in whom it vested, as incident to their office, until the time fixed for the distribution. (Williams on Executors, 398.) Until that time there could be no ownership in severalty by the devisees of any part of the property. All would have an interest in every part, but no one would be entitled to any separate part to the exclusion of the others; and neither any nor all of the devisees would be entitled to the possession of the personal estate to the exclusion of the executors. ' The
Prop. 7.) But this does not aid us in determining the meaning of “ absolute ownership,” as used by the legislature. The word “ absolute” was doubtless used as the opposite of 11 conditional,” and in the same sense as “ perfect.” It signifies without any condition or incumbrance. (Bouv. Daw Dict.) To constitute a perfect title to real estate there must be the union of actual possession, the right of possession, and the right of property. (4 Kent, 373.) Can the title to personal property be said to be perfect, or the ownership “ absolute,” while one person is the general owner, and another has the possession and the right of possession ? In this case the executors had a qualified property in the personal estate, and the right to the possession for the purposes of the will, and if the condition under consideration is valid until the final division among the devisees while the latter were the general owners and entitled to the ultimate possession, the ownership of the devisees was far from absolute. The right of the executors to the possession, and the restraint upon division and actual possession was an encumbrance upon the ownership of the devisees. “ Ownership” is the right by which a thing belongs to an individual, to the exclusion of all other persons. In this case, if the condition in restraint of division is valid there are two classes of owners, one general the other special; neither having the absolute ownership. I think by the clause in question the absolute ownership of the personal estate was suspended for a term longer than during the continuance of two lives in being at the death of the testator, and that such condition "was void. Again; the appointment of a future and distant time for the final division of the estate necessarily contemplated an accumulation of the interests and profits in the mean time; and as such accumula
The covenant of May 4, 1840, can not avail the defendants in this action. If there were no other objections to its validity, the entire absence of consideration would invalidate it. It was attempted, upon the argument, to uphold it upon the ground that payment to the plaintiff of a portion of the fund belonging to him, without suit, was a benefit to him and a trouble or injury to the defendants. But the benefit to one party or the injury to the other, which can avail as a consideration to support an agreement, must be a benefit to which the party is not entitled except as a consideration of his undertaking, or the injury must be to the legal rights, not to the wrongful claims, of the promissee. If I am right in my conclusions, the money paid to the plaintiff was his, of right, and the payment could not in the nature of things be a legal injury to the executors. As well might it be insisted that the payment of part of a debt overdue, by the debtor, was a valid consideration for an agreement to postpone.
The conclusions to which I have arrived are 1. That by the will the children of the testator living at his death, and the descendants of those who had then died, took as devisees a vested interest in the residuary estate at the death of the testator. 2. • That the devise, both of the real and personal estate, is valid as vesting a present interest in the beneficiaries. 3. That the condition annexed to the devise, that no division should be made until ten years after the death of the widow, was void as to the personal .estate, as suspending the absolute ownership thereof for a period beyond the time prescribed by statute. 4. That the covenant or agreement of May 4, 1840, is void. 5. That the plaintiff is entitled to an accounting in respect to the rents and profits of the real estate from the death of the testator during the life of his intestate, and a full account in relation to the personal estate*
I think the decree should be modified to conform to these conclusions, and with such modifications, affirmed. The question of costs upon this appeal to be reserved until the final hearing of the cause.