17 N.C. 121 | N.C. | 1831
Lead Opinion
The defendants demurred generally, and on the Spring Circuit of 1831, NORWOOD, J., at the request of the counsel on both sides, gave judgment proforma sustaining the demurrer and dismissing the bill, from which the plaintiffs appealed. By this will the land is limited over, upon the death of the first takers without leaving issue. The clause giving the negroes and the residue of his estate, and upon which this controversy arises, has not those words. The bequest is to the testator's wife and four of his children (of which one was then unborn), to be equally divided between them; and then come the words, "and in the case of the death of either, that their share be equally divided among the survivors." The bill states that the child of which the wife was then pregnant was born, and died without issue, in the testator's lifetime. It may be here remarked that this is the case which falls within the words of the will, which only provides for the death of one of the legatees, in which case the share is to go to the survivors, and not for a case where the survivors or survivor is to have all. "If either die, the share to go to the survivors." But I do not suppose this restricted construction is allowable in the case before us, because it would not give room for the exclusion of Lucy Drew upon the death of a second. *106
The bill further charges that Louisa married David Clark and is dead, as is also her husband, and that the negroes and other estate have come to the hands of his executors. It is not stated whether Mrs. (125) Clark left issue or not. The plaintiffs are the surviving sisters, and the bill claims all the share allotted to Mrs. Clark, as belonging to the plaintiffs and the widow as survivors.
If I were obliged to take it that Mrs. Clark, in fact, left no children, yet I am at liberty to consider that the possibility and probability of her leaving issue were within the testator's contemplation, if it be necessary to aid in the construction of the will. If the construction of this clause depended upon its own terms alone, that might aid in collecting the true one; for a father must be presumed to mean such a provision, consistent with the words, for his children as will best advance them. Their settlement in life and a provision for their children must be taken to enter into the testator's mind, and will be so understood, if the words do not forbid. In this case that conclusion is strongly fortified by the fact that the other parts of the will show that he actually had that in view. He gives the land over, upon death without leaving issue. It is true, these words are omitted in the residuary clause. But that does not prove that the testator meant to leave the families of all his children in poverty, to make an immense fortune accumulate for the benefit of the last survivor. It only shows that the personalty was not limited over upon a death, without leaving issue, though the death happened after the testator's own death; as is the case with respect to the land. Considering, then, that this is the will of a father, who is presumed to intend a benefit to the families of his children, and who says in other parts of his will that he does so intend, such a meaning is to be put on it, consistent with the testator's words and the rules of law, as will best effectuate that end: which is by considering the bequest an absolute one to such of the children as should outlive the testator, and once take.
The authorities are in support of this construction. Wherever there is a tenancy in common, words of survivorship shall not defeat the effect of the other words creating the tenancy in common; because that would be to strike out altogether the words of partition; which (126) cannot be done. Whereas "survivor" may have some meaning in every case, by referring it to some particular period other than a survivorship at an indefinite period, which would constitute a joint tenancy and so contradict the provision for shares. Almost every case cited, from Bindon v. Suffolk, 1 P. Wms., 96, down, thus states it. There is, indeed, in several of the cases a dispute which is the true period of survivorship referred to, short of an indefinite period. And small *107 circumstances have been laid hold of to carry it forward from the death of the testator to that of the death of a tenant for life, or other period of vesting it in possession. Thus, Bindon v. Suffolk was reversed in the House of Lords because the fund was a contingent one, to fall in infuturo, and that constituted an era to which the survivorship referred. But the principle ruled by Lord Cowper was not impugned, namely, that the death of the testator is the era, if no other can be designated upon the will, or from the condition of the estate, short of a general survivorship. And that principle has been considered as decisive ever since. Lord Hardwicke felt bound by it; and in Haws v. Haws (3 Atk., 523. 1 Ves., 13 and 1 Wils., 165) ruled according to it, although there the expression was, "with benefit of survivorship." He says Lord Cowper's reasoning was very right; that the surviving "must be applied to some particular time, and not to a dying indefinitely." He says the House of Lords thought so, too, in Bindon v. Suffolk, but in that case fixed the time of payment as determining the survivorship, instead of the death of the testator, which last he calls an unnatural construction, as Lord Thurlow, in Roebuck v. Dean, 2 Ves., Jr., 265, has done after him. But what does he mean by unnatural construction here? Plainly, he is speaking in reference to a survivorship at some period short of an indefinite one. He says it is unnatural to tie it up to the testator's death, because one seldom provides by will for what is to happen in his lifetime. I am not sure that it is not very natural, under the idea that the testator may not come to the knowledge of the fact, though it should happen in his lifetime; or that he may provide at once for all, because he (127) may not conveniently do it when it does happen. But I will not set up my judgment against such names. Upon their authority I conclude, however unnatural that construction may be, when another period may be collected, not destructive of the tenancy in common, yet that it is to be taken as natural and reasonable, and intended, when opposed to the still more unnatural one of a survivorship indefinitely, whereby the whole estate accumulates for one.
This is the sum of what is said by those eminent judges. And with them accord others, no less able, both in chancery and courts of law. LordAlvanley, in Russell v. Long, 4 Ves., 551 so says, in conformity toStringer v. Phillips, 1 Eq. Ca., Ab., 292 and Bindon v. Suffolk; and in that respect agrees with the previous cases of Roebuck v. Dean, 4 Bro. C. C., 403, Perry v. Woods, 3 Ves., Jr., 204; Bragrave v. Winder, 2 id., 634 and Maberly v. Strode, 3 Ves., 450. And Lord Mansfield, in Rose v. Hill, 3 Burr., 1881, held the same upon a devise of land, at law, upon the ground of a tenancy in common, created by the words "to be divided" — saying it was a provision by the testator for such of his children as *108 should survive him and be in existence at the time when the interest was to vest. The same doctrine is held in the later cases of King v. Taylor, 5 Ves., 806, and Newton v. Ayscough, 19 Ves., 534, besides others.
Another class of cases has been cited in which there is a bequest to one, "and in case of his death," or "if he shall happen to die," then over; in which, according to the circumstances, the first has been held to take a life estate, and the will to be read as if it was "upon his death"; or that the first is an absolute gift, if it take effect at all, and the meaning to be to substitute one legatee for the other, if the first, by dying before the testator, never takes. Of this description are the cases ofCambridge v. Rous, 8 Ves., 12; Webster v. Hale, id., 410; Ommaneyv. Bevan, 18 Ves., 290; and Douglas v. Chalmer, 2 Ves., Jr., 501. These slight circumstances show that the gifts are successive or (128) alternative, notwithstanding the words of contingency applied to an event which is certain, but is uncertain as to the period of its happening. And the distinction contended for by the defendant's counsel, that the first taker in such cases, even if he survive the testator, must be held to take but a life estate, unless some expression in the will denote benefit to the issue or family, is material. Because the question is, What benefit was meant for each legatee? And even in those cases, if the will shows that if the first take at all, he is not to have the mere profits, but to receive the principal itself, then an absolute property is held to be given, although those who were to take in the alternative be the children of the first taker. Webster v. Hale, Much more is this so held when those who are to take on the contingency are strangers; as is the case in the other cases cited. In Cambridge v. Rous, Ommaney v. Bevan, andHinckley v. Simmons, 4 Ves., 160, there were no words of limitation, as executors, or heirs, or issue, annexed to the gift to the first taker; and yet in each it was held absolute. And here, clearly, the share of each was to be determined at the death of the testator; the estate to be divided, and then received specifically by the wife and each child. There was no trust and direction to pay over the profits, though the legacy is of a residue, including money and perishable chattels. These are circumstances which cannot but point to the contingency contemplated by the testator as that which would be determined at his death.
But if this were not so upon this last class of cases, the decision would be controlled by the former, which relate to a different subject, namely, the effect of survivorship and the application of words of joint tenancy, up to a certain period, to an express general tenancy in common to two or more in the first instance. Lord Douglas v. Chalmer, 2 Ves., Jr., 506. If the estate be a tenancy in common in creation, then the survivorship must be confined to the vesting of the estate or some anterior period; else the estate expressly created cannot exist, or, rather, would be turned *109 absolutely into a joint tenancy. In the one set of cases the (129) extent of interest is to be collected by circumstances controlling the words of contingency. In the other, the extent of interest is the result of the estate expressly given, to wit, in common, which shall not be cut down, after vesting, to a joint tenancy. In other words, the words of survivorship are introduced solely to prevent a lapse. And this is the stronger here, because it is a residuary clause, in which words of survivorship would have been unnecessary even to prevent a lapse, if a tenancy in common had not been intended and first created.
Thus I think the law stands upon the authorities, if this clause is to be construed by itself. The survivorship naturally refers itself to the period of the vesting of the estate. It may be extended, upon the intention, to the division of vesting in possession; or it may, in like manner, be restrained to the death of the testator. But every and any construction is admissible rather than an indefinite dying.
But it is said that here the anxious exclusion of Lucy Drew is predominant with the testator, and that the will must be so construed as to effect that at all events, which can only be by successive survivorships, unless we introduce "issue" into this clause, and a limitation to the issue.
There is no need of a limitation to the issue; for there is none annexed to the devise of the land, from which Lucy Drew is as strongly excluded as from the residue.
If necessary, the Court might, indeed, look to the first part of the will to show what sort of survivorship this general one in the residuary clause meant, and hold it to be after the death of one without leaving issue. Upon that construction, the plaintiffs would not be entitled, because the bill does not state that Mrs. Clark died without issue, and therefore does not make out a title in the plaintiffs. And this is a construction justified by the example of Lord Hardwicke in Haws v. Haws. There the testator gave his personal estate to his four younger children, and added "If any of them should die under age, and unmarried, I direct the share of him so dying shall go to the survivors." In another clause he gave his estate in D. to the same four children, and their heirs, "equally to be divided between them as tenants in common, with benefit of (130) survivorship." The question was, What survivorship? At the death of the testator? or indefinitely? or upon the death of one of the children under 21, and unmarried? Certainly, not indefinitely, for the reasons before given. The will did not say, like survivorship; yet it was so held, because the bequest of the personalty showed that a survivorship of some sort between the children themselves, after his death, was meant; and none other could be meant, unless it was an indefinite one, *110 which is not admissible under any circumstances, where a tenancy in common is created. This will, therefore, might well be construed with reference to a death without issue; for that would effectually exclude Lucy Drew until the death of the last child without issue; and she could be excluded no longer without an ulterior limitation, in that event, to a stranger, which has not been inserted.
But without that stretch, the disposition to the children is absolute, notwithstanding the clause of disherison. The two provisions must have a meaning put on them, and must also have a consistent meaning. The exclusion of Lucy is not to defeat the others also absolutely, although she may derive an advantage by their taking. As suppose, upon the construction contended for by the plaintiffs, the whole estate to come to one child, the last survivor, and that to die without issue and intestate, Lucy Drew would then take by force of the law, for the want of another. Shall the possibility of that prevent the last survivor from taking? Certainly not. The truth is, the testator did not know how to effect his angry purpose, and has failed to effect it in the view we are now taking, by omitting an ulterior limitation to a stranger to Lucy Drew. So he has also failed to affect her succession to one of her sisters first dying, by giving to them in the first instance a vested several interest in his estate upon his death. For the very chain of reasoning which prevents words of joint tenancy, annexed to a tenancy in common, carrying out the survivorship to an indefinite period, equally opposes giving that effect to the clause under consideration. For if, to (131) exclude her, the estate must successively survive, then the tenancy in common, expressly created, must cease, or rather never existed, although it be clear that while the estate is enjoyed, each enjoys in severalty. The two objects, carried out fully, are inconsistent with each other. Then they must be made to stand together, as far as they can; and it must be supposed nothing inconsistent was meant; and, therefore, that each was intended only so far as it was consistent with the other. The exclusion of Lucy Drew is consistent with the idea of a lapse; but not with a tenancy in common in possession after the death of the testator. It must, therefore, be restrained to the former case. But if this were not so, the general intent must prevail over a particular one. Here that is to provide for all his children, except Lucy, and to enable them to advance their families; and this the testator has done in a mode by which, in a possible event, Lucy Drew may succeed to some of the children before the death of all of them. This possibility is not to defeat altogether the legacies to the primary objects of the testator's affections and bounty. *111
I am of opinion, therefore, that upon the death of the testator, which was in this case the period for the vesting and division, the legacies became absolute to his wife and such of his children as were then living.
Addendum
The clause in the will that directly relates to the personal estate of the testator, which is the subject of the present controversy, is as follows: "My negroes I wish divided equally among my wife, Louisa, Nancy, Olivia, and the child of which my wife is pregnant, and in case of the death of either, that their share shall be equally divided among the survivors, and also the remaining parts of my estate."
In deciding upon this part of the will, I agree with my brethren, that the legatees took as tenants in common, and that the clause of survivorship by legal construction must be considered as having been added to prevent a lapse, in case any of the legatees should (132) die during the life of the testator.
In Maberly v. Strode, 3. Ves., 446, the chancellor says: "Words of survivorship, added to a tenancy in common in a will, are to be applied to the death of the testator, unless an intention to postpone the vesting is apparent." "It is true," says Lord Hardwick in Hawes v. Hawes, 1 Ves., 14, "this is certainly not a natural way of explaining the testator's intent, as one seldom provides by will for contingencies that are to happen in his life; but if no other reasonable construction can be found, the court may resort to this." And he approved of Lord Cowper's reasoning in Bindon v.Lord Suffolk, 1 P. Wms., 96, who adopted the same construction. It is certainly a more reasonable construction than one which would consign to poverty the issue of a legatee who might die after the testator, by causing the property to go to the survivors, instead of having vested it in the legatee, and becoming a support for such issue.
It is to avoid a similar evil that courts have frequently construed one word to mean another; as where an estate is given to a son, but if he dies before 21, or without issue, then over to another. Now, taking this devise literally, if the son had children, and died under the age of 21 years, the estate would go to the remainderman, and such children would be left unprovided for; for, as the father had lost the property, and could not make provision for them out of it, because he had not lived till 21, the remainderman would be entitled. To avoid this injustice, the courts have construed or as and, according to which construction the estate would not be divested out of the son, and the remainderman would not be entitled unless the son should die under 21 years of age and without issue. Such construction is so common that it is useless to cite authorities to prove it. *112
In the present case it might not be considered as going far out of the way to believe that the testator meant this: that if either of the legatees should die before (in common parlance) they got their legacy, or (133) before it vested in them, then the survivors should have it. However, the doctrine seems so well established that words of survivorship added to a tenancy in common are so construed as to prevent a lapse, and become inoperative at the death of the testator, that questions of that description may be considered as put to rest. Trotter v.Williams Prec. in ch. 78; Bindon v. Suffolk, 1 P. Wms. 96; Stringer v.Phillips, 1 Eq. Ca. Ab. 293; Rose v. Hill, 1 Burr, 1881; Roebuck v. Dean, 2 Ves., Jr., 265; Perry v. Woods, 3 id., 204; Russell v. Long, 4 id., 551;Brown v. Higgs, 5 id., 506; Brown v. Bigg, 7 id., 280; Shergold v. Boone, 13 id., 375; Webster v. Hale, 8 id., 410; Ommaney v. Bevan, 18 id., 292;Newton v. Ayscouch, 19 id., 535.
It is very true that there are some cases emanating from high authority which seem to look the other way. In Billings v. Sandon, 1 Bro., 393, a bequest was made of £ 1,000 to the testator's sister; and in case of her demise £ 800 was given to James and £ 200 to John Billings. Lord Thurlow held that the sister was entitled for life, and afterwards the legacy was to go over to James and John Billings. So also in the case of Nowlan v. Nelligan, 1 Bro., 489, the testator having a wife and daughter, devised as follows: "I give and devise to my beloved wife all my real and personal estate. I make no provision expressly for my dear daughter, knowing that it is my dear wife's happiness as well as mine to see her comfortably provided for, but in case of death happening to my said wife, in that case I hereby request my friends Staple and Hunter to take care of and manage to the best advantage for my lovely daughter, all and whatsoever I may die possessed of." In the first of these case, Lord Thurlow put a natural construction upon the will; because there was no injustice to be avoided nor great good to be answered by putting a legal or artificial construction upon it. With respect to the last case, it could not be intended that in case the wife survived the husband, her right to the legacy would be complete, because there was a trust and confidence reposed in the wife that she should provide for the daughter, which she could not execute until after the (134) death of the testator, and in case of death happening to her he substituted trustees to perform the trust. It is certain that a benefit was intended for the daughter after the mother's death, and that intention could only be carried into effect by allowing the mother a life estate.
In another case, Lord Douglas v. Chalmer, 2 Ves., Jr., 501, where a legacy was given to Lady Douglas, and in case of her death, to the use and behoof of her children, share and share alike, the chancellor thought the *113 natural construction was that the mother should take a life estate, and that the balance of the interest in the legacy should go to her children. In Cambridge v. Rous, 8 Ves., 12, legacies were given to two sisters, and in case of the death of either to devolve upon the other. The master of the rolls was of opinion that the contingency should be confirmed to the death of the testator, and that, afterwards, the legacies became vested. Here are two devises very much alike, and constructions very unlike each other put upon them. In the latter case the master of the rolls truly says that: "It is an incorrect expression to apply words of contingency to an event which is certain. A testator may mean the death of a legatee during his own life, or he may mean a death whenever it may happen. Accordingly, in every instance in which these words have been used, the courts have endeavored to collect from the nature and circumstances of the bequest, or the context of the will, in which of these two senses it is most likely this doubtful and ambiguous expression was employed." He says in another part of the same case that "Ordinarily in gifts between near relations, if any restraint is imposed upon the first taker, it is for the benefit of children." Upon this it may be remarked that parents are under a greater natural and moral obligation to provide for their offspring than collateral relations are under to provide for each other or for strangers. Hence, to carry the intent of testators into effect as to children, legal constructions are oftener resorted to than in the case of collaterals or strangers.
In the present case it must be taken that the testator's (135) ruling intent was to provide for his wife and children, except Lucy Drew. And this intent would be broken in upon, and the nature of the legacy and the context of the will disregarded, if only a life estate was given to the children, and they had not the power to provide for their issue, as I think will more fully appear by noticing other parts of the will, which are as follows: "To Lucy Drew, for the purpose of preventing her from inheriting any part of my estate, I give the sum of five shillings paper money. Besides, I here insert this article as a standing memorial, and to perpetuate to my descendants the abhorrence of her late union; that she has been to me an ungrateful and most undutiful child; that when I am no more, should she fall into any distress, my children will, I hope, unrelentingly say, The distress is just; she is only reaping the reward of her ingratitude." Again, in disposing of his real estate, he directs that if any of his children die without issue, it shall go to the other surviving children, Lucy Drew excepted. And in the clause which I have first noticed, in which he disposes of his personal *114 estate, he adds the following injunction: "provided in all cases, that Lucy Drew shall never inherit one stiver, in the case of the death of either of the above children."
From these clauses it appears that although the testator considered Lucy Drew to be a legal, component part of his blood, he also considered that the sin of ingratitude had transformed her into an excrescence, which he wished to lop off from his family. This is evident from repeated expressions of displeasure at her conduct. His great anxiety seems to have been to exclude her from participating in any part of his estate. There is no circumlocution in the devises or legacies. They are expressed in a pithy, laconic form. He seems to have been at no loss, either about the legatees or the quantum given to each. It was the common case of a father giving to his children. And had it not have been for his great excitement against Lucy Drew, we would probably read nothing in his will respecting survivors.
(136) In construing wills, the great fundamental rule is to catch the intent of the testator, and be governed by that, if there is no maxim or rule of law opposing it. Acting in this case under the influence of that salutary rule, and taking into view all the clauses of the will, I can see nothing that should confine the contingency of the death of any of the legatees to the life of the testator. I think it obvious that the insertion of the clause of survivorship was made for the purpose of disinheriting Lucy Drew. The clause was inserted more with that view than from any idea the testator had of preventing a lapse. I think, too, that it was not inserted for the purpose of confining the legatees to life estates, but that the legacies were intended to become vested at the death of the testator to all purposes but one; and that was, that if any of them died after the testator's death (or perhaps before it) without issue, and without having made any disposition of their legacy by will or otherwise, so that as in ordinary cases it would go to the next of kin, I say in such case the testator interposed and substituted the survivors in the place of the next of Kin, for the purpose of excluding Lucy Drew. The testator's great purpose was to fix a guard upon his property, and have it conducted into futurity beyond the limits of his own life, free from any claim she might otherwise have to it. And he has done so, I think, as far as the death of the last survivor. There he has taken leave of it. And if the last survivor should die intestate, and without issue, or without having made any disposition of it, Lucy Drew will come in for a share. He has created no barrier against her in such case. But she could take nothing upon the death of any preceding survivor similarly situated. This, I think, was the testator's intention; and I am not aware that it is opposed by any maxim or rule of law. *115
In the present case it appears that Louisa, one of the legatees, intermarried with David Clark, and thereby transferred her legacy to him. And although she is dead, Lucy Drew can take nothing as next of kin; and, of course, the clause creating the survivorship is inoperative.
Thus the testator having shut up all the avenues through which (137) which Lucy Drew could derive any benefit from his estate, until it might vest in the last survivor, and then, too, unless that survivor had died without issue, and without having made any disposition of it, his grand purpose was accomplished. Therefore, in either view I have taken of the case, whether upon the clause alone that disposes of the personal estate, or upon that clause connected with other clauses in the will, I am of opinion that the bill should be dismissed with costs.
PER CURIAM. Decree affirmed.
Cited: Haughton v. Lane,
