46 Ky. 623 | Ky. Ct. App. | 1847
delivered tlie opinion of tlie Court.
By the will of Cyrus Talbot, admitted to record in September, 1833, the testator, intimating clearly the intention to dispose of his entire estate, devised to Paul I. Booker all the estate he might die possessed of, in trust and to be subjeet to the dispositions made in the will, as follows: By article 2, $5,000 or one fourth part of the money, &c., to be invested in stock, &c., and the interest as it accrues, to be paid to testator’s daughter, Ann Richmond, during life, and then at her death to her children ; but should she not intermarry and have issue, then at her decease, the principal shall descend to the surviving issue of her brother and sisters, in proportion to numbers. 3. Five thousand dollars or one equal fourth, &c. I give and bequeath to my son Cyrus, to be invested and regulated as in case of my daughter Ann R. by article 2, and the interest on the same as it accrues, to be paid for his education and support, when should he arrive at twenty five years of age, the principal is to be paid over to him. By the 4th and 5th articles he makes a bequest of $5,000,
6th. The farm whereon I live, commonly called Snug Harbour, the lands purchased, &c. &c., together with my household and kitchen furniture, stock, &c. &c., to the use and for the support of my wife Alice, for and during her natural life ; the following reservations in favor of my daughter, Ann R. who shall be entitled to a room, &c, &c., so long as she may remain single.
“7th. On the decease of my said wife, the above described farm, &c. &c., shall become the property of-my son Cyrus, when arrived at the age of twenty six years, (excepting the reservation in favor of Ann R.;) but after providing for the support and comfort of his mother, he may be entitled to all the profits arising from the same, except the reserved rights of his sister, Ann R.”
The succeeding clauses dispose of his slaves to his wife during life or widowhood, to be divided at her decease, among the testator’s children, deducting advancements in slaves, and after stating certain advances in money to be deducted from the respective portions on account of which they were made, the will appoints P. I. Booker executor, who renounced the executorship but was qualified as administrator with the will annexed.
It appears that the testator’s widow survived him but two or three years, that the daughter Ann R. intermarried with Danforth, and that Cyrus Talbot, the son, having been let into the possession of the farm called the Snug Harbour, sold the same after he had attained the age of twenty one years, to Danforth, for the sum of $6,488, and executed his bond for conveyance of the title, and that he afterwards died unmarried, before he attained the age of twenty six years. This bill was subsequently filed by Danforth, (his wife uniting with him,) for the purpose of obtaining a conveyance of the land sold to him by Cyrus Talbot, the devisee. The trustee appointed by the will of Cyrus Talbot the elder, and the personal and real representatives of each of the Talbots, were made defendants. And the Court, on hearing the cause, having
This question has been considered both with reference ... „ . . , . , . . to the evidences ol intention to be gathered iroiri the provisions and language of the will, and to -the effect which has been given by adjudged cases to particular ex- ° JJO * . pressions used by the testator, ihe great object being to ascertain and effectuate the intention of the testator, his language used for the very purpose of conveying that intention, furnishes of course, the appropriate and pecu. ,. „ . . . t> i ' • i i ’ har means oí ascertaining it. ■ But besides the lesort to rules' of construction for interpreting the intent of particular words o-r clauses, the certainty and uniformity J J vvhich should prevail in the modes of creating estates and in the rules applicable to them, seem to require that vvhen a will is found to use woids and phrases ordinarily used in the creation of estates, and which by the course of judicial decisions upon wills, have received an established interpretation and effect, these decisions may not only be resorted to but should be adhered to in their application to the particular case, unless the obvious intention of the testator would be violated by so doing. Suck decisions being themselves presumably founded on an ascertainment of the meaning of the particular words or phrases, and of the intention with which they were used, and being directed to the effectuation of that intention, according to the rules of law, become in point of reason as well as of law, legitimate sources of exposition.
The precise question in the case is, whether the testator intended to give Snug Harbour to his son Cyrus, certainly and in all events, or whether he intended to give it oñly upon the contingency of his living to be twenty six years of age. If the gift was certain, though to take effect in enjoyment ata future period, it vested an immediate interest or estate in remainder, which would have passed to the heirs of the devisee upon his death before the period of enjoyment, and of which he might dispose
If as contended, it is fairly deducible from the entire will, that the testator did not intend his son Cyrus to have the power of disposition until, and unless he arrived at the specified age, such intention, if not specifically and properly carried out, could at most, form only one of the considerations to be taken into view in giving construction and effect to the particular devise. If that gives a vested interest, the mere inference of an intention to withhold the power of disposition, can have no operation. Conceding the existence of such an intention, the question would be, what mode did the testator adopt for its effectuation ? Andas he may have supposed, and probably did suppose that his object in this respect, was secured by the devise of the entire estate to a trustee, although he might give a certain interest to his son, not to be enjoyed in possession until a future time, the assurned intention with respect to the power of disposition is entitled to little if any weight in the interpretation of the devise to the son.
But this assumed intention is found no where unless in the devise of the whole estate to the trustee, and in the reference to the age of the son in the particular devise in question. Nor is it shown by this latter devise, except by construing it to be contingent, which is the very matter in dispute.
Leaving out of view the reservation in favor of the daughter,. Ann R., which cannot affect the present ques
And although the event referred to, that is, the arrival of the son at the age of twenty six, must, when abstractly and precisely ' considered, be regarded as uncertain and contingent, must it be assumed to have been so regarded by the testator? He evidently did not regard it as contin. gent. He speaks of it as a thing certainly to happen. He does not even say, “if he shall arrive, &c., but when arrived at the age of twenty six years;” and he makes
This distinction is referred-to in the case-of Briscoe's devisees vs Wickliffe, (6 Dana, 162-3,) where it is sard in-reference to a devise to A-. if or when he attains a certain age, that the law, in ascertaining-the intention of tine testator, may regard him as looking- only to the point of time when the event referred to would certainly happen, if stall, and not to the happening'of the event, and that the dev-ise might be construed as referring, to a certain time which must come, and thus being uncontingent be effectual to convey an immediate vested interest. The case of Atkyns vs Hiccocks, (1 Atkyns, 501,) not now before us-, and (Fearne on Remainders, 553-4.) áre referred to as sustaining this- distinction. . The last authority shows that there are cases in which the law considers the event of the legatee’s- attaining a certain age as fixed, and not contingent-; and supposing the principle to b'e founded on a reference to the testator’s intention, it would seem to be as applicable to the case of a devise as to that of a legacy.
But there is still another circumstance in this devise; which is- entitled to weight, which is, that Cyrus, the son, i-s entitled, from his- father’s death, to so much of the profits of the farm as may remain after yielding a comfortable support to his- mother and sister,. He might thus
Passing from the considerations arising on the face of the will, we find the adjudged cases fully sustaining the construction and effect which we have given to the devise in question. In addition to the cases in which, after a devise to one if or when he shall attain a certain age, there vvas a devise over if or in case he shall die before attaining that age, and in which the condition has been adjudged to be a subsequent one, by which the éstate would be defeated and pass over, and not a precedent one, to happen before the estate would vest under the devise, to which alone, with one-exception, the attention of the Court seems to have been drawn, in the case of Briscoe's,
Upon the whole, we are satisfied that Cyrus Talbot the devisee, took a vested estate in remainder by the devise, which he had-a right to sell at any time after he became twenty one years of age, and consequently that his contract with Danforth was effectual to bind the title as derived from Cyrus Talbot the elder, and that upon the merits as now appearing, a conveyance should have been decreed accordingly, if the suit had been in proper state of preparation for final hearing.
But the personal representative of Cyrus Talbot, the devisee, was a necessary party to contest the payment of the purchase- money, and his devisees might not be improper parties.
Wherefore, because of the defect of parties, the decree dismissing the bill absolutely, is reversed, and the cause is remanded, with directions to allow the complainants