47 Ky. 616 | Ky. Ct. App. | 1848
delivered the opinion of the Court.
This case grows out of the will of Francis Lowen, admitted to record in 1820. And the principal question is, whether under the devises presently to be stated, the devisees took estates for life, or fees defeasible on contingency, or whether by the terms of the devises, or by force of the statute converting estates tail into estates in fee simple, they took the absolute fee in the land devised. It appears from the will, that the testator had had fifteen children, who are all named therein; and after devising to his wife his home plantation and other property for life, to be disposed of at her death as afterwards directed, he states that five daughters had received their full portions of his estate, completes the portion of his son John by a devise to his two children, devises 200 acres of land to his son Francis, in full of his share, and 100 acres of land and two slaves to his son Benjamin, as the amount intended for him; and then directs that after the death of his wife, his land not before disposed of, shall be equally divided by his executors “between the following children, to-wit: Susan, (the younger,) William, Polly, Lewis, Morton, Agnes and James.” — that the division shall be made sooner if any of his first six named children want their part after marrying or attaining the age of twenty one; that his son Janies have his part when he wants it, “if he dies without heirs it is my will that it goes to my children who are single now, and to Benjamin, my son? should he die with heirs, I will the land to said heir or heirs of my son James*” “It is also my will that if any of my children die without lawful heir or heirs, that the property hereby willed, go to my surviving
In 1821 or 1822, the land referred to in these residuary devises, except that devised to the wife for life, was divided among the seven residuary devisees; and in the year 1837, shortly after the death of the wife, the land devised to her was divided between the survivors of the seven and the children of one who was dead, and Benjamin Lowen, to whom a portion was allotted in the part of Morton, who had died without children. James and Lewis conveyed to William their interest in the land which had been devised to the testator’s wife for life, and William sold and conveyed, by deed with general warranty, his entire interest, including his own portion as well as that derived from James and Lewis, to Deboe. And a judgment having been afterwards obtained upon Deboe’s note for the last instalment of the purchase money, this bill was filed by him to enjoin that judgment and to rescind the sale and conveyance on the ground of, 1st. A defect of title in the vendor. 2d. Of his insolvency; and, 3d. Of his fraudulent misrepresentations as to title.
The vendor denies the alledged defectiveness of his title, relies also upon conveyances from his surviving brothers and sisters supposed to be interested, obtained since their interest was suggested by the complainant. He also denies all fraud, misrepresentation or deception with regard to the title, and denying his insolvency as alledged, insists that the complainant having accepted
William Lowen is childless and as yet unmarried, James is married and has several children, as is probably the case with the other surviving residuary devisees and the son Benjamin, Agnes (Daniel,) is dead, leaving infant children.
With regard to the alledged insolvency and fraud of William Lowen, we infer that although he is worth several thousand dollars, he has little visible estate. But we are not satisfied that there was any fraud on his part in the sale. If, however, his title is to terminate with his life, it is not to be doubted that the purchaser, and probably both parties labored under a serious mistake, with regard to the subject of the sale; and as the recourse of the purchaser upon his warranty, is not entirely safe, he should be relieved either by a rescission of the contract or by ample indemnity, unless the vendor has acquired, since the sale, what both parties supposed he had at the time, and what enured to the benefit of the vendee, will give him the expected fruits of his purchase.
We shall first enquire what estate William Lowen took under the direct devise to him in his father’s will, which is to the seven younger children by name, William being one, and if any of them (except James, as to whom there is a separate provision,) should die without lawful heir or heirs, the property willed to them to go to the survivors of the six and Benjamin, who was not one of the six. The word heir or heirs here used, means of course, heirs of the, body of the deceased child. And the contingency is, if any of-the six should die without heir or heirs of his or her body, the property shall go to the survivors and Benjamin. Whether the portion devised to Benjamin is included in the devise over, is not now in question, As the devise over to the surviving children upon the death of one without heirs of his body, refers evidently to the contingency as one to happen during the life of some of them, we think it sufficiently apparent that whatever construction might be put upon the words “if any die without heirs of his
This conclusion is directly sustained by the case of Hart vs Thompson’s heirs, (3 B. Monroe, 486,) upon a devise of land “to be equally divided among testator’s nine children, then living, or their lawful heirs if dead, and if either of his nine children should die without heirs of their body, lawfully begotten, that their part so allotted and given them as aforesaid, be equally divided amongst his other children then living.” All the other cases in this Court upon wills, both. of real and personal estate, made since estates tail were abolished by the Virginia act of 1776, embodied in the 10th section of our act regulating conveyances of 1796, (1 Stat. Law, 442,) show that where words importing a death without issue are used as describing the contingency on which the devise over is to take effect, any word or circumstance in the will indicating an intention to restrict the failure of issue to the time of the death of the person referred to has been allowed, in accordance with the natural and grammatical meaning of the words themselves, to restrict the contingency to that period. And in no case of a will made since the abolition of entails has the Court, so far as W'e have discovered, inferred an intention to create an estate tail, or construed the devise as creating one contrary to the intention, because those words were used: Moore’s trustees vs Howes’ heirs, (4 Monroe, 199;) Corbin’s adm’r. vs Moseby, (3 A. K. Marshall, 289;) Brashear’s heirs vs Macy, (3 J. J. Marsh. 89;) Brown’s heirs vs Brown’s adm’r. (1 Dana, 39;) Richardson, &c. vs Birney, (5
Here then is a devise to the testator’s children, A. B. 0-, &c., and if any of them die without issue, thp property to go to the testator’s surviving children. Which-can mean nothing more nor less, according to the literal interpretation- of the word surviving, than his children then living, as expressed in Hart vs Thompson; and must receive the same construction with the same effect of indicating with sufficient certainty, that the testator intended-to provide only for the case of one or more of his children dying without issue living at the death of suüh child, by giving to his ow?n surviving children the estate which had been devised to-such decedent. If the devise over to the surviving children, upon the death of one without issue, might be construed to ambrace the descendants of one who had previously died, this could only be done on the assumed ground that the testator could not have intended to exclude them, and that he would have provided for them expressly if that case had occurred to his mind. But
And we are of opinion that this deed of Lewis bars his own issue, who could not claim his share as purcha
As these deeds are deemed sufficient to pass whatever interest the grantors might have in so much of the land conveyed by William Lowen to the complainant, [as consists of his own share and that of Lewis Lowen, and as his own conveyance is good against any issue which he may have, the only remaining enquiry on this branch of the subject is whether, as the testator’s daughter Agnes, (Daniel,) being already dead, cannot take as a surviving child, on the future death of either of the others, her infant children have any interest in the devise to the surviving children. A majority of the Court is of opinion, (the Chief Justice doubting,) that they cannot be so entitled under any admissible construction of the will.
We proceed then to consider the devise to James, a portion of whose share of the land was conveyed by him to William, and is included in the sale and conveyance to Deboe. The devise to James being first made in the general residuary clause, which does not distinguish him from the other six children therein named, must be considered as giving to him as to the others, a fee simple, subject to such restriction as is afterwards imposed. The ground of the subsequent discrimination with regard to James, does not appear. The inference on the face of the will is, that he was either marred, or o
Then, the devise is to James, (which of itself gives a fee;) and if he dies without heirs, (meaning of his body,) to certain of his brothers and sisters; if he dies with heirs, (of his body,) to said heir or heirs (of his.body.) If the last clause, “if he dies with,heirs,” &c., had been omitted, the case would have been like the other devise, a fee simple, defeasible on his death without issue. Taking in the last clause, the devise may be considered as being to James and his heirs (of his body,) if he has any at his death, if none, to his brothers and sisters, which is an estate tail; or to James, (and his heirs forever,} if he dies with heirs of his body, to them, and if he dies without heirs of his body, ■ to his brothers and sisters.
We are of opinion that there is no sufficient indication of an intention to give him an estate for life only, which might easily have been manifested by using the words “for life,” as in the devise to the testator’s wife. It can scarcely be supposed that the testator regarded such a restriction as resulting from construction by a comparison of the different clauses. And although the placing of the proceeds of certain personal property in the hands of a trustee, to be dealt out to James at discretion, may be an evidence of some distrust in him, the inference, deducible from this circumstance, is not stronger than that which arises from the failure to use the ordinary words of restriction in the devise to him, and cannot govern the construction of that devise. The testator might have distrusted his use of money in hand, and yet have had no apprehension with regard to the real estate.
Whether James had by the will an estate tail, or a fee defeasible on his death without issue, in either case his conveyance is good against his issue. And if the devisees in remainder be considered as having any in-, terest on account of the possibility of his dying without issue, four of them have released it to William, who is himself a fifth, and if the children .of Agnes, (Daniel,) have a similar contingent interest in the small tract conveyed by James to William, the interest is too minute, and the contingency on which it depends too improbable to give it any importance in the present case. We must add too, that we are inclined to consider the provision made for James Lowen and his issue, as creating an estate tail, which is by the statute, a fee simple
Wherefore, the decree is affirmed.