4 Johns. 61 | N.Y. Sup. Ct. | 1809
That the construction given to the clause of the will by the counsel for the plaintiff, accords with the intention of the testator, can hardly be doubted; and the only question is, whether he has made use of sufficient words to effectuate his intent ?
It is a rule in the construction of wills, particularly of those inartificially and obscurely drawn, to advert, in order to discover the intention of the testator, to his situation, at the time of making the will, as to the number of his children, the different kinds of property of which he was seised, &c. (6 Crui. Dig. 158. and the cases there cited.) When this will was executed, the testator’s daughter, Christiana, had four children; and, judging from the great length of time she lived after the date of the will, the testator undoubtedly supposed it probable that she might have several more. His intention was, and such, I think, is the fair construction of the words he has made use of, to give the property in question to his daughter, during her life, and to her descendants, after her death. But as a devise of the remainder to her children then born, would exclude any children she might afterwards have, he has, by the terms of his will, endeavoured to guard against such an
This latter construction of the will is extremely harsh, and opposed not only to the justice of the case, but, in my opinion, to the manifest intention of the devisor. The effect of it would be to exclude the grand children of Christiana altogether; and it ought therefore not to be allowed, unless the words of the devise admit of no other reasonable interpretation. I think the devise does admit of another construction, and one perfectly warranted by the words in which it is expressed.
The word begotten is here used as synonymous with the word borne; and, substituting the latter word, the will would read thus: “ Such child or children as the said Christiana shall have lawfully borne at the time of her death.” These latter words, “ at the time of her death,” evidently signify the same as, in her life-time. If the words, “ at the time of her death” in the will, be taken in the sense here stated, and the words, “ shall have begotten,” be considered as a verb in the future tense, the result will be the same; the devise will then read thus: “ such child or children as the said Christiana shall have lawfully begotten (or borne) in her life-time.” The word “ begotten” in this view of the case is, indeed, liable to some criticism, but the sense in which the testator has here used it, cannot be misapprehended. In adopting this interpretation, I cannot perceive that any violence is done to the words of
The result of this construction is, that, upon the decease of the devisor, Christiana took an estate for life, and her four children then living took a vested remainder in fee; and, in case there had been any after-born child or children of Christiana, the remainder would have opened for their benefit, so that the property, in the language of the will, might be equally divided between them, share and share alike.
To give effect to the construction set up on the part o£ the defendants, we are compelled to add to the devise the word “ surviving,” and to read it thus: such surviving child or children as she may have, lawfully begotten, at the time of her death. This would make the remainder contingent, because of the uncertainty of the person who is to take; as it was unknown which, or whether any of the children of Christiana, would survive her. But it is an established rule, that the court never construes a limitation in to an executory devise, when it may take effect as a remainder, nor a remainder to be contingent, when it can be taken to be vested. (6 Crui. Dig. 444. s. 11. 3 Term. Rep. 488. Ives v. Legg, in note.)
This rule applies with peculiar force to the present case and greatly increases my repugnance to the construction insisted upon by the defendants. Here, consistently with the terms of the will, it may be so construed as to give to the children of Christiana, born at the date of the will, a vested remainder. And, can there be any hesitation, in furtherance of the intent, to adopt such a construction, more especially when the rights of the grandchildren are saved thereby, who would otherwise be entirely excluded ?
In Oates, ex dem. Hatterly, v. Jackson, (2 Str. 1172.) the devise was to the wife for life, and after her death to her daughter Isabella, and her children on her body begotten, or to be begotten, and their heirs in fee. Isabella
I am of opinion, therefore, that the intention of the testator, as fairly deducible from the will, was, after the death of his daughter Christiana, to give this property to all her children, born, or to be born after the date of the will; that the children upon the death of the testator, took a vested remainder, and consequently, that the plaintiff is entitled to judgment, for an undivided fourth part of the premises in question.
Kent, Ch. J. Thompson, J. and Yates, J. were of the same opinion.
Peter Praa was seised in fee of the premises in question, which he devised as follows: “ Item, I give and bequeath unto my daughter Christiana Provoost, the dwelling-house and ground she now lives on, to hold the said house and ground for and during the term of her life, and immediately after the death of the said Christiana, I give the above devised premises unto and among all and every such child and children as the said Christiana Provoost shall have lawfully begotten at the time of her death, in fee-simple, equally to be divided between them, share and share
Christiana Provoost had four children by her husband David Provoost, at the time Peter Praa made his will, and at the time of his death; and one of them, Catharine, died before her mother, leaving the lessors of the plaintiff her heirs.
Is the remainder devised after the determination of the life estate, vested or contingent ? If it be of the former kind, then it was capable of alienation, or descent; if of the latter, then the ancestor of the lessors, not being in esse, at the determination of the particular estate, took nothing by the devise. After the fullest consideration given to this question, my opinion is, that the remainder is contingent, and that none of the children of Christiana took any thing by the devise, unless living at her death, The devise is dearly contingent, as to the children who might be born of Christiana after the devise; but that circumstance, I admit, does not give a decisive character to the remainder, with respect to those who were in esse at the time; for it is well settled, that a vested remainder is subject to open on the birth of children, or the happening of events designated by the devisor.
There are no cases precisely parallel to the present; and I say, in the language of Lord Chief-Justice Wilmot, that cases upon wills have no great weight, unless they are exactly to the very point, and similar, in every respect, to the case before the court. I am ready to admit, that the leaning of courts, if courts ought to lean, should be in favour of vested remainders. But if this doctrine be carried too far, we should not only distort and violate the words employed by devisors as signs of their ideas, but we should obliterate from our books ail traces of distinction between vested and contingent remainders, The law benignly supposes, that
I can never agree to reject words employed in a will, when they can have a sense and operation; and much less can I agree to construe words in such a manner as to produce absurdity, and make a testator speak nonsense. We have no right fancifully to substitute one mode of expression for another. We have no right to make a new will, but can only expound it upon known rules of construction, without violating the plain and obvious intent of the devisor.
The case of Doe v. Perryn
In the present case, it is manifest to me there are such words, and that the devisor’s intention is clear, that the remainder should enure to such legitimate children only, as Christiana should have, living at the time of her death. If this will be read without the words “ lawfully begotten,” there could be no doubt; these words can have no other operation than to denote the intention, that the child and children the testator meant to provide for, should be legitimate.
The struggle with my brethren seems to be, to make the grandchildren of the testator also objects of the devise, and to give such a construction to the will, so as not to exclude the issue of the child of Christiana, who died in her life-time. Had the testator denoted an intention to provide for his grandchildren, I should have tried very hard, to effectuate that intent; but I see no such intention in the will. In every view of the subject, I am confirmed in the opinion, that this remainder is contingent, and that, as the event on which the interest of the lessor’s ancestor depended, did not happen, by her being alive on the death of Christiana, the defendant is entitled to judgment.
Judgment for the plaintiff.
2 Eq. Ca. Abr. 545. A. (4.) 9 Mod. 159.
3 Term Rep. 484.