36 N.J.L. 460 | N.J. | 1872
The opinion of the court was delivered by
The plaintiffs are the hoirs-at-law of Lucy .Akins, deceased. The defendants make title under the heirs-at-law of the testator, William Akins, deceased. It is too obvious to admit of debate, that Lucy Aikins, under the third clause in the will, would have taken only an estate for life in the whole of the lands whereof her husband died seized. The only real subject matter of controversy, relates to her estate in the one-third part thereof, by force of the fifth clause in the will, which is in the following words, viz.:
“ Fifth — I also give and bequeath to my beloved wife, Lucy Akins, one-third of all my estate that may remain at the time of her death for to dispose of as she may see proper, and the other two-thirds to be divided as I hereinafter order and direct.”
By the succeeding clause, “ the balance of the two-thirds ” of his estate was devised to the three sisters of the testator, and the heirs of a deceased brother. The contention of the defendant is, that upon the construction of the entire will, Lucy Akins took a life estate only in the lands of the testator, with a power of appointment over the one-third part thereof, and that not having exercised the power, that portion of the testator’s estate descended to the defendants as his heirs-at-law, .as lands whereof he died intestate.
It will be observed that the estate for life which the widow
The Supreme Court, in the judgment under review, sustained the claim of an estate in fee in Lucy Akins in the one-third part of the premises, on the rule of construction, that a devise of an estate generally with a power to dispose of the same without qualification or limitation, imports such dominion over the property as that an estate in fee is created. The distinction is between a devise expressly for life with a power of disposition annexed, and a devise in general terms with such a power annexed. In the former case, an estate for life only passes, in the latter a fee. As a rule of construction, the principle is entirely settled, that where lands are devised in the-first instance in language indeterminate as to the quantity of the estate from which an estate for life would result by implication, and words adapted to the creation of a power of disposal without restriction as to the mode of execution are added, the construction will be, that an' estate in fee is given; but. where the quantity of the estate of the- taker is expressly defined to be for life, the superadded words will be construed to-be the mere gift of a power of disposition. The leading English authorities sustaining this distinction, are cited by the Chief Justice in his opinion in the court below.
The general rule is, that when a will devises to a man with a power to give a fee, he is construed to have a fee, subject to-the qualification that he has not an express estate divided from the power, 2 Preston on Estates 82. “We may lay it down as an incontrovertible rule,” says Chancellor Kent in Jackson v. Robbins, 16 Johns. 537, 538, “that where an estate is given to a person generally or indefinitely with a power of disposition, it carries a fee, and the only exception to the-
This rule of construction has been repeatedly approved by the courts of this state. It was made the ground of decision by Chancellor Vroom in The Dutch Church v. Smock, Saxton 148, and by Chancellor Green in Annin v. Van Doren’s Adm’rs, 1 McCarter 135; and was recognized by Chief Justice Hornblower in Den v. Humphreys, 1 Harr. 28; by Justices Nevius and Carpenter in Armstrong v. Kent, 1 Zab. 519, 522; and by Chief Justice Green in Den v. Young, 3 Zab. 481, as an established rule of -construction. In the Butch Church v. Smock, the bequest was to the wife, of “ the sum of six hundred dollars, to bo at her disposal during life;” and it was held that she took an absolute interest in the legacy, and not merely a life estate with a power of disposition during life. In Annin v. Van Doren’s Adm’rs, a testator gave to his daughters the residue of the proceeds of his real estate, including all his rights and credits after payment of his debts, and directed that his executors should take charge of a certain farm belonging to his estate and lease it during the life of his son, and on his death, should sell the same, and the proceeds of such sale he directed to be divided among his daughters and the children of his son, equally, to them and their heirs. By a subsequent clause, he provided that in ease either of his daughters died leaving no lawful issue, the share of such daughter, if not paid over by his executors, and if paid over, such part thereof as remained unexpended, should go to his surviving children and their heirs, equally. One of the daughters having received her share of the funds from the father’s executors, died without issue, leaving a part of her share unexpended, in the hand
The opinion of Mr. Justice Randolph, in this court, in Kent v. Armstrong, 2 Halst. Ch. R. 637, has not been overlooked. The devise there was to E. R., “ to be by her possessed, enjoyed, and occupied, to her, her heirs and assigns^ forever,” with a proviso that if she “should die without heirs, and intestate, then over.” The learned judge throws out an intimation that superadded words, conferring a power of disposition, will be construed to give a mere power, not only where the estate for life is given by express words, but also where the life estate arises by necessary implication or from a construction of the will. None of the cases cited support that position; on the contrary, they, with entire unanimity, recognize-and sustain the distinction between the' gift of an estate for life by express words, and a gift in general terms, omitting the words of inheritance, by which an estate for life is created by implication or construction. It did not, probably, occur to-the learned judge, at the moment, that his modification of the rule of construction, the existence of which he admits, would, in a great measure, if not entirely, subvert the rule as applied to devises of lands. Re that as it may, the judgment of this court, in the case referred to, was not based on that ground, but upon the other ground that the word “intestate” did not import an unqualified power of disposition, but was restrictive in the sense that the disposition contemplated by the testator could only be made by a testamentary disposition, and that, therefore, the gift was of a mere power.
■It was contended on the argument, that the words, “ that may remain at the time of her death, to dispose of as she may see proper,” import a power of disposition over the
In this connection, the counsel referred to that part of the will which forbids the removal of hay or straw from the farm, and expresses the wish that the timber should be preserved for the benefit of the estate, as indicating the testator’s intention that the farm should be kept entire during the widow’s life. Hence, it was argued that her power of disposition over the one-third was limited to a disposition by will. Conceding that these special provisions manifest an intent on the part of the testator, that the widow should occupy and improve the entire farm during her lifetime, they cannot be permitted to qualify or abridge the generality of the language in which the right of disposition is expressed, especially when that construction will leave the testator intestate as to this part of his property after the death of the widow, whereas it is apparent, from the whole will, that a complete testamentary disposition of all his property was intended.
If any doubt were entertained of the correctness of the construction adopted by the Supreme Court, it would be removed by the statute, which, in substance, prescribes, as a rule of construction, that every devise of lands, in general terms, when no further devise thereof is made after the death of the devisee, shall be taken to be a devise in fee simple, unless the will contains some expression, from which it shall appear that such devise was intended to give only an estate for life. Nix. Dig. 1035, § 39.
The judgment of the Supreme Court should be affirmed.
Judgment of the Supreme Court unanimously affirmed.
Rev., p. 1035, § 13.
