Fosdick v. Cornell

1 Johns. 440 | N.Y. Sup. Ct. | 1806

Thompson, J.

delivered the opinion of the court.—The determination of this question, will depend on the interpretation to be given to the devise over to the surviving devisees : if this were to take effect only on an indefinite failure of male issue, William took only an estate-tail. But if, from the context, or tlie whole will taken together, it may be construed to take effect on the failure of male issue, during the life of the first taker, or, as applied to the present case, during the life of William, the devise over is good as an executory devise, and will not in any way affect, or qualify the prior clause in the will, wherein a fee simple is devised to William. This is a question of construction, depending on the intention of the testator $ and from the whole will taken together, I cannot entertain a doubt, that he meant to provide, that in case any of the devisees named in this clause," should die without leaving male issue at the time of his death, his portion should be divided among the survivors. Neither do I think that there is any stubborn or rigid rule of law that will militate against this construction. The cases in the books on this question, furnish us with many nice distinctions, all, however, made for the purpose of giving effect to the intention of the testator, which is considered a cardinal rule in the construction of wills. Lord chief justice Wilmot said, that he would lay hold of the most trifling circumstance to give effect to the apparent intention of the testator. (Keily v. Fowler, Fearne Ex. Dev. 236, 245.) In the case of Pells v. Brown, (Cro. I. 590.) which Lord Kenyon, in the case of Potter v. Bradly, (3 Term, 146.) terms the foundation, and as it were the magna charta of this branch of the law, the devise was to Thomas and his heirs forever, and if Thomas died without issue living William., then the devise was over to William. This was considered a devise in fee to Thomas, and not an estate-tail ; the words living William, were thought sufficient to make the devise over to William an executory devise. In the case of Hughes v. Sayer, (1 P. Wms. 534.) the testator had devised his personal estate to A. and B. and upon either of them dying without children, then to the survivor. This was held a good devise over, for the words dying without children, must be taken to be children living at the death of the party, and could not mean an indefinite failure of issue ; and the reason assigned was, that the immediate limitation over was to the surviving devisee : and it was not probable, that if either of the devisees should die leaving issue, the survivor would live so long as to see.a failure.of issue, which, in .notion óf law, was such a limitation as might endure forever.

•. If the reason assigned for the decision in this case be solid, it applies with full force to the one before the court for here the limitation over is to the surviving devisees. The only difference between the two cases is, that the one relates to personal, and the other to real estate, which, it is contended, requires a different rule of construction, according to the adjudged cases. I find no distinction* however, with respect to the effect which the words surviving devisees, or any other words, or parts of the will, are to have in ascertaining the intention of the testator.—* It is true, that in the case of Forth v. Chapman, (1 P. Wm. 667.) the Lord Chancellor thought the words leaving no issue, ought to receive a different construction when ap. plied to real, than when to personal estate ; that as to the former, the words, ex vi termini, ought to be considered to mean an indefinite failure of issue, and as to the latter, a failure of issue living at the death of thefirst taker. The soundness of this distinction has been much questioned. In the case of Potter v. Bradly (3 Term, 145.) Lord Kenyon rejected it, and said that it would be very strange if these words had a different meaning when applied to real and personal property. If such a distinstion existed in the law it would not agree with the rule, lex plus laudatur yuando ratione probatur; but it was not founded in law. In that case the court decided, that if lands be devised to A. his heirs and assigns forever, and if he die leaving no issue behind him, then over, the limitation over is good by way of executory devise. In the case of Roe v. Jeffery (7 Term, 589.) the devise was very analogous to the present; it was to T. F. and his heirs for ever, but in case he should depart this' life and leave no issue, then to return unto E. M. and S. or the survivor or survivors of them, to be equally divided betwixt them, share and share alike. This was held a good executory devise, for the testator must have meant the devise over, on failure of issue living at the death of the first taker. The principal reason assigned for this conclusion was, that the devise over was to persons then in existence ; and Lord Kenyon here again takes an opportunity of observing, that he was not prepared to unsay what he had said in Potter v. Bradly, respecting the distinction taken in Forth v. Chapman. Without, however, expressing any decided opinion relative to the correctness of this distinction, I think it is fairly to be collected from the provisions in the whole will, that the testator, in the case now- before the court) intended that the devise ove" should take effect, in case the first taker should die without a son living at the time of his death, and that it was not to depend on an indefinite failure of male issue. The former part of he will, in which the premises in question are devised in fee. simple to William, is.totally distinct and independent of the clause in question ; and though this devise may, by subsequent provisions, be confined and restricted, so as to carry only an estate-tail; yet, in order to give it that effect, it ought to appear clearly that such was the intention of the testator. But there is nothing in the whole will, except the particular clause in question, that tends in the least to show that the testator meant to give to his son William an estate-tail. He had parcelled out his estate among his children as he thought just and right, giving them, in the first instance, 9, fee simple interest, which shos pretty clearly what his intention was with respect to the estate he meant to devise : It is most probable if he had intended to devise an estate-tail, that he would have done it in the first instance, and not have left it to be raised by implication. The devise over, also being to the surviving devisees, among whom was his daughter Mary, to whom he had not-in any other way devised any real estate, is another strong circúmstance, according to the- authorities cited, to show that' the clause in question was only intended to provide for the contingency of any of the devisees dying without leaving heirs male living at the time of their death. The opinion of the court, therefore, is, that the plaintiffs are entitled. <.0 judgment.

Judgment for the plaintiffs,-