92 Me. 514 | Me. | 1899
In 1847, James McIntosh conveyed certain real estate in Gorham to his two sons Stephen.and George, “their heirs
Stephen died in 1881, having never married, but leaving an illegitimate child to whom he had given statutory recognition. The plaintiff claims title throhgh mesne conveyances from Stephen; the defendant claims- through mesne conveyances from George. The rights of the parties depend upon the proper construction to be given to the clause ' in the deed above quoted, “ and if my son Stephen die without children then Stephen’s third part is to go to my son George.” ' ’
The plaintiff contends in the first place that Stephen took a vested remainder in tail in the demanded premises; that upon the death of his father and mother, he became seized as tenant in tail; and that by subsequent conveyance the entail was barred, and the title in fee simple passed to Stephen’s grantee, and so on to the plaintiff. R. S., c. .73, § 4. On the other hand, the defendant’s contention is that Stephen took a vested remainder in fee simple, determinable upon a contingency, namely the death of Stephen without children; and that upon the death of Stephen without legitimate children, the title passed to George, and so on to the defendant.
The plaintiff contends in the second place, that if Stephen’s remainder was not an estate in tail, then inasmuch as Stephen died leaving surviving .him a child born' out of wedlock, he did not in legal contemplation “die without children,” and so the contingency
The first important question is: did Stephen “die without children?” Unless he did the defendant has no title in any event. By the common law, a bastard was filius nullius. He possessed no inheritable blood. The sins of the father were visited upon the child. Modern sentiment as expressed in modern statutes is more merciful to the unfortunate offspring of illicit intercourse. In this state, as in most others, by pursuing statutory methods, a bastard may be legitimated and may acquire rights of inheritance, and some or all of the usual consequences of consanguinity. So it was in the case at bar. Stephen gave his daughter statutory recognition. But that conferred only statutory rights and privileges. We are not concerned with the status of this child under a statute, but are endeavoring to ascertain the legal meaning of' the word “children” in a deed. We do not perceive how that meaning can be enlarged in this case; nor how the interpretation of the word can be aided by reference to a ■ statutory condition which was created many years after the deed was executed. Unless there is something in this deed, — and there is not, — to show that the grantor contemplated that his son Stephen would become the father of a bastard child, and intended that child to be included in the term “children,” we must give to the word its ordinary, common law signification. The authorities are to the effect that the word “ child ” in a will or deed means a legitimate child. In Bolton v. Bolton, 78 Maine, 299, the late Judge Virgin, after stating that the word “widow” in a life insurance policy meant the lawful widow, used the following language: “The foregoing rules find numerous illustrations in the construction of wills wherein legacies and devises are given to a ‘child’ or ‘children’ of some person named, and such person has legitimate and illegitimate child or children, in which case the legitimate and not the illegitimate issue take. The word ‘ children ’ it is said means prima facie legitimate
We are now brought to inquire what was the legal character of the estate conveyed to Stephen by the deed in question. Was it an estate tail? The plaintiff says that the word “children” in the clause under consideration is equivalent to “heirs of the body,” and that so considered, the clause created an estate tail. In support of this claim, the plaintiff cites the well known definition and examples of an estate tail given by Mr. Washburn in 1 Washburn on Real Property, *72, *73, *74. He also cites our own cases of Fisk v. Keene, 35 Maine, 349, and Richardson v. Richardson, 80 Maine, 585. A devise of an estate to a person and his heirs, with a devise of it over, in case he should die without issue, vests in the first devisee an estate in fee tail, with a remainder to the second devisee. Fisk v. Keene, 35 Maine, 349. The words “ dying without issue” are construed to mean an indefinite failure of issue.
If the clause we'are now considering creates an estate tail, it must be so by implication 'or construction; one certainly is not created by definite and express words. But this of itself is no objection; for as statéd in Richardson v. Richardson, supra, the former are “much more common.” And it may be conceded that similar Ian-, guage in a devise has been held to create a constructive estate tail. If we should assume that this deed is to be construed by the same rules as are applicable in construing wills, and by which estates tail are held to be created in devises by implication, that would not necessarily decide the question. The intention of the testator as legally ascertained is to govern. The implication may be rebutted. Whitcomb v. Taylor, 122 Mass. 243; Schmaunz v. Goss, 132 Mass. 141; Pratt v. Alger, 136 Mass. 550; Trumbull v. Trumbull, 149 Mass. 200. In Richardson v. Noyes, 2 Mass. 56,
It will be observed, however, that the illustrations we have selected are all cases involving the construction of devises. So are the authorities cited by the plaintiff.
Our attention has been called to no case of a deed, and we have been able to find none, in which it has been held that an estate tail was created by implication.
That there is none results in part from the ordinary mode of creation of an entail, and in part from the difference in the rules of construction as applicable to deeds on the, one hand, and to devises on the other. The purpose of an entail is to regulate and limit in a particular manner the descent of property from father to son, from generation to generation, to keep property in the same line of descent through successive generations, and this is, and always has been, accomplished usually by means of wills and family settlements.
To be sure, entails can be created by deed, by the use of express and definite terms, but we are speaking here of entails by construction. The distinction between wills and deeds in this particular is noted by Mr. Washburn, in the following language: “In a will, the testator may use the word “children” as meaning heirs of the body; possibly a grantor may do this, but his intention must be clearly shown. 2 Wash. Real Prop. *274.
It is our duty to give effect to the intention of the grantor, James McIntosh, if we can do so without violating legal principles. Lincoln v. Wilder, 29 Maine, 169; Moore v. Griffin, 22 Maine, 350. We think it can be done. He granted this estate to Stephen his “heirs and assigns forever.” The habendum of the deed is to the same effect. As held in Watson v. Cressey, supra, the grant took effect as a vested remainder in Stephen. But the estate was determinable. We think it was the intention of the grantor, that Stephen’s estate should determine if he died without legitimate children; that it should determine upon and at the death of Stephen; that it was the definite failure of issue at that time,
The result is that the estate in Stephen created by the deed was a vested remainder in fee simple determinable upon a contingency, which contingency happened, and thereupon the title vested in George, and passed from him to the defendant.
Judgment for defendant.