Hastings v. Hastings

123 Mass. 158 | Mass. | 1877

Soule, J.

By the will of John Jarves, the defendants in the first case, Deming J. Hastings and Sally Ann Dwight, and their brother, Samuel Jarves Hastings, took a contingent remainder in the land in question; the contingency being that they should survive Sally Hastings. If they all survived her, they were each to have one undivided third part in fee. If two survived, each would have an undivided half. If one only survived, he or she would have the whole. If neither survived, the land would go to Doming Jarves in fee. It was uncertain, therefore, whether either of them would have any estate in the land, and, if any, whether it would be in the whole or in an undivided part. The will, however, gave to each a contingent remainder in the whole. By the death of Samuel Jarves Hastings, the relation of his surviving brother and sister to the land was unchanged, except that it was made certain that, if they both survived Sally Hastings, each would have an undivided half of the land.

It was in this condition of the matter that the agreement was made on which the. plaintiff rests her claim. The deceased brother had left two children who clearly had no rights under the will of John Jarves. The death of either of the defendants, during the life of Sally Hastings, would leave his or her children without any interest in the land, or any rights under the will. The agreement recites that it is made in consideration of the belief that it was the intention of the testator that the land in question should be equally distributed among the descendants of Sally Hastings.

The only question in the suit is as to the construction of this agreement. It is inartifieially drawn, and obscurely expressed. If the language were clear, the instrument would be construed in accordance with the meaning ordinarily- given to the terms employed, even though such construction should not consist vith the intention indicated in that part which precedes and introduces the agreement itself. As, however, there is difficulty m finding the meaning of the parties if we limit the investigation to that part of the instrument in which the contract lies, we must interpret it with such assistance as we can derive from the circumstances in which it was made, as set forth in the recital in the instrument itself, and in the facts stated in the report.

It is contended by the plaintiff that the agreement is, in effect, an equitable assignment of a remainder of the fee, after the ea> fcate for the life of Sally Hastings, in one third part of the land, to the children of Samuel Jarves Hastings, and that the covenant to defend the rights of the children and their heirs to the property estops the defendants to claim title in opposition to Lydia T. Hastings, the mother and heir at law of those children. In other words, the claim is that the defendants, having only a remainder contingent on their surviving Sally Hastings, released one third of the land to those children, and agreed to defend the title to that third to them and their heirs, against all others claiming under John Jarves. There being no consideration, pecuniary or meritorious, for the making of such a grant or the assumption of such a liability, and the legal effect of the instrument, if so construed, being quite different from the purpose set forth in its recitals, it will not be so construed, unless a different construction would violate some principle or established rule. This construction presupposes an intention on the part of the defendants to warrant to the children of their deceased brother an estate which was not yqt theirs, and which it was by no means certain that they would ever have. There is nothing in the facts stated in the report, or in the recitals of the instrument, which indicates such intention. On the contrary, the instrument shows an intention merely to put the children in as good a relation to the inheritance as their father would have been in, and to leave the children of the respective defendants in an equally good relation to the inheritance, in case of the death of either defendant. The construction contended for by the plaintiff would not carry this intention into effect, but would place the defendants under an obligation to convey one third of the land away from the descendants of Sally Hastings, through the instrument which is made for the sole purpose of dividing the land equally and justly among her descendants.

The error involved in this construction is in supposing that the words which state the subject matter of the renunciation or release to be “ the portion of the aforesaid estate which would have belonged to said Samuel Jarves Hastings had he lived ’’ mean “ had he outlived Sally Hastings.” Such is not the natural nor the obvious meaning. The defendants, for the express purpose of putting the children of their deceased brother on an exact equality with themselves, so far as they can, with refer ence to the estate in question, attempt to give to the children an assurance and covenant that, as against them, the defendants will not reap any advantage from the death of their father, but will permit them to stand in their father’s place. To this end they say, “We renounce all claim which we have [now] in the portion which would have belonged to Samuel Jarves Hastings if he had lived” [till now]. As has already been said, the form of expression is not accurate nor precise for the purpose for which it is employed. The portion which the deceased brother would have had in the estate, if he had been living when the agreement was made, would have been a remainder contingent on his outliving Sally Hastings. He having died, the defendants could not properly be said to have any claim on that portion of the estate — that remainder contingent on his outliving one who had already outlived him. While he lived, they each had a contingent remainder in the whole, liable, if all survived Sally, to result in an estate in fee in an undivided third. After his death, they had each a contingent remainder in the whole, which would, if both survived Sally, result in a fee in an undivided half. That was the only change effected by his death, in their relation to the land.

The whole instrument is to be considered in determining the construction to be given to it; and, in view of the recitals which it contains of the state of the title under the will, of the situation of the children of Samuel by reason of his death, of the belief of the defendants as to the testator’s purpose, and of the intention of the defendants as to the children of Samuel and as :o their respective children, we think the meaning of the agreement to be that, in case any child or children of Samuel Jarves Hastings should survive Sally Hastings, the defendants, if they survived said Sally, would not avail themselves of the right given by the will to hold the fee to the exclusion of such child or children, but would convey to such child or children one undivided third part of said land in fee. If, then, we assume the agreement to be a deed of quitclaim of the premises thus described — that is, of a contingent remainder, in one third of the land, contingent on the defendants surviving Sally Hastings, and on some child of Samuel Jarves Hastings surviving her, the agreement, so far as the children are concerned, became a nullity, because no one of them survived the said Sally; the contingency did not occur.

The covenant to defend the “ property ” is merely a covenant to defend the premises released; and since these were not the land, but only a contingent'remainder in the land, which failed by reason of the death of the releasees, their heir at law, the plaintiff, cannot maintain any suit thereon. It is familiar law that the covenant to defend cannot enlarge the premises conveyed or released.

The construction of the agreement being as contended by the defendants in the first suit, both bills must, under the provisions of the report, be dismissed. Bills dismissed.