1 Denio 165 | Court for the Trial of Impeachments and Correction of Errors | 1845
The devisee, Jonathan Horton, took a fee by implication, under his father’s will, being thereby charged personally with the payment of debts and a legacy, in respect to the land devised. (Spraker v. Van Alstyne, 18 Wend. 200, and cases there referred to.)
The devise over fo “the heirs of John B. Horton,” Avas upon the contingency that Jonathan, the first devisee, “ should die Avithout issue at his decease.” This was a good executory devise. These words do not import an indefinite failure of issue, but a failure at the death of the first taker. Such a limitation is not aa ithin the rule against perpetuities. If the devise is ever to take t ffect, it will do so at the expiration of the life of the first devisee, and the estate is certain to vest somewhere, abso
At the death of Jonathan Horton, the first devisee, his brother, John Budd Horton, was living. Jonathan left no issue at his decease. Upon the words of the will, therefore, the land was to “be equally divided 'amongst the heirs of John Budd Horton.” But he, John B., was then living, and, in strictness, no one can be heir to another person until bis decease—nemo est homes viventis.
One may, however, lake as a purchaser, by the description of heir, "while his ancestor is living, and this often occurs in devises. In construing devises, the intention and object of the devisor are mainly to be regarded; and any words or description- which denote the devisee with reasonable certainty, are sufficient. A general devise to the heirs of A. who is a living person, but not referred to as such, would be void; for while A. lives, no one can be his heir. But a devise to the heirs oí A. who is stated in the, will to be now living, would indicate with sufficient certainty the persons intended. This designation would plainly refer to such persons as were at the time heirs apparent, to A.—those who would be his heirs if he should then die.
A devise to the heirs male of the body of B. now living, was held by the king’s bench to be a full description of the son of B., who was then alive, and it was adjudged that the estate vested in him, although his father was also alive; the words now living being a sufficient designation of the person who was to take under the will. (James v. Richardson, 1 Ventr. 334; T. Jones, 97; 3 Keb. 832; Pollex. 457; 2 Lev. 232, S. C.) ' This judgment was reversed in the exchequer chamber; (T. Raym. 330;) but the judgment of reversal was reversed in the house of lords, and that of the king’s bench affirmed. (1 Eq. Cas. Abr. 214; Burchett v. Durdant, 2 Ventr. 311; Pollex. 457 ; 1 P. Wms. 233.)
Where the will recognizes the ancestor as living, and makes • a devise to his heir, eo nomine, this shows that the term was
Darbison v. Beaumont, (1 P. Wms. 229,) affirms the same principle. This case was first decided in the • court of exchequer, which judgment Avas afterwards affirmed in the house of lords. The grounds of affirmance are stated at p. 232, amongst Avhich are these: “ That the word heir had, in law, several significations; in the strictest, it signified one who had succeeded to a dead ancestor; but in a more general sense, it signified an heir apparent, which supposed the ancestor to be living.”
• That the testator, by his will, took notice that “ the ancestor was living at that.time, and gave her a legacy, and therefore could not intend that the first son should take strictly as heir, which was impossible if she was living, but as heir apparent he might'.” And “ that by this construction, every part of the will Avould stand and be consistent: arid the word heir would be also taken in a sense that the law allowed of.” (Cruise’s Dig. Devise, ch. 10, § 31; Ram on Wills, 51, 53; 1 Pow. on Dev. 309 to 318 ; 2 id. 599, note ; Bac. Abr. Heir and Ancestor, (B.); Loveday v. Hopkins, Ambler, 273; Bouv. Law Dic. Heir ; Doe v. Perratt, 5 Barn. & Cress. 48.)
The Avill, in the present case, recognized John Budd Horton
New trial denied.