Hewit v. New York, New Haven & Hartford Railroad

| Conn. | Jun 24, 1898

Baldwin, J.

Deeds, like all other contracts, are to be construed so as to carry out the intent of the parties to them, if this be permissible under the rules of law. In the quitclaim deed given by S. H. Hurd, in 1886, the intent is stated to be to release his title to his sister’s children. She then had six living, and it would have been a simple matter, had that been his sole purpose, to make the conveyance directly to them. The language of the deed, however, is such as to show that there was a further intent to provide for the contingency of the death of any of them, during their mother’s life. So long as that continued she had the full use of the land under a prior title, and it is evident that the great object of the parties was to provide as to its ownership and enjoyment after her decease.

To accomplish this purpose they undertook to create a freehold estate to commence in futuro, without any precedent estate to support it, and in favor of persons who were not to be definitely ascertained until the event should occur, upon which it was thus to commence. The grantees were a class which was not to be formed until the termination of Mrs. Hewit’s life. It was to be composed of her children “who shall be alive at her decease, and the issue of any child or clnldren, if there he any.” It must he presumed that the releasor when he gave the deed, knew that one of his nephews then had several children. His reference to “ the issue of any child or children, if there he any,” must therefore be deeméd to include only such issue of any child or children as might survive Mrs. Hewit. The same contingency which applied to her children was to apply to their issue, and constituted a condition precedent to the vesting of any estate. To construe the deed as giving to the children who were in being, when it was delivered, and to their issue then in being, any present interest, would be to disarrange the general scheme for an equal distribution, and might virtually double the share of James H. Hewit. He then had five children. His brother and sisters had none. If he and these five children could be regarded as invested by the deed with defeasible estates, or one subject to a conditional limitation, to become absolute should they survive Mrs. Hewit, then, upon that event, he would come into the enjoyment of one share of the estate and his children into that of another and equal one.

The words of limitation, which follow the description of the releasees, “their heirs and assigns, in equal shares, per stirpes,” and the habendum clause, which runs “unto the said releasees, their heirs and assigns forever,” show that whoever was to take the estate released was to take it in fee simple, and to receive a share no larger than that naturally belonging to his line of descent.

The statute against perpetuities which was in force in 1886 (General Statutes, § 2952) provided that no estate should be given by deed to any persons but such as were in being at the time of its delivery, or to their immediate issue or descendants. The deed in question purported to give an estate to a class to be formed at the decease of a person named, some of the members of which might not be either persons who were in being at the time of its delivery or children of such persons. A grandchild of Mrs. Hewit might have been born after 1886, who would die before her, surviving his own parent, and leaving children. The latter would then take as purchasers under the terms of the deed and, should Mrs. Hewit survive all her children and grandchildren, might receive the entire estate. As they would not he the children of a person in being when the deed was delivered, these terms could not, in the event supposed, be given legal effect; and the possibility of such a result invalidates the whole conveyance. Leake v. Watson, 60 Conn. 498" court="Conn." date_filed="1891-06-01" href="https://app.midpage.ai/document/leake-v-watson-3323258?utm_source=webapp" opinion_id="3323258">60 Conn. 498, 512.

If it can be regarded as a covenant to stand seized to uses or a declaration of trust, the equitable interest derivable from it would arise in favor either of Mrs. Hewit as the party contracted with, or of certain of her descendants, as the parties in whose behalf the contract was made. The contract was for the creation of an estate which the statute made it impossible to create, and for nothing else. The trust was therefore for an illegal purpose, and void from the beginning.

It is unnecessary to consider any other of the numerous objections urged against the validity of the deed, as that founded on the statute of perpetuities is decisive.

The Superior Court'is advised that the deed of August 18th, 1886, was void ab initio, and that the New York, New Haven and Hartford Railroad Company has the full legal and equitable title to the land in question.

In this opinion the other judges concurred.