7 Paige Ch. 187 | New York Court of Chancery | 1838
Under the circumstances of this case I am inclined to think the defendant J. Hoxie, who had put in a plea to the whole bill, was not entitled to except to the master’s report. Issue having been joined upon his plea, if that issue should be found in his favor the bill would be dismissed as of course ; and if the plea was overruled as false, the bill as to him was admitted to be true, and was to be taken as confessed. But as that question does not appear to have been considered before the vice chancellor, I shall not pass upon it here. The real question presented upon this appeal is, whether the nephews and nieces of Luke Hoxie took vested estates in prcesenti in his residuary estate, under his will, or whether there was an interest undisposed of during their minorities which is now vested in his heirs at law. This must depend upon the construction of the will itself when taken in connection with certain provisions of the revised statutes. The premises in question are a part of the residuary estate of the testator, who died in 1830. After devising and bequeathing a portion of his property among his relatives, he gave the residue of his estate to the children of his brothers and sisters, by the following residuary clause in his will: “ Also that the remainder of my “ property, after paying the charges incident to my sickness, “ and after releasing one year’s rent to M. & F. of the farm “ they now occupy, to be divided equally among the chil dren of my sister Mary, my brother Solomon and my brother John, when they shall severally become of age.” The vice chancellor arrived at the conclusion that, under this will, the several minor children of the brothers and sister of the testator took mere contingent interests, by way of executory devise, in the residuary estate ; depending upon the contingency of their arriving at the age of twenty-one respectively; and that in the mean time the legal estate descended to the heir at law of the testator. In this I think he was clearly wrong. Even before the revised statutes a future estate was not contingent where the devisee was in esse and ascertained at the death of the testator, and where nothing could prevent the estate from vesting in possession if the devisee lived until the time appointed for that purpose.
The construction of a will must depend upon the intention of the testator, to be ascertained from a full view of every thing contained within the four corners of the instrument. And where, from the will itself, it is evident that the testator meant that the heir at law, or any other person, should take the legal estate for the benefit of the real devisee, the court will consider the estate as devised in trust, although
Again, if the testator intended to give to the nephews and nieces who were under age at the time of his death future estates in his real property, to vest in possession upon their attaining the age of twenty-one, the law has given to them the rents and profits of the premises in the mean time, as the persons presumptively entitled to the next eventual estate. I am satisfied, however, that in this case the will of the testator cannot be carried into effect, under the provisions of the revised statutes, according to his intent appearing from the will itself, in any other way than to consider the infant devisees as taking the legal estate, in their several shares, from the death of the testator; but to be held as tenants in common among those who were under twenty-one until they should respectively attain to that age. And that the testator contemplated some process by which the share of each devisee in the real estate was to be partitioned off to him when he became of age, in the same manner as the executors w'ould under his will be bound to assign to him his share of the personal estate at that time. The result, therefore, is that no interest in the testator’s property, legal or equitable, descended to the heir at law, and that the master’s report was right in declaring that the rights and interests of the several parties in the premises were as set forth in the complainant’s bill. So much of the decree of the vice chancellor as allows any part of the exception to the master’s report, and as declares that the proper parties are not before the court and that the bill is defective in form and substance, together with the consequential direction founded upon such erroneous conclusion of the vice chancellor, must be reversed with costs, to be paid by the defendant John Hoxie. And the exceptions to the master’s report must be overruled with costs,and the report confirmed. As it appears by the report of the master that a sale will be necessary, there must be a further reference to him to en-