Jackson ex dem. Herkimer v. Billinger, 18 Johns. 368

Jackson ex dem. Herkimer v. Billinger

18 Johns. 368 | N.Y. Sup. Ct. | 1820

Spencer, Ch. 3.

delivered the opinion of the Court. The plaintiff claims to recover on the ground that he is the next heir of the testator, of the name of Herkimer, had the *381rules of descent remained unaltered ; and that the devise over, on the contingency of John’s dying unmarried and without issue, operates as an executory devise. If he fails in establishing this construction, then he claims that both the lessors are entitled to portions of the estate as heirs of John, and this latter position is conceded.

On the part of the defendant, it is contended, that the devise to John created an estate tail in him, and that the devise over cannot, by the rules of law, take effect as an ex-ecutory devise.

We must construe this will according to the state of things, and as it would have been construed, at the instant of the testator’s death. (Doug. 477. n. 1. 1 Ves. 153. 3 Burr, 1570.) In my opinion, John, the testator’s son, took an estate tail by implication. The devise over depended on an indefinite failure of issue, and therefore; the con-tingensy was too remote to avail as a limitation, in the nature of an executory devise. That an estate tail may be created by mere implication, without any express words of’ devise, is settled in a variety of cases. The authorities to support this position, are collected by Cruise, (title Devise, ch. 12. from s. 30 to 40.) and there is not a case to the contrary. If the implication be a necessary one, as I think it is in this case, it will defeat the heir at law of his estate in fee. John then took an estate in tail, unless the devise over can be supported as a good executory devise. It is an indisputable rule, that an executory devise must vest within the compass of a life or lives in being, and twenty-one years and a fraction after, otherwise it is too remote, and tends to create a perpetuity. Now, there is nothing in the will to show, that the testator meant that Johi’s dying without issue, should be issue living at the time of his death; the contingency, therefore, in the view of the testator, depended on an indefinite failure of issue, and, consequently, was too remote an event to sustain the devise over, as an executory devise. Fosdick & Cornell, (1 Johns. Rep. 440.) and the several other cases decided in this Court, and the -case of Jackson, ex dem. Eden, v. Anderson, (16 Johns. Rep. 382.) in the Court of Errors, were all decided on the intention of the testator apparent in the will, that the devise *382over should take effect upon the death of the devisee, he dying without issue living, at the time of his death. In all these cases, the limitation over was to the survivor of persons in esse, when the will was made. In the present case, there is nothing to show that the testator intended the esp-íate should vest in his next heir of the name of Herkimer, upon the death of John,'-if he died without issue living at that time ; indeed, the testator had no idea who would be his next heir of the name of Herkimer, at the death of his son John,

This being the true construction of the will, the statute abolishing entails, (1 R. L. 52.) converted the estate in tail, into a fee simple absolute, and thus John died seised in fee of the premises, and the estate descends according to the regulations of the statute of descents, and the lessors are entitled to their shares.

Judgment for the plaintiff accordingly.