| Superior Court of New Hampshire | Dec 15, 1850
The main inquiry in the case, relates to the effect of the bequest of the personal property to Louisa L. Ladd.. Two of the decisions establishing the point that a valid executory devise over may be made of personalty as well as of realty are Trotter v. Oswald, 1 Cox, 317, and Wilkinson v. South, 7 T. R. 553; and there are numerous other authorities in the books to the same effect.
It is a settled rule, that the same words which would create an estate tail as to freeholds, will give an absolute estate in chattels. 2 Kent, Com. 345 (5th ed.); Johnson v. Bull, 10 Johns. 19" court="N.Y. Sup. Ct." date_filed="1813-01-15" href="https://app.midpage.ai/document/jackson-ex-dem-brewster-v-bull-5473132?utm_source=webapp" opinion_id="5473132">10 Johns. 19; Patterson v. Ellis, 11 Wend. 259. But limitations and remainders in chattels are recognized. Walker v. Denne, 2 Vesey, Jr. 174, note (a). In note (a) to the case of Douglas v. Chalmer, 2 Vesey, Jr. 501, (Sumner’s ed.) the decisions are collected, showing that whether 'there be a bequest of the thing for life, or of its use only, a limitation over upon the death of a legatee will be supported as in the nature of an executory devise; and this rule seems to' have been extensively recognized in the United States. If the bequest over of the personalty to Nathaniel Ladd, be a valid executory devise, he will be entitled to maintain this bill, but he has no interest in the property, if the will vested the absolute ownership in it in Louisa, as the property would then belong to her husband.
It is settled by a series of decisions too numerous to be here cited, and too strong in the authority of the eminent judges who have sanctioned them, to be successfully impeached at this late day, that where there is a devise of land to A. in fee, and if he should die without issue, then over, the limitation over is void as' an executory devise, because it depends upon an indefinite failure of the issue of A. Hall v. Chaffee, 14 N.H. 215" court="None" date_filed="1843-12-15" href="https://app.midpage.ai/document/hall-v-chaffee-8504678?utm_source=webapp" opinion_id="8504678">14 N. H. Rep. 215, and cases there referred to. And although in that case some question was made as to the applicability of .the doctrine here, still it will be better that suitors shall not be surprised by another rule of construction, and one different from that found in the books to be generally recognized in England and America.
But, whatever opinion as to the construction of similar devises' of real estate may be the better one, there is probably no differ
In the case of Forth v. Chapman, 1 P. Wms. 663, there was a devise of a term to A. and B., and if either of them should die and leave no issue of their bodies, then over. It was held, that the limitation over was valid. In Doe v. Ewart, 7 Ad. & E. 636, there was a devise of real estate in trust for J. and her heirs, but in case it should happen that J. died without leaving any lawful issue, then over. Lord Denman remarked, “ we may say without any doubt that the words of the present will, would, if the question arose upon a term'for years or other personal estate, now be held to mean a dying without issue living at the death of the daughter Isabella.” So also, where a testator bequeathed leasehold property to A. and to his lawful heirs, and if he die and leave no lawful heir, then to B., it was held that the limitation to B. was good, the words “leaving no lawful heir,” being in the first place interpreted to mean “ leaving no lawful issue,” and then being confined to “ leaving no issue at the time of his death.” Goodtitle v. Pegden, 2 T. R. 720. And where a testator gave personal estate to his nephew and niece, and “ upon either of their dying without children, then to the survivor,” it was held that the devise over was good. Hughes v. Sager, 1 P. Wms. 5341 In the case of Hall v. Chaffee, 14 N. H. Rep. 215, which was a devise of land, the will provided that if the devisee should die without issue born alive of her body to heir her estate, the land should go over. It was held that the words to heir her estate meant the death of the first taker without issue living at the time of her death, the court considering the circumstances connected with the limitation as reasonably indicating a dying without issue living at the death.
In the present case, the gift is to Louisa and her heirs, “ in case she should leave at the time of her decease a living child
The counsel for the respondents ingeniously make certain deductions and inferences from the use of the words “ devise ” and “ bequest,” and contends that the gift over to the orator is only of the land. But we do not understand the words to be so strictly appropriated to different kinds of property as the counsel seems to suppose. It is true that the word “devise” is more specially appropriated to a gift of lands, and every person taking an interest in the produce of real estate directed to be sold, is, strictly speaking, a devisee, and not á legatee. Smith v. Claxton, 4 Madd. 492. But the terms are used indifferently; legatees may take under a bequest to “ all my devisees above named.” Coope v. Banning, 1 Sim. & Stu. 534. And the word “ legacy,” may be applied to real estate, if the context of the will show that such was the testator’s intention. Hope v. Taylor, 1 Barr, 268; Hardacre v. Nash, 5 T. R. 716. And we think the testator’s intention sufficiently appears here, to render the distinction between the two words immaterial.
The judgment of the Court is, that the limitation over to the orator is a valid executory devise, and that he is entitled to a decree accordingly.