6 Port. 319 | Ala. | 1838
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The. father of Mrs. Davenport, made his last will, by which he bequeathed certain negroes to. his wife, during her life, and at her death, to his two daughters, Louisa and Cynthia, by a clause in the following words — “At the decease of my wife, I allow a part of the negroes, above named, and bequeathed, viz: Clary, Idol!, Maria, Silvey, Siller, Creecy and Nan, with their increase, should there be any, to be equally divided, by valuation, between my two daughters, Louisa and Cynthia; or should either of them die without issue, the other is to get the whole of the seven negroes, and their increase.” The wife of the testator died, and the negroes were equally divided between the two daughters, before their marriage. The plaintiff in error mar-
The counsel for the plaintiff in error contends, that the limitation over, after the death of the first taker, being after an indefinite failure of issue, is void; and that the entire property vested in the first taker. The ■counsel for the defendant in error, maintained the converse of this proposition, and insisted, that the limitation over, was not too remote, hut was good by way of ex-ecutory devise.
All the cases on this subject, (and they are very numerous,) agree, that the words “ die without issue,” when used in a will, as a limitation over, of personal property, unexplained, or controlled by any other circumstance, or language in the will, indicating a different intention, do import an indefinite failure of issue. If this were allowed, the consequence would he, to tie up the property bequeathed, and render it unalienable for an indefinite period of time; thereby creating, what, in law, is called a perpetuity. This being against the policy of the law, is not permitted; and the effect of such a limitation, is, in law, to vest the entire property in the first taker.
But although the decisions on the effect of the words above cited, without any explanatory language, or cir
The case of Forth vs Chapman
It is a very general remark, and was made by counsel in this case, that in most cases where these lirnita-
We do not therefore come to the examination of this t, question, as many judges seem to have done, straggling i'! 'to extricate ourselves from the trammels of a technical.; rule of law, which if established, would in all probability, contradict the intention of the testator; but, we ; consider this like all other cases, in which a will is to ! expounded. The only question is, what was the testator’s intention?
We are relieved from the necessity of threading the labyrinth of cases to be found on this subject, by the construction we put on the clause of the will now before us.
The testator, in the first place, gives to his wife a life estate in the negroes — he then proceeds to declare, that at her death, seven of the negroes, (naming them) shall be equally divided by valuation, between his two daughters, Louisa and Cynthia: then comes these words, “ox-should either of them die without issue, the other is to get the whole of the seven negroes, and their increase.” At what time did the testator contemplate the contingen
It has been previously stated, that there have been many decisions, which turned exclusively on the fact, that the subject matter of the bequest was personal property, if it could ever be allowed to construe the same words b > a will, differently, according as they related to real or per sonal property, it would certainly be in a case where th property, consisted of such things as perish in the usina —as in this case, “stock, plantation utensils, &c.” Tli argument, that a perpetuity could not be intended, in such a case, is difficult to be resisted, and has governe-the decision of a multitude of cases, which, as they ar ■ familiar to the bar, it is not necessary to cite. Yet w-find this last mentioned bequest, not only in the sam.-will, but a part of the same clause, relating to the sam - persons, and couched in the same language.
The result of the whole, is a full conviction, on ou r minds, that the limitation over was not too remote; th.' contingency being to happen within a life in being The two daughters, under this clause in the will, too. vested remainders in the negroes, and other property, sub ject only to the contingency of their not living to enjoy it. The daughters being both alive, at the death of thei - mother, the contingency never happened; and the pr< perty vested absolutely in them. A division, as the record shows, took place, and by the marriage of the plain tiff with Cynthia, he became the owner of the slaves.
It may not be improper to add, that effect could not hr
1 P. Wms.
1 P Wms. 433.
See also 2 Cox 213 ; 2 Atkins 643.