5 Day 517 | Conn. | 1813
(After stating the o.a«o.) The decision of this case rests on a fair construction of (lie will, governed by the plain and obvious intent of the testator, collected from all parts of it in connexion ; unless lh“ intent is opposed to some settled rule of law.
To my mind, the impression is irresistible, (hat the teslator, after a disposition of his whole est.de, and the provision for the payment of debts and funeral expences, as stated in the will, considering the disposition he had ¡nade, and what the state of things might be, in case either of his sons s hould die without children, in contemplation of such an event, added the clause, “ and also my will is, that if my sons should either of them die without children, that his brothers shall have his part in equal proportion.” This was done for the, express purpose of providing for the future disposition of the lands before allotted to them, in case either of them should die without children living at the lime of his death. I can find nothing in the will contrary to this intent; and no principle of law, founded in reason, exists, which will support a different construction.
The words “ die without children,” admitting them to have the same legal import as “ dying without issue,” when standing alone, and not opposed to any other clause in a will, do not, necessarily, import an indefinite failure of issue ; or, indeed, any thing more than dying without children living at. the time of the devisee’s death. This is the true and natu ral import of the words.
Where the words “ dying without issue,” have relation ha bequest of chattels only, this construction will not be q ties'-tioned. Where such words relate to the disposition of a freehold estate, a different rule of construction has, in some ⅜-«tances, obtained.
If wc consider, for a moment, the reasons usually assigned why the intent of the testator is to be favourably regarded, viz. that wills are so often made in extremis, by men unlettered, imps fomilii, ⅛. it would he strange indeed to find a court avowedly governed by such reasons ; construing the words of an unlettered (estator, in one case, where personal estate only is concerned, according to their natural, obvious and grammatical import, according to the common sense of mankind, and the plain intent of the testator, and in another case, where real estate is the subject of consideration, solemnly giving lo the same words a construction directly opposed to the known and manifest intent of the testator, and such an one as would never have entered into the imagination of any man not an adept in the most abstruse and difficult branch of legal science ; as was the case of Beauclerk v. Dormer, 2 Atk. 308., where Ld. Hardwicke said, there was no doubt about the intention of the testator, but. thought himself bound to make a decree contrary to that intention, and for no better reason expressed, than because the legal import of words, is different from the natural one. In such a case, is it too much to say,
This manifest inconsistency has induced courts of justice to lay hold of the slightest circumstances, to support the intent of the testator, and deliver the words “ heir’ and “ without issue” from the rigid rules of legal construction : As. ■where an estate is limited to a man and his licir.s forever, and if he dies without having heirs, then to his brother, or any person who may be his heir. These words, it is said, shall not have their full legal operation, but shall be restrained to heirs of a particular description, l i'r. heirs of Ihc hotly. Porter v. Bradley, 3 Term Rep. 143. Ho, as to these words, if “ A. die leaving no issue behind him,” much stress has been laid upon the words “ behind him,"' as importing, necessarily, that the testator meant, at tin: time of his death. So, also, a? to these words, if he died “ without issue living William.’'' Pells v. Brown, Cro. Jac. 590. So, in a devise to A. and B., and upon the death of either, without children, to the survivor. Hughes v. Bayer, 1 P. Wms. 534. The words dying “ without children” were held to intend “ children living” at the death of the party, and nol an in definite failure of issue; because the immediate limitation over was to the surviving devisee. So, in the case of Roe v. Jeffrey, 7 Term Rep. 589., a devise to one and his heirs forever, bat in ease he should depart this lift and leave no issue, then to two others, or the survivor, or survivors of them, to be equally divided betwixt them, and share alike ; it wav held, because the devise over was to persons then in existence, that tiie testator must have intended the devr-e over, on failure of issue living at the death of the first taker : and that this ivas a good executory devise. Thi< case was fully considered by the court, and compares with the case under consideration. The case of Holmes v. Williams, 1 Root's Rep 335. before the Supreme Court of Errors, where there was a devise of real estate, is to the same effect.
If, however, the words “ die without children,” standing alone, as applicable to real estate, might be construed to intend an indefinite failure of issue, such a construction would
As to the second point insisted on by the defendant, vis. that if the words “ die without issue,” do not intend an indefinite failure of issue, but are controlled by other words limiting the contingency to the death of the first taker, then, the obvious intention of the testator was, to limit the estate over, in case either of his sons died, living the others, without (having had) children, and not without children living at the lime of the first taker’s decease ; and that on the birth of John's son, the contingency on which the limitation vested, had utterly failed, as respected his part of the estate; it appears to me, a forced construction, and 1 can find nothing in
Finally, I am of opinion, that the plaintiff’s title to the premises is good, by way of executory devise ; that the contingency on which the limitation over rests, is not too indefinite and remote ; that by the words used in the last clause of the will, is intended a dying without children living at the death of the first taker ; and that on the death of John, his part vested in the surviving brothers as tenants in common.
I would not, therefore, advise a new trial.
The devise, in the present case, is, I give tin-land in question, to my sons and their heirs forever; but if either of them should die without children, then bis brothers shall have Ms part in equal proportions. TMs is, in the first
The question is, what kind of csbde is created in the de-visees by this devise. It is a general rule, that in the construction of wills, the intent of the testator shall prevail, where it is consistent with the principles of law : That where there is a particular intent, and a general intent, the general intent shall control the construction. In this devise, though it would seem to be a particular intent of the devisor that the estate of a brother, at his death, without issue, should go to his surviving brother; yet, it is manifest, that the children of the devisees, as well as the second devisees, were objects of the tesiator's bounty : and that he intended to make provision for them : Bui if the first devisees be considered as taking a conditional fee simple, which would become absolute by his leaving children living at his death, then he could alienate the estate, am! defraud his children and the second devisees, and deprive them of the provision intended for them by the testator. To guard against this, a principle has been whipp'd, that the words heirs, issue and children, have the same legal import,; and that a dying without issue, or without leaving issue, means an indefinite failure of issue, unless some expressions are used which limit it to the time of the death of the devisor ; that a devise to one and his heirs, and if he die without issue, or without leaving issue, then to another, is an estate tail in the first devisee, with contingent remainder over to the second : And that whenever an estate can take effect as a remainder, it shall never be construed to vest the estate by way of executory devise.
If, then, in the present case, the devise be considered as a devise to the sons of the devisor, and the heirs of their bodies begotten, and on failure of such heirs, of either of the sons, then to the others in fee, it will create an estate in fee tail,
If, however, the partícula! intent ol the devisor is tobe regarded, and the dying wilhoul loav mg issue is to be limited io the death ot the first deven e, tlu n the surviving sons may take a fee simple by way of executory devise : For, by the common law, an estate in fee cannot be created by deed, after an estate in fee is granted, or to commence in futuro ; yet, in the construction of wills, to carry into effect the intent of the testator, executory devises have been admitted ; by which an estate in fee may be created, to commence in future, or to take effect after a fee simple : But, as the law will not admit of perpetuities, the contingency must not be too remote, on which the executory devise is to take effect; but must happen within a life or lives in being, and twenty-one years and a few months afterwards. So, if the devise contains expressions which limit the failure of issue to the death of the devisee, it creates an estate by executory devise : As, where the devise was to one in fee, and if he died without leaving issue behind him, then to another, the words “ without leaving issue behind him,” were considered as confining the dying without issue, to the death of the first de-visee.
If, then, it be understood, that the devise in question, confines the dying without children to the death of the first devi-see, then the sons take a conditional fee simple, and may be called second devisees, taking an estate by way of executory devise : So that, in this case, the plaintiff is entitled to ⅜ recovery
New trial not advised.