46 Mass. 134 | Mass. | 1842
The present petitioner, one of the daughters
It appears by the will, that the testator, after making a provision for his wife, and a specific devise to his son Ebenezer, disposed of the principal part of his estate as follows:
[The third clause in the will was here recited.]
The question which has been principally argued is this : Supposing this to be an estate to the widow for her life, determinable on the event of her marrying again, with a remainder to the sons in fee, but in case either should die under age, or not leave issue living at the time of his decease, then an executory devise over to the other sons — the question is, whether the devise over shall take effect, if he arrive at full age, but leave no issue. In behalf of the sons, it is contended that on the happening of either of these contingencies, it was intended that the devise os er should take effect; whereas it is contended by the petitioner, that the two events were to form one contingency, and the first devisee must have died under age and without leaving issue, before the devise over could take effect. It must be admitted that a literal construction of the words of the will favors the former argument; but we are of opinion, that upon the authorities, as well as upon principle, the construction of the petitioner is the true one.
The principle, upon which this construction was originally adopted, was founded upon that great maxim, lying at the foundation of all the rules for construing wills, that the intention of
The case thus far proceeds on the ground that the devise to the sons, after the devise to the wife for life, was a remainder in fee, with a limitation over, by way of executory devise.
Had it been quite certain that this provision in the will of the testator constituted an estate in fee simple to the sons, with a devise over, in case either of them should die under age and without leaving issue living at the time of his decease, so that the only claim of the respondents to the estate was by way of executory devise, we are strongly inclined to the opinion, that the estate would have become absolute in Nehemiah, on his arriving at the age of twenty one years, although he afterwards died without issue ; and that the land, on his decease, would have descended to his heirs, including the mother and sisters. Bui upon a more careful examination of the will, the court are of opinion, that this provision in the will did not give a fee simple to the sons with a limitation over, by way of executory devise ; but that it gave to each of the sons an estate tail in one fifth, with cross remainders.
It is a settled rule of law, that a gift of real estate in a will shall never be construed to be an executory devise, which can be legally construed to be a remainder. 8 Mass. 38. Purefoy v. Rogers, 2 Saund. 388. We are then to examine this will to determine whether this was a devise m fee with an executory devise over, or an estate tail with a remainder.
In the first place, it is apparent, that in the principal devise to the sons, there are no words of limitation ; that is, it is not in terms devised to them and their heirs. But as it is a will, and not a deed, which we are considering, we are inclined to the opinion, that if it stood upon that clause alone, it would be sufficient to create an estate in fee simple, without words of limitation — for two reasons ; first, because it is a devise of all his real estate ; and secondly, because, by another clause in the will, he charges these devisees personally, with the payment of a considerable sum of money to their sisters ; which circumstances are regarded, for well known reasons, as legal indicia of an inent to give an estate in fee. 18 Pick. 537. 8 T. R. 1.
The principal distinction, and it is a very important one, between an estate tail, with remainder, and an estate in fee, with a limitation over upon the happening of some event, as an ex