15 Ga. 122 | Ga. | 1854
By the Court.
delivering the opinion.
While endeavoring to determine the influence which the principles of the Common Law are to have in the consideration of this subject, we have recognized the correctness of the position, that we shouldlook to that Law as it stood before the 14th day of May, 1776; and so of those principles of Equity, which are regarded as forming part of the Common Law. We have also recognized the rule, with a proper qualification, that in the effort to determine what was the Common Law at that period, we should consult the decisions of Courts in England, previously made; and that such decisions are to be regarded as the
We may-recur to as early a period as the reign of Charles II. and the time of Lord Chancellor Nottingham, and we will find the doctrine held, that a Court of Equity in England, in ■a case of separate estate, will decree protection as against the marital rights, although such estate had vested in the feme at .a time when she was sole. This period is, perhaps, a fit starting point for our examination, for it is known that, under Lord Nottingham’s administration of Chancery, that branch of Jurisprudence first assumed in England, the form and shape of .a regular and scientific system. Lord Campbell says of this Chancellor, that “ he had the sagacity to discover that Equity might be moulded into- a noble code,” and that “ he laid the foundation for being a great Equity lawyer, by a profound knowledge of the Common Law.” (3 Lives of Chancellors, 312.) Chancellor Kent says of him, that “ from his time,
This great Judge, in the case of Doyly vs. Perfull, (1 Chan. Cas. 225,) decided that, “ if a term were assigned expressly upon trust for the separate use of a feme, the marital rights, in that case, should not prevail ”; and he followed np this decision by a similar opinion, in Sir Fdiuard Turner’s ease. ■ In that case, an annuity had been conveyed to trustees for the separate use of a lady, upon her marriage. The husband after-wards died, and she intermarried with Sir Edward Turner, who subsequently disposed of the annuity. The question was, as the second husband had not bound himself by any agreement, whether or not he could dispose of this annuity by virtue of his marital rights ? Lord Nottingham was of opinion, “ that as the annuity had been settled expressly for the lady’s personal use, the second husband was barred”. And he assigned as a reason, that unless this be the law, “ no man shall be able to provide for wife and children”. (1 Chan. C. 307.) It is true, that this decision afterwards (in 1681) was reversed by the House of Lords. According to the report, or rather memorandum, of that case, in (1 Vern. R. 7,) and what Lord Hardwick said of it, in Jewson vs. Moulson, (2 Atk. 421,) that reversal was placed upon the ground, that “the same rule of law must prevail in Equity, as in Law; that as the husband might dispose of the term, so he might of the trust, and that therefore, the term was well passed away, and the husband might dispose of it”.
Thus, this hereditary Court, at a time when its Judges, by Divine right, as a general rule, were very imperfectly educated in a knowledge of human rights—at a period, indeed, when few Judges in any Court, as we have seen, were educated in those rights which it was the peculiar province of a Court of Equity to administer, on these unsatisfactory grounds, overruled the judgment of that wise and learned Magistrate, who, had devoted a life to the study of these things.
I have dwelt somewhat upon this case of Sir Edward Turner, because the history of this question shows that this case influenced the case of Tuden vs. Samyne, (2 Vern. 207,) and these two gave direction and character to what had been held on this subject, in England, previous to our Revolution. Moulson vs. Jewson, (2 Atk. 421;) Tullett vs. Armstrong, (4 Myl. & C. 390. Lewin on Trusts, 79.)
Of these two cases, Lord Cottenham says, in Tullett vs. Armstrong, (4 Myl. & C. 394,) that they were inaccurately reported, and that this point was not argued. But I care not how this may be. If it appear from what is reported, that they proceeded on wrong principles, and we find that the question was in such a state, on the 14th of May, 1776, as will admit of our considering it open for adjudication, we are not to be controlled by these cases. That it was not put by them upon a settled and satisfactory footing, we think is evident, from the following considerations :
After these cases were decided, and before the period of our Revolution, the practice of settling' estates upon trustees for married women, to be protected against future husbands, seems to have continued, as appears from very old forms of conveyancing of this kind, appearing in Horseman’s Precedents & Wood’s Conveyancing. These are referred to, in Davies vs. Thorneycroft, (6 Sim. 420,) as showing “ that the practice of the profession, without any variation”), had proceeded on the idea, that “it was lawful to give property to the-separate use of a woman, married or unmarried ”'. And touching these, the Master of the-Rolls, Lord Langdale says, in Tullet vs.
The dicta and decisions of eminent Judges, pronounced presently after our Revolution, but so near to it as to be suggestive of what was the state of the law on this subject, at that time, encourage the idea that such estates would have been protected in Equity at that period.
In the case of Bealle vs. Dodd, (1 Durnf. & E. 193,) even the Court of King’s Bench, in 1786, recognized the principle that a gift or devise may be made to the separate use of a married woman, which shall be independent of the control of a future, as well as a present husband. By parity of reasoning, it sanctions the doctrine that such a conveyance may be 'made to a feme sole of full age, and protected against the marital rights incident to a subsequent coverture.
In the case of The Countess of Strathmore vs. Bows, (1 Ves. Jr. 22,) Lord Thurlow, in 1789, lends countenance to this doctrine. And even afterwards, in England, down to the decision in Tullett and Armstrong, the question was treated as one not finally settled. (Lewin on Tr.)
Thus it is, we are impressed with the belief that this ques-tion was not clearly and definitely settled in May, 1776, upon the basis of Sir Edward Turner’s case. But, on the contrary,, that there were, at that period, certain vital equitable principles of legal and binding force in England, because, inherently pertaining to the power of a Court of Chancery over the estates of married women, by virtue of which the universality of the Common Law might be restrained, and an estate, such as we have been considering, supported.
As early as the reign of James I. we have notices of the Court having entertained jurisdiction to secure property to the separate use of a married woman, that had been given to her to be so enjoyed. (Tothill, p. 158.) Shortly afterwards,.
Again : Long before- our Revolution, and as early as the reign of Charles I. the right of a Court of Equity, to restrain the Common Law rights- of the husband, so as to prevent him from recovering a legacy given to his wife, until he had made a competent provision for her, was acknowledged. (Tothill, 179. Car. 1.)
The right to- do all these things, proceeds, in our opinion, from precisely the same source, viz : the power of a Court of Equity, as representing the sovereign authority, over married women, and their estates. The separate estate of a married woman was thus, as it wore, the creature of a Court of Equity; and that Court had in this way, (in the language of Lord Cottenham,) acquired the right “ to model and qualify an interest in property, which it had itself created, without regard to those rules which the Law has established for regulating the enjoyment of property in other cases ”. Tullett vs. Armstrong (4 M. & C. 393.) And in this connection, he adds that “ when this Court first established the separate estate, it violated the laws of property, (that is, it restrained their universality,) as between husband and wife, but it was thought beneficial, and it prevailed”.
Upon this principle, which is, in our opinion, thus shown to have been in force in England- on the 14th of May, 1776, and consequently, adopted as the Law in our State, a Court of Equity, by its decree, may restrain the marital rights from attaching to an estate which has been settled for the separate use of a feme sole, upon her marrying at full age ; and may also restrain the Common Law rights of a second husband from attaching to property thus settled on a feme covert, where the terms of the instrument creating the estate, provide that this shall be done.
The exigencies of a refined civilization, among all enterpris
With this -view of the point made, we of course hold that Mrs. Robert, under those clauses of her grandfather’s will, which are italicized in the copy to this opinion annexed, and marked Nos. 1 and 3, took a separate estate in what was conveyed to her, to which the marital rights of the.complainant, Francis W. Robert have not attached.
If the tenor of these terms be such as would create an estate tail, for the pmposes of this investigation, we assume the correctness of the position, that the bequest of the interest or income of the property, has drawn after it the principal, and an absolute estate has vested in the first taker, Mrs. Robert.
Wo incline, however, to think that if by the terms of this will, a separate estate in Mrs. Robert was intended and provided for, that whatever might be the quantity of interest taken, whether a life-estate in the income, .or an absolute estate In the principal, (because a fee tail was contemplated,) in the light of our decision just made on the first point in this case, a Court of Equity would protect such separate estate from the marital rights. This view would, perhaps, be decisive against the husband’s right to the decree he seeks in this case. But we care not, formally, so to decide, inasmuch as other interests and rights depend on this question of entail; and it is, on this account, necessary that we should announce the opinion which we entertain of the same—which opinion will otherwise dispose x»f the question.
We have, therefore, anxiously sought an answer to the fol
These questions, it has been argued, involve the rule in Shelly’s case, on which so much comment has been made; a rule, in itself simple enough, but which, from the conflicting results, i and the obscurely technical character of the many cases in which it has been discussed, is sometimes regarded as a sort of ' monster, with frightful presence, confined in a worse than Cretan i'labyrinth of intricate construction.and tedious technical learning.
That rule amounts only to this: that where an estate of ■,free-hold is limited to a person, and the same instrument con-tains a limitation, mediate or immediate, to his heirs or the ■heirs of his body, the word heirs is a word of limitation; that is, the ancestor takes the whole estate comprised in this term. Thus, if the limitation be to the heirs of his body, he takes a fee tail; if to his heirs general, a fee simple. (2 Jarm. on W. 241, and cases there cited.)
It is obvious that this rule, which is said to be a rule of Law, . and not of construction, (2 Jarm. 241,) fixes nothing except .that the use of certain words, in a certain way, will be held to .indicate an intention to create an estate tail, and of certain -other words, an intention to create a fee simple. When the terms used are heirs of the body, alone, or where they are heirs general, the rule easily and plainly performs its office; but difficulty begins, when words are employed which are assumed to be only equivalent to these terms; or where such words, or words supposed to be similar in effect to each of these terms, are used in the same instrument. Then it is that resort must be had to referential construction; and the task of fixing an intention for the testator, needs more a rule of construction than of Law.
Such is precisely the kind of case we are now considering ; . and it becomes necessary for us, in order to determine the correct import of this will, to invoke the aid of certain rules of construction with more anxiety than the rule in ^S kelly’s ease* ...of which we shall say no more.
It is not pretended that all the terms used in this will, plainly and explicitly import an intention, on the part of the testator, to create an estate tail. Indeed, it was argued for the complainants that there was some repugnance in these terms; but it is insisted that certain clauses, which come after a passage of a different tenor, 'dearly contemplate an indefinite failure of issue, and a limitation to a particular class of heirs; and that these clauses must control any other words in the will, of -a different import.
Confessedly, then, here are contraricnt terms, and no manifestion of intention, by apt words, and none other, to create an •estate tail. To such an extent is this true, that the learned counsel who concluded the argument for the complainants, felt himself justified in denominating this will, (as a manifestation of the testator’s intentions,) a mare ignotum, by which that ■distinguished counsel designed to say, no doubt, that this instrument was, as it were, a sea or expanse of uncertain, if not of unknown meaning.
Exploring this instrument, which was thus admitted to be uncertain in its import, we began, by looking to those features which it is said denote that this bequest was intended for a particular class of !heirs, and have endeavored to give full effect to these. We observed, that by his will the testator plainly desired to make his grand-daughter and her posterity the ■chief objects of his bounty, and that this property should not go to the paternal kindred of that grand-daughter, in any ■event; that it involves a bequest to the unborn children of unborn children; that it uses terms in one place, which are sometimes regarded as contemplating an indefinite failure of issue;
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It should be remembered, just here, that this is a disposition •of personal property, and that in England even, terms import
One of these expressions is, the phrase “leaving no issue”';with respect to which, the settled distinction is, that as applied to real estate, it means an indefinite failure of issue. But, “ in reference to personal .estate, imports a failure of issue, at the death.”
• This rule applies, “ even where the real and personal estate, are comprised in the same gift”. Forth vs. Chapman, (1 P. Wm. 663.) And see, 2 Jarm. 418, 419, and cases there cited.— . The Courts have gone so far, indeed, in some cases of personal property, where they thought the intention of the testator ■ warranted it, as to supply the word “leaving”. (2 Jarm. 419, note.)
The case wo are considering, is a disposition of personal pro-.perty; and the passage of the will under review, contains the phrase, “leaving no issue”, &c. If, in England, this would import a failure of issue at the death, in sueh a case, it will’ certainly have this effect in Georgia; and, therefore, the clause-does not contemplate an indefinite failure of issue, and must be held to have reference to the children and grand-children of Mrs. Robert, living at her death. But this is further manfested, by that portion of the context which limits the dying of the grand-daughter without issue, to a period “before the interest devised to her vests”—that is to say, before she was eighteen years old, and before the negro slaves of the testator had been sent to Hayti, &e.
1. The passage of this will, on which comment has been already made, marked in the margin of the copy hereto annexed as No. 5. This clause, as we have seen, as connected with a bequest of personal property, clearly and definitely expresses an intention, that the issue who are to take after Mrs. Robert, are those whom she shall leave living at her death—that is to say, her children and grandi-ehildren. 2. The- terms which stand forth conspicuously in the first disposing clause of the will, and are contained in the passage marked No. 2 in the copy, and also in the passage marked No. 8. In these, the testator gives the principal of the- property, “after the decease” of his gra-nd-daughter, “ to such child or children as she, the said Frances T. Pierce may have, to him, her and them, and to their heirs forever”. It is true, as has- been urged, that the word “children” is not necessarily a word of purchase. Though this bo its general character, it may, nevertheless, be controlled by other and repugnant words in a will. But there are words in immediate connection with it here, which are conclusive of its import, as a word of purchase.— First, the phrase, “after the desease”, (twice here used,) which, in a bequest of personal property, will be held to have reference to a dying without issue living, at the death of the first taker. Pinbury vs. Elkin, (1 P. Wm. 563.) 2 Vern. 758. Wilkinson vs. South, (7 Burn. & E. 553.) Trotter vs. Osnold, (1 Cox, 317.) Next, the words “ to him, her and them,
3. The terms “in case any such child or children should die during the life of its mother, leaving issue of their body, such issue shall, in such case, represent the parent”, which immediately follow these just mentioned, have a like significance. If the object had been to create an estate tail, as issue ad infinitum is included in such an estate, it would seem that a necessity for this provision, as to the children of deceased children, would not have presented itself to the mind of the testator.
4. The fact that this is a conveyance of personal estate, relaxes the rigorous technical significance of words commonly used to create an estate tail, and renders them more accessible to referential construction; for, “ in regard to personal estate, it seems to be clear, that words denoting a failure of issue, following a bequest to children, refer to the objects of that gift”. Doe d. Lyde vs. Lyde, (1 D. & E. 596.) Malcolm vs. Taylor, (2 Russ. & M. 416. 2 Jarm. 362.) And there is “ no valid ground of distinction, between gifts over, on failure of heirs of the body, and on failure of issue, in reference to the operation of the referential construction”. Lewis on Perp. 307.)
5. Estates tail are lawful in Great Britain, and the words heirs, heirs of the body, &c., have a fixed technical meaning; and, therefore, when, in that country, such words are used in an instrument of conveyance, presumptions may favor these estates. But such estates are prohibited in Georgia—these words are, by legislation, as it were, deprived of that settled signification; and therefore, presumption will not here, readi-* ly favor such estates.
6. In this case, of a bequest containing conflicting and repugnant terms, which, even by the admissions of complainants’ counsel, render the testator’s meaning doubtful, and which can
These are the super-added, or rather the associated, words of explanation—the qualifying and controlling terms, circumstances and considerations, which, taken in connection with the whole frame of that instrument, leave no doubt on our mind, that Jacob Wood, by his will, intended the children of his grand-daughter, if such should be born, and in default thereof, Mrs. Crawford and Mr. Redding to take the body of this property, at the termination of the life-estate in that grand-daughter, as purchasers, and not by descent.
It is true, that in the conveyance of property to one, and' the children of another, as “ to my brother A, and the children of my brother B”, they all take an equal share; that is, the children take pier capita with A. (2 Jarm. 111.) Blackler vs. Webb, (2 P. Wm. 383.)
But this is not the ca.se here, and for the reason suggested, we think that Mrs. C. and Mr. R. were designed, in the event Contemplated, to take an absolute estate, equally in this property.
It follows, that the complainant^ Frances W. Robert, had no interest in the estate, concerning which, these trustees have been called >on to account. It would seem appropriate, there-
While affirming the learned and laborious judgment of the •Court below, on all the other grounds, on this, we reverse it.