1 Johns. Ch. 220 | New York Court of Chancery | 1814
The last exception taken to the report was disposed of by arrangement between the counsel. It was agreed, on the part of the defendant, Thurman, that the decree should contain a provision, that the assets which might subsequently come to the hands of the defendant, as executor, should be duly accounted for in the course of ad* ministration, and this was all the security required on the part of the plaintiffs. As to the 2d, 3d, and 4th exceptions, they relate to some small matters of account said to have been omitted by the referees; and there is nothing before
This exception is, that the referees have determined that the defendant, Thurman, is entitled to an estate in fee in the two houses and lots mentioned in the report, whereas, they were not called on to decide this point, and, if they were, they ought to have decided it differently.
It was suggested upon the argument, and, I think, not denied, that this point of law was raised, and discussed on both sides, before the referees. If this be so, it is now too late for the plaintiff to object to the jurisdiction of the referees over the question ; and it appears to have been a point put in issue by the pleadings, and proper for the consideration" of the referees under the submission. By the original bill, the defendant, Thurman, was called on, as executor, to account, among other things, for the rents and profits of the real estate whereof his testator died seised ; and, by the answer, he sets up an absolute title in himself in fee, under the will, to the two lots which are the subject of discussion, and denies that he is accountable for the rents and profits of them. The reference was made, by consent, to one merchant and two gentlemen of the bar, with directions to state an account, and to decide on all questions in dispute between the parties, “ as well matters of law as of fact.” I have no doubt, therefore, that the question of law, on the title of Thurman to the two houses and lots in New-York, was in issue, and properly embraced by the submission.
After the parties have chosen to submit a point of law to gentleman of the profession, it may be doubted whether the court ought to permit the discussion to be renewed here, without showing a case of gross and palpable mistake. In this case, however, a reservation appears in the rule of submission, by which the report was declared to be liable te
As Richardson, the first devisee, and John, a devisee named subsequent to the defendant, died in the lifetime of the testator, their names may be considered as struck out of the will. The devise then is of the two houses and lots, 6i with every right agreeable to the deeds of the same, to be delivered to the defendant as soon as he comes to the age of 21 years; and if he dies before he comes to age, and without male issue,” than the devise over was to bis nephew, the plaintiff, Roosevelt.
If the will had stopped here, it. seems to be conceded that the defendant would have taken an estate in fee, or an estate tail, under the English law, which by our statutes is now turned into an estate in fee.
The construction is plausible, that by the devise of the lots, “ with every right” belonging thereto, under the deeds, the whole interest of the testator therein passed. He gives the houses with the ground, and every other building, and every right, agreeable to the deeds. The words are not free from ambiguity; if he meant by them only a description of his estate, and not of his entire interest therein, yet the limitation of “ dying without male issue” made it an estate tail. This construction of those words appears to be well settled. (Whiting v. Wilkins, 1 Bulst. 219. 8 Viner, 211. pl. 11. 4th Resolution, in 1 P. Wms. 605. 2 Bro. 558. 578. Doe v. Applin, 4 Term Rep. 82. Denn v. Slater, 5 Term Rep. 335. Stanley v. Leonard, Amb. 355.) The fee
But the principal difficulty has arisen from the subsequent part of the will, in which it is declared that “ the first possessor, as soon as his first male child should come of age, it is my will that the right of the said houses be to him, his" heirs and assigns, but not to be disposed of by him before his eldest son comes of age.” It is contended, on the part of the plaintiffs, that here is an executory devise engrafted on the preceding fee; and, on the part of the defendant, that it is only a temporary restriction intended by the testator upon the power of alienation, and that the restriction is so far void as-being repugnant to the nature of the estate.1 It appears to me, on an examination of the will, that the' latter is the sounder construction. ■ The limitation over, to Roosevelt, is upon the event of the defendant’s dying
I am, accordingly, of opinion, that the exceptions be overruled, and with costs, as to all, except the last; and that the report be confirmed, with a provision in the decree as to future assets.
Decree accordingly,
Vide Campbell v. Twemlow, (1 Price’s Excheq. Rep. 81,) where the court of exchequer, in England, refused to interfere with the award of a barrister at law, to whom the cause had been referred, both as to law and fact, though the point of law decided by him was, at least, doubtful.