7 Me. 210 | Me. | 1831
The opinion of the Court was read at the ensuing September term, as drawn up by
From a careful examination of the principal and leading eases which have a direct hearing on this ccrue, we are perfectly satisfied that by the language employed by the testator in his codicil, neither an estate for life nor an estate in tail was created by the devise to Samuel Sayward; and as he was not a tenant for life nor a tenant in tail, the demandant cannot take any estate under the codicil by way of remainder. “ A remainder is a remnant of an estate in lands or tenements, expectant on a particular estate created together with the same at one time. Fearne on Remainders, 11, 12. " It follows,” says Fearne, “ that wherever the whole fee is
Our next inquiry is whether the limitation to Ebenezer or his heirs ever took effect. This depends on the construction of the language of the devise, in connexion with the intentions of the devisor, which
The next question is whether the demandant is entitled to recover one thirty fifth part of the estate, as one of the heirs at law of his •grandfather, the testator. This also depends on the nature, terms and construction of the devise under consideration. Though these qualifying terms are so worded as at first to appear to constitute two conditions, yet there is only one with two branches. The case in simple language amounts to this. The testator says “ I devise my homestead farm to my son Samuel, his heirs and assigns forever; but if he should die under the age of twenty one years and without issue, in the life time of my son Ebenezer, then the estate shall vest in him and his heirs.” But even if the devise be considered as
It is a well settled principle that the condition on which the estate thus devised to Samuel was to be defeated, was a condition subsequent ; and of course, on tlie death of the testator, the estate was immediately vested in Samuel. Barker v. Surtees, before cited ; Doe v. Underdown, Willes, 493 ; Lippett v. Hopkins, 1 Gal. 454. But it never was so defeated, because the specified events never took place; and therefore Samuel’s fee simple conditional was never divested, but on his arrival at the age of twenty one years was changed from a conditional or determinable estate into an absolute estate in fee simple. The following cases will shew this to be the legal result. In the before cited case of Price v. Hunt, the devise was to the son in fee, with a devise over on the contingency of his dying before the age of twenty one years, or without lawful issue,'
' The third case is that of Jackson v. Blanshan, before cited, in which Kent C. J. examined most of the English decisions relating to the subject. In that case the testator had six children, and de™
We might have multiplied authorities in support of our decision, on the several questions presented by the facts of the case; but we preferred the selection of the most important and leading cases,
There must he judgment for the defendant.