1 Va. Ch. Dec. 159 | New York Court of Chancery | 1792
IN this cause, upon these words in the testament of John Shermer, who died in 1775, ‘ I give to my wife the use and pro- ‘ fits of my whole estate, both real and personal, during her na- ‘ tural life, and, after that is ended, my will and desire is, that ‘ the whole of my estate, exclusive of that already given my ‘ wife, be equaly divided betwixt whoever my wife shall think ( proper to make her heir or heirs, and my loving brother Rich- ‘ ard Shermer,’ a question was made, whether Anne Shermer, the wife of the testator, who died, a few days after him, in the same month, without making any disposition of her estate, took a fee simple in one half of the land devised, and a property in one half of the other estate bequeathed, to her ? the plaintiff, who is heir of John Shermer, and .next of kindred to him, clam-ing the half, of which she had not the ownership, as he insists, but only power to dispose ; because, by her failure to exercise
BY THE COURT, the 27 day of September 1792.
By the first section of Lyttleton’s tenures we learn, that, in feoffments and grants, a fee simple, or the greatest property, in land is not conveyed to the taker, unless in the habendum after his name be inserted the words, ‘and to his heirs.’ but these words, notwithstanding the addition of them at that time was necessary, in those acts, to augment the estate, from an estate for life, which without them it would have been, to an estate of inheritance, do not import, as an ordinary reader might suppose, a transfer of any right to the heirs, indeed if he, to whom and to whose heirs, land is conveyed, make no disposition thereof, his heir will succeed to it. yet this is not because be was indicated by the word ‘heirs,’ in the deed of conveyance, for where an inheritance is acquired, not by tralatitious act, as by estopel, disseisin, abatement, intrusion, &c..the heir, if no disposition be made of it, will succeed to it. it is because where the dying owner of an inheritance hath not appointed a successor, the law appointed one for him : but he may prevent the hereditary succession, by act faking effect in his lifetime, e. g. by sale or gift, or not until after his death, e. g. by appointment of a testamentary successor, of a h aeres f’actus. the words, ‘to his heirs,’ therefore, even where they are requisite, are an antiphrasis :—they do not restrain the ancestor from disinheriting, but instead of that, making him absolute owner, impower him to disinherit, the heir, a grant to one and bis heirs, then, is, in effect, a grant of power, in popular language, to dispose, so that a grant to one of a power to dispose of lands, is a form naturally as apt to convey an inheritance, as a grant of the lands to him and to his heirs.
.Accordingly in some formulae the word heirs is unnecessary, in a testament technical language is dispensed with, and may be supplied by the testators intention ; for if a man devise lands to one, TO GIVE in this case a fee simple doth pass by the intent of the deviser. Cokes institutes, 1 vol. fol. 9. b. and more than a myriad of other examples to the same purpose may he quoted, a devise then to one to give, is equivalent to a devise to one and to bis heirs, a devise to my wife, ‘and to whomso- ‘ ever she shall think proper to make her heir or heirs,’ is equivalent to a devise to my wife, ‘to give and consequently equivalent to » devise to my wife and to ‘her heirs.’ a devise in this form ‘i make I. S. heir of my estate,’ or ‘i will that I. S. ‘ inherit my estate,’ hath been adjudged in a multitude of cases,
Now the words of John Hhermer’s testament being ‘ i give ‘to my wife the use and profits of my whole estate during her ‘ life, and after that is ended, then my will and desire is, that (the whole of my estate be equally divided betwixt whoever my ‘ wife shall think proper to make her heir or heirs, and my hro- ‘ ther Bichard Shermer ;’ this devise, if for some terms in it be substituted»the equivalent terms, being read thus : ‘ i give to my ‘ wife the use and profits of my whole estate, during her natu- ‘ ral life, and, after that is ended, my will and desire is, that the ‘ whole of my estate be equally divided between my wifes heirs, ‘ and my brother Richard Shermer,’ would unquestionably have conveyed a fee simple in one half of the lands, and an absolute property in one half of the other estate to the wife ; and such ought to be the operation of the testators own words, unless it be interdicted by the gift to her for life, if this be relied upon, two answers are given to it, either of which is sufficient to obviate the objection, if it deserve that appellation ; 1, that where an estate for life is given to one, and afterwards in the same conveyance the estate is given to the heirs of the donee, the donee takes the inheritance immediately. Cokes institutes 1. voi. fol. 22. b. and, by like reason, where an estate for life is devised to one, and afterwards in the same testament^ the donee is impow-ered to make an heir of the estate, the donee takes the inheritance immediately. 2, that in the devise to the wife, the words, ‘during her natural life,’ ought not to be applied to that moiety
This exposition of the testament fulfilleth the intention of him who made it, to divide, after the death of his wife his estate between their two families equally.
Dimiss the bill as to the moiety of the estate whereof the wife had a power to dispose.
This dismission was affirmed upon an appeal.
[“ It was proved that the testator frequently said, he woald leave his wife one-halt' of his estate to dispose of as she should please, and that most of his estate was acquired by his inter marriage with .her.” The Court of Appeals, however, say, that “ upon a view of the will, the intention is apparent.” &e.; and ‘‘ their relative situation and his prior declarations only shew such intention to be liberal and just.” 1 Wash. 266, 212.—Ed.]
