2 Mich. 294 | Mich. | 1852
The important question in this case, which has been reserved for our determination, arises upon the construction and effect of the will of Francis Rivard, deceased, and which is fully set out in the bill of complaint.
The 12th clause furnishes a key to the intention of the testator in respect to the disposition of the real estate of which he died seized. The idea of a perpetuity is too strongly impressed upon the face of the instrument to leave any room for doubt. It creates an indefinite succession of life estates, rendering the property devised inalienable, while any of his “ posterity ” exists. In case of “ extinction,” then, in the language of the testator, the fee was to vest in “ the next heirs.” No language more apt or appropriate could have been employed to create a peipetuity. Such a devise, it is admitted, is in contravention of those sound rules of policy, wisely established and universally respected, and must therefore fall under the strong arm of the law.
But while it is admitted that the devises in the will cannot be sustained, as being repugnant to the principles of policy which will not permit limitations that tend to paralyze trade by preventing the free and unrestricted circulation of property, it is earnestly contended that they maylake effect as executory devices. This proposition involves the consideration, and application to the devises in question, of some of the most complex learning known to the law, and this complexity has
An executory devise is defined to be “ such a limitation of a future estate in land or chattels, (though in the case of chattels personal, it is more properly an executory bequest,) as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law.” (Fearne, 385, note.)
“ Its being contrary to the rules of limitation in conveyances at common law, gives rise to two rules universally adopted in respect to executory devises, thatwherever a future interest is so limited by devise as to fall within the rules laid down for the limitation of contingent remainders, or the estate limited by it is such as can take effect as a contingent remainder, it shall never take effect as an executory devise.” (Fearne, 385, note.)
The reason of the institution of executory devises, (says Chancellor Kent,) was to support the will of the testator; for where it was evident that he intended a contingent remainder, and when it could not operate as such by the rules of law, the limitation was then out of indulgence to wills held to be good as an executory devise. (4 Kent, 263.) The whole • course of decisions in England shows that restraints intended to prevent the mischiefs of perpetuities, were from time to time imposed. The Courts, yielding to the wishes of the nation at large, invented expedients well calculated to shake a policy by which the pride of the aristocracy and the grandeur of families were to be upheld. In respect to
In the case of Griffiths vs. Vere, (9 Ves., 128,) Lord Eldon remarked as follows: “Previously to this act it was competent to a man to dispose of property by will, and I think the authorities go, also to accumulation of rents and profits, for a life or lives in being, and twenty-one years, and a little more, meaning the time of gestation; and without considering, whether that may be put at the beginning, as well as the end of the period, the point is, whether the Legislature meant to apply the principle, long settled as to executory devise, that if limitations are directed, which go beyond the period allowed, it is void for the whole, and it is not good for the time allowed by law." It is to be observed that Lord Eldon regards the doctrine as long settled, that executory de■vises can only be supported where the estate is to vest within the period prescribed by law. These cases, decided at various times, in a period of thirty years, commencing in 1803 and ending in 1833, must be deemed abundantly sufficient to place upon an impregnable basis, the doctrine, to support which, they are cited. They show with perfect dearness, the sense in which that doctrine is understood and applied in England.
A note to Fearne, On Contingent Remainders, p. 444, contahis a part of the argument of Mr. Hargrave, in'the case of Wicker vs. Mitford, (see his Law Tracts, p. 518,) in which he states that “if the doctrine ■of executory devise w&s res integra, and was now to be settled, it might be thought a sufficient and more just cheek of them, to hold that they should be good so far as the given period, whether the contingency was too largely or widely expressed or not. But our ancestors have not left us a choice, it long haying been a fixed rule, that if the contingency is too remote, the executory devise dependent upon it, shall not be utterly void, so far as it exceeds the fine prescribed, bxit shall wholly fail.” The soundness of the opinion expressed by the learned author of the note, supported by that of Sir William Grant, in the case of Leake vs. Robinson, that it might have been well, had the Courts held an executory devise transgressing the allowed limits, void only for the excess, may be well questioned. The reasoning of the Master of the Rolls in that case, presents in a strong light, the objections to the rule he seems to think it might have been well enough to establish. Its .adoption would inevitably have led, in many cases, to a remodeling of last wills and testaments, to such an extent as scarcety to leave a trace of the testators real intention, on its face.
In the exercise of a large discretion, controlled by no fixed rules, the intention of the deceased tostator, as exjrressed in his last will and testament, would give place to that of the living judge, whose peculiar dut3 it is to expound, and not to make wills. “An executory devise (says Lovelasson wills, 135) which exceeds the allowed limit, is wholly void, and not for the excess only; but a trust for accumulation, beyond the period prescribed by the statute, is void only for the excess. But if the trust exceed the period allowed for accumulation, before the statute, as a trust for accumulating the rents during successive minorities, to be paid to the first person in possession, attaining twenty-one, it is altogether void.” Jarman, of wills, (p. 231,) sa3s: “A devise to such of the grand-children of the testator as should be living at the expiration of twenty-one years and one day, from the testator’s decease, would
The references thus made, are deemed entirely sufficient to show the illegality of the same devises contained in the will of Rivard, and are conclusive upon the question so fully argued by counsel as to whether partial effect can be given to it by the application of the doctrine contended for.
“Thus, where the testator has devised lands to a person and his issue and has appeared to intend that all the devisee’s issue should take the lands, and, at the same time, has appeared to intend to devise estates by purchase, to the children of unborn children of the devisee, the Courts have considered such limitations contrary to law; but, as the will has appeared to them to show an intention that the issue should talce, and this intention could be effected by the issue’s taking derivatively through
■ I have examined and carefully analyzed every case referred to by counsel on both sides, but the great length to which this opinion has already extended, forbids that they should be separately considered. It may be sufficient to say that I find no English case which warrants the application of the doctrine of cy pres to a will containing provisions like that before us, and which the law declares is void in its creation. I say English cases, because it is in cases arising in the country where the doctrine in question had its birth, that we are to look for correct and authoritative expositions of its true nature.
It is suggested by the counsel for the defendants tliat the distinction between an executory devise and contingent remainder was merely technical: this may be, and yet the distinction is palpable and substantial. “A contingent remainder may be limited in conveyances at common law; it relates only to lands, tenements, and hereditaments, real or mixed; it requires a freehold to precede and sujrport it, and must vest at farthest, at the instant the preceding estates determine.” “An executory devise is admitted only in last wills and testaments; it respects personal estates as well as real; it requires no preceding estate to support it; and if there be any preceding estate, it is not necessary that the executory devise should vest, when such preceding estate determines.” (Fearne, 418.) But the great and essential difference consists in this: that the first may be barred and destroyed, or prevented from taking effect; whereas, it is a rule that an executory devise cannot be prevent
I have not discussed the technical rules which Courts have applied in giving an interpretation to the words “in case of demise without posterity,” “ descendants” &c. The sense in which they were used by the testator is to be gathered from the whole will, and in precisely that sense are they to be understood by this Coiut. The intention of the testator is to govern in giving a construction to those words; and in respect to that intention no doubt can arise. The obvious import of the former words are equivalent to the words dying without issue: those words sometimes embrace collaterals, according as the testator intended they should he understood Whatever estates, then, were intended to be created by the testator, it is manifest that the fee was to vest upon a contingency too remote, viz: the indefinite failure of issue, and the -«state in the meantime is inalienable. I conclude this branch of the case with the remark of an English Chancellor, that “an attempt to make a perpetual succession of life estates, is vain, and not practicable.”
The grpund assumed by the counsel, that it would be competent under section 5, chapter 1, title 1, part 2, of the revised statutes of 1838, so to construe the will, as to give a life estate to the first takers, remainder over in fee to the second takers, cannot he sustained. That section is in these words: “When lands are given by deed or will to any person for life, and after his death to his heirs in fee, or by words to that ef- . feet, the conveyance shall be construed to vest an estate for life only in such first taker, and a remainder in fee simple in his heirs.”
The principles settled by this opinion preclude the' possibility of giving any such effect to the will in question. This could not he done without violating every sound rule of construction, and frustrating the intention of the testator, who never contemplated that the fee should vest in the heirs of the first takers. He has declared that the fee should ultimately vest, if ever, in his heirs in the ascending line, after those in the descending line should become extinct; the proposition now is, to vest the estate, after the determination of a life estate, in the second takers in the direct line. He has declared in language so explicit and clear as not to admit of a doubb that his great object was to render the etetate demised, inalienable, while “posterity exists;” the proposition
Tbe objection that a party cannot claim under and against the will at tbe same time, is inapplicable to tbe case made by tbe bill. The whole aspect of tbe bib shows that be does not claim under, but against tbe will.
Tbe other ground of demurrer is not web taken. If tbe complainant has derived title through a tax deed, the purchase made by him will inure to tbe benefit of tbe respondents. There was no objection to setting out this tax title in proceedings for partition, where there are no adverse parties, but all are equaby actors.
"The demurrer should be overruled, and it must be so certified to tbe Circuit Court of the County of Wayne.