3 Edw. Ch. 356 | New York Court of Chancery | 1839
In order to determine the question as to this seventh of the estate, it is necessary to consider : 1st. Whether Robert took a vested and transmissible estate under the will or a contingent interest to vest only on his living until the youngest child attained the age of twenty-one ? And, if a vested estate, then 2d. Whether it passed to the father at his death ?
The will gives the legal estate to trustees during the period of the youngest child’s minority. The interest of Mrs. Shaw for life and of her children in remainder, under the trust, though an equitable one, is, in respect to the construction of the will, to be looked" upon in the same light as the. legal estate would
The words, “and upon further trust, after the decease of my daughter, for all her children,” &c., imply no postponement of the time -when the gift was to be considered as made or as taking effect in interest, but only of the time when they are to.have the possession or enjoyment of the income ; and the residue of the clause, “ when the youngest of the said children shall come of age,” taken in connection with what follows in the will, clearly imports nothing more than a limit to the duration of the trust, for then the trust was to cease\ and, until that period, the rents were to be applied, by the executors, at their discretion, to the education and maintenance of the children. That the testator intended they should take interests from the time of his death is still more clearly shown by the subsequent clause of the will, which authorizes the executors, in their discretion, to advance to any of the grandchildren any part of “ their respective shares of the estate, See.,”before the youngest came of age and even during the particular estate of their mother, with her approbation and consent in writing ; for why speak of “ their shares,” unless he intended they should be considered owners of aliquot parts of the estate, even before the time arrived for them to possess it 1 The intention of the testator, when it "can be ascertained from the context, is always to govern in the construction of a will and effect is to be given to it accordingly ; and it seems to me that any other meaning, than such as would allow of vested re
So, another event is provided for, which, if it had happened, would have defeated their estate ; and that is, all the children dying before their mother or, in the words of the will, if she had died without leaving issue surviving at her decease. But the possibility of these events did not render the estates previously given contingent in law, as contradistinguished from vested estates or alter the character of the interest which they took in the first instance. It is true, moreover, that the gift, being to all the children of his daughter as a class, vested in such as were in esse at the death of the testator and opened to let in the after-born children, who became equally entitled ; but this partial change or shifting of the estate does not take from it the essential character of a vested estate in all and each of them from the death of the testator. Of course, they took subject to the life of their mother ; and, after her death, their father surviving, subject to his one-third of the rents and profits for life, as provided for in the will.
Robert, having thus acquired a vested estate in one-seventh of the property, which was alienable in his lifetime and transmissible by descent or devise at his death, did the same pass to his father as his heir or to his brothers and sisters ? The common law excludes the parent and all lineal ancestors from taking by inheritance from the son, because it considered that property could not ascend, but must always descend, either lineally or collaterally ; but our statute for regulating descents has changed this rule of law and conferred upon the father the right to take, as heir of the son dying without lawful issue, “ unless the inheritance came to the son from the part of his mother; in which case it shall descend, as if the son had survived his father.” This was the third rule or canon of descent
The father’s right to his son Robert’s share of the estate, in this instance, is denied, on the ground that it came to Robert “ from or on the part of his mother,” it having been a gift to him by the will of his grandfather on her side ; and it is contended that this is a case within the statute, which excludes the father from taking. On the other hand, it is insisted that property coming from or on the part of the mother, within the meaning of the statute, must come to the son, by descent or operation of law, directly from the mother or from some other source through her and in her right, and not by gift, devise or in any other way by purchase independently of her.
This question upon the statute, the learned and able counsel who argued this cause admit has not before, to their knowledge, been presented for adjudication; and my own researches have not furnished me with the least trace of a decision upon the point in any of the other states, where similar statutory regulations are found to exist. Nor among the decisions of the English courts can any such case be found, because they have no statute to give rise to the question. I am, therefore, left to follow the dictates of my own judgment in giving to the words, as used in the statute, their proper application and meaning. The words “ ex parte materna,” are of frequent occurrence in the common law; and would there seem to apply to none other than a descendible estate, where it becomes a question among the collateral kindred of the person last seised, whether those on the father’s side or those on the mother’s are the persons entitled to the inheritance ; for, if it be property acquired by purchase, either by grant or devise, to the person last seised, and he dies without issue or lineal descendants, the heirs on the father’s side are preferred, and those ex parte materna have no right unless all on the father’s side are extinct. But, if the estate came to the person last seised by descent and he was in by no newly acquired title and had done no act to change the descendible nature and quality of the estate, then the question is, whether the heirs on the part of the father or those ex parte materna are entitled ? for those to
Hence I conclude that, in general, it is only with reference to property which has come to the person last seised by descent that the expression is used and the common law rule, permitting heirs on the part of the mother to take, can be applied. But I think it does not follow that the legislature intended to use those words in that limited sense or that they meant to restrict the application of them to estates coming by descent. Property may, with the same propriety, be said to come to a man when it is given or devised to him, as when he takes it by descent or operation of law; for he is as passive in the acquisition of it in the one case as in the other. In both it comes by no act of his own and, perhaps, without any previous knowledge on his part. If he were to make a purchase by paying money and receiving a deed, it could hardly be said that the property came to him within the meaning of the statute; but the other modes of acquiring it would seem to be within the letter; and I think are within the meaning also. So “ on the part of his mother” is a phrase which admits of property coming from the mother by gift as well as by descent; or, as in this instance, by devise from the grandfather on the mother’s side; and the sense is complied with when it comes on her side of the house or family, as distinguished from the father’s side, proceeding along the ancestral line of which she makes a part and following the stream which, in law, is supposed to run through the veins of parent, child, grandchild, &c., all being successively of the same blood. In this view of the subject, it is quite immaterial by what means the transmission takes place, whether by the act of the ancestor or by the act of law.
We have, in the statute itself, an instance of this indifference as to whether the property comes by devise or descent. In the fourth canon, regulating the descent to brothers and sisters, it is provided that those of the half blood shall inherit equally with those of the whole blood, “ unless where such ^ inheritance came to the person by descent, devise, or gift of some one of his or her ancestors ; in which case all those, who
I am convinced that it was not the intention of the law or its makers to restrict the meaning or application of this rule to property coming by descent; and I am strengthened in this conviction by what I find in the present revised statutes; which, though not governing this case, appear to reflect some light on the previous law and to furnish a legislative interpretation of its meaning. In the revised statutes as amended by the act of April 20th, 1830, the rule is declared in these words :
“ In case the intestate shall die without lawful descendants and leaving a father, then the inheritance shall go to the father, unless the inheritance came to the intestate on the part of his mother and such mother be living."
This exclusion of the father, as heir of the son, must necessarily take place in some instances where the property has come by devise or gift of a maternal ancestor or by gift inter vivos of the mother herself; for, while the mother is living, her son could not be invested with property by descent from her or from a remoter ancestor through her and in her right.
As the law stands in the revised statutes, therefore, it seems to me clearly to contemplate that property may have come to a deceased son, on the part of his mother, by some other means than by descent or mere operation of law; from the inheritance of which the father is cut off as effectually as if it had descended directly from her. Nor do I perceive any thing in the remaining part of the section, as amended, whereby a
My conclusion is, that William Shaw, the father, is not entitled, as heir of his deceased son Robert, to the one-seventh of the estate in question; but that it must be regarded as property which came to the son from or on the part of his mother, though it came by devise or gift from his grandfather on her side and not byc descent.
This result is in accordance with the decree made in a former cause, on the 2d July, 1830, touching a partition and sale of apart of the estate, wherein William Shaw the father was a complainant and in which he was content to make no claim as heir at law of his deceased son Robert. The effect of that decree upon the claim, which he has thought proper to set up in the present case, it is unnecessary to consider.
This disposes of the first exception taken by William Shaw to the master’s report, so far as the report disallows his claim as the heir at law of his deceased son and also of the exception of Christopher R. Robert, as a judgment creditor of William Shaw, claiming a lien upon his supposed share of the estate.
Another exception was taken to the report by William Shaw, as executor and trustee under the will, because the master disallowed his claim for commissions on the rents.and moneys collected and disbursed by him ; and refused to hear any testimony in support of his claim. The master considered such claim to be inadmissible under the order of reference ; and I think the master decided correctly. The bill calls for no account from the executors and trustees. The trust having terminated, the bill was filed for an adjustment of the rights and titles of the present owners of the real estate and of those having claims upon or interests in it and for a partition and sale, as far as might be necessary, in order to make a partition or distribution among them; and though the defendant, William Shaw, in his answer submits that ample provision for the
Upon the whole, then, all the exceptions that have been taken to the master’s report must be overruled; and the report stand confirmed.
Decree accordingly.