52 Tenn. 222 | Tenn. | 1871
delivered the opinion of the Court.
In 1845, the will of ¥m. Moore was admitted to probate in the County Court of Gibson county, and John M. Moore appointed executor. The will contains the following clause:
“Item 7th. I give to my son, John M. Moore, in trust for the sole use and benefit of my daughter, Sarah E., and to her children, if she should have any, a tract of land containing 150 acres, etc., also four ne-groes of equal value with those I have given to my son William, two of said negroes to be selected by said Sarah E., and the other two Ny my executor, together with the like personal property given to my son John M., with one year’s provision. I desire that my daughter, Sarah E., shall be schooled, clothed, and boarded free of charge upon her separate property, but out of my estate until she arrive at the age of twenty-one years or marries; and should my daughter, the said Sarah E., die without any child or children, then the above specified property to return to my children and be equally divided among them.”
At the death of testator, Sarah E. was only eleven years of age. She intermarried with Philip E. Waddle, bore to him several children, and died, leaving complainants, her children, living. Before her death, Sarah E. and her husband, Philip E. Waddle, con
Complainants assert claim to the land under the 7th item of the will of AYm. Moore, their grandfather, upon the ground that upon the death of their mother Sarah E. the absolute title, with the 'right of possession, vested in them. Defendants resist their claim and insist that Sarah E. took a fee simple title to the land under said item, and that her conveyance was valid and effectual to pass the title to them.
The settlement of the contest depends upon the proper construction of the clause in the will under which both parties claim title. The only property involved in the controversy is the land, no question being raised by the pleadings as to the personal property. Our first duty is to ascertain the intention of the testator, as manifested by the language used by him, interpreted in its usual and ordinary sense. It was clearly the purpose of the testator to vest the legal title of the land in John M. Moore as trustee, and to cut off the marital rights of any husband that his daughter Sarah E., who was then unmarried, might have. The title was vested in the trustee for the sole use and benefit of his daughter Sarah E. So far the language is clear and unambiguous. Ho then adds: “and to her children if she should have any.” He either intended to give the land to the trustee for the sole use and benefit of his daughter and her children, or to the trustee for the sole use and benefit of his daughter, and then to give it to her children if she should have any. Giving to each
There can be no doubt that the intention of the testator was to give to his daughter the equitable title to the land during her life, and at her death to give the legal title to any child or children she might then have, and if she should die without any children, the land was be divided equally among the surviving children of the testator.
But it is argued for defendants, with much ability and earnestness, that as the daughter Sarah E. had no children at the date of the will or of its probate, the term “children” must be construed as synonymous with “issue,” or “heirs,” or “heirs of the body,” and hence, that it is to be taken as a word of limitation and not of purchase. In other words, it is insisted, that although it has been often held by this Court that the word “ children” is properly a word of purchase and not of limitations, yet that we shall violate a well recognized rule of property if we fail in the present case to construe it as a word of limitation.
It is conceded, that whenever the word “children” is used in such connection, or is so controlled by other words as to show clearly that it was intended as a word of limitation, we are bound to adopt that construction, but whenever the ordinary meaning of the
In the case of Booker v. Booker, 5 Hum., 505; Judge Green said: “ The term ‘ children ’ expresses the immediate offspring of the parent; neither in its vulgar or its legal sense is it expressive of remote descendants; to make it so mean, it must be coupled with other expressions which will give to it such a signification.”
In the case before us, the language is: “Should my daughter die without any child or children, then the property to be equally divided among my children.” What expression is found here which indicates, that the testator did not mean by “children” the immediate offspring of his daughter? He had already given the property to a trustee for the sole use and benefit of his daughter, and “to her children, if she should have any.” It is absolutely certain, that in this connection he used the word “ children ” in reference to the immediate offspring of his daughter— “child or children, if she should have any” — this means beyond controversy a child or children born of his daughter. ^hy then should a different meaning be given to the same words in the same clause? Most, manifestly his meaning was the same in both instances. He meant if his daughter should bear a child or children, such child or children should take the property upon the death of their mother, if any were then living — if no child or children of hers should be living
On this clause Judge Green remarks: “Upon a dying without issue, the estate is to be equally divided between the surviving children. These words ‘surviving children’ are very expressive of the testator’s intention. In the event contemplated, the estate bequeathed to such child is to be equally divided between the surviving children. These terms in such juxtaposition show that ‘child’ and ‘children’ are employed in the same sense, to express a like relation to the testator. The contingency, then, is to happen within the life of some of the testator’s children', and is therefore definitely restricted with the time the law allows.”
It will be observed that the word “children” occurs three times in the clause before us. First, “her children if she should have any;” next, “die without any child or children;” and then, “my children.” That the testator meant by the first, the immediate offspring of his daughter, and by the last the immediate off
The rule relied on by defendant’s counsel, as applicable to the case, is thus stated by Preston on Estates, vol. 1, p. 263, and adopted in 4 Kent, and approved by Judge Reese in Polk v. Faris, 9 Yerg., 209: “Where any person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of an intervening estate, of a right of the same legal or equitable character, to his heirs, or heirs of his body, as a class of persons to take in succession, the limitation to the heirs entitles the ancestor to the whole estate.”
There are two distinct reasons why this rule can not govern the case before us. The first is, that the limitation in the 7th clause of the will is not to the heirs or heirs of the body of the daughter, to take as a class in succession, but to the children of the daughter who may be living at her death. This we have already shown. Hence the eases in which the word “children” have been construed to mean “heirs or heirs of the body or issue,” relied on in the argument, have no application.
The other reason is equally conclusive; it is, that the limitation to the children of the daughter, is not
But it is insisted for defendants, that if the rule in Shelley’s case is not applicable to the cause at the bar, then it falls within and is governed by the rule in Wild’s case. The doctrine of Wild’s case is, that “where lands are devised to a person and his children, and he has no child at the time of the devise, the parent takes an estate tail:” 6 Rep., 17; 2 Jarman on Wills, 307. This is not a rule of property, as in Shelley’s case, but a rule of construction. Because the rule in Shelley’s case was a rule of property, and was received in this State as part of the common law; it was recognized and enforced until it was abolished by the act of 1852. But the rule in Wild’s case, being only a rule for construing wills, resorted to in specfic cases to carry out the manifest intention of testators, it can have no other weight than as a judicial precedent. We are aware of no case in our own State, nor have we been referred to any, in which the rule has been recognized even as a rule of construction. Nor can
But this objection out of the way, an insuperable objection in the way of applying the rule in Wild’s case is found in the fact, that the devise here is to a trustee for the sole and separate use of the daughter and to her children, and not directly to the daughter and her children. The reason of this rule is, that the gift in the devise being immediate to the children, and there being no children then in esse, the word children is construed as a word of limitation, to work out the testator’s intention through an estate tail. But in the case before us, the gift is not immediate to the daughter and her children, but the legal estate is given to a trustee and the equitable estate to the daughter. The reason, therefore, on which the rule in Wild’s case rests, does not exist here; and hence,
In conclusion, if we were disposed to follow the authorities to which we have been referred in the English Common Law and the Massachusetts Reports, we could not hold them as governing the construction of the word “children” in the clause under consideration, for the further reason that the gift is not immediately to the daughter and her children, as in the cases to which the rule has been applied; but, as we interpret the clause, the gift is to the sole and separate use of the daughter and to her children; that is, after her death to her children. Upon this interpretation of the clause, it is clear that the rule in Wild’s case has no application.
The only remaining question is, whether the limitation over in the will before us constitutes a valid exec-utory devise. “To constitute a valid executory devise, the contingency upon which it is to take effect must occur within a life or lives in being, and twenty-one years and a fraction of a year afterwards:” Booker v. Booker, 5 Hum., 508; 4 Kent, 271. When an executory devise is duly created, it is a species of entailed estate, to the extent of the authorized period of limitation. It is a stable and_ inalienable interest, and the first taker has only the use of the land or chattel pending the contingency mentioned in the will: 4 Kent, 271.
We have construed the clause in question as a limitation of the property over to the children of testator, upon the contingency of his daughter’s dying
The Chancellor so decreed, and we affirm his decree with costs.