Wheeler v. Walker

| Conn. | Jun 15, 1817

Swift, Ch. J.

The question is, whether this is an absolute devise of the lands to the sons, and a legacy to each of the daughters ; or whether it is a devise on condition that the sons pay to each of the daughters three hundred dollars. The word “ paying,” according to all the authorities, clcarh Imports a condition. There is no ^ift or legacy to the daughters. No right is created in their favour, by the will; nor are any words used, which can be construed to imply such intent. It is, then, a conditional devise. The devisor has given the land to his sons, on condition that they pay three hundred dollars to each of his daughters within one year after his decease. To entitle them to the land, they are bound literally to perform the condition on which it was given, and pay the money by the time prescribed. Having failed to do this, they have no right to the land under the devise. It reverts to the heirs of the devisor. The plaintiffs had right to enter, and are entitled to recover.

There is no ambiguity in the language of the will; and whaler er we may conjecture respecting the intent of the testator. we are not at liberty to presume one contrary to the legal effect of the words he has used.

Hosmek, J.

It is difficult to conceive a case more free from controversy than this, whether we regard flic manifest intention of the testator, or the uniformity of precedent.

The devisor, after having made certain devises, gives to his sons David and Nathan, “ all the rest and residue of his eslate, real and personal, they paying to his two daughters, Tat unce. Wheeler and Ann Wheeler, each 300 dollars, within one year after his decease.” The money was not paid. The plaintiffs enter for non-payment; and bring ejectment to recover the possession.

It was argued for the defendant, that the sum bequeathed was a mere legacy, or trust, to be enforced in chancery only. To this the reply made is conclusive, that it is more than a legac y or trust; it is a devise on condition, by the non-performance of which, the plaintiff Ann, one of the heirs of the devisor, lias right of entry on the land devised.

An estate on condition expressed in the grant or devise itself, is, where the estate granted has a qualification annexed, whereby (he estate shall commence, be enlarged, or defeated, upon performance or breach of such qualification or condition. 2 Black. Comm. 154. Co. Lilt, 201. Estates on condition subsequent are defeasible, if the condition he not strictly performed. 2 Black. Comm. 154.

The words, which constitute a condition, may be various. “ In particular words there is no magic f their operation dr pc nds on the fíense which they carry. 1 Ves.147. What, in fiiis casr, was the intention of the devisor, is the decisive question. Was it Ids purpose, to invest his sons Mill) an estalc defeasible on a condition, which would eíícetuuily coerce the payment off lie money bequeathed to his daegls-ters ; or did he intend to leave them destitute of legal remedy to vindicate their undoubted rights ? A construction of the devise, according to the usual signification of language, and duiv regarding the subject matter, and the consequences, will leave no doubt on the mind.

Land granted to a person on condition, or provided always, or if it shall so happen, or so that he pay to another a specific sum, within a specified time, vests in 1dm a conditional e-date ; and if he does not punctually make payment of the money, his estate Iras become voidable by entry. Co. Lift. 203. a. From the case of Crickmere v. Paterson, adjudged in the 30th of Elizabeth, Co. Litt. 236. b. Cro. Eliz. 146. it appears, that the words to pay, in a will, have been considered as constituting a condition. That case was this. A man seised of certain lands, holden in socage, had issue two daughters A. and B., and devised all his lands to A, and her heirs, to pay unto B. a certain sum of money, at a certain day and place. The money was not paid.; and it was adjudged, that these words “ to pay,” &c. did amount in a will to a condition j and the reason was, for that the land was devised to for that purpose : otherwise B., to whom the money was appointed to be paid, -would be remediless; and the lessee of B., upon an actual ejectment, recovered the moiety of the land against A. The words, to pay, in the preceding case, are precisely equivalent to the word paying, in the one before !.⅛ Court. In Boraston's case, 3 Co. 21. Mary Partington's case, 10 Co. 41, Wellock v. Hammond, Cro. Eliz. 204. and Fox v. Carlyne, Cro. Eliz. 454. the word paying, in a will, was considered as creating a condition, or limitation, as should best effectuate the intent of the testator. In the case of Crickmere v. Paterson, the words “ to pay,” &c. were decided to import a condition, and this construction gave a sufficient remedy. But, in Welloek v. Hammond, the expression, “ paying forty shillings to each of his brothers and sisters,” was adjudged a limitation ; for if it were considered a condition, there was, in that case, no remedy for the money. And in Mary Por!ingiori*s case, it is said,i: this word paying, shall amount to a limitation in a will by construction, because in law it is not any word, either of condition, or limitation ; arid therefore, in a will, it shall serve, us well for the one, as for the other, to supply the intent of the devisor.”

The meaning of the expression, in Crickmere’s case,ss otherwise fi., to whom the money was appointed to be paid, would he remediless,” has been quite misconceived. The idea communicated, undoubtedly, is this, that under Ike devise, there was no other legal remedy. It is of no avail in. this construction of the devise, that chancery may give redress, or that the devisee has engaged to make payment. The court neither refer to the remedy, which a court of equity may impart, nor to any future possibilities: for the exposition given, it is a sufficient reason, that the law gave no other redress hv virtue of the devise, for the coercion of payment, than by construing the words to import a condition. This effectuated the intent of the testator. The same observations arc equally applicable to the case before the Court. To expound the devise, as bequeathing a legacy, or subjecting the devisees to a trust, deprives the daughters of all redress at law : and this is a decisive reason for considering the words as importing a condition.

To enter at greater length into a consideration of the question, whether the devise creates a condition or limitation, can be of no importance. On either exposition, the remedy of 1 lie plaintiffs is the same. It is, however, very apparent, 1 Suit to consider the words as importing a condition, is all that, is requisite, to secure the rights of the plaintiffs, under the devise : and this, decisively, settles the < onstruction.

The- other Judges were of the same opinion.

Judgment to he given for the plaintiffs.