6 Paige Ch. 513 | New York Court of Chancery | 1837
As the defendant Burnham, who made the objection in his answer that the presumptive heirs at law of the surviving children were not made parties, has not appealed from that part of the decree which relates to that subject, and has not appeared to argue the case on this appeal, it is not necessary to examine the question here whether he had a right to insist that they should be made parties, for his benefit and protection against any future litigation with them.
The infant son of Mrs. Burnham, who is one of the presumptive heirs of his uncle J. M. Wood, is the only party who has appeared on these appeals that has any interest adverse to that of the appellants; and even as to him the case
The technical rule of law, that where a person either by deed or will takes a legal or equitable freehold estate, and in the same deed or will an estate of the same quality is limited as a remainder in fee to the heirs general or the heirs of the body of the grantee or devisee, the word heirs is a word of limitation merely, so as to vest a fee in the first taker, or an estate tail which is turned into a fee simple by the statute, was unquestionably the law of this state previous to the first of January, 1830, when the revised statutes went into operation. (Brant v. Gelston, 2 John. Ca. 384.) And
The devise to the executors in this case being an executory and not an executed trust, or, in the language of one of the English chancellorsjkhe testator having directed his executors to make conveyances of the estate to the cestuis que trust instead of being his own conveyancer by vesting either a legal or equitable estate in his children and their heirs directly, it forms an exception to the rule in Shelly’s case. /And this court will direct the conveyances to be made in such a manner as to carry into effect the intention of the testator, notwithstanding the existence of the rule. This distinction between executed and executory trusts was recognized and acted upon in the case of Leonard v. The Earl of Sussex, as early as 1705, (2 Vernon, 526 ;) where the court decreed that the conveyance which the trustees were by the will directed to give, should be made in such a manner as to carry into effect the intention of the testatrix, although the execution of a conveyance in the words of the will would have vested an estate tail in the first takers. The distinction was recognized five years afterwards by the house of lords in the case of Sergeant Maynard’s will; in which case the court directed a limitation of a term to trustees to preserve contingent remaindérs to be inserted in a conveyance under the will to carry into effect the supposed intention of the testator, although no such direction was contained in the will itself. (1 Bro. P. C., Tom. ed. 31.) The same distinction with particular reference to the rule in Shelly’s case was acted upon in 1728 by Lord Chancellor King, in Papillon v. Voice, (2 P. Wms. Rep. 471.) In^that case a direct devise of lands to B. for life with remainder to trustees to preserve contingent remainders, and then over to the heirs of the, body
The principle therefore must be considered as settled, that wherever there is an executory trust to be carried into effect by a conveyance from the trustees, if it is apparent from the instrument creating the trust that the testator or donor intended that the first taker should have a life estate only, and that his heirs should take the remainder in fee as purchasers, this court will direct such a conveyance to be made as will most effectually carry into effect such intention, so far as it can be done consistently with legal rules, In the present case, from an examination of the provisions of this will I think there cannot be any doubt that it was the intention of the testator that his children who should be living at the expiration of the six years should take an estate for life only in their respective shares, and that their heirs should take the remainder in fee as purchasers. It is impossible to conceive what other object the testator could have had in giving such a positive direction to his executors to insert a clause in the deed limiting the estate in terms to the Children of the testator for their respective lives.
The decision of the vice chancellor was therefore correct in declaring that the appellants and the other children who were living at the expiration of the six years were entitled only to a life estate in their respective shares. The deed should be in the form prescribed by the testator himself, which, according to the existing law, will vest such an estate in the children as the testator intended they should have, and
The decision appealed from must be affirmed, and the proceedings are to be remitted to the vice chancellor.