Armstrong v. Kent

The questions submitted for the consideration of this court, on the foregoing case sent here, are—

1st, Whether the devise to Eliza, by force of the words “ and intestate,” do or do not give to her a fee simple estate in the lands, and an absolute property in the personal estate, or if not a fee simple in the lands, an absolute property in the personal estate.

2d. If by force of the words “ and intestate,” neither a fee simple in the lands, nor an absolute property in the personal estate is given, what estate is given to Eliza in the lands ? Is it a fee tail in Eliza with a contingent remainder over to Charles and Margaret as an executory devise ? In other words, are the words “ without heirs,” or “ without heirs and intestate,” to be construed to mean an indefinite failure of issue, or only a failure of issue at the time of Eliza’s death ?

3. If it be construed to give Eliza an estate tail in the lands, what estate or interest had she in the personal property ?

4. If the limitation over be construed to be’an executory devise, is such limitation over of personal property on one’s dying without heirs and intestate, within the rules of law ?

If the first question submitted by the Chancellor can be answered in the affirmative, it will not be necessary to express *519any opinion upon the other questions. The testatrix by her will gave to her daughter Eliza R. Armstrong her real property absolutely, after the determination of a life estate previously devised to her husband William Armstrong, and then gave her all the residue of her estate, being personal property, to her and her heirs forever. So far the devise is of a fee simple estate in the lands, and an absolute property in the personal estate. But this devise is followed by a proviso, if she should die “ without heirs and intestate,” then that the same should vest in Charles and Margaret and their heirs. If the words “ and intestate ” had been omitted in the proviso, the estate devised to Eliza in the lands would have been a fee tail, with an executory devise over, to take effect on the contingency of Eliza’s death without issue, for the word heirs in this connection cannot be construed heirs general, because the devise over, is to two of her heirs general, but must be construed to mean heirs of her body, or issue. And it is equally plain that the testatrix did not mean that the estate should vest in Charles and Margaret, on an indefinite failure of issue of Eliza, but on failure of issue at the time of her death. I need cite no other authorities for this construction, than Den v. Allaire, Spencer 6; Seddal & ux. v. Wills; do. 223, and 5 Mass. 500, Ide v. Ida et al.

But the serious and only question involved in the case is as to the effect of the words “ and intestate,” upon the estate devised. The rule seems well settled, that where there is an absolute power of disposition given by the will to the first taker, the limitation over upon his dying without heirs, is void, as being inconsistent with the absolute estate, or power of disposition expressly given or necessarily implied. 4 Kent. Com. 264 § 1, and cases there cited. The words “ and intestate,” clearly imply a power in Eliza to devise, and bequeath the estate given to her by the will; but it is contended by the complainants, that this is not an absolute power of disposition over the estate devised, and that therefore the limitation over is not voidj and we are referred to the opinion of Ch. J. Savage, in Doe v. Howland, 8 Cow. R. 284, where he remarks, “ It is undoubtedly true that a devise, with power to convey in fee, carries a fee, *520though a devise with power to devise in fee, carries but a life estate,” I confess I am unable to see the force of the distinction laid down so emphatically by the learned judge in the case just cited, nor have I been able to find such distinction laid down elsewhere. A power to devise by will, is as absolute a power as a power to convey, where conveyance means by deed of bargain and sale. But it must be borne in mind, that in the case of Doe v. Howland, the devise was an estate for life only, in the first taker, with power to sell part, and with power to devise the whole. Neither power, therefore, increased the quantum of estate in the first devisee. The case before us differs in this respect, for here is an absolute esfate given in the first instance, attempted to be restrained or limited by a subsequent clause. But if the distinction taken in the case of Howland, is sound, yet I apprehend there is a reason for not applying it in this case. Here the limitation over is of all the property personal, as well as real, and in the same clause, and the contingency upon which the devise over is to take effect, applies as well to the personal, as to the real estate. The personal estate is bequeathed absoT lutely to Eliza. Did the testatrix mean to limit or restrain the dominion and control of Eliza over this personal estate? Did she mean that her daughter should have only the use or income of such estate, and not the absolute disposition of it? If such had been her intention, it would have been so expressed. From the nature of this property, 'the character of the bequest, an absolute power of disposition over the personal estate passed to Eliza by will, she could use and consume, transfer or destroy it if she pleased, without accountability to any one, and I think without the power of restraint by any one. If this be so, the limitation over is inconsistent with the devise of this property, as no part of it might have been left at Eliza’s death. As this limitation over makes no distinction between real and personal estate, we may consider both subject to an absolute power of disposition in the first devisee, and the limitation over therefore void.

As this view of the case disposes of the main question submitted to us, it becomes unnecessary to advert to the other questions involved in the case.

*521Cabpextkb, J. The language we are called upon to construe, so far as it is material to recite it, is as follows :

“ Item : I give and bequeath all the rest and residue of my estate, &c. wherever situated, whether real, personal, or mixed, &c. to my beloved daughter Eliza Rosetta Armstrong, to be by her possessed, enjoyed, and occupied, to her and her heirs forever (provided, nevertheless, that she shall, and do, out of the rents, issues aud profits of the said estate provide a decent and comfortable maintenance for my faithful domestic, C. S., &c.) But if my said daughter Eliza Rosetta should die without heirs and intestate, then my will is that all the estate above devised to her shall vest in my son Charles M. Armstrong, and my daughter Margaret Salter and their heirs, to be divided between them share aud share alike.”

It was not disputed on the argument, but' that were the word intestate omitted, this devise would be an estate tail to the daughter, with a limitation over on failure of issue, by way of contingent remainder : the words “ dying without heirs,” when uncontrolled by other expressions, by all the cases, importing an indefinite failure of issue. The fee in such case would be cut down to a fee tail, as an executory devise to take effect on a general failure of issue, would be void for remoteness. But the word intestate refers to a contingency which must necessarily occur, if at all, at the very instant of the death of the daughter. The conclusion therefore cannot be resisted, that the failure of issue here meant was that of a definite failure at the time of her death. Thus in Ide v. Ide, 5 Mass. 500, after a devise to P. his heirs and assigns forever, there was this clause : “ and further, if my son P. shall die and leave no lawful heirs, what estate he shall leave,” &o. then over: it was held as very clear, that the contingency on which the devisees over were to take, must happen, if at all, on the death of the first taker. So again in Doe d. King v. Frost, 3 B. & Ald. 546, where the devise over was subject to such legacies as the first taker might leave to the younger branches of the family, it was held that a definite failure of issue on the death of the first taker, was in the contemplation of the testator.

But supposing this construction to be adopted, it is urged that *522the word intestate implies a power of disposition by the daughter inconsistent with, and which avoids the limitation over. No precise form of words is necessary for the creation of a power which may be implied from any words which clearly indicate an intention on the part of the testator. In a case cited, Ide v. Me, the limitation over was of such estate as the first taker should leave. It was held to imply that he might dispose at his pleasure of the estate given, both real and personal, which was inconsistent with the limitation over, and therefore void. So in Attorney General v. Hall, Fitzg. 314 (cited in Ide v. Ide,) and in Jackson v. Bull, 10 John. 19, the limitation over was of such property as the first taker should dispossessed of, and these words were held to imply an absolute powér of alienation, and consequently an absolute ownership, repugnant to the limitation and destructive of it. These cases are reviewed, and this doctrine reiterated and sustained by Chancellor Kent, in the opinion delivered by him in the Court of Errors of New York, in the case of Jackson v. Robins, 16 John. 537, 584. He there laid it down as an incontrovertible rule, that where an estate is given to a person generally or indefinitely with a power of disposition that it carries a fee; and that the only exception to the rule is, where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that special case the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion.

But again, on the other hand, it is said, that admitting the implied power in the daughter to dispose by will, it is not such an absolute power of disposition as will give an estate in fee simple to the daughter and defeat a limitation over. A distinction made in Doe v. Howland, 8 Cow. 284, is relied on : that a devise with power to devise a fee carries but a life estate. No authorities are cited by the learned judge who made the distinction, and it was not necessary for the decision of the case, the intention not being left to construction, but an estate for life and no greater, being there expressly given. The remark was therefore merely obiter, and must stand upon its intrinsic merit.

But I think it will be found to have been otherwise settled, *523and that the distinction thus made cannot be supported. In a case decided by Sir Thomas Piumer, M. R., in 1822, this very point was presented for consideration. It was held that a bequest to be paid to A. at twenty-one, and then over in the event of his dying under that age, or afterwards without heirs and intestate, was an absolute interest in A. on his attaining twenty-one. It was held that the limitation over was not good : that the testator could not give property and separate from it the jus disponendi; and the case was distinguished from those where there is an express estate for life only, with a power afterwards expressly given as a power. Cuthbert v. Purrier, 1 Jac. 415; (4 Eng. Ch. Reports). This case has been since followed and approved in the English Courts by a very eminent judge as late as 1842. In the case now referred to, which was in regard to leasehold property, the testator bequeathed the house and premises, with the furniture and plate to his son (Richard) and added : “ should he die without heir or will, the profits of the said house to be equally divided between all my grandchildren by the consent of his mother.” It was held that the son took an absolute interest in the house. The Vice Chancellor (Sir J. Wigram) said: “ The question then is, whether there is any difference

between a gift over in the event of the legatee not disposing of (he legacy, and a gift over in the event of his not disposing of it by will. I think no such distinction can be maintained. The will of Richard is not to be the exercise of a power, but an incident to property which is sufficient to place the whole at the absolute disposal of the legatee." The cases cited in behalf of the personal representatives of Riéhard show that when such absolute power is given, the property is absolute. I read this })art of the will therefore as if it had stood — ‘ If he shall have no heir, and shall not have disposed of the property/ ” Green v. Harvey, 1 Hare 428.

Inviolability seems to be a primary characteristic of an executory devise: that it cannot be affected by the will of the first taker. Beachcroft v. Broome, 4 T. R. 441, has been frequently cited as an opposing authority. The case itself was simply this: A testator having devised to A. aud his heirs, but if he died without settling or disposing of the property, or without *524issue, then over, the title of a purchaser under the first taker was held good. Lord Kenyon seemed to think the executory devise over was good, but the case did not call for a decision on this point, and the remark was a mere dictum, which has not been sustained. See remarks of Chancellor Kent 16 John. 586; Lewis on Perpetuities 230 (Law Lib. 1846).

That some of the cases cited were upon bequests of personalty, is immaterial in regard to this species of disposition, for the authorities show that there is no difference as respects an executory devise of real or personal property. The same rules apply to either case, and whether the devise be of land or of chattels, the power of disposal equally destroys the executory limitation.

The case before us is not one where it is left to construction, whether a general or indefinite devise shall be construed an estate for life only, or enlarged to a fee by implication. It is the case of a fee first given by express words, with a power of disposition by will. This power is one inconsistent with and destructive of, the limitation over, and there remains therefore nothing to abridge the power of disposition during life, which is an incident to property. Upon the authorities cited, and more particularly the cases of Cuthbert v. Purrier, and Green v. Harvey, I am of opinion that the daughter Eliza Rosetta, took an absolute interest in the property devised and bequeathed, both real and personal, and that the limitation over was void.

This view seems to render any opinion unnecessary as to the construction of the deed, though it is not seen that, under any circumstances, it could have any effect upon the matter in controversy. Its intent, and therefore its only effect, would seem to have been to confirm the will of Margaret Armstrong.

concurred.

Thereupon the following certificate was given :

“ I, Henry W. Green, Chief Justice of the Supreme Court, do certify and report to His Honor the Chancellor of New Jersey, as the unanimous opinion of said court upon the questions *525submitted iu the above cause. That Margaret Armstrong, by the will in the said case mentioned in the residuary clause thereof, devised to her daughter Eliza Rosetta Armstrong, an estate iu fee simple in the lands, and bequeathed to her an absolute property in the personal estate (herein devised and bequeathed to her. That the words “ without heir and intestate ” in that clause, imply a power of disposition, and are inconsistent with, and avoid, the limitation over; that so far as the said lands and personal estate were embraced in the property conveyed to William Kent, the same passed under the trusts expressed in the marriage article referred to in the said case. And I further report, as the 'opinion of the said Court, that the deed referred to did not, in the view taken of the case by the court, affect the trust in William Kent.

HENRY W. GREEN.

Dated Ootober Term, 1849.

Cited in Den v. Gibbons, 2 Zab. 154; Downey v. Borden, 7 Vr. 467; Annin’s Ex. v. Vandoren’s Ad., 1 McCur. 143; Jones’ Ex. v. Slites, 4 C. E. Gr. 327. See Armstrong v. Kent, 2 Hal. Ch. 573; Kent v. Armstrong, Id. 637.