Jackson ex dem. Burhans v. Elmendorf

*225 By the Court,

According to the decisions of this court, and of the court for the correction of errors, (16 Johns. R. 382, 20 id. 483, 2 Cowen, 333, 6 id. 180,) the devise in question carried to the survivors, after the death of either of the devisees, by way of executory devise, the share of such devisee dying. The only question is, whether Maria takes any thing under the devise over; and if so, how much 1

Whether the testator intended to divide his property equally among his children, we cannot determine ; but it is apparent that, between the four parcels which he made of his property, he intended there should be a reciprocity of the chances of enjoyment. It was evidently the intention of the testator in this case to keep his property jin his family as long as possible. His son was married and had issue ; his daughter Maria was married and had issue. One small lot he had given to heir absolutely; the residue for life, and then to her children in fee. The devisees in fee, were his son Jacob, the children of his daughter Maria, and his two daughters Catharine and Helena, and his daughter Maria as to a small lot. Having thus disposed of his property, he introduces the clause which creates the difficulty. What is given to Maria in fee is subject to no limitation. It seems that what he intended Maria should have absolutely he gave her in explicit terms, and should she die without issue, no part of her estate could descend to her brother and sisters by virtue of the devise. The event of Maria’s dying without issue was certainly not as probable as that her sisters might so die, who were then unmarried. He seems, therefore, to have intended to make the chances of survivorship as equal as possible.

The policy of our laws tolerates restraints upon the alienation of real estate, provided the limitations do not extend beyond lives in esse, at the death of the testator, and 21 years ■and nine months afterwards. But the property thus taken by survivorship would be free from the restraints imposed by the will, and would be held in fee simple, absolute and liable to be sold. To have given this right of survivorship to Maria, and thus placing this part of his estate at the disposal ■of herself and husband, would have been doing an act which the testator seems to have studiously guarded against.

*226•' The peculiar phraseology of this devise "seems to me to Jus^fy the construction which I give to this will. The. language of the will is, that if any of my children, named Jacob, 'Catharine and Helena; ox, if the children of my daughter Maria shouldhappen to die without'lawful issue, (it will be seen that Maria’s name is not mentioned in this devisé; at her death there is to be no survivorship; the testator' had already provided for such an event, by giving her share of the property to her children; but to pursue this clause in the will:)' that such part of my said estate before devised to such deceased, shall descend to the survivors ór survivor of the devisees above named, in equal parts; or in case of the death of any of them, having lawful (issue,) to the representative or representatives of such deceased, such share as would have descended to such deceased in equal parts. Here it must be observed, that in this clause of the will Maria is not named as a devisee, and the devise is to the survivors of the devisees above named, in equal parts. If the words above-named refer to - the persons named and described as devisees in this clause, then Maria is excluded and her children are admitted, provided they are sufficiently described; if the words above named refer to the whole will, then Maria, being named as a devisee in the will, must be entitled. But if she is to receive a share, does she take, a moiety with her brother, to the exclusion of her chib "dren, or do they each take an equal share with their mother and uncle ?

. The ‘ counsel for the plaintiff contends that [Maria takes half: 1. Because she is one of the “ devisees above named and 2. Because otherwise she could not inherit from her own children.- It is not supposed by the will that she is to take from her own children; they are to take from her, and, according to the plaintiff’s construction of the will, they can take no -part of the estate till her death, of course she cannot inherit from them; but upon the constrdction which I have assumed, she may possibly' take from her children by devise, though not by£inheritance.

The defendant’s counsel insists, that for - aught that appears, the widow’s life estate still exists ; the answer is, that such objection, if well founded, should have been raised at *227the trial, and as it was not, it cannot be urged here. He also insists, that upon the death of the first of the sisters, her share descended to her brother and surviving sister and the children of Maria in fee simple, absolute, unshackled by the will; and that upon the death of the survivor of the two sisers, Catherine and Helena, her share of the estate of the sister who first died would go according to the statute of descents, and not according to the will, and that of course Maria would take one half of such third, was she not estopped from asserting her right by the warranty deed of her sister whose estate she claims. Admitting that such conclusion would be correct, which, however, it is unnecessary to determine, it would still leave the question open as to to the greater part of the subject matter in dispute.

The difficulty in my mind is to decide whether by the terms, “ devisees above named” we are to understand Maria or her children as included. The testator could not have intended both; yet both are devisees in the will. If we confine the designation to the devisees named in the devise, which gives the right of survivorship, then clearly the children alone were intended and are entitled ; and this construction seems to comport with the intention of the testator as collected from the whole will. My conclusion, therefore, is, that Maria takes nothing under this devise, and as her children are not lessors, the defendant must have judgment.