Patterson v. Ellis
Opinion of the Court
The following opinions were delivered :
The general questions in the case are, 1. Whether the legacy vested in Mrs. Paterson ? and, 2. If so, whether it was or was not divested by her death under age, and without lawful issue 1 Both these questions depend much upon authority. The intention of the testator is always sought for in the construction of wills, and when that intention is ascertained, it will be executed, provided it is consistent with the laws of the land. It must be constantly borne in mind, that from the decisions of courts giving a construction to certain phrases, language often acquires a technical meaning, which seems to be quite the reverse of the common acceptation of the terms. If the gift is absolute, the legacy vests upon the death of the testator, with the assent of the executor, though the time of payment may be postponed ; but if the gift is conditional, depending upon some future contingency, the legacy does not vest until the contingency happens. The clause of Mr. Ellis’ will, to which we are now to give a construction, contains no absolute bequest in terms, nor is there any express construction. We are therefore to collect the intention from the whole clause, in connection with the whole will.
The clause commences with directions to his executors to set apart $20,000 from the body of his estate and invest it in the name of his infant daughter. The preceding clause in the will had directed the executors to invest $20,000 in their own names for the benefit of the widow. His object in that direction was to place that sum out of the reach of any future husband she might marry and to prevent its going ultimately out of his family ; for he gives_ his widow the power of disposing of that sum as she pleased among their children,
The first case to which I will advert is Fonereau v. Fonereau, 1 Ves. sen. 118, 3 Atk. 645, decided in 1748. The will was thus ; “ I give my grand-son, Claudius F., when he shall attain twenty-five, £1000, which I empower my executors to lay out in such securities as they shall think fit; and the interest and income thereof to be for and towards his education as they shall think fit; and also part of the principal to put him out ^’apprentice ; the remainder to be paid him when he shall attain twenty-five, and not before.” Lord Hardwicke held that this was a vested legacy, and must be paid, though the legatee died before twenty-five; that time was inserted, not to postpone the vesting of the legacy, but the payment. He conceded that a legacy given barely at twenty-five does not vest, time being annexed to the substance; but if it be, to be paid at twenty-five, it vests immediately upon the testator’s death, time being annexed to the execution. He said when interest is given, it vests the principal; he also relied upon the provision to lay out part of the principal. This is not so strong a case as the one before us, and yet Lord Hardwicke says; “ This is a very strong case to make it vested and transmissible, notwithstanding the dying before twenty-five.” In that case, the executors were to take the securities, and I infer in their own names, as they were prohibited from paying part till he was twenty-five ; here the whole was to be invested at once in the name of the legatee.
In Green v. Pigot, 1 Brown’s Ch. Cas. 104, 5, decided in 1781, Lord Pigot gave several legacies to be paid to females at 21, or marriage, with four per cent, interest; and if either should die under 21, and unmarried, the legacy to the person dying should hot be paid, but be considered part of the residue of his personal estate. Upon application, the money was ordered to be paid into the bank, though the plaintiff was under 21. Lord Thurlow said, giving interest
There is but a slight difference between the cases of legacies given at a day or payable at -a d.ay; but it is adhered to : time in the first case being annexed to the legacy itself, in the second only to payment. Mary Craven devised to Godfrey Clark certain real and personal estate, to be disposed of by him and certain legacies paid. She gives £2000 to Thomas Lewis in trust, and ffior the benefit of his daughter Mary, and directed that he should place it at interest until she should attain the age of 18 or be married, and also that Thomas Lewis should put out the interest as the same should arise ; and that he should pay the whole to his daughter, upon her attaining her age of eighteen or marriage ; the £2000 to be paid to the trustree within one and a half years after her decease. Thomas Lewis, the trustee, died before the testatrix, and Mary Lewis died half a /ear after the testatrix. The Lord Chancellor said that the infant dying before the time of payment to the trustee, makes this legacy not raisable for the benefit of the plaintiff, her representative. He states the general doctrine to be, that a legacy given out of personal estate, payable at a certain time, or if given at a certain time and interest in the mean time, is a vested legacy; but the rule as to legacies out of real estate is otherwise ; for if given at a certain time, or payable at a certain time, if the legatee dies before the time, it sinks. He finally put his decision upon the practice of the court to prevent', as far as it possibly can, the raising portions out of land for the benefit of representatives. This case therefore proves nothing against the vesting of the legacy in Mrs. Paterson. In Robinson v. Fitzherbert, 2 Bro. C. C. 127, the master of the rolls, Lord Kenyon, decided, in 1786, that a bequest of the interest of a sum of £1000, to commence the day after the death, of the testator, and to devolve upon the heirs of his body alter his death, vested the legacy absolutely in the first legatee—probably upon the principle that such a bequest as in relation to real estate would create an estate tail, in relation to personal conveys the absolute property. In Batsford v. Kebbell, 3 Ves. 363, decided in 1797, the testatrix gave to Robert Endly the dividends upon
The master of the rolls said it was perfectly clear that the testator intended to postpone the possession, not the vesting; a trustee was appointed ; there could not be a trustee of nothing.
These are the leading cases referred to by counsel on both side, and I shall cite no more. There is no discrepancy between them; they all agree that if there is a gift of the principal, unconnected with the time of payment, then the legacy vests ; if there is no gift, except at the time of payment, then it does not vest until the time arrives ; and if it never arrives, the legacy is lapsed. Though the legacy in question is not given in so many words in Mr. Ellis’s will, it is in substance. 1. It is separated from the mass of his estate. 2. It is vested in the name of the legatee. 3. Gaurdians are appointed of her estate; she had no estate but this legacy ; and, as was said of trustees in the case last cited, there cannot be a guardian of nothing. 4. The interest is all appropriated to her use, or invested in her name and for her benefit. 5. The whole is to be paid to her when 21 years of age—clearly devoting the whole to the legatee, but postponing the time of payment till she should be capable of managing her own property. So far as the devise relates to Eliza Emily, there can be no question. There is no case referred to which is as strong as this. The only doubt arises from the word provided, in that part of the clause giving the property to her child or children in case of her death before 21, and leaving lawful issue ; and when that is taken in connection with the preceding circumstances, it does nothing more than refer to the time before designated when she was to
There can be no doubt, I think, that the legacy vested in Eliza Emily upon its being separated from the testator’s estate and invested in her name; and had she died the next day, her representatives would have been entitled to receive it when payable; or had there been any ground to suspect #the integrity or solvency of the trustees appointed by the will, the court of chancery would at any tinge have directed the payment of the money into court, or to other trustees, or its investment for the benefit of the infant legatee.
The second general question which I propose to discuss is, whether the legacy having vested, has been divested by the death of the legatee without lawful issue under twenty-one years of age. The language of the will is as follows : “ But in case my said daughter Eliza Emily shall die before she arrive at the age of twenty-one years, and without leaving lawful issue, then my will further is, that the said sum of §20,000, with such additions as may be made thereto by the accumulation of the interest or income thereof, be distributed as is herein afterwards directed respecting the residue of my estate.” The appellant -contends, 1. That the devise over is void, because repugnant to what precedes it, and 2. That the legal effect of this clause, in connection with the previous bequest, is to give to the legatee an estate such as, if the subject were real estate, would create by the English laws an estate tail; and that in such cases, where the property is personal, by the common law the gift is absolute. The respondents insist that if the legacy were vested, the clause last above quoted contains a valid executory devise, and the amount sinks into the residuum of the estate.
To show that the absolute property being given to the legatee, the subsequent devise over is void for repugnancy, several cases have been referred to, some of which I will state. And first, the case of The Attorney General v. Hall, 8 Viner, 103, decided in 5 Geo. 2. The testator devised real and personal estate to his son and his heirs, and says, if his son should die leaving no heirs of his body living, then so -much as the son should be possessed of at his death, he devised over. The court, Lord King, held the limitation over void, as the absolute ownership had been given to the son, and the devisees over were to have no more than the first devisee had left unspent, and therefore he had power over the whole. It resulted from his interest; not express. The words that give an estate tail in the land, give the entire property of personal estate. Flanders v. Clark, 1 Vesey, sen. 9, 3 Atk. 509, decided *in 1747. The testatrix gave her son by her will £150, and interest till paid, but he should not dispose of it to any wife; and if he died without issue, then it should revert to the testatrix’s family. Lord Hardwicke held the legatee had the whole property. Butterfield v. Butterfield, 1 Ves. sen. 133, decided in 1748. The testator directs £400 put out on good security for his son T. B., that he may have the interest for his life and the heirs of his body ; if he die without issue, then over. Lord Hardwicke said, if words would give an entail of lands, it vests the whole property in personal. He did not then decide the case, but afterwards, p. 154, he held the limitation of a personalty too remote, there being nothing to restrain it to heirs living at the death of the legatee. He said that a direction to pay the interest to him, and the property going to his heirs, vested the whole interest in him. Bradley v. Peixotto, 3 Ves. 324, decided in 1797. The testator gave his son the divi
I will not advert to any more cases under this head, but will proceed to the consideration of a few of those which have been decided upon the construction to be given to the words dying without issue, or dying without leaving issue. Preparatory to the investigation of that point, it is proper to refer to the definition of an estate tail, and of an executory devise. Without going into the derivation and original meaning of the word/ee, it is sufficient to say that in modern English tenures a fee signifies an estate of inheritance, and a fee simple imports an absolute inheritance clear of any condition or limitation whatever, \and when not disposed of by will, descends to the heirs generally. There are Id so limited fees: 1. Qualified or base fees ; and 2. Fees conditional at the cotpmon law. A base fee was confined to a person as tenant of a particular pláóe. A conditional fee was restrained to particular heirs, as to “ the heirs of a mSn’s body.” The object of the grantors in conveyances to a man and the heirs of his body, probably was to perpetuate the property in the family of the grantee. The courts in England have, however, leaned against perpetuities, and they construed such conveyances as carrying a conditional fee; and if the grantee died without such heirs, the land should revert according to the condition implied in the grant; but if he had such heirs, the estate which before was conditional, became absolute by the performance of the condition; at least for certain purposes : one of which was to enable the grantee to alien the land, and thereby bar his issue of the inheritance and the grantor of his reversion. This such grantees were in the habit of doing and purchasingback the lands, after which they held them in fee simple absolute. Such was the state of things previous to the ^statute of Westminster 2d, commonly called the statute dedonis, passed 13 Edw. 1, ch. 1, about A. D. 1285. The nobility were not pleased with the liberty taken by the courts in freeing estates from the clogs intended to be put upon alienation, and in the preamble to the statute de donis it is recited that “when one giveth land to another and the heirs of his body,
The most general definition of an executory devise is, that it is “ a devise of a future interest in lands, or chattels, not to take effect at the testator’s death, but limited to arise upon some future contingency.” A more limited definition is, “ such a limitation of a future estate or interest in lands or chattels as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at ‘common law.” All future limitations, even in wills which are consistent with the rules of the common law respecting contingent remainders in a deed, are in a will construed contingent remainders. 2Fearne, 1, 2. One peculiarity belonging to this estate is, that it cannot be barred by fine or common recovery ; and therefore to prevent a perpetuity, it became necessary to prescribe bounds and limits beyond which it should not extend. And it has accordingly been determined that it must vest within the compass of a life or lives in being and 21 years and nine months afterwards. But where an executory devise is limited on an event which may not happen within the period last mentioned, as upon a general failure of heirs or issue, it is void. It is of no importance how the fact turns out; it is void at the commencement, if the event on which its existence depends may exceed the preceding limits. 6 Cruise, tit. 32, Devise, ch. 17.
It has been well observed by Ch. J. Parsons, in Ide v. Ide, 5 Mass. R. 500, that when words have long been used in a technical sense, and have received an uniform construction, they have become a rule of property, and the construction should be adhered to, otherwise titles to estates may be unsettled. The proper words in a grant or devise, to convey directly an estate tail, are, to the grantee and the heirs of his body lawfully begotten. Such a devise in England, of land, wpuld convey an estate for life in the grantee, and the inheritance to his children. Such a devise there of chattels would convey to the grantee the absolute property. The law in both cases abhors perpetuities. A perpetuity in lands may be barred by a fine or a common recovery; but not so as to personal property, and therefore it cannot be prevented but by declaring that such a devise gives the absolute property. In this state, such a devise of lands would, by force of our statute, convey an estate in fee simple ; and as to personal property here, such a devise must be governed by the rules of the common law. It seems to be well settled, also,
The testator said in his will, that if his daughter should die without leaving lawful issue, then the legacy given her should go into the residuum of his estate, and be distributed as he therein directs. The appellant says that this expression, without leaving lawful issue, means an indefinite failure of issue, or, in the language of the statute, de donis, if her issue fail. The respondents say that the language used means without lawful issue at the time of her death. If the appellant’s construction be the true one, he should prevail, and the decree of the court of chancery be reversed; if the respondents are right, they must prevail, and the decree be affirmed. Were the question to be determined by the present common acceptation of the terms, we cannot doubt that the testator meant issue living at the death of his daughter ; but if the language used by him has acquired a legal technical meaning, of a very different import, it is our duty to give it its legal signification ; for otherwise, as Chief Justice Parsons has said and many other great judges before him, we might unsettle many estates held under conveyances or wills drawn with special reference to the legal and settled construction given to this language. It is conceded that there are authorities both ways, and we must ascertain on which side the balance lies. The statute de donis was passed in 1285, in the reign of Edward I, and the statute of wills was passed about 1540, in the reign of Henry VIII. We have several cases in the reign of James I, 9 Co. 127, Cro. Jac. 448, in which a devise to one for life, and if he die without issue, then remainder over, was held to give an estate tail by implication. The case of Pells v. Brown, Cro. Jac. 590, was decided in the same reign, in the year 1620, and is often referred to in discussions on this subject. It is the case which Lord Kenyon considered in Porter v. Bradley as the foundation and magna charta of this branch of the law, and therefore deserves some attention. William Brown had three sons—William, Thomas and Richard. The father devised his land to Thomas, his son, and his heirs forever, *paying to his brother Richard £20 at the age of 21 ; and if Thomas died without issue, living William, his brother, that then William, his brother, should have those lands to him, his heirs and assigns, forever, paying the said sum as Thomas should have paid. Thomas entered, suffered a common recovery, devised to the plaintiff’s wife, and died without issue, in the life of his brother William. It was held that Thomas took a fee, and not an estate tail. The court relied on the circumstances, 1. That it was devised to him and his heirs, paying Richard £20; 2. The clause “ if he died without issue” is not absolute and indefinite ; it is, “if he died without issue, living William.” It was also held that the devise over was a good executory devise. The words here, die without issue, did not mean an indefinite failure of issue—not because that was not their legal signification, standing by themselves, but because, taking all the expressions together, that construction was rebutted : 1. By requiring payment of £20 to his brother, the whole estate was intended to pass ; 2. The dying without issue must be in the lifetime of his brother; it meant, therefore, issue living at the death of the devisee. This case, therefore, does not impugn the doctrine, but supports it, that the words dying without issue, without something to qualify them, mean an indefinite failure of issue.
The case of Denn v. Sherston, Cowper, 410, decided in 1776, was ejectment by a person claiming under an executory devise of lands where there had been a failure of issue of the first taker. The person in possession claimed that the estate created by the will was an estate in fee, not in tail; and that was the question. It contains nothing to the point in this case but an obiter
On the other hand, we have a multitude of references, to some of which 1 shall refer. Keily v. Fowler, 6 Brown’s P. C. 309, decided in 1768, arose upon a devise in the will of William Cronyn, who gave to his daughter Jane all his property, real and personal, provided she married with the consent of his executors ; if she should marry without such consent or die without issue, then the property devised to her should return to his executors, to be distributed in the manner directed by the will. The daughter married with the consent of the executors but died without issue. It was held by the judges that the bequest over should take effect upon the death of the daughter, without issue living at the time of her death. It was evident in this case, from other circumstances, that such was the testator’s intent; and one which was sufficient of itself to show that the testator did not mean an indefinite failure of issue, is this; that upon the daughter’s death without issue, the property was to return to his executors, persons then in being. Three years afterwards, i. e. in 1771, came on the important case which is known by the name of Daw & Pitt, or Earl Chatham v. William Daw Tothill, 6 Bro. P. C. 450. The question arose upon the will of Robert Tothill. He gave Sir William Pynsent the dividends of £4000 stock in the Bank of England, the yearly income of six exchequer annuities, and a mortgage of £1000; to Leonara Ann Pynsent, daughter of Sir William, he gave both real and personal estate during her natural life, and after her decease, to the heirs male of her body lawfully begotten, forever; and for want of such issue, to William Daw, upon condition that he takes the name of Tothill, &c. Miss Pynsent died before her father, in 1763, and bequeathed all her real and personal estate to her father, who took possession of the same. Sir W. Pynsent died in 1765, having made his will and given all his real estate and the residue of his personal to Earl Chatham, the appellant. After Sir W’s death, the respondent, Daw, claimed the bank *stock, annuities and leasehold houses. A bill was filed by Daw,
and answers put in. The cause was heard on bill and answer. Sir Thomas Sewell, master of the rolls, ordered the bill to be dismissed. About three years afterwards, an appeal was brought to the lords commissioners, who reversed the decree of the master of the rolls, and made a decree in favor of the respondent. From this latter decree the appellant appealed. The cause was argued for the appellant by Lord Thurlow and J. Madock; for the respondent, by Wedderburne and Dunning. For the appellant it was argued that the giving the real and personal estate to Miss Pynsent for life, remainder to the heirs of her body, gave her an estate tail in the real estate, and an absolute interest in the personal estate ; and for the respondent it was argued that only a life estate was given to Miss Pynsent, and as she had died without issue, male, the devise over was good. After the argument, the following question was put to the judges : Whether, in the event which has happened, the devise to the respondent William Daw Tothill, of the bank stock, &c. is good and effectual, or void. The unanimous opinion of the judges was that the devise was void, arid the decree was reversed. This case was decided in 1771, fifty-one years after the case of Forth v. Chapman. Whether that case was cited is not stated in the report. It appears in a subsequent case that such was the fact. It is not to be denied that the same question was involved. In both cases real and personal estate were given in the same words. In Forth v. Chapman the devise over was, if the legatees should depart this life and leave no issue of their respective bodies. In Pitt v. Daw, the words were, and for
The distinction taken by Lord Talbot, in Atkinson v. Hutchinson, 3 P. Wms. 258, that when the words would give an express estate tail the construction of law must obtain, but not where only an implied, estate tail was given was very much labored in Daw v. Pitt; for in that case there was manifestly but an estate for life, and the testator anxiously endeavored to restrain it to an interest for life, but that distinction was exploded ; and the rule is general, that where the words raise an estate tail in real estate, they give the absolute property in personal estate ; and if there is no distinct expression to restrain it to the time the law allows, the consequence must prevail, whatever is the intention. In Boehm v. Clark, 9 Ves. 580, decided in 1804, the testator gave the residue of his fortune to trustees, for the use of his brother, the plaintiff, during his life, with remainder in default of issue to Clement Boehm, for his use during life. The master of the rolls held the limitation too remote. He denies a dictum of Lord Hardwicke, in Trafford v. Boehm, 3 Atk. 449. In Barlow v. Salter 17 Ves. 479, decided in 1810, 'the devise was to the daughter of the testatrix: “ All my estate real and personal, of every sort and kind, to her and her heirs, and half the navigation money for he natural life; and in case she dies without issue-, all to be divided between my four nephews and nieces.” The master of the rolls, Sir Wm. Grant, says, that by some of the earlier cases, the judges inclined to hold these words to mean without issue at the death of the person named, but ever since the case of Beauclerk v. Dormer, a different rule has prevailed, and he considered it well settled that these words, without something more to limit them, must have their legal signification, viz. death without issue generally ; in other words, an indefinite failure of issue. Numerous cases might be cited, beside those already referred to, to establish the proposition that whatever would directly or constructively constitute an estate tail in land, will pass an absolute interest in personal estate; and Sir W. Grant says it has been so settled since the case of Daw v. Pitt, or Lord Chatham v. Tothill. See also Glover v. Strothoff, 2 Br. C. C. 37; Attorney-General v. Bayley, id. 558.
*The reason assigned by Lord Thurlow why personal property devised in the language of an estate tail passes absolutely is to effectuate the intention of the testator : as if a man gives an estate in general to A. for life, and adds, but if he dies without issue, I then give it to B.; B. has no immediate gift, but only a contingent interest upon A.’s dying without issue, and
I might proceed and cite a multitude of other cases ; the books are full of them, and the counsel who opened the argument, stated that he had examined 300 of them. But I will cite no more English cases. I will, however, refer to Mr. Fearne’s conclusion upon all that had been decided when he wrote his learned treatise, which is, “ That although in the limitation of a personal estate, after a dying without issue, those words shall not ex vi termini, and without the concurrence of any other circumstance of intention, signify a dying wfithout issue then living, even though the limitation is in the nature of an estate tail by implication only ; yet, on the other hand, they shall not ex vi termini, when there is any other circumstance of intention, import an indefinite failure of issue, even though the limitation is in the nature of an express estate tail; but that in either case, if the limitation rests solely upon the usual extent and import of those words, the limitation over is too remote, and therefore void, and the whole vests in the first devisee or legatee ; but that in either case, the signification of those words may be confined to a dying without issue then living, by any clause or circumstance in the will whicli can indicate or imply such intention.” He further says, it is the same thing whether the devise of a personal estate be to one for life expressly, and if he die without issue, remainder over; or to one indefinitely, and if he die without issue, remainder over; 2 Fearne, 260, 261, 275. And again, he remarks, that in all the cases where a
The decision of this case in the court below rests upon the distinction taken in Forth v. Chapman, between the same words as applied to real and personal property. The word leaving was relied on in the argument, but not by his honor the chancellor, and the cases cited show that that word was relied on in but few of them, and that both expressions, viz. dying without issue, and dying without leaving issue, are considered, as in truth they are, of exactly similar import. Ch. Kent has given us the names of those who supported the distinction and those who opposed it. In favor of it are Lord Macclesfield, Lord Mansfield and Lord Eldon; Lord Hardwicke both approved and condemned it, and is therefore neutralized. Those who denied any such distinction are Lord Thurlow, Lord Loughborough, Lord Alvanley, Lord Kenyon, Sir William Grant, and the King’s Bench, in 4 Mawle & Selw. 62. To which might be added Sir Thomas Sewell and Sir Joseph Jekyl and some others. The weight of English authority, in my opinion, is decidedly against any such distinction. It is true that both in England and in this country courts have anxiously seized upon any expression or circumstance in the will which would limit the generality of the expression dying without issue or without leaving issue, or for want of issue, and confine it to issue living at the death of the first taker. In the case of The Executors of Moffatt v. Strong, 10 Johns. R. 16, the word survivors had that effect. It was admitted there, that if the limitation over rested solely on the words dying without issue, it would fail—■ those words denoting an indefinite failure of issue ; but as the property was to go to the survivors of the devisees, upon the dying without issue of any of them, the testator could not have intended that the survivor should take, after an indefinite failure of issue. This general rule has been admitted in several cases ; and the same" effect has been given to the word survivor. Fosdick v. Cornell, 1 Johns. R. 440, and Jackson v. Blanshaw, 3 id. 292. In Jackson v. Staats, 11 id. 337, the word children had the same effect. See also Anderson v. Jackson, 16 Johns. R. 382, and Wilkes v. Lyon, 2 Cow. 333.
*The principle that when the words of the devise would create a fee tail in land will give the absolute estate in personalty, is recognized, I believe, in all the American cases; and that the executory devise may be sustained, where there is something more than the bare words dying without issue, to show the testator’s intention to restrain such expressions. 1 Mason, 224. 2 Munf. 479. 2 Dessaus. 113. 3 id. 259.
In the construction of wills it is the duty of courts to effectuate the intention of the devisor, if that intention is agreeable to the rules of law. The intention is to be ascertained from the will itself. If the testator uses language which has acquired a definite legal signification, the court are bound to presume that the testator intended what the words legally import; but if other parts of the will, or other expressions in the same clause, clearly show that the technical words used by the testator were used in a different sense from the legal construction, then they shall be construed according to their common acceptation. There are certain dispositions which a man may wish to make of his property which the law will not permit; and the law has said that if a testator makes such attempt, that his words shall be construed to mean something else. For' example, if a man devises personal property to his son and the heirs of his
My conclusions upon the whole case are these: I. That the legacy of $20,000 and its interest became vested in the legatee, because, 1. It was separated from the estate of the testator; 2. It was invested in the name, or for the benefit of the legatee ; 3. The testator appointed guardians to manage his daughter’s estate ; 4. The interest was given to her use ; 5. It is to be paid at 21, and be at her own absolute disposal. II. That the legacy having vested, it was not divested by the limitation over, because the absolute property passed 'by the. will; it was not given to the legatee for life, “ but to be at her own free and absolute disposal, after she shall attain the age of 21 years.” III. If, however, the will gives E. E. only an estate for life in the first part of the clause, the subsequent limitation over being upon an indefinite failure of issue, is too remote, and therefore void as an executory devise.
I am of opinion, therefore, that the decree in the court below should be reversed, and that the respondent’s bill should be dismissed.
*By Senator Edmonds. The difficulty in this case, as in many other cases of construction of wills, arises from the fact that the testator seems to have had two intentions, irreconcileable with each other ; one as to the immediate disposition of the fund devised, and the other as to its ultimate disposition—both of which cannot be permitted to operate. The intention is the great guide in the construction of wills, but the question frequently is, as in this case, which intention ?
In determining this question, it is an important consideration, that as the
The devise over after Eliza Emily’s death is not free from difficulty, nor of so clear and explicit a character as of itself to aid us in arriving at a determination. The will directs that it shall be distributed, in that event, as is thereinafter directed respecting the residue of the testator’s estate. Now, there is no devise of the residue in terms ; but after carving out certain legacies, the testator divides his estate, real and personal, into three parts, and devises it to his three other children in such manner that Eliza Emily herself might ultimately become the residuary legatee, and obtain the whole estate. Thus, he gives the use of one third to his daughter Mary, but in case she dies without leaving lawful issue, then that third shall be divided among such of his other children as shall survive her. He devises the remaining two thirds to his two sons, with the same devise over in case of their dying without issue. So, that if Eliza Emily had survived her sister and brothers, they having died without issue, it seems to have been the testator’s intention that she should take their shares as residuary legatee; and if, after surviving them, she should die without issue, that portion of the estate which she might take as surviving child should descend to her heirs by inheritance from her; but what, in that event, would become of the $20,000 legacy, unless it vested absolutely in the first instance ? She could not take as residuary legatee of that, because it was not to go over until her death, nor would there be any one remaining to whom it had by this construction been devised by the testator. The consequence would be, either that the legacy would be considered lapsed, and go to the next of kin to the testator, or vest absolutely in Eliza Emily and descend to her next of kin ; in either event, the alleged intention of the testator would be overborne-
If the devise to her is such as to invest her with the absolute ownership of
In the provision which the testator makes for his wife, he separates a sum from his estate and directs his executors to vest it in their names, not hers ; directs the interest to be paid to her, gives her power of disposing of the principal by will, and' in case she does not, then it is to go as part of the residuum. In the case of this devise, it is not questioned that she was to have, the use only. If the daughter was to have no more, why did the testator direct a different mode of investment, and a mode that of itself indicates ownership in the daughter 1 If the legacy to her had been invested in bond and mortgage, she and she alone would have been the obligee or mortgagee, and entitled to all the rights appertaining to that character ; if invested in public stocks, she and she only would have stockholder possessed of the rights thereto belonging. Unless she was trustee for some other person, this would imply of itself absolute ownership in her. Monkhouse v. Holme, 1 Bro. Ch. Cas. 298. Booth v. Booth, 4 Vesey, 404. The testator’s intention is still farther manifest from this : that he appoints a guardian of the person of his daughter, and others, “ guardians of her estate.” They are to pay her a portion, and, in a certain event, the whole income of her estate. It is as guardians of her estate that they are to receive that income, and pay it out to her or invest it for her benefit. When they invested the $20,000, their duty as executors ceased, and all subsequent investments of that sum. All collections and payments of interest and all investments of the accumulation were to be by them as “ guardians of her estate.” If she had acquired the absolute ownership of that sum in any other manner, precisely this course would have been necessary. Guardians of her person and of her estate would have been appointed ; they might and probably would have been different persons, and chancery would have directed an accumulation of all that was not necessary for her support; and she would not have had it in *her power to dispose of it until she became of age. So, that the testator has thrown around his bequest to her, all the indicia of absolute ownership.
It is a well settled rule of construction, that effect must, if possible, be given to every word of a will. I have considered the word estate as an important word in this will. This court decided in Jackson v. Robbins, 16 Johns. R. 587, that this word in a will carries the land, and all the testator’s interest in it.
It is also a rule of law that a devise of the interest or of the rents and profits is a devise of the thing itself, out of which that interest or those rents and profits may issue. Butterfield v. Sane, 1 Vesey, sen. 133, 154. Daw v. Pitt, or Tothill v. Chatham, 6 Bro. Par. R. 450. 7 id. Tomlin’s ed. 453. 1 Mad. R. 488. Fonereau v. Fonereau, and Booth v. Booth, before cited. Green v. Piggott, 1 Bro. Ch. R. 105. Haig v. Swiney, 1 Sim. & Stu. 487. Levi v. L'Estrange, 3 Bro. Par. Cas. 337. Cave v. Cave, 2 Vem. 508, 693. Van v. Clark, 1 Atk. 512. Stretch v. Watkins, 1 Mad. R. 252. The rule, however is to be understood with some limitations. Where the intention of the testator to give only the use, is clear, manifest and undisputed, the rule must yield to the stronger force of the intention ; but where it is doubtful whether the use only or the absolute ownership was intended to be given, the rule has been allowed to have a controlling effect. It is by means clear that in the case
Another inquiry may very properly be made, viz. if the legacy did not vest in Eliza Emily, in whom did it vest ? It did not vest in the executors, for no estate or interest in it was devised to them ; nor was it given to them as guardians of her estate, for the investment was to be in her name, not theirs, and they had a specific duty to perform which did not necessarily give them an estate or interest in it. Nor did it vest in the other devisees named in the will, her brothers and sister, for they could take only in a certain event, w'hich might never happen ; and I have already shown that she, and *not they, might become entitled to the residuum. There was, it appears to me, no person but her in whom it could vest.
If it did vest in Eliza Emily, was it divested by her death ? It is undoubtedly now a well established rule, that where the use of a chattel is devised to one for life, with remainder to another, the devise of the remainder is valid. The devise for life in such case must be clear and explicit, and the intention of the testator to give only the use for life must be undisputed. But where the devise is such that the property in the chattel becomes vested in the first taker, any attempt of the testator to control it afterwards, or to restrict the power of disposing of it, is an interference with the absolute right of property already granted, and consequently void. Attorney General v. Hall, Fitzgibbon’s R. 314. S. C. Vin. Abr. Devise, 103, pl. 50. Bradley v. Peixotto, 3 Vesey, 324. Ross v. Ross, 1 Jac. & Walk. 154. Mannock v. Horton, 7 Ves. 391. Cuthbert v. Parrier, 1 Jacob’s R. 415. Jackson v. Bull, 10 Johns. R. 19. Jackson v. Robbins, 16 id. 537. And here, I apprehend, arose the mistake of the testator, in supposing that he had the right to control its subsequent disposition, after having devised the absolute ownership of the fund to his daughter, and hence his conflicting intentions. If, however, the limitation over was valid, and we could now be called upon to say which intention should control, I should find in the spirit of all our institutions an obligation to give effect to that intention, which confers immediately the jus disponendi rather than that which locks it up and controls it. It is equally against the general current of opinion in this country, to permit either real or personal property to be so bound down as to suspend or destroy the power of alienation. The accumulation of vast estates, and the destruction of that equality which is the great source of our happiness, would be the necessary result of the opposite practice.
Whether the limitation over in this case was not upon an indefinite failure of issue, and therefore void, is a question upon which much of our time was occupied in the argument, and in the discussion of which much learning and research were displayed by the counsel. We are not now required to establish a rule upon this point, which shall henceforth be the law *of this state. The legislature has wisely given a meaning to the disputed words which henceforth must control, and we are now to examine the question only so far as concerns the decision of this case. It has long been the rule, that a devise over of real estate, upon failure of issue, meant an indefinite failure of issue, and was void, because of its locking up and restraining the power of alienation for an indefinite period of time, and that was against the spirit of the common law; and the question now is, whether the same rule shall apply to a limitation over of personal property. The chancellor, in his decision in this case, and in Rathbone v. Dyckman, 3 Paige, 30, rules that the words without leaving issue, when ap
So far as authority is concerned, the rule does not appear to me sufficiently well settled, in respect to personal property, to have a controlling force on either side. On one side, and in favor of the chancellor’s opinion, we have been cited to the case of Forth v. Chapman, 1 P. Wms. 664, and a series of decisions following in its train and sanctioning its doctrine. Against this, we have been referred to the case of Daw v. Pitt, 1 Mad. 488, 6 Bro. Par. R. 450, and a number of cases sustaining the same principle. I do not propose to examine *these various and conflicting decisions; it would occupy too much space. I have, however, paid to them such attention as the importance of the case, and the principles involved, demand. In choosing between the conflicting cases, I am influenced, not only by the consideration that it could not have been the intention of the testator to have used the same words in these very opposite senses in the same will, but by the opinion of the late Chancellor Kent, of whom it may well be .said, in respect to such questions, “ Animo videt, ingenio complexas est, eloquentia illaminavitP He says, 2 Kent’s Comm. 2d ed. p. 353, that “ it is a settled rule, that the same words which, under the English law, would create an estate tail as to freeholds, give the absolute interest as to chattels and if consistency in our system of jurisprudence, if uniformity in our legal decisions are of any value, such ought still to be the rule.
In coming to the conclusion that the devise over is void, I have felt the full force of the argument arising from the intention as to that devise over, and I am not to be understood as impugning in the least that principle which points out the intention as the great and leading rule of construction of wills. But that intention, to be effectual, must not only be consistent with other intentions expressed in the same instrument, but must conform to the rules of law. No man has a right by will to dispose of his property in an illegal manner. Were it otherwise, our statutes abolishing entails, and restraining the accumulation of personal property, would be nugatory ; and if a testator will, notwithstanding, entail his realty, or improperly accumulate his personalty, his intention, however clear or explicit it may be, must yield to the great rules of law ; for it is of much more importance that the principles on which depend the tenure of our estates and the spirit of our institutions should be preserved, than that the intention of any testator should be carried into effect.
My conclusion is, that the decree of the chancellor ought to be reversed. *By Senator Edwards. In giving the words contained in the will now in question their proper and legitimate construction, I conceive it necessary for us to determine, as near as we can from
It appears to me, therefore, there are but two subjects necessary for our consideration, in order to arrive at a correct and satisfactory conclusion in de termining this cause. First, was it the intention of the testator, by his last will and testament, that the $20,000 in question should become absolutely vested in his daughter Eliza Emily, as her property, at the time of his death; and if not, then, secondly, has he made use of such expressions in his will as, according to the established rules of law, must be so construed as to create in her an absolute vested right of property at the time of his death, contrary to his intentions. From the most careful examination I have been able to give the will in question, I have been unable to satisfy myself that the testator has made use of any expression in it that would absolutely vest the $20,000 in his daughter Eliza Emily at the time of his death. He has not made use of any words denoting an absolute gift of the $20,000 to his daughter, before she arrived at the age of 21 years. He directed that $20,000 should be placed at interest, that his daughter might realize $500 of the interest yearly during her minority, or, if she married, during that time the whole interest; but no right to the principal was given to her during this time, and although to be placed at interest in her name, was so to remain, if she lived through her minority, until she arrived at the age of 21 years, and then to be at her absolute disposal. It was therefore no gift of the principal until she arrived at that age. The testator, *by his will, plainly intended to preclude her from the right of disposing of the property, until she became 21; but if he intended- it should vest in her immediately after his death, and if the property did so vest, the power of disposal necessarily attached, and she became vested of that power during her minority, contrary to his express declarations in his will. Besides, may we not infer that he did not intend the property should absolutely vest in his daughter because he did restrict her power of alienation, as such restriction would be altogether inconsistent with the rights she would acquire had there been an absolute, unconditional gift of the property in question. He evidently intended it should be at her absolute disposal, provided she attained the age of 21 years, but on no other condition; and that condition failing, he directed further what should be done with it; and it is only for us to say, by our decision, whether it shall be disposed of as he directed. Again; in that part of his will in which he makes provision for the lawful issue of his daughter, in case she died during her minority, he says such issue shall be entitled to that portion of his estate as is therein intended to be given to his daughter Eliza Emily, provided she should attain the age of twenty-one years—thereby clearly declaring it to be his-intention that the condition on which she was to have that portion, was her attaining the age of 21 years. But in addition to all this, the testator has said, in terms, that if she should die before she ararrived at the age of 21 years, and without leaving lawful issue, then the $20,000, with the addition made thereto, should be distributed as a part of his residuary interest. As to the intentions therefore of the testator, I think there can be no doubt.
The next inquiry then is, does the law require such a construction to be
Again; it is insisted that a bequest of the interest in this case was a bequest of the principal, and that the property therefore became vested in Mrs. Paterson. The bequest of the interest of money indefinitely, where no direction is given in relation to the principal, may result substantially in a bequest of the principal. 1 Mad. R. 256. 1 Sim. & Stu. 487. 4 Vesey, 58. And the reason is obvious : the bequest of the interest in such cases would carry the principal, because it cannot be separated, and requires the principal to uphold and sustain the bequest; and the same remarks are true in relation to the dividends arising from bank stock. But the bequest of the interest of a sum of money, or of the dividends of *bank stock, to one for a limited time, or until the happening of an event, and at the expiration of the time, or on the happening of the event, a bequest of the principal or stock to another, can never have the effect of rendering void the bequest of the principal or stock, or of vesting it in the legatee of the interest or of the dividends of the stock ; for in such case the interest or dividends may be separated from the principal or stock. 3 Vesey, 363.
Had the $20,000 become absolutely vested in Mrs. Paterson at any time during her life, I admit it would also have vested in her husband by virtue of his matrimonial rights, and he would have had the power of disposing of the same ; and any limitation over in the will, in favor of a residuary legatee, would in that case have been inoperative and void, as repugnant to the gift. 3 Fitzgibbon, 314. Jacob & Walk. R. 415. 5 Mass. Rep. 504, 5. 15 Johns. Rep. 584, 585, 586. 3 Vesey, 324.
Again ; it is contended, on the part of the appellant, that the words in the will, “ In case my said daughter Eliza Emily shall die before she arrives at the age of 21 years, and without leaving lawful issue,” mean an indefinite failure of issue, and that the limitation over is therefore void as being too remote, and therefore the right of property vested in Mrs. Paterson. Most of the cases cited by the appellant’s counsel to establish this position are cases where real and personal property have been included in the same will, and where the same phraseology has been applied to both species of property. But such is not the nature of the will now under consideration. The phraseology here is to be applied to personal property only ; and when so applied, the question is, do the words without leaving lawful issue, mean an indefinite failure of issue ? Or do they mean without leaving lawful'issue at the time of the death of Mrs. Paterson ? It clearly appears to me that the time referred to by the testator is the time of her death ; that this is the true import and meaning of the words; the only meaning he intended they should convey; and the only meaning they can convey, unless we suffer a course of metaphysical reasoning most strangely to pervert their literal signification; and that this construction, limiting the words in *the will without leaving lawful issue to the time of the death of the legatee, when applied to personal property, is clearly their legal as well as their literal import and meaning. This construction of these or similar words in relation to personal property was adopted even before the decision in the case of Forth v. Chapman, 1 P. Wms. 663, so much relied upon by the respondent’s counsel, and so forcibly controverted by the appellant’s counsel in arguing this cause.
I have been unable to find that the decision in Forth v. Chapman has been overruled; on the contrary, it has been repeatedly recognized, and formed the
*1 readily concede the doctrine laid down in Daw v. Pitt, 6 Bro. Parl. Cas. 450, and 1 Mad. R. 488, and Attorney-General v. Hall, Filzgibbon, 314, that where there is an absolute unconditional gift of a chattel to a legatee, the limitation over is void. But if I am correct in the conclusion I have before arrived at, that the contingency never happened which was to vest the property in question in Mrs. Paterson, and therefore she never had in it an absolute vested right, I cannot readily perceive how the doctrine of limitation, as laid down in these cases is to apply, in both of which there was an absolute vested interest in the first legatee, which rendered void the limitation over. But in conceding the doctrine laid down in the case of Daw v. Pitt, and the Attorney-General v. Hall, I do not intend to concede what was contended for by the appellant’s counsel, that the case of Forth v. Chapman was overruled by these decisions. In the case of the Attorney-General v. Hall, the testator made an absolute bequest of the property to the legatee for life, and so much as he did not dispose of he gave to charitable purposes, and the court held the first legatee might dispose of the whole, for the obvious reason that the legatee had the absolute right of property, and therefore the right of disposal necessarily attached. In the case of Daw v. Pitt, the testator gave to Sir Wm. Pynsent the dividends of £4000 bank stock, during his life, and after his death to Leonora Ann Pynsent, during her life, and after her death to the heirs male of her body; and for want of such issue, he gave the said estate to Wm. Daw, during his life, on condition he would take the name of Tothill. And the court decide that Sir Wm. Pynsent took an absolute interest in the property, and the limitation over was void; for if this had been real estate, it would have created an express estate tail, and what in real estate then created an estate tail, in personal property gave the absolute estate ; and therefore, as the legal effect of the will was to give the dividends absolutely to the first legatee, the right of disposal necessarily attach, as in the case of the Attorney-General v. Hall, and the absolute interest or ownership of the dividend carried with it the stock also, for it required the stock to uphold and sustain that inte
The same principle, I apprehend, will be found in all that class of cases which were supposed to overrule the case of Forth v. Chapman. I have referred to these two cases, as they were selected by the appellant’s counsel as their strong cases for this purpose. In the case of Forth v. Chapman, Walter Gore devises all his estate real and personal to Chapman, in trust, for the use ofWm. and Walter Gore, during the term of the lease mentioned in his will, and if either of the Gores should die, leaving no issue, he gave the leasehold premises to the daughter of his brother, Wm. Gore, and his sister’s children; and the question was whether the limitation over of the leasehold premises to the children of the devisor’s brother and sister was void, as too remote—and the limitation over was held valid. In this case the property was not bequeathed absolutely to either of the legatees in expectancy, and the right of property vested in neither, and neither had any right of disposal, but it was bequeathed to Chapman for their use, to wait the happening of the event by which it was to vest, to wit, the death of either of the Gores without issue; and that was to determine in whom should vest the absolute right of property, and of course the right of disposal. In this case, therefore, the property was suspended in the hands of a trustee, to wait the happening of an event which was to determine in whom should vest the right of property ; but in the other class of cases the absolute right of property was given in the first instance, either in terms or by the legal effect of the will ;, the right of disposal necessarily attacked, and the property could not be limited over, because the right of property vested in the first instance, and the power of disposal attached. Hence it appears to me there is a manifest difference in principle in these cases. Besides, the master of the rolls, in giving the opinion in the case of Daw v. Pitt, which is the strongest case the appellant’s counsel rely upon as overruling the case of Forth v. Chapman, acknowledges *that that case was plainly distinguishable from the case of Forth v. Chapman; clearly intimating no design whatever to overrule that decision. Had the master of the rolls, who first decided the cause, or the house of lords, who afterwards reviewed it, designed to have overruled the decision in the case of Forth v. Chapman, it would have been so said, in terms, and not left to doubtful inferences. But as neither of these courts has given any intimation of their design to overrule that decision, and as one of these courts in giving its decision acknowledges there was a distinction, I am led to the conclusion that the decision of Forth v. Chapman has not been overruled by the cases I have alluded to; nor am I aware that it has been overruled by any adjudged cases, so far as it relates to personal property. If the principles which governed the court in making that decision are correct, which have formed the basis of numerous decisions since, I think we may safely follow it in the case now before us ; and as the $20,000 were placed at interest, in the nature of a trust, and to remain in that situation for the happening of the event by which it was to vest in Mrs. Paterson, to wit, her arriving at the age of twenty-one, or in her issue on her leaving lawful issue, which is now defined by the authorities to mean at the time of her death; and as neither contingency happened, we are brought to the irresistible conclusion that when Mrs. Paterson died within her minority, without lawful issue, no event could happen that could deprive the estate of Ellis of the $20,000 in
From the views, therefore, I entertain of this case, it becomes unnecessary for me further to consider the points raised. Having come to the conclusion that the $20,000 in question never did absolutely and unconditionally vest in Mrs. Paterson, and therefore never could vest in the appellant, I am for affirming the decree.
*On the question being put, Shall this decree he reversed ? the members of the court voted as follows :
In the affirmative—The President, The Chief Justice, Mr. Justice Sutherland, Mr. Justice Nelson, and Senators Armstrong, Conklin, Crofsey, Edmonds, Fisk, Hubbard, Macdonald, Quackenboss, Sherman, Stow-ER, SUDAM, WeSTCOTT—16.
In the negative—Senators Deitz, Dodge, Edwards, Gere, Griffin, Halsey, Lansing, Lynde, Van Schaick—9.
Whereupon the decree of the Chancellor was reversed, except as to costs, and this Court decreed that the fund of $20,000, with the accumulations thereof, vested in the legatee, Eliza Emily, and became, on the event of her marriage with the appellant, the absolute property of the appellant, the limitations over of the fund contained in the will being contrary to law, and void ; and that the appellant was entitled to all additions to the fund by the accumulations of interest or otherwise, since the death of his wife, and that the cause be remitted to the court, of chancery, with directions that it be referred to a master, to state an account; and that the respondents be ordered to assign securities and pay over moneys, and that the costs of both parties, as well in chancery as here, be paid out of the general residue of the estate.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.