Chrystie v. Phyfe

The plaintiff, Mrs. Chrystie, who was the granddaughter of Thomas Mackaness, deceased, claims under a devise or gift, in her grandfather’s will, to be the owner of the house and lot known as No. 192 Fulton street, lately occupied by Duncan Phyfe, deceased. Phyfe died in possession of the premises in the year 1854, holding under a deed "in fee, containing *217full covenants, executed to him in 1815 by Mr. and Mrs. Ludlow, the father and mother of Mrs. Chrystie the claimant. The case presents a question of title merely, depending for its determination, not on any disputed fact, but on the construction to be given as matter of law to Mackaness’ will, which was made and took effect long prior to the adoption of the revised statutes, and which therefore is to be interpreted, if necessary, according to the principles of the old system. Mackaness it appears had a wife and three children, all daughters. Two of them, Mrs. Harvey and Mrs. Prowitt, had husbands; the other, Margaret, although she married afterwards Mr. Ludlow, was at the date of her father’s will a single woman. As to the two married daughters, he of course knew the circumstances of their husbands; as to the third, the unmarried one, he was left to conjecture, but entertained, it would appear, higher hopes and greater faith.

Thus situated in his family, Mackaness about fifty years ago made his will, dividing his estate into three allotments. To Mrs. Harvey, one of his married daughters, he gave his house in Front street “ during the term of her natural life,” with remainder in fee to her children, if any, and if none, to her sisters or their children; subject to the husband’s use, if surviving, “ during his natural life.” To Mrs. Prowitt, the other married daughter, in whose husband’s affairs he seems to have had a little less confidence, although he made him a trustee, he gave the income of his dwelling, brewhouse and malthouse in Barley street, “ for her own sole and separate use,” “ during the natural life of his said daughter,” with remainder in fee to her children or her sisters, as the case might be ; but with no reserved benefit in favor of her husband. These provisions, thus briefly stated, in respect of his two married daughters, are carried out with perfect clearness and with great particularity and minuteness of detail, in the first and second articles of the will. In the next he gives his homestead in Orange county, with all the horses, cattle, &c. to his wife and unmarried daughter during their joint natural lives and the life of the survivor; and if his said daughter should be the survivor, then (on her mother’s *218death) to her and “ her heirs and assigns forever ”—in other words, giving her as to the farm a conditional fee, determinable if she died before her mother.

In the 4th article, still carrying out the distinction between Margaret and the other daughters, he gives her the house now in controversy in Partition street, to her and to “ her heirs and. assigns forever,” with this qualification, however,' that' if she died “ unmarried and without leaving a child her surviving,” (as she left a child, Mrs. Chrystie, born in wedlock, this condition is of no direct importance,) then all her share of his estate, both real and personal, was to go to her sisters or their children, as the case might be. Here then again was a conditional fee, depending upon Margaret’s first having, (which could only be if she married,) and then leaving, a lawful child. Unlike her sisters, whose interest in their allotments was in every event merely for life, and could in no event be raised to a fee, her estate was in perpetuity, with full power to “ assign,” that is (for such is the legal meaning of the word “ assigns,”) to convey, either by will or deed, to whom she pleased, in fee simple, with no possibility of being reduced to a mere life estate, except in the one event of her leaving .no child. Her sisters’ children were to take in remainder as direct devisees or legatees of their grandfather; her children, if at all, as “heirs” of their mother, and of course (like heirs in any other case of ownership in fee) subject to their mother’s acts in her lifetime. All persons, whether lawyers or laymen, at all conversant with real property, understand that where a piece of land is given or conveyed to a man and his heirs, or his heirs and assigns, he may dispose of it in his lifetime or at his death, to the exclusion of his heirs, whether descendants or collaterals. The use of the term assigns by the testator in the present instance shows that he so understood the law, and that he so intended. While withholding expressly the power to sell, as to the fee, from the two married daughters, he gave it as expressly to his unmarried daughter Margaret. When therefore, as Mrs. Ludlow, she conveyed in fee to Mr. Phyfe, she did nothing but what her father contemplated and permitted; and Mr. Phyfe, on his part, incurred *219no risk of dispossession, except what resulted from the possibility that all the children of Mrs. Ludlow might die before her —a risk which he took the precaution to guard against, in some degree at least, by requiring Mr. Ludlow to execute a warranty of title. But Mrs. Ludlow, as already stated, did marry, and at her death did leave a child. Had the will, therefore, stopped at this point, there could be no question—-none at least of any serious difficulty—and no suit it is probable would have been thought of. The birth and survivorship of Margaret’s child, (now Mrs. Chrystie, one of the plaintiffs,) instead of raising up, as it has done, an adverse claim, would have been the .very means prescribed by the will for perfecting the title of Margaret’s grantee.

The 4th article, however, does not stop here. The draftsman wras a lawyer, and although not perfectly artistic in his work, he knew that thus far he had assumed that Margaret, the devisee, would live to take her father’s bounty, and that as the law then stood, if the assumption failed and she died before him, her children, even if she left any, would not take in her stead, but be excluded on the ground of its being a lapsed devise. True, the testator in such case might make a codicil; but testators are apt to forget. It was safest therefore, or was supposed to be, to anticipate such a possibility and provide for it in the will. . He had already, as we have seen, made all the provision he desired for the case of her taking the property, after him, and then dying herself, (the usual course of nature,) giving it in that case to her children, if any, through her, and as her heirs at law. He now simply adds, that if she died before him and left children living at his decease, they should take in fee that which had been intended for their mother. But the draftsman, unfortunately, in expressing this idea, tempted no. doubt by the love of more sonorous periods, used the expressions “ if my said daughter Margaret Thornton Mackaness shall die, either before or after my decease, leaving lawful issue, then I do give, devise and bequeath the part and parts, share and shares, of my real and personal asíate by this my-will given, devised and bequeathed to her, unto such child or children, &c. their heirs and assigns forever,” &c. Literally, this language, it *220must be admitted, applies to the case of Margaret’s death leaving issue, whether before or after her father’s. But so applying it, the result would be not to modify but to nullify the provisions already made; and in the very same sentence, to convert that which in a certain event he had intended to be, and which in the ordinary course of things would be, an absolute fee simple, into a mere estate for life, and which in no event could be of longer duration than life.

In the interpretation of legal instruments, as of other writings, it is our duty to reconcile them if practicable. An author, whether it be of a book or a will, is not to be presumed to intend, especially in the very same sentence, to contradict himself. This rule is well established both upon authority and common sense. If any thing in this will be clear, it seems to me, it is clear that the testator did not intend that his daughter Margaret, as the plaintiffs argue, should take a mere estate for life and nothing more. She was in some event certainly to take a fee. How then, it may be asked, are the expressions, “ either before or after my decease,” just quoted, to be reconciled 1 They are, I conceive, to a great extent surplusage; they are as much as to say, I have already, in case of my daughter Margaret’s death after -me leaving issue, given her portion to them as her “heirs and I now, in case of her death before m,e leaving issue, give it to them in like manner, as far as may be, as her substitutes, so that “ if she shall die either before or after me leaving issue,” such issue, as heirs or as substituted devisees, will take her portion ; if in the character of heirs, then subject, like other heirs, to their parent’s disposition; if as substitutes, then subject, like other immediate devisees in fee, to no disposition but their own. The primary, and as it seems to me the only, object the testator had in view in the words just quoted, was to meet the possible event of his daughter’s death before him, to prevent the lapse which in that event, as the law then stood, would otherwise have followed, and to give effect to a dictate of nature, so strong and universal, as to induce the legislature to interpose and to make a general provision in favor of issue, in all cases where the immediate object of a testator’s *221bounty, being a descendant, dies before the testator himself, but leaves issue who survive the testator. (2 R. S. 66, § 52.)

The will in question, although somewhat inartificial, was obviously drawn by a lawyer. He knew this rule of the old law, in full force when the instrument was framed. He knew that Miss Mackaness, whether she died before her father or after him, must either die childless or leave issue. .He had provided for both contingencies, whichever of them should happen after the testator’s death; giving his daughter not a life estate but an estate in fee simple, defeasible if she left no issue, and indefeasible if .she did. Why then should he provide for one of the same two contingencies again 1 Why, when he had just declared that in that precise contingency she should take an estate “ to her and her heirs and assigns forever,” why, I say, is he to be presumed to have intended that in that precise contingency, and every other, she should take, as the plaintiffs contend, an .estate 11 substantially similar” to that of her sisters; namely, for life only 1 If the provisons for all the three daughters were to be substantially similar, why were such great pains taken to distinguish them ? It is palpable that the descendants of Margaret, in some event, were to take as “ her heirswhereas, by the plaintiffs’ construction, they could take as heirs in no event. It is equally palpable that she was in some event to have the power of “ assigning” the fee; whereas, if only a life tenant, her conveyance would pass only a life estate, and that, in the language of the law, merely pour autre vie. The whole argument of the plaintiffs’ counsel proceeds upon the assumption, as stated by himself, that for each of the other daughters and their children he (the testator) made provisions substantially similar to those in regard to his daughter Margaret and her children; whereas the whole will proceeds upon the idea that the provisions in the two cases were to be substantially different. It is only necessary to read the will—the whole will, and not the mere detached parts relied on by the plaintiffs—to sustain the position that all the sisters •were not to be placed on the same footing. “ This construction (I adopt the words of the plaintiffs’ third point) agrees with *222the conclusion which any man of plain common sense would •draw from the language of the will, and which the testator undoubtedly must have supposed and intended should be drawn.” He could not have imagined—no man of common .sense could have imagined—that the words “to her and her heirs and assigns forever” would be construed as intended in no event to give a fee, and in every event to give only a life estate. He knew, of course, that his daughter Margaret must die, either with or without issue—that there was no other possible alternative in the nature of things; that therefore, if “ her heirs and assigns,” as such, were not to take if she left no issue, and were also not to take if she left issue, they were not to take in any event. And yet he had expressly given—and that in contradistinction to his other daughters—the house in question to Margaret “ and her heirs and assigns forever.” He had given her a fee of some kind. His language to that extent, whether tested by the professional or by the common understanding, is perfectly clear; while to his married daughters it is undisputed that he gave only life estates. How then can it be said, as the plaintiffs’ counsel contend, that “ it is obvious that it was the intention of the testator to put his three daughters and their respective children substantially upon the same ground ?” Is a mere life estate, with no power of appointment by deed or will, substantially the same as a fee ?' Or is an estate which certainly in some event was to go “ to the testator’s daughter and her heirs and assigns forever,” substantially the same as an estate which in no event wras to be held by the donee, or to be subject to her control, for a longer period than “during her natural life?” According to the plaintiffs’ fourth point, the devise to Margaret was “ an estate in fee simple, subject to an executory devise in fee simple to any child or children who might survive her; or, if she had no such child, subject to an executory devise to her sisters if living, or (if either of them should be ' dead, leaving a child or children then living,) to such child or children.” The answer to this position, as already stated, is that it involves the absurdity of a fee, which in no event could go to the donee’s “heirs”as such;, or to the donee’s “assigns”—afee *223unknown either to common law or common sense—a fee in direct contradiction of the ordinary as well as legal meaning of the terms which create it.

I have not gone into the technical matters which have been discussed by counsel, for the reason that assuming the views of the plaintiifs in regard to them to be correct, they do not affect the conclusion at which I have arrived, as to the intention of the testator; the guide which both parties very properly profess to follow in determining the construction to be given to his will.

In the recent case of O'Reilly v. Sempill, decided on appeal in 1855 by the court of last resort in England, the testatrix, in one codicil, gave the whole residue of her property to her cousin, “ Lady Sempill and her heirs and assigneesand by a subsequent codicil, reciting that there was no prospect of her cousin having a child, “deponed and bequeathed as her successor,” a niece named O’Reilly, “ to succeed the said Right Honorable Lady Sempill in all her (the testatrix’s) landed property, &c.” The question was, says the reporter, whether the fee given to Lady Sempill by the first codicil was cut down to a life rent by the second. Held by both courts that it was not. The lord chancellor said the case “ admitted of no reasonable doubt;” that Miss O’Reilly was merely substituted in the place of Lady Sempill’s “ heirs,” and like them would take on her death, if Lady Sempill should “ do no act to defeat the destination of the property that the devise over was “ a mere spes successionis in Miss O’Reilly, which might or might not be of much value; that it was no doubt always of some value, but did not prevent Lady Sempill from exercising all the rights of ownership with regard to the property.” Lord Brougham said he had “ no doubt as to the case, any more than his noble and learned friend.” Lord St. Leonards added that he agreed with the lord chancellor and Lord Brougham, “ and had. no doubt that the court below came to a correct conclusion.” “ The estate (by the 2d codicil) was not removed out of Lady Sempill; the fee was not cut down in that way.” What a child, had there been one, would have taken as heir, was to go to Miss O’Reilly “as the successor in the place of the child,” and “subject to *224the disposition of Lady Sempill herself.” (2 Macqueen’s Rep. 288.) The result is,. that Mrs. Ludlow took an estate in fee, defeasible by law in the event of her dying before her father, and defeasible by will in the event of her dying after him, leaving no issue. Having survived her father, and having left issue, her estate in fee both vested and became absolute in her, and as a consequence in her grantee, Mr. Phyfe.

Judgment should therefore be entered for the defendants.

Whiting, J. concurred.

I. The rule that, in the construction of wills, they are to be expounded so as to pursue "as far as possible the intention of the testator, is, in our law, universally recognized. In the language of Coke, the intention is the pole-star to guide the judges; but, it is also conceded, with equal unanimity, that this intention must be collected from the language of the instrument—not from any extraneous reports and evidence concerning it, except in the instance of a latent ambiguity; and, where it does not clearly and with reasonable certainty disclose the intention, the court must "have recourse to the rules of strict legal interpretation, and must be exclusively guided by them. The construction must not depend upon probabilities, upon the private belief, the conjectures, or the speculations of the judges, however plausible or. ingenious, or however conducive to a benignant result; but it must be derived from the instrument itself—not from a fragment, but the whole of it j so that the words may stand together, without repugnance or contrariety. Hoes the will now before us, taken as a whole, clearly and satisfactorily disclose the intention of the testator in relation to the interest devised to his daughter Margaret Thornton Mackaness, afterwards Mrs. Ludlow, so as to dispense with the necessity of conjecture or speculation ?

If it is affirmed that the employment of the technical words of inheritance, in the first clause of the article, is conclusive proof of his intention, may it not be affirmed with equal if not greater force, that the three limitations over, in language *225equally positive, disclose quite a contrary intention, with the additional advantage that they are subsequently declared 1

It is again affirmed that he distributes other real estate among his daughters, who were married, in express terms during their natural lives, while he makes use of words of inheritance only in the devise to his daughter Margaret. But, if by giving to the limitations over, in the fourth article, their full force, the same interest would be given substantially to his daughter Margaret, that he has confessedly given in other articles to his other daughters—that is a life interest—may it not be affirmed, with quite as much plausibility, that this discloses an intention to place his three daughters, and their respective children, on the same ground, and that it was nothing but the technical verbosity or the obtuseness of his lawyer, which caused any variation in the language of the will.

I confess that I cannot discover any thing in the diction or tenor of this instrument to afford me any unquestionable assurance of the intention of the testator, respecting the devise to his daughter Margaret. I may form a belief; I may surmise ; I may indulge in conjecture approximating to the truth ; but this the law, for the wisest reason, does not permit—for the same reason, indeed, that it leaves as little as possible in the administration of justice, to depend upon the caprice or mere speculation of its dispensers and interpreters. Abandoning, therefore, any attempt to ascertain the intention of the testator, independently of the strict rules of legal interpretation, we must confine ourselves, exclusively, to the light which those rules afford.

What, then, according to established rules of construction, and to the principles of the common law existing at the time of the death of the testator, was Mrs. Ludlow’s interest in the property in question ?

II. I differ from the plaintiffs’ counsel with regard to the precise nature of the limitations over. I do not think they create an executory devise. An executory devise, limited on any intervening freehold estate, must be limited on a fee, vested in a person, and to be vested in another by contingency. If the future estate is limited on a life estate, it is not an executory *226devise, but a contingent remainder. The fee in an executory devise is determinable in the first taker, and on a defeasance of the fee, or the happening of the contingency, the executory devise takes place ; but, if the contingency should not happen, the fee may become absolute in the first taker. As, where a testator devised to A. and his heirs forever, and if he should die without issue in the lifetime of B., then B. to have the lands, to him and his heirs forever. In this case A. took a vested fee simple, the limitation over to B. being good as an executory devise, to take effect on A.’s dying without issue, in the lifetime of B. There is another kind of executory devise, as where the fee does not pass at once by the devise, but until the contingency happens, descends to the heirs of the devisor. Thus a devise to the first son of A. when he shall have one, is good as an executory devise; and the inheritance, in the mean time, descends- to the heirs of the devisor. The first, however, is the only one that can be regarded as analogous to the case now before us. According to the first definition and example, it will be readily perceived, if the contingency should not happen, that is, if A. should die leaving issue, or should die without issue after the death of B,, the estate goes to the heirs of A. by descent, and not by virtue of the devise, or, to speak more technically, by purchase. The fee becomes absolute in the first taker, in the person of his heir.

How, if any effect is to be given at all to the limitations over, in the will before us, (and of course, on the theory of the plaintiffs’ counsel, effect must be given to them, else his whole argument falls,) the fee could never become absolute, under any circumstances, in the first taker or his heirs, (as heirs.) These limitations provide, in substance, that if Miss Mackaness should die unmarried, without leaving lawful issue, the estate shall go to her sisters, their heirs and assigns forever; if she should die leaving lawful issue, then to such child or children, his, her or their heirs and assigns forever ; and in case Miss Mackaness should die without lawful issue, and if at her death her sisters should not ,be living, the will provides that the estate shall go to the children of the said sisters, their heirs and assigns forever. By no possibility, therefore, by virtue of this *227devise, if these limitations are not to be totally rejected, could a fee vest in Miss Mackaness ; and, without this, without the possibility of the fee becoming absolute in the first taker, as I have shown, the limitations over cannot be legally denominated executory devises. The law is reluctant to construe any future estate to be an executory devise, that can fairly be deemed a contingent remainder. I think, therefore, the counsel for the plaintiffs mistook their ground in insisting, as the basis of. their argument, that the devise belongs to that denomination of future estates.

III. But does it necessarily follow that these limitations over are to be held as ineffectual, and as belonging to no description of future estates ? Are there no legal principles which can determine the character of this devise, in the absence of any light, which the will itself satisfactorily affords in relation to the testator’s intention 1 It is maintained by the counsel for the defendants, that by the first sentence of the fourth article of the will, Miss Mackaness was invested with an absolute and indefeasible title in fee. It gives the estate to her, “ her heirs and assigns forever.” These are clearly and undoubtedly words of absolute inheritance; and if no words of limitation over, no words of qualification or restriction followed, her title would have been indisputable, and her power of alienation would have been complete. But I think the entire fallacy of the defendants’ argument rests upon the assumption that these words are to be taken in their unqualified sense, unaffected by the subsequent provisions of the article. It is a rule of construction, that it be made upon the entire instrument, and not upon disjointed parts of it. In a deed, doubtless, if there are two clauses so totally repugnant to each other that they cannot stand together, the first shall be received and the latter rejected; but with regard to a will the rule is different; for if there are two such repugnant clauses, the’ latter shall stand. Every word of a will, not inconsistent with the general intent, ought to have effect given to it; but if two passages are totally inconsistent, the last must prevail. Indeed, ambiguous words in one passage cannot control another passage which is unequivocal. But is the lan? *228guage of the limitations over in this case equivocal ? On the contrary, it is perfectly explicit, quite as much so as that of the first passage. True, in the first passage, the testator gives and devises this property to his daughter Margaret Thornton Mackaness, “ her heirs and assigns forever but it is equally true, that he gives, devises and bequeaths the same property to his daughters Elizabeth Harvey and Mary Prowitt, “ their heirs and assigns forever,” in case his daughter Margaret should die unmarried without lawful children ; and if leaving lawful children, he gives and devises it to such children, and to make it still more certain that her heirs should not have it as her representatives, he gives and devises it to the children of his daughters Mrs. Harvey and Mrs. Prowitt, in case Margaret should die leaving no lawful children, and if at her death Mrs. Harvey and Mrs. Prowitt should be dead. So that, if it is insisted- that absolute effect must be given to the words of inheritance, without reference to what follows, it may be insisted with much greater force, that absolute effect must be given to the limitations over without reference to what goes before. It is a mistake to suppose that the mere employment of the ordinary technical words of inheritance, peremptorily and positively imparts afee, in defiance of subsequent words of qualification and limitation. (Bradstreet v. Clarke, 12 Wend. 602.) In such case, the words of inheritance require something additional, imparting a power of absolute dominion and alienation, to countervail the effect of the subsequent words. This has no doubt been required in order to show indubitably that the testator was not mechanically using words, employed technically by his legal adviser, of the full import of which he was not sufficiently aware, and of which he was not likely to be aware. We shall find this satisfactorily illustrated in Jackson ex dem. Brewster v. Bull, (10 John. 19.) B. by his will, after devising a certain lot of land to his son Moses, his heirs and assigns forever, declared as follows: “in case my son Moses should die without lawful issue, the said property, he died possessed of, I will .to my son Y. H.” There the limitation over was considered void, not however bemuse the first clause unqualifiedly imported an absolute fee, *229independently of the subsequent clause, but because the words “ died possessed of” imported an absolute power of ■ alienation, and therefore, and not otherwise, the limitation over was repugnant. The court, in their opinion, refer to the case of The Attorney General v. Hall, (Fitzg. 314,) to show that the words “ died possessed of” implied a power of alienation by the devisee; and it necessarily follows, that without these words or some similar words, the mere naked words of inheritance would not imply any such power, where there was a limitation over inconsistent with these words. The court further remark, 11 that Lord Hardwicke has given his sanction to the accuracy of that case, and to the authority of that decision, (1 Ves. 9,) and the supreme court of Massachusetts in the ease of lde v. Ide, (5 Tyng, 500,) have made a similar decision in a like case, upon the same authority. In that case, after an absolute devise of real and personal estate to the son, the will adds, that if he should die and leave no lawful heirs, what estate he shall leave to be equally divided, &c.” The limitation there was held to be repugnant and void; though it was admitted, that without that clause the words “what estate he shall leave,” itivould have been good as an executory devise.” This principle is fully recognized in the several cases arising out of the construction of Lord Sterling’s will, in the supreme court and court of errors of this state, and in the last of those eases (Jackson v. Robins, 16 John. R. 537,) in the court of errors, the chancellor, in his opinion, reviews the case of Jackson v. Bull, and the cases there referred to, clearly confirming the principles, and recognizing the distinctions which those cases advance. The case of O'Reilly v. Sempill, (2 Macqueen's R. 288,) cannot be considered analogous to a case like the present, where the words of inheritance are placed in opposition to limitations over, couched in the strict terms of the common law. That was a Scotch case, decided on principles of a jurisprudence different from ours or that of England, on appeal to the house of lords. It decides that, where by a codicil of the will of the testatrix, an estate in fee simple was constituted in A., a subsequent codicil merely saying that B. should be the successor of A. should not cut down into *230a life rent the fee simple of A. “ Merely saying that B. should he the successor of A.” is a very different thing from giving and devising the estate to B., her heirs and assigns forever, on the death of A., whether A. should die with or without issue. Besides, such a decision in the house of lords cannot be of much .importance here, if it contravenes all that has been held, as law, upon the same subject in our own courts.

While, therefore, I deny that the limitations over, in this will, create an executory devise, yet I am of opinion that Miss Mackaness, afterwards Mrs. Ludlow, took no absolute fee in the estate, notwithstanding the words of inheritance in the first clause of the article: that those words are divested, by the subsequent clauses, of their usual efficacy, and that the limitations over reduced her interest to an estate for life; and, at her death, an absolute fee vested in her daughter, Mrs Ohrystie.

With regard to the point urged by the defendants’ counsel, that the words, “ shall die leaving lawful issue,” import necessarily an indefinite continuance of issue, thus Creating an estate tail, it is clear that the gift over was not to the issue of Miss Mackaness, merely in their capacity as her inheritors, but as devisees of the testator—not as her representatives or successors, but as his beneficiaries—not as heirs, but as original devisees; for the gift was to take effect, whether his daughter should die before or after his decease, and therefore, if there wrere no other objection, the rule in £beliefs case could not apply, nor could the estate have been considered an estate tail.

I am of opinion that the judgment of the court below should be affirmed, with costs.

Judgment reversed.

Roosevelt, Clerke and Whiting, Justices.]