Lillibridge v. Adie

Upon the facts in this case several important points have arisen; and as every question, touching the nature and effect of devises of real estate, materially affects the title of purchasers, we have taken time to consider them. In no branch of the law is a more cautious examination of authorities necessary; and indeed in no branch are the principles more generally built upon artificial and technical reasoning. It is quite another consideration, whether these principles were originally the most correct or equitable, that could hav.e been adopted. It is sufficient, that they are now incorporated into the law, and cannot be separated from it without shaking the very foundations of all landed titles. We are at liberty in last wills and testaments to effectuate the intention of the testator, if by law it can be done. But in ascertaining what that intention is, the construction, which has been put upon like words, and the artificial rules, by which it is sifted and fixed in the authorities, are to be our inflexible guides, where they distinctly and pointedly apply.. We are not permitted to indulge in conjectures, however plausible, as to the private intention of the party, when the law has already pronounced its own mode of investigating and deciding it.

The first question is, what is the nature and quality of the estate taken under the devise by the daughters of the testator, Harriet and Clementina? Is it an estate tail, or a fee simple? Is it a joint tenancy, or tenancy in common? The testator, after devising a life estate in the lands in controversy to his wife, devises it, “after her decease, to his two beloved daughters, Harriet and Clementina, to them, their heirs and assigns for ever.” If the will had stopped here, there would have been no question, that the daughters took a fee simple. But the testator adds, .“but in case they should die without issue, my will is, that the same shall go to, and vest in, their two sisters, Mary and Charlotte.”

It was supposed at the argument, that the words “if they should die without issue” did not mean a general failure of issue at an indefinite period of time, but a failure at the death of the first takers, or one of them. If this be the legal import of the words, it will certainly add some weight to the argument, that they do not operate to abridge the absolute fee given by the previous clause; for then the limitation over being to take effect, if at all, upon the death of a person in esse, might clearly be good, as an executory devise. Fearne, Exec. Dev. 352; Pells v. Brown, Cro. Jac. 590; Goodtitle v. Wood, Willes, 211, and other cases cited in Lippett v. Hopkins [Case No. 8,380]; Doe v. Wetton, 2 Bos. & P. 324; Jackson v. Staats, 11 Johns. 337. If, on the other hand, these words are to be construed as referring to an indefinite failure of issue, then, unless the estate be in tail only, the limitation over will be on a contingency too remote, and consequently void. Fearne, Exec. Dev. 322; Denn v. Shenton, Cowp. 410; Chadock v. Cowley, Cro. Jac. 695; Brice v. Smith, Willes, 1; Comyn, Dig. “Devise,” S, *536and cases cited in Lippett v. Hopkins [supra]; 6 Cruise, Dig. “Devise,” c. 17, § 22, etc.; Id. e. 18, § 17, etc. The general principle to be extracted from the authorities is, that the words “dying, without issue,” in reference to freehold estates, are to be construed an indefinite failure of issue, unless there be something in the context, which manifestly confines the sense to a definite period of time. In respect to terms of years, and other personal estate, courts hare very much inclined to lay hold of any words to tie up the generality of the expression “dying without issue,” and confine it to dying without issue living at the time of the person’s decease. But in respect to freeholds, the rule has been rigidly enforced, and rarely broken in upon, unless there were strong circumstances to repel it. Fearne, Exec. Dev. 357, 361 (Butler’s Ed., 471, 476); Crooke v. De Vandes, 9 Ves. Jr. 197; Dansey v. Griffiths, 4 Maule & S. 61. The cases of Porter v. Bradley, 3 Term R. 143, and Roe v. Jeffery, 7 Term R. 589, have gone a great way; but they turn on distinctions, which though nice, clearly recognise the general rule. In the first ease, the devise was “to my son A and his heirs and assigns, and in case he should happen to die, leaving no issue behind him, then to my wife B during her widowhood, and after her decease or marriage, to my son C, his heirs and assigns for ever.” Great stress was laid upon the words “leaving no issue behind him,” and upon the circumstance of there being a life estate to B, as confining the contingency to the death of A; and the court held, that A took a fee, and that the devise over was a good executory devise. In the last case, the devise was “to my grandson A, and his heirs for ever, but in case A should depart this life and leave no issue, then the premises should return unto his granddaughters B, C, D, or the survivor or survivors of them, to be equally divided betwixt them, share and share alike.” The court held, that A took a fee, and that the executory devise over was good, the contingency being confined to a life then in esse. Great stress was laid upon the circumstance, that the granddaughters were then living, and only took estates for life. If the estates over in this last ease had been in fee, it seemed admitted, that the other words would not have pointed to any other period than an indefinite failure of issue; and consequently to support the limitation over it must have been held, that A took an estate tail only. In the case now before the court, assuming that the devise over to Mary and Charlotte was in fee, there is not the slightest circumstance, from which we can infer, that the testator intended, that it should take effect (if at all) only upon the failure of issue at the death of the first dev-isees. In this view, it falls completely within the authorities, which pronounce the limitation over to be upon a general and indefinite failure of issue. I need not recite these authorities; they are numerous, and so pointed, that it is impossible to make any solid distinction. See authorities cited; Lippett v. Hopkins [Case No. 8,380]; Fearne, Exec. Dev. 322, etc. (Butler's Ed., 444); 6 Cruise, Dig. “Devise,” c. 17, § 22, etc.; Id. c. 18, § 17; Denn v. Shenton, Cowp. 410; Tenny v. Agar, 12 East, 253; Dansey v. Griffiths, 4 Maule & S. 61. On the other hand, assuming that the devise over gave life estates only to Mary and Charlotte (a construction, which puts an end to the demandant’s claim), it does not follow, that the previous estate is at all events to be held a fee simple. That is only one circumstance, from which an intent to limit the contingency to the death of, the first devisee may be inferred;butitisnotdecisiveasto the extent of the estate previously devised; for such a contingency may as well be limited upon an estate tail as an estate in fee. Spalding v. Spalding, Cro. Car. 185, and cases cited; Lippett v. Hopkins [supra]; Fearne, Exec. Dev. 308. 398. In Porter v. Bradley, Lord Kenyon said, “If the devise had been, and in case he (A,) shall die without heirs, then over,” it would have given to A an estate tail. Yet in that ease there was. a subsequent limitation on failure of A’s issue to the testator’s widow for life. So in Webb v. Hearing, Cro. Jac. 415, the devise was “to A, my son, after the death of my wife, and if my three daughters, or either of them, do outlive their mother, and A, their brother, and his heirs, then they to enjoy the same for term of their lives;” and it was held, that A took an estate tail only. See, also, Tyte v. Willis, Cas. t. Talb, 1; Forth v. Chapman, 1 P. Wms. 663; Roe v. Scott, Fearne, Exec. Dev., note by Powell, p. 363. It may also be admitted, as is asserted by the late learned Mr. Fearne, — Fearne, Rem. 376 (Butler’s Ed., 488), — that though an execu-tory devise in tail,' or in fee, to one in esse, after a dying without issue, is void; yet that an executory devise for life to one in esse, to take place after a dying without issue, may be good; because in the latter case the future limitation being only for the life of one in esse, it must necessarily take place during that life, or not at all; and therefore the failure of issue in that case is confined to the compass of a life in being. But it by no means follows from this admission, that every such limitation over for life is to be construed an executory devise; for an estate for life may well be limited to take effect after an indefinite failure of issue, in which case it is a mere vested remainder for life, after an estate tail. Fearne, Rem. 148 (Butler's Ed., 215. etc.). What, therefore, shall be the effect of a limitation over for life to one in esse after a previous estate devised, which may be either an estate in fee, or in tail, depends upon the context and intention of the testator, to be collected from the whole will. It may be ei*537ther a regular remainder, or an executory demise, as the intention of the testator may he best answered.

Upon a full consideration of this will, I am of opinion, that Harriet and Clementina took estates tail only, and that the devise over to Mary and Charlotte is a technical remainder, either for life, or in fee, and not an executory devise. In my judgment, the testator intended the devise over to take effect upon the regular determination of the preceding estate, whenever it should happen, and not merely upon the event of its happening at the death of the first devisees. It is clearly settled, that though after a limitation to A and his heirs, a devise over to a stranger, after a dying without heirs, is void, as being too remote; yet that if such devise over be to a person, who is a relation of, and capable of being a collateral heir to, the first devisee, in that case the first devisee takes only an estate tail; because the limitations over to a collateral heir shows, that lineal heirs only could have been intended by the testator. Fearne, Exec. Dev. 350 (Butler’s Ed., 466); Porter v. Bradley, 3 Term R. 143; Parker v. Thacker, 3 Lev. 70; Brice v. Smith, Willes, 1; Morgan v. Griffiths, Cowp. 235; Preston v. Funnell, Willes, 165; Goodright v. Goodridge, Id. 370. But if in such a case the devise over be after a dying without issue, there the word “issue” clearly qualifies the meaning of the preceding word “heirs,” and will reduce the first estate to a fee-tail, whether the devise •over be to a stranger, or to a collateral heir. Denn v. Shenton, Cowp. 410; Chadock v. Cowley, Cro. Jac. 695; Brice v. Smith, Willes, 1; Comyn, Dig. ‘Devise,” note 5; Lippett v. Hopkins [supra], and eases there cited. These cases completely govern all cases, where the limitation is upon an indefinite failure of issue, and that as well, when the estate over is for life, as in fee. Porter v. Bradley, 3 Term R. 143; Webb v. Hearing, Cro. Jac. 415; Tyte v. Willis, Cas. t. Talb, 1; Forth v. Chapman, 1 P. Wms. 663; Roe v. Scott, Fearne, Exec. Dev. 363, note by Powell; Tilbury v. Barbut, 3 Atk. 617; Tenny v. Agar, 12 East, 253; Dansey v. Griffiths, 4 Maule & S. 61. In the present case, there is no intent appearing to make the words carry any other sense, than what they import at law, viz. an indefinite failure of issue. If so, then the estate in the first devisee is clearly an estate tail. This interpretation will be conclusively established, if cross remainders are to be implied between Harriet and Clementina, and the devise over is to take effect only upon the death of both of them without issue, a point, which it now becomes necessary to consider. The devise over, is, “in case they (Harriet and Clemen-tina) should die without issue, then my will is, that the same shall go to, and vest in, their two. sisters, Mary and Charlotte.” It is argued, that Harriet and Clementina take as tenants in common, and not as joint tenants; and that the devise over ought to be construed to take effect upon the death of either of them without issue, as to the moiety of the party so dying.

At common law, if the first devisees took a fee simple, the estate would clearly be a joint tenancy in fee (Co. Litt. p. 181, § 277); and if a fee tail, then they would be joint tenants for life, with several estates tail (Co. Litt. pp. 182, 184, § 283; 2 Vern. 545; Fearne, Rem. 27). But the statute of Rhode Island of 1798 (page 272, § 8) has altered the common law in this respete, and declared all such estates shall be estates in common, unless it shall be expressly declared, or shall manifestly appear to be the intention of the party, that the estate should be joint and not in common. There is no such express declaration or manifest intention in this will, and therefore it must be held, that the first devisees took as tenants in common. It does not, however, follow that the devise over is to take effect upon the death of either of the devisees without issue, as to her moiety; for the language of the testator is, “if they shall die,” not if “either of them shall die," then over to Mary and Charlotte. It is argued, that this is the necessary construction, because otherwise the estate as to one moiety might be in abeyance for fifty years, if one sister or her issue should so long survive the other sister and her issue. This supposed difficulty, however, could not occur, except upon the supposition, that the first dev-isees take in fee simple, and the limitation over is an executory devise; for if they take a fee tail only, then cross remainders in tail may well be implied between them, with a subsequent remainder to Mary and Charlotte. And I am clearly of opinion, that cross remainders in tail are to be implied between the first devisees. This construction comports with the language of the will, and the apparent intention of the testator, and stands confirmed by indisputable authorities. In Holmes v. Meynel, T. Jones, 172, Poll. 425, and T. Raym. 452, the devise was, in effect, to my two daughters. A and B, and their heirs equally to be divided betwixt them; and in case they should happen to die without issue, then to my nephew C, and his heirs male. &c. A died without issue, B surviving, and the question was. whether C was entitled to a moiety of the land; and the court held, that he was not, and that upon the words of the will an estate tail in remainder was given to B by implication. This ease is in all material respects like the present, and has been uniformly recognised as law. It is supported by a series of modern decisions, which, so far from narrowing the implication as to cross remainders, have uniformly enlarged every presumption in their favor. Wright v. Holford, Cowp. 31, 6 Brown, Parl. Cas. 156, etc.; Phipard v. Mansfield, Cowp. 797; Atherton v. Pye, 4 Term R. 710; 1 Saund. 185, note 6; Watson v. Foxon, 2 East, 36.

Upon the whole, my opinion is, that Harriet and Clementina took estates in fee tail in the demanded premises, with cross remain*538ders in tail to each in the moiety devised to the other, and an ultimate remainder in the whole to Mary and Charlotte. The only doubt, that has ever occurred to me, was upon the construction, that Mary and Charlotte took life estates only; for if they take in fee, there is nothing on which to hang a reasonable doubt; and if they took life estates only, the present demandant can have no title to recover.

Whether Mary and Charlotte took an estate of inheritance or not, it is unnecessary to decide. To pass an estate of interitance by a will, there must be express words of limitation, or words tantamount. Right v. Sidebotham, Doug. 759. Many of the devises, which have been held to pass life estates only, seem much more strongly to point to a fee than the present. Woodward v. Glasbrook, 2 Vern. 388; Pettywood v. Cook, Cro. Eliz. 52; Hawkins’ Case, 2 Leon, 129; Roe v. Holmes, 2 Wils. 80; Roe v. Jeffery, 7 Term R. 589; Foster v. Romney, 11 East, 594; Denne v. Page, Id. 603, note; Roe v. Daw, 3 Maule & S. 518; Doe v. Pearce, 1 Price, 353; Paice v. Archbishop of Canterbury, 14 Ves. 364; Hay v. Earl of Coventry, 3 Term R. 83; Doe v. Allen, 8 Term R. 497; Comyn, Dig. “Devise,” note 7; Clayton v. Clayton, 3 Bin. 470. Let judgment be entered, that the demandant take nothing by his writ.