De Wolf v. Middleton

Matteson, C. J. This is a bill for partition. By agreement of the parties a hearing was had for the purpose of obtaining a construction of the second and fifth clauses of the will of William De Wolf, formerly of Bristol, deceased ; the question involved being, what estates did the daughters of the testator take under these clauses in the lands therein described. The second clause, after devising the testator’s farm known as the Poppasquash Farm to his widow for life, proceeds as follows : £ £ after her decease I do give and devise the same real estate to my two dear daughters, Charlotte and Maria, [811] their heirs and assigns forever; provided, however, that in case my said daughters, • Charlotte and Maria, should die, leaving no surviving issue, then it is my will that the estate, on their decease, be divided among my heirs at law, according to the statutes of descents, their heirs and assigns forever ; and I do devise the same accordingly. ” The fifth clause is a devise directly to the daughters named of his Hope street estate in the same language as quoted from the second clause, except that for the words “on their decease ” the words used are “ on both of their decease.” Neither of these daughters left issue surviving at her death. Each left a will. Neither will contains any mention of either the Poppasquash Farm or the Hope Street estate, but each, after making specific bequests, devises in general terms ‘c all the rest and residue of the property and estate, real, personal and mixed, wherever situated, of which” the testatrix might die possessed, to the First Congregational Church of Bristol. It is contended in behalf of the First Congregational Church of Bristol that the effect of the provisions of the will under' consideration was to give to the daughters named aii estate in fee simple in the lands devised in accordance with the rule in Shelley’s case ; or that, in case the devise over is held not to fall within that rule, the daughters took an estate tail in the property. We do not think that the rule in Shelley’s case applies. That rule as stated by Mr. Preston in his treatise on Estates, (See 2 Bouvier’s Law Dictionary, Title Shelley’s case, rule in,) is as follows : ‘ ‘ When a person takes an estate of freehold, legal or equitable, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of the same legal or equitable quality, to his heirs, or the heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate. ” The provisions of the will before us do not conform to the rule thus stated. In the first place, the devises to the daughters are [812] in form absolute fees, after which no limitation by way of remainder can be made ; in the second place, the limitation over is not to the heirs of the daughters, but to the heirs of the testator. The mere accident that the heirs of the testator happen to be in this case the same persons as the heirs of the daughters does not affect the application of the rule. Nor do we think that the devises can be construed to have created estates tail in the daughters. If they had been simply devises in fee to the daughters, and in case they should die without issue, with remainder to the heirs of the testator, and the terms of the devises were to be strictly followed, the daughters would have taken estates in fee simple, which would have rendered the limitations over to the heirs of the testator void as remainders, under the rule that a remainder cannot be created after an estate in fee simple. The limitations over would also have been void as executory devises because they would have violated the rule against perpetuities, since they would have restricted alienation of the lands until after an indefinite failure of issue. Inasmuch, however, as in such devises, an intention would be shown by the testator to benefit the issue of the daughters, as also his own heirs, the courts, by settled rules of construction, would have restricted the estates in fee limited to the daughters to estates tail, on which the limitations over in remainder would be good ; the failure of issue being the regular limit of an estate tail ; and they would take effect under the rule that whenever a limitation can take effect as a remainder it shall never operate as an executory devise. The rule against perpetuities would at the same time be observed, because the right to bar the entail at common law by suffering a common recovery, or by a deed executed and acknowledged in the manner prescribed by Pub. Stat. R. I. cap. 172, § 3, or by will as provided by the same section of the statute, is an inseparable incident of an estate tail and the restriction on alienation would, therefore, be determinable at the option of the tenant in tail. The devises, however, are not merely in fee to the daughters, and in case they should die without issue with remainders to the heirs of the testator, as in the case we have [813] supposed, but the provisos, on which the limitations over áre to take effect, are, in case they should die leaving no surviving issue, then.....on their decease, in the one case, and on both of their decease, in the other, the estates are to be divided among the testator’s heirs, &c. It is evident from this language that the testator contemplated, - not a failure of the issue of his daughters an indefinite time after their decease, but a failure occurring at a definite time, to wit, on their decease, these words being used to fix definitely the time when the limitations over are to take effect. Though, for the reasons stated above, a devise in fee will be restricted to an estate tail by a gift over in case the devisee die without issue, unless there is something to justify a different construction, yet when there is anything in the gift, or limitation, or in the context, to rebut this construction and show that the testator meant a failure of issue at a definite period instead of an indefinite failure, it will be rejected and the limitation over will be construed as an executory devise in defeasance of a fee simple, and not as a remainder sustained by an estate tail. Swinburne, Petitioner, 16 R. I. 208; Burrough & Wife v. Foster, 6 R. I. 534; Arnold v. Brown, 7 R. I. 188; Arnold v. Buffum, 2 Mason, 208; Hill v. Chaffee, 14 N. H. 215; Wilson v. Wilson, 46 N. J. Eq. 321; Den v. Snitcher, 14 N. J. Law, 53; Langley v. Heald, 7 W. & S. 96; Pells v. Brown, Cro. Jac. 590; Doe, dem. King, v. Frost, 3 B. & Ald. 546; Coltsmann v. Coltsmann, L. R. 3 H. L. 121. We are of the opinion, therefore, that the daughters Charlotte and Maria took under the second and fifth clauses of the will of their father, William De Wolf, estates in fee defeasible on the death of the survivor of them in case they should leave no issue surviving at the death of the survivor; that Charlotte, having died without issue in 1885, her undivided half of the estates in suit passed under her will to the First Congregational Church of Bristol; that Maria, having died in December, 1890, also without issue surviving at her decease, both her estate and the estate taken by the First Congregational Church of Bristol under the will of Charlotte, [814] were defeated,, and that the lands thereupon passed to the heirs of William De Wolf under the executory devises contained in the proviso in the second and fifth clauses of his will. February 25, 1895.