Tator v. Tator

By the Court, Parker, J. The legal rights of the parties to this suit depend upon the construction to be given to the second item of the will of John G. Tator deceased. The plaintiff relies upon the executory devise to himself and his brothers, Jacob and George Henry. The defendant contends, 1st. That the executory devise is void, because it was too remote, being limited on an indefinite failure of issue ; and 2dly. That Cornelius Tator took a fee by implication, by reason of his being charged with the payment of legacies. I. This will having taken effect in the year 1827, we are to apply the law as it existed before the adoption of the revised statutes. In construing wills we are bound to give effect, if practicable, to the intention of the testator; but there are some words and phrases frequently employed in such instruments, to which a fixed and certain legal interpretation has been given, that does not accord with their popular acceptation. It is to [436] be supposed, however, that the will was drawn with reference to the law as settled by the courts previous to its execution. In the will before us, it was provided that if Cornelius should die without heirs lawfully begotten, the farm in question should go to John, Jacob and George Henry, their heirs and assigns forever. This limitation would be ordinarily understood as meaning Without heirs living at the death of Cornelius ; yet it is well settled that the words used, import an indefinite failure of issue. Such is the legal construction invariably placed upon this and similar expressions, as “ dying without heirs,” “ dying without issue,” “ leaving no lawful issue,” &c. (4 Kent’s Com. 273, and cases there cited. Ellis v. Ellis, 9 East, 382. Patterson v. Ellis, 11 Wend. 259. Revisers’ Notes, 3 R. S. 2d ed. 568. Miller v. McComb, 9 Paige, 265. 26 Wend. 236.) These words, under the English decisions, would have created an estate in fee tail; but by the act of 23d February, 1786, it became a fee simple absolute. If the executory devise had been limited on the first taker’s dying without issue living at the time of his death, it would have been a definite failure of issue. An indefinite failure of issue occurs when the issue or descendants of the first taker become extinct, without reference, to any particular time or event. It may happen within one month after the death of the first taker, and it may not happen for generations. An executory devise is void when it is limited upon a contingency that will not necessarily occur within twenty-one years and nine months after a life or lives in being. (4 Kent’s Com. 271.) It is not sufficient that the event may occur within the prescribed limit. (Patterson v. Ellis, 11 Wend. 359.) It must, by its terms, happen within the time mentioned, or the executory devise will be inoperative. Notwithstanding the general and well settled rule, that the words “ without heirs lawfully begotten ” import an indefinite failure of issue, it sometimes happens that there are other expressions in the will showing that the testator intended otherwise. In this case the plaintiff’s counsel contends that the testator must have contemplated a definite failure of issue, be [437] cause the devise over is limited to persons in being. No authority can be found among all the numerous cases on this subject, to sustain such a position, though in almost every case the devise over is to persons in being. It is only where the devise over is of a life estate only, or where some charge is made upon it, payable to some person in being or his executors, that it will be regarded as explaining the words of limitation to mean a definite failure of issue. (Roe v. Jeffery, 7 Term Rep. 592.) A different rule applies where the entire estate, as in this case, is given to the executory devisee. (Barlow v. Salter, 17 Vesey, 479.) Nor do the words “ then and in such case,” aid in support of the plaintiff’s construction. (See Doe v. Ellis, 9 East, 385.) There is a great variety of cases in which the fixed legal construction belonging to the words of limitation has been controlled by other language, or other provisions, in the will. (Moffat v. Strong, 10 John. Rep. 16. Fosdick v. Cornell, 1 Id. 440. Jackson v. Blanshard, 3 Id. 292. Jackson v. Staats, 11 Id. 337. Anderson v. Jackson, 16 Id. 382, Wickes v. Lyon, 2 Cowen, 333. Patterson v. Ellis, 11 Wend. 292. Jackson v. Bellinger, 18 John. 368. Miller v. Macomber, 9 Paige, 265. 26 Wend. 236. Hill v. Hill, ante,p. 419.) But there are none available to the defendant, under the will in question. There is nothing in this will to show that the words of limitation are used in any other than their acknowledged legal sense. I think, therefore, the executory devise under which the plaintiff claims, is limited on an indefinite failure of issue, and is void. II. But I do not think Cornelius Tator took a fee by implication, upon the ground that he was charged with the payment of legacies. The general rule undoubtedly is, that where lands are devised without words of perpetuity, and in consideration thereof, the devisee is charged personally with the payment of money, he takes a fee by implication. (Harvey v. Olmsted, 1 Comstock, 483, and cases there cited.) And I think such is also the rule, where in addition to the personal charge, the legacy is made, as in this case, a lien on the lands devised. \ T~T [438] (Jackson v. Bull, 10 John Rep. 148. Spraker v. VanAlstyne, 18 Wend. 205. Barheyt v. Barheyt, 20 Id. 581.) It is only where there is no personal charge as a consideration for the devise, and the charge is exclusively on the land, that the life estate is not enlarged into a fee. |But a fee cannot be taken by implication, when the estate is particularly described in the will to be otherwise.^ (Tanner v. Livingston, 12 Wend. 83. Fox v. Phelps, 17 Id. 393, 400.) And whatever construction is given to the devise, upon the first point, I think there is nothing in this devise left to implication. The estate of the first taker is fully and particularly described. It is either a life estate, if he die without issue living at the time of his death, and the proof shows that he left no issue him surviving; or it is a fee, as I have above shown. But upon the first point I think the defence complete, and the defendant is therefore entitled to judgment- judgment for defendant.