Sharpsteen v. Tillou

The Chancellor. The objects which the testator seems to have contemplated, in directing that his real estate should ' be sold after the decease of his widow, have been, to a great extent, defeated by himself, by rules of law, and by events which occurred after his death. His son Edward being a [660] witness to the will, could take nothing under it; and all thq beneficial intentions of the testator towards this son, are ineffectual. If the bequest of one hundred and fifty pounds, to his son Isaac M., is considered as payable from the product of the real estate when sold, and such is the sense of the will, this contingent legacy fails ; Isaac M. having died, before the power to sell, was, or could be exerted. The intended dispositions of the money which should arise from, the sale of the real estate, are, to a great extent, impossible ; and in these circumstances, the intentions, of the testator in giving the power, are frustrated. This power to sell, can not be disjoined from the other provisions of the will.; the purposes pf the testator in giving the power, as ip other respepts, must be ascertained from all the provisions qf the instrument; and the objects of the power, must be considered in connexion with the power itself. In the case of Jackson v. Jansen, 6 John. 73, the supreme court held, that where the object of a testator in giving a power to sell, had ceased, the power, itself, also ceased. In this case I am of opinion, that by the total nullity of the will ip respect to the portions of the estate intended for. Edward, and by the failure of the legacy of two hundred and fifty pounds to Isaac M., the objects of the power had so far failed, that there was not a valid power to sell, in 1818, when a sale was made by two of the executors. The power fails, because its objects are unattainable. [659] The objects the; testator have been, to a great extent, defeated ? [660] And the intentions of the f estator, in giving the power, frustrated. The purposes of a testatator, in giving a power by his will, must he ascertained from all the provisions pf the will; and the objects of the power must be considered in connexion with the power itself. It fails when its objects are ■Unattainable. The power to sell having failed, the 5 sons do not take the land @s devisees. It is urged by the counsel of Sharpsteen, that if the power to sell failed, the five sons of the testator took the land, as devisees. But this seems not to be the sense of that clause of the will, by which the. testator gives all the. rest of his estate not before disposed of, to his five sons. The testator had before made, dispositions of all his real estate ; and his intention concerning the residue, must be understood to exclude his land. He had indeed, previously disposed of all his moveable estate ; but whether the terms, moveable estate, were used by him, to comprehend all his personal estate, or in some, sense more restricted, is uncertain. The testator in making the final bequest of the residue of all his estate, seems to. [661] have supposed that his land would be sold, and might produce a sum greater than would be sufficient to discharge the legacies; and upon that supposition, he probably meant to dispose of such an excess. But his intenlions declared by this will, are to a great extent null; and the last disposing clause of the will, seems not to be a devise in fee of his land. The land of Moses Hallock, not being devised in fee, and being subject only to the temporary charges made in the will, descended by his death, to his heirs at law. His heirs were five sons, and six children of a deceased daughter. Each of his five sons, therefore took a sixth part; and the children of his deceased daughter, took another sixth part of his land. Isaac M. Hallockdied in 1817, intestate, and without issue. His heirs were his brothers Isaiah and Peter, the children of his deceased sister, those of his deceased brother Edward, and those of his deceased brother Obadiah. The share of Isaac M. in the land of his father, thus descended in five portions; Isaiah and Peter each taking a fifth part of that share. Isaiah and Peter, as heirs of their father, each took a sixth part, and as heirs of their brother Isaac M., each of them took a fifth part of his sixth part of the land. These fractions added, and more simply expressed, are two fifths of the whole ; and the result of all these descents gave to Isaiah and Peter, the same proportion of the whole, which they would have taken, had the land descended by the death of Moses Hallock, in five shares, instead of six. Isaiah and Peter were thus, severally, owners of one fifth part of the land, on the twenty first day of May 1818, when they conveyed all their title to Sharpsteen ; and he then acquired a title to two fifths of the land in question. The conveyance from the executors being void, for want of a sufficient power; the conveyance from Isaiah and Peter being valid, to the extent of their rights, and their rights embracing two fifths of the subject; the title conveyed by Sharpsteen to Tillou, has failed, in respect to three fifth [662] parts of the land. I am accordingly of opinion, that therq jg pQerrorj jn decision of the supreme court. [661] The power becoming null, and the land not being devised, it descended to the heirs at law. Judgment below was properly for 3-5 of the consideration. Process by which this re suit was reached. [662] The Court being unanimously of this opinion, it was, thereupon ordered, adjudged and decreed, that the t£tke nothing by his writ; and that the defendant go thereof without day. And it was further ordered, adjudged and pECREED, that the defendant recover against the plaintiff his costs to be taxed, in defending the writ of error in this cause ; and that the record be remitted, &c. firmedunani” mously. '