Jackson ex dem. Decker v. Merrill

Thompson, J. delivered the opinion of the court, The lessors of the plaintiiF claim title to the premi -.es in question, under the will of John Decker., deceased, bear190 mg date the 14th of April, 1758. From this will, although inartificially drawn, it is clearly to be collected, that the intention of the testator was, to give to his wife the use of all his estate, real and personal, during her wi- • dowhood; after which, his three sons were to take the real estate, charged with the payment of thirty five pounds, to each of his three daughters ; his personal estate to be equally divided amongst all his children. And, that if any of his children should die before arriving at twenty-one years of age, their share should be equally divided among the survivors. Such being, as I conceive, the general object of the testator, in the disposition of his estate, this object must be carried into effect, if he has, in his will, adopted a language, which, in judgment of law, is sufficient for that purpose. From the case, it appears, that two of the sons died under age, after which one of the daughters also died under age ; another of the daughters, and the children of the third, (who is now dead,) are lessors of the plaintiff claiming under the clause in the will, relative to the. surviving children. To this claim several objections have been raised and argued. The first, and principal one is, that by the will, the real estate is not devised in fee to any person. According to the settled construction of wills, those technical words are not required in a devise, which, in a deed, are deemed absolutely necessary. The intention of the testator is to be carried into effect, if sufficiently declared, however defective the language maybe. Words of inheritance are not necessary, in order to convey a fee. An estate will pass by mere implication, without any express words 16 direct its course. As, when a man devises land to his heir at law, after the death of his wife. Here, though no estate is given to the wife, in express terms, yet she shall have an estate for life, by implication. (2 Black. Comm. 381.) So, in the will before us, the de [191] vise to the sons is, “ I will and require, that my three sons shall pay, out of my fast estate, when it shall fall into their hands.f certain sums to his daughters. This, when explained by the clause which gives all his estate to his wife, during her widowhood, shows conclusively, that the intention of the testator was, that upon the death or marriage of his widow, the real estate should go to his three sons. Although there are no technical words of inheritance used, yet such language is adopted, as has been repeatedly adjudged sufficient to convey an estate in fee. When the introductory clause prefixed to a devise of real estate, shows that the testator intended to part with his whole interest, the subsequent words will, if possible, be construed so as to pass an estate in fee, to prevent an intestacy, as to any part of his property. (3 Burr. 1618. 6 Cruise’s Dig. 244.) The testator here, begins his will in these words : “ And now, for settling my temporal estate, and such goods and chattels, &c. I do order, give, and dispose, in the manner following,” clearly showing an intention to dispose, of his whole interest in all his estate. He then, by implication, devises to his three sons, his fast estate. The word estate, signifies such an interest as the tenant has in the land; so that if a man grant all his estate in a piece of land to A. and his heirs, every thing which he possibly can grant, will pass thereby. (Co. Litt. 345. 6 Cruise’s Dig. 244.) And it has been long since established, by analogy, from this principle, that in a will, the words, all my estate, pass a fee-simple. A devise of all one’s real estate, says Lord Holt, comprehends, not only the thing itself, but the interest in it. The primary signification of the word estate, refers rather to the interest than the subject ; and in all cases, both at law and in equity, when the question has arisen, it has been held, that the word estate, in a will, was sufficient to convey a fee. (1 Salk. 276. 2 P. Wms. 524. and cases cited in the note. 6 Cruise s Dig. 250. 2 Term Rep. 658.) [192] But the charge upon the real estate, of thirty-five' pounds,1 to be paid to each of the daughters, puts the question beyond a doubt. For it is a rule well settled in the construction of wills, that if a person devises lands to another, with directions that the de-.visee shall pay a gross sum out of it, the devisee shall take an estate in fee, without any other words, though the sum to be paid, should not amount, even to a year’s rent of the land. This construction is founded on the principle, that a devise of land shall, in all cases, be intended for the benefit of the devisee; and if a devisee,, in cases of this kind, was only to take an estate for life, he might die before he had received from the land the gross sum he had paid, and so be a loser by the devise. (Co. Litt. 9. b. 2 Black. Comm. 108. note 4. by Christian. 6 Cruise’s Dig. 253, 254.) Lord Mansfield (3 Burr. 1623.) says, let the sum charged upon the devise be ever so small, it shall give a fee, but if it be made payable out of the annual profits, it is otherwise. Lord Kenyon, in the case of Moor v. Miller, (5 Term Rep. 561.) although he seems to regret the liberality with which wills have been construed, in order to further the intention of the testator, recognises the same rule, in its fullest extent. Fie says, where a devisee is directed to pay an annual rent-charge, or a solid sum to another person, out of the estate devised, it has been properly decided, that the devisee should take a fee, because he might be a loser, unless the estate in his hands were, at all events, sufficient to enable him to bear those charges ; and he admits, that where the word estate occurs in a will, that, ex vi termini, it passes a fee. This payment of the legacy to the daughters, being postponed until the death of the widow, can make no difference. No such distinction is to be found in any of the cases. It is the charge, and not'the payment, which is looked to, for the purpose of discovering the intention of the testator. The payment. [193] is not made a condition precedent, nor did the postponement of the time of payment alter the nature of the estate, or prevent its x/esting in the sons. They took it, subject to this charge. If an estate in fee is devised to the sons, there can ' be no doubt, but the devise over to the surviving children, is a good executory devise. The case of Gulliver v. Wicket, (1 Wils. 106.) is somewhat analogous, though much stronger than the one before us. The devise over, which was there held good, was after a contingent remainder. The testator devised lands to his wife for life, and after her death, to such child as she was then supposed to be pregnant with, and to the heirs of such child for ever; provided, that if such child should die before the age of twenty-one years, leaving no issue of its body, the reversion should go to another. Lord Ch. Justice Lee held, that this was a good devise to the wife, with a contingent remainder to the child in fee, and a devise over, which was as an executory devise ; and if the contingency of a child never happened, then the last devise was to take effect upon the death of the wife. So, in this case, the devise is to the wife during her widowhood, with a remainder in fee to the sons, provided they arrived to full age, and on that event not happening, then a devise over to the surviving children. (6 Cruise's Dig. 443.) It is said, however, that the testator, by the term chil~ dren, as used in the will, intended his, sons only, so that the daughters are not included among the executory devisees. I see nothing in the will to warrant this construction. The term is general, applying as well to the daughters as sons. If any of my children die before they shall come of age, their part shall be equally divided among the rest.” This clause follows immediately after the provision for the daughters, and it would be a forced and unnatural construction, to apply it to the sons only. It was argued by the defendant’s counsel, in aid of this construction, that the testator, by the term children, in [194] tended the sons only, in that part of the will which says, “ after it shall fall to my children.” This I apprehend to be a mistake ; children, there applies to the sons and daughters, having reference to the time when they were to come to the possession of his estate, personal as well as real. It immediately follows the devise to his wife, of his whole estate, during her widowhood. Nor can there be any doubt but that the devise over conveys an estate in fee. The terms, their part, necessarily refer t® the estate, or interest before devised, and the ulterior devise was clearly intended to be as extensive as the antecedent devise. We are, therefore, of opinion, that the lessors of the plaintiff are entitled to recover, as executory devisees, their proportion of the premises in question, according t® the distribution in the will. Judgment for the plaintiff accordingly.