Rogers v. Ross

The Chancellor. This case has been very well argued, ■and the main question is, whether the plaintiffs are entitled to an account of the rents and profits of the real estate devised to their testator, accruing between the death of Alexander Henderson, and the arrival of the devisee to the age of twenty-three years. The words of the will of Alexander Henderson, on which the question arises, and which follow some pecuniary bequests, are these: “ I give and bequeath all the residue of my estate, both real and personal, to my son, William, Henderson, (now residing with me,) when he shall have attained the age of twenty-three years.” He attained that age, and died. His father was seised of a real estate in the county of West Chester, and the rents and profits previous to the time that the estate absolutely vested in his son, W. H., were taken by Robert Ross, the sole acting executor of the father’s will. If W. H. was the lawful heir of A. H. there would be no doubt of his right to the rents and profits, for in that case he must have been entitled to them either in the capacity of -heir or of devisee. But the defendant has questioned, and, I think, successfully questioned, his right to those intermediate profits, as heir, by showing that he was an illegitimate offspring of his father, by a woman of Bengal. The inquiry is then confined to his claim as a residuary devisee. A devise of all the rest and residue of the real estate, will pass the profits, from the testator’s death to the time of the vesting of the estate; and whoever takes the legal estate in — 398 — the mean time, will be responsible for those profits $ and they, as well as the estate itself, may be given by way of pxecutory devise. One of the earliest cases, and a leading one on the subject, is that of Stephens v. Stephens, (Cases temp. Talbot, 228.) It was a case sent to the K. B. for their opinion, and Lord Chancellor Talbot decreed according to that opinion, and expressed his satisfaction with it. The facts were simply these : S., by will, devised to his grandson A., his lands in fee, &c.; but in case his grandson A., should happen to die before he attained the age of twenty-onp, then he devised his lands to his grandson B., in fee; and if he should die as aforesaid, then he devised his lands to such other son of his daughter Mary, as should happen to attain the age of twenty-one, in fee; and for default of such issue, then he devised the same to his granddaughters by his daughter Mary; and for want of such issue, then he devised the same to his brother C.; and all the rest and residue of his estate, real and personal, he bequeathed to his son D., in fee. ,A third grandson claimed the estate as residuary devisee, and Mary, the daughter, claimed it as heir at law. The Court of K. B. held that the devise to such unborn son, &e., was good by way of executory devise, and that the subsequent limitations were, of course, good; and, if one failed, the others would take place in succession ; and if they all failed, the estate would go to C., by virtue of the last remainder, in fee. And that, with respect to the profits received since the death of the grandson A., or to be received until the estate should vest in some one person, by force of the executory devise, or go over to the remainder man, they belonged to D. by virtue of the residuary devise in the will, as an interest not before disposed of by the will. This case establishes the position, that the intermediate profits arising on an estate given by way of executory devise, will pass by a devise of all the residue of the estate. — 399 — The next important case on this point is Gibson v. Lord Montfort, or, as it is sometimes cited, Rogers v. Gibson. (1 Ves. 485. Amb. 93. S. C.) The testator devised all his estate to trustees, in trust, to pay legacies, &rc., and then, “ as for and concerning all the rest, residue, and remainder, of the real and personal estate, after provision made for the payment of the legacies, he gave to such child or children as his daughter should have lawfully begotten, &c.; if his daughter should die without such issue; then to two other persons, to be equally divided between them.” One question in the case was, concerning the disposition of the surplus rents and profits of the real estate, after satisfaction of the charges, till such time as the executory devisee came in esse ; and whether they went to the first taker of the Residue, or to the heir at law ? It was said, on behalf of the devisee, that though, generally, the intermediate profits of an estate, to take effect on a future contingency, as well as the estate itself, would descend, yet that here the testator intended to comprehend all the profits under the term residue; that as it was admitted that giving the personal estate gave the profits of it, so by mix? ing both estates, the testator showed his intent, that the intermediate profits of the real estate should go the same way. It was urged, on the other hand, in favour of the heir, that here was an omission to give the intermediate rents and pro4 for by a gift to one not in esse, nothing passed intermediately, and the estate, in the mean time, descended; that though the whole accumulating profits of the personal estate would go by the devise, by reason of the word residue, yet the same rule of construction was not applicable to the real estate; and that if ever favour was shown to an heir, it ought to be in the case of an illegitimate daughter amply provided for. Lord Hardwicke said, the question was, whether the surplus profits were included, and went by the devise of the residue, or were to be considered as part of the real estate undisposed of; — 400 — and he admitted the heir would take the intermediate profits, if not sufficiently devised. They are thrown upon the heir by the law, as Lord Talbot said, in Hopkins v. Hopkins, (Cases temp. Talbot, 44.) for want of some other person to take. It was rightly admitted, that the profits of the personal estate passed by the residuary devise. Where the residue of the personal estate is disposed of, it will always take in the intermediate profits. He said, .it was also admitted, that the testator might, by express words, dispose of the rents and profits of the real estate, accruing before the contingency happened, either to the child when born, or to the person to take when she died without issue; and the only question was, whether, by express words, or necessary implication, they were, by the will, given away from the heir, and he was of opinion that they were. The testator had plainly declared an intention to dispose of his whole estate, and it was “ pretty hard to say, that in any case, where one devises all the rest and residue, of his real estate, the heir should be enabled to claim any thing out of it; for how can he claim or take these intermediate profits?” He adverted to the case of Stephens v Stephens, as material to the construe-* tion of the words rest and residue, and as determining, that those words would take in the intermediate' profits of the real estate devised on contingency, or by way of executory devise, and which would otherwise go to the heir at law, to whom the real estate would, in the mean time, descend. ■The construction given in that case, meets, more probably, the testator’s intention, when the devise is to a person in bqing, than when to one not in esse. So, also, when both real and personal estates are comprised in the same sweeping clause, it is a strong argument against the claim of the heir, since it is admitted, that the surplus profits of the personal estate will pass by the devise. The surplus rents were, therefore, in this case, to be received by the trustees, and accumulated and laid up. — 401 — This case approaches much nearer than that of Stephens v. Stephens, to the one before me, for here the devise of the profits, as well as of the estate, passed to the executory devisee by the same residuary clause. The same construction was given to the disposition of the residue of the real and personal estate, in the case of the Duke of Bridgwater v. Egerton, (2 Ves. 122.) That was a devise of real estate to the wife during widowhood, and then to the eldest son, who should attain twenty-one years of age. The wife married during the minority of the son, and Lord Hardwicke held, that the intervening profits, or those arising between the determination of the wife’s interest and the majority of the eldest son, would fall into the residue of the real and personal estates respectively. The case of Bullock v. Stones, (2 Ves. 521.) shows, that-the testator may, by implication, as well as by express words, substitute a person to take the intermediate profits, of a real estate descending to the heir, pending the contingency of an executory devise. The testator in that case devised all his real and personal estate in trust, and after debts and legacies paid, then to the first son of A., (who was his heir at law, and under age, and had no child,) when he should attain twenty-one years, and with a direction for his proper maintenance and education. It was held, that the profits of the personal estate would accumulate and not go to the heir, and that the rents and profits of the real estate would descend to him, for where there is an executory devise, whether of a legal or trust estate, the rents and profits go to the heir, with the legal estate, in the one case, and the trust in the other. But the heir’s son, under this direction in the will, would be entitled to the benefit of the rents and profits from his birth, so far as the same were requisite for his maintenance and education. Upon the doctrine of these cases, there would seem to be no doubt, that the intermediate profits of the real estate — 402 — would go, by the general and sweeping words of the will, as well as the estate itself, to the son, W. if., upon the vesting of the executory devise at the age of twenty-three, and that they would accumulate in the mean time, in the hands of the heir, for his benefit. It is pretty evident, that the testator did not intend to leave any part of his estate undisposed of. He has coupled together the disposition of his real and personal estate ; and it is admitted in all the cases, that the profits of the personal estate go with that estate, under the word residue, to the executory devisee. This is an argument, according to Lord Hardwicke, for giving the same construction to the whole clause, and the construction presses the stronger, if the disposition, as here, be to a person in being at the time of making the will. Indeed, the case of Gibson v. Lord Montfort, would be perfectly analogous, (for there, also, was an illegitimate child who was the object of the devise,) if here had been a special trustee created to take the estate. The counsel for the defendant seemed to place reliance upon this ground, and it was said, that there is no case in which the heir necessarily taking an estate, for want of a person immediately entitled to it, has been converted into a trustee of the profits for the devisee. It was, also, said, that there must be an absolute devise of the intermediate profits depending on the contingency of an executory devise, to some person who can immediately take. But in Gibson v. Lord Montfurt, there was no such absolute and immediate devise of the profits. They were given by way of executory devise, as well as the principal estate, and, as Lord Hardwicke observed, they were to be “ received by the trustees, accumulated and laid up,” to meet the event of the vesting of the estate. And why cannot the heir be considered as a trustee, when it becomes necessary to carry the intention of the will into effect ? I presume, this Court might have appointed a receiver of those rents and profits, for the purpose of accumulation, and to abide the termination of the executory — 403 — devise. It will do it in many cases for the security of the fund, before any decision as to the right. The heir may be a trustee for those holding beneficial interests under a will. If a mortgage debt should pass, by a will of the mortgagee, without conveying the technical legal estate along with it, the heir of the mortgagee would be a mere trustee of the legal estate to the person to whom the debt was bequeathed. It is admitted, in Gibson v. Lord JHonfort, that the profits may be given, by way of executory devise, to the very per* son to whom the estate is given on the like contingency. This doctrine of accumulation is quite familiar in the practice of tire English Chancery, and was well and most elaborately discussed, in the great case of Thellusson v. Woodford. (4 Ves. 227.) It seems to be entirely settled, that the profits of an estate may lawfully, under a will, be made to accumulate, for the reasonable period allowed for an executory devise to vest. In the last case referred to, the learned Judges who were called in to assist the Lord Chancellor, seemed to agree, that an accumulation till the contingency happens, may be given to the executory devisee, who was to take the thing from whence the accumulation was to arise; and that a tendency to perpetuity was not increased by giving the intermediate profits with the subject which produces them. The value of the thing devised was enlarged, but not the time. The words of Lord Rosslyn, in that case, are deserving of notice, as they admit, that the land may descend to the heir in the intermediate period, without his being entitled to the rents and profits. “ The Court,” he observes, “ has never considered it as an essential condition affecting the validity of the devise, that the rents, and profits should attend the estate during the time it is toi go down, before the absolute property is given.” And, iivdeed, the difficulty raised by the counsel for the defendant, is not to be met with, as a suggestion, in any case in which the subject has been discussed, nor has it been assumed any where, that some person, other than the heir, must he vested — 404 — with the legal estate, to, enable the testator, to give the profits along with the estate, contingently, to the executory devisee. The testator’s intention is the only subject of in-' quiry, and when it is sufficiently ascertained, it must prevail, and be carried into effect; and-the Court would never suffer that intention to be defeated, for the want of a mere formal trustee of those profits. Whoever takes the land during the intermediate period, either as heir or devisee, takes it subject to the trust created by the will. Suppose the will had expressly declared, that the real estate was given to the son on his attaining the age of twenty-three, and that the intermediate profits of the estate were given to him on the like event, could there be any doubt in süch a case, whether the lawful purpose of the testator was to prevail ? To deny it would be to deny him the power, which seems to be every where admitted, of creating a valid executory devise of the profits of the estate. And if the intention of the testator can as well be ascertained by the words which have been used, the same conclusion must follow; and I am not able to perceive, that there is any solid foundation for the objection. It is further urged, that the heir ought to have been a party; but when it does not appear from the case, whether the testator left any lawful heir capable of inheriting; and considering that no heir has ever appeared to claim the inheritance, and that the defendant’s testator took possession ■of the estate, and received the rents and profits as the executor of A. if., or as guardian for his son, I am not disposed to listen to this objection. I shall, accordingly, decree, that the defendant account for the rents and profits of the real estate mentioned in the pleadings, with interest after one year from each period, and, also, that she generally account for the property received by her testator, as executor and guardian, subject to all just allowances; and I shall direct a reference accordingly, &c. Decree accordingly.