Tennell v. Ford

By the Court. Stephens, J., delivering the owinion. 1. For the reasons given in the case of Burton vs. Black, decided during the present Term, we do not think that this will ci’eates an estate-tail in the children of the testator, and we think the limitations over in favor of the survivors are valid. 2. The only other question is, have the events happened on which those limitations are to take effect? We think that in the case of Albert, they have, and that in the case of William, whose administrator is suing, they have not. The share of each child is to go over to the survivors, if he dies before arriving at age or without issue. Albert died before arriving at age and without issue, and his share clearly goes over. Before passing from his share, I will state what goes over, and to whom it goes. He took one-fourth of the tes [710] tator’s estate on the division between the three children and the widow. That fourth goes over, and being an estate in possession, it was recoverable at his death. He also took one-third of his mother’s share, in remainder after her death. That third of another fourth being a vested remainder, goes over also, but being a remainder, cannot be recovered until it falls into possession at her death. We think the term “ survivors,” to whom it goes, includes only his surviving brother and sister, and not his mother. The language is, “ should either of my children die, etc., his share shall go to the survivorsthat is to say, to the survivors of the children. This view is corroborated by the subsequent direction that the share of the wife shall go to the children after her death, showing that what was given to her was not intended as a final disposition of the property, while the gift to the “ survivors ” is an evident finality. Now, as to William’s share: Under a strict construction of the words of the will, his share also would go over, for it is to go over if he dies before arriving at age or without issue, though not before arriving at age. But we think this is just the case where “ or ” is to be construed “ and.” When the testator said that the estate should go over if the first taker should die before arriving at age or without issue, he meant and without issue, intending that it should not go over, but should continue as he had given it, if the first taker should either arrive at age or leave issue at his death. This is the necessary construction in order to make the testator consistent with himself. The causes which he intends to have the effect of retaining the estate in the first taker, are not whimsical or irrational, but have a reason and force in them which show their scope and extent — the influence that each had on the mind of the testator, and the effect that is due to each of them. These causes are the full age of the first taker, and the existence of issue of his at his death. Why was the full age of the first taker to have any influence in retaining the estate in him? Because, at full age, he would have the judgment of a full-grown man, and the legal capacity to dispose of the property for himself. The indication from this is, that the testator intended to concede to the first taker at least some power of disposition over the property, after he should be in a situation to exercise it with judgment and effect. I make no suggestion at present as to the extent of the power. I only say [711] that the full age of the first taker could confer no quality except a capacity for disposing of the property, and that the only indication from that source is, that the testator intended to abandon to another some portion of the power of disposition. We get no light from this quarter as to the testator’s own wishes or preferences concerning the course of the property beyond the life of the first taker, but we do get light on that point from the part which is to be played by the “ issue ” of the first taker. I do not mean to say that the testator intended the issue to take any direct interest as purchasers under his will, but I do say that he wished them to have the benefit of the property. It is wholly immaterial, so far as the present purpose is concerned, whether he expected them to get that benefit directly as purchasers, or indirectly as heirs at law of the .first taker. The true point is, that here is the only place where we get an indication as to what persons were preferred by the testator after the death of the first taker, and that the indication is in favor of the issue. Why should the existence of issue be allowed to have the least influence in preventing the estate from going over ? True, the testator makes no disposition in their favor, and dodfe make a disposition in favor of the remaindermen over; but when he indicates that, so far as his own wishes go, the estate ought to be kept from going over for the sake of an uncertain benefit to the issue, rather than go over for the certain benefit of the remaindermen, he shows how strongly he preferred the issue to the remaindermen. This assures us that the testator, when he was making a disposition of his own, and not intrusting the disposition to another, did not intend to make a disposition which would put the property beyond the reach of the issue for the benefit of the remaindermen, in the very probable event of the first taker’s dying a minor. He would not hold back the estate from going over, for the benefit of the issue who could get only such of the property as might be left to them by an adult first taker with a legal capacity of alienating it, and yet, refuse to hold it back for the benefit of issue who would take from a minor ancestor without power of alienation. And yet, the testator does make just such a disposition, if he really intended what he said, that the estate should go over, if the first taker should die either before arriving at age or without issue. These words carry the estate over, if the first taker dies be [712] fore arriving at age, although he may leave issue. This is against the necessary force of the motive which the testator himself reveals to have been operating on his mind. The use of the word “or” is against the whole current of his thought, and we know, therefore, that he did not mean “or,” but did mean “ and,” which is required by the force of that current. The fact that there is in this case no issue to be cut out, is immaterial. The question is one of intention in the testator. He meant “ and ” when he said “ orthat is to say, he meant that the estate should not go over, unless the first taker should die, not only without issue, but also before arriving at age. William died without issue, but after he had arrived at age. His share, therefore, did not go over, and his administrator is entitled to recover it. Judgment reversed.