Thurber v. Chambers

Learned, P. J.: Kelsey T. Thurber, in 1850, made his will. 1st. He gave his personal estate to his wife. 2d. He gave her a life estate in his land. 3d. He gave as follows : “ At the decease of my said wife I give, devise and bequeath to my adopted son Hiram B. B. Thurber and his heirs, all the real estate of which I may die seized, so that at my wife’s death he and his heirs shall be seized thereof in fee.” 4th. He gave some small legacies, and charged them and the support of Elsie Whitney on “ the estate hereby devised to Hiram B. B. Thurber.” 5th. In case he should survive his wife, he gave all his estate, real and personal, “ to my said adopted son Hiram B. B. Thurber and his heirs,” subject to said charges. Hiram B. B. Thurber died in 1851, leaving ten children, of whom plaintiff is one. Kelsey T. Thurber died in 1857. His [725] heirs at law are the descendants of four sisters, who are parties to ■) this action. Hiram B. B. Thurber was no blood relation to Kelsey T. Thurber. The heirs at law of Kelsey T. Thurber claim that the devise to Hiram B. B. Thurber lapsed by his death before the testator. The plaintiff claims that it did not. The Special Term held that the words, “ and his heirs,” meant “ and his children; ” that they were intended to designate the ten children of Hiram B. B, Thurber, then living, and to vest an estate in them as a class with their father. And the Special Term held the devise did not lapse by the death of Hiram B. B. Thurber, but that it vested in his children, and that the heirs of the testator took nothing. There is no evidence what children of Hiram B. B. Thurber were living when the will was executed. One of his children died before the testator. Hiram B. B. Thurber was not a descendant of the testator. There is no question, then, that the devise was not prevented from lapsing by the statute. (2 R. S., [m. p.] 66, § 47; Van Beuren v. Dash, 30 N. Y., 393.) The common mode of expressing a devise,. or a grant in fee, whether it be a fee simple, or a fee in remainder, is to devise or grant to A and his heirs. It was by statute that the use of' the word “ heirs ” became unnecessary. (1 R. S., [m. p.] 748, § 1; Vanderzee v. Vanderzee, 36 N. Y., 231.) If Hiram B. B. Thurber had survived the testator, it does not seem to me that any one would have doubted that he took a fee in remainder after the widow. In the case of his thus surviving, it would have been, as I think, impossible to hold that he and his ten children took an estate in common in the remainder. It is true that in this view of the case, the words, “ and his heirs,” are surplusage. But the experience of every lawyer tells him that their use is more common than their disuse, when a fee is to be devised or conveyed. And this is especially true when the draughtsman’s experience goes back of the Revised Statutes. There are cases in which a testator has plainly used the word “ heirs ” with the meaning of children. But they are cases very different from the present. In Bundy v. Bundy (38 N. Y., 410), the devise was' to C, “ and in ease the said 0 should die without heirs,” then to certain persons. And the question was, whether the testator probably meant [726] lineal heirs, or collateral as well as lineal. And it was held that he meant lineal heirs or descendants. And the reason given was, that, in another similar clause in the will, the devise over was to the collateral heirs of the devisee; and they could not therefore have been intended by the words, “ die without heirs.” In Vannorsdall v. Van Deventer (51 Barb., 137), a testator devised “ to the legal heirs of A, deceased,” and, in a subsequent clause, “ to the heirs of Y. D.” Y. D. was living, and it was held that the devise was to his children. In Taggart v. Murray (53 N. Y., 233), the devise was to C, and at her death to pass to her heirs, and if “ she leaves no heirs,” to be disposed of by her will. It was held that heirs meant issue. It was not to be supposed that the devisee’s power over the property depended on the remote contingency of the extinction of heritable blood. This is not a case which is aided by the abolishment of the rule ■ in Shelley’s case. (1 B. S., [m. p.] 725, § 28.) It cannot be claimed that (after the life estate of the widow), a life estate was given to Hiram B. B. Thurber, and the remainder to his heirs. There is nothing to indicate this. And, indeed, the Special Term did not take that view, but held the devise to be to Hiram B. B. Thurber and his children, as tenants in common. It seems to me that such an intention, by which Hiram B. B. Thurber and each of his children were to have one twenty-second part of a farm of about 170 acres, could not have been in the mind of Kelsey T. Thurber. It would have been so strange a disposition of the land, that, if it had been adopted by him, he .would have expressed it unmistakably. But I do not think that this question is material in the disposition of this case. The property has been sold. The avails of the half of the real estate which passed by the will are only $2,282.29. It is found by the referee that the value of the support of Elsie Whitney was $3,416.43. The plaintiff supported her; and her support was a charge on the land; and, on a fair construction, it was a charge on the remainder, after the estate of the widow. I think he is equitably entitled to be paid from the avails, as a quasi assignee of Elsie. There remains nothing therefore for the appellants. [727] An important question of practice has arisen in this case. The action is for partition, and for the enforcement of the equitable claim of the plaintiff to be repaid for his support of Elsie Whitney. Partition was equally an equity, as a common-law proceeding (2 R. S., [m. p.] 329, § 93, from the Laws of 1813); and the claim to enforce the plaintiff’s lien was properly equitable. Issues therefore were triable by the court, and the parties had no right to a jury trial. (Code, 254; McCarty v. Edwards, 24 How., 236.) In this present case there were some issues, perhaps not very important, and some defendants, absentees, were in default. The proper course, therefore, as to the absent defendants, was a reference under Rules 79 and 80. As to the issues, by consent of parties, the referee was to take proof of the respective parties, and to report with his findings of fact. By reference to section 254, it will be seen, that, in equity cases, the court may order the issue, or any question of fact, to be tried by a jury. This is a practice corresponding to the old feigned issue in chancery. Or the court may refer, as provided in sections 270, 271. Section 271 provides for compulsory references, where an account is involved, and is not of general application. Section 270 provides for references by consent. Therefore, in an equity action, the court, by consent of parties, instead of the feigned issue to* be tried by a jury, may order a reference. It is a reasonable construction then, that the effect of the referee’s report in such a case — that is, where he is to report the proof with his findings,, in an equity action — should be substantially the same with that of a verdict of a jury in a similar action. What, then, was the effect of a verdict, on a feigned issue out of chancery? It was simply to assist the chancellor’s conscience. “ The jury and the verdict are things which the court may use or let alone as it sees good.” (Lansing v. Russell, 2 N. Y., 563 ; Marvin v. Marvin, 4 Keyes, 9; Armstrong v. Armstrong, 3 My. & K., 45.) In the present case, therefore, although it may not have been strictly right to “ strike out ” a part of the referee’s report, yet I think that the judge at the Special Term was authorized to form his own conclusions of fact and of law upon the evidence, using the referee’s report as only advisory. (Moore v. Metrop. Bank, 55 [728] N. Y., 41; Brinkley v. Brinkley, 56 id., 192.) And the appeal to the court comes up from the conclusions of fact and of law found by the judge at Special Term, and not from the referee’s report. The judgment should be affirmed. Present — Learned, P. J., and Boardman, J. Judgment affirmed, with costs.