Heard v. Horton

By the Court, Beardsley, J. The devisee, Jonathan Horton, took a fee by implication, under his father’s will, being thereby charged personally with the payment of debts and a legacy, in respect to the land devised. (Spraker v. Van Alstyne, 18 Wend. 200, and cases there referred to.) The devise over fo “the heirs of John B. Horton,” Avas upon the contingency that Jonathan, the first devisee, “ should die Avithout issue at his decease.” This was a good executory devise. These words do not import an indefinite failure of issue, but a failure at the death of the first taker. Such a limitation is not aa ithin the rule against perpetuities. If the devise is ever to take t ffect, it will do so at the expiration of the life of the first devisee, and the estate is certain to vest somewhere, abso [168] lutely, at that time. It can only be necessary to state this principle; it is too well settled to admit of discussion. (4 Kent, 271— 281, where the authorities are collected.) At the death of Jonathan Horton, the first devisee, his brother, John Budd Horton, was living. Jonathan left no issue at his decease. Upon the words of the will, therefore, the land was to “be equally divided 'amongst the heirs of John Budd Horton.” But he, John B., was then living, and, in strictness, no one can be heir to another person until bis decease—nemo est homes viventis. One may, however, lake as a purchaser, by the description of heir, "while his ancestor is living, and this often occurs in devises. In construing devises, the intention and object of the devisor are mainly to be regarded; and any words or description- which denote the devisee with reasonable certainty, are sufficient. A general devise to the heirs of A. who is a living person, but not referred to as such, would be void; for while A. lives, no one can be his heir. But a devise to the heirs oí A. who is stated in the, will to be now living, would indicate with sufficient certainty the persons intended. This designation would plainly refer to such persons as were at the time heirs apparent, to A.—those who would be his heirs if he should then die. A devise to the heirs male of the body of B. now living, was held by the king’s bench to be a full description of the son of B., who was then alive, and it was adjudged that the estate vested in him, although his father was also alive; the words now living being a sufficient designation of the person who was to take under the will. (James v. Richardson, 1 Ventr. 334; T. Jones, 97; 3 Keb. 832; Pollex. 457; 2 Lev. 232, S. C.) ' This judgment was reversed in the exchequer chamber; (T. Raym. 330;) but the judgment of reversal was reversed in the house of lords, and that of the king’s bench affirmed. (1 Eq. Cas. Abr. 214; Burchett v. Durdant, 2 Ventr. 311; Pollex. 457 ; 1 P. Wms. 233.) Where the will recognizes the ancestor as living, and makes • a devise to his heir, eo nomine, this shows that the term was [169] not used in its strictest sense, but as meaning the heir apparent of the ancestor named. The case of Goodright v. White, (2 Wm. Black. 1010,) was such a case, and was decided on that principle. The testator made separate bequests in his will to his son Richard Brooking, and his daughter Margaret White ; then folio avs a devise of certain real estate to said R. B. and his heirs male, and to the heirs of the daughter Margaret. De Grey, chief justice, said, “ The question is, whether here is a sufficient designation of the person, to make the son of Margaret take as her heir, living the mother.” And he adds, “ the intention of the testator is clear that the same fávor should be extended to the heirs of Margaret, as to the heirs of the body of Richard. . He took notice that his daughter xvas living, by leaving her a term, and a subsequent annuity: and meant a present interest should vest in her heir, that is her heir apparent, during her life.” Darbison v. Beaumont, (1 P. Wms. 229,) affirms the same principle. This case was first decided in the • court of exchequer, which judgment Avas afterwards affirmed in the house of lords. The grounds of affirmance are stated at p. 232, amongst Avhich are these: “ That the word heir had, in law, several significations; in the strictest, it signified one who had succeeded to a dead ancestor; but in a more general sense, it signified an heir apparent, which supposed the ancestor to be living.” • That the testator, by his will, took notice that “ the ancestor was living at that.time, and gave her a legacy, and therefore could not intend that the first son should take strictly as heir, which was impossible if she was living, but as heir apparent he might'.” And “ that by this construction, every part of the will Avould stand and be consistent: arid the word heir would be also taken in a sense that the law allowed of.” (Cruise’s Dig. Devise, ch. 10, § 31; Ram on Wills, 51, 53; 1 Pow. on Dev. 309 to 318 ; 2 id. 599, note ; Bac. Abr. Heir and Ancestor, (B.); Loveday v. Hopkins, Ambler, 273; Bouv. Law Dic. Heir ; Doe v. Perratt, 5 Barn. & Cress. 48.) The Avill, in the present case, recognized John Budd Horton [170] as a person then in life, thereby showing that the designation of his heirs as devisees, could not mean those who were strictly such. Understood in that sense, the will would be absurd and contradictory. It would contain a devise to persons as having already succeeded to a deceased ancestor as his heirs, while the same will asserted that the ancestor was still in life, and contained a devise to him. Such an absurdity should be avoided. A more reasonable construction should be put upon the words used by the testator; one which avoids what is absurd and gives effect to the will. The words “ heirs of John Budd Horton,” may well be understood as meaning his children. In common language, children are so called in the lifetime of their father, and they are his heirs apparent. This construction gives effect to the devise, and, I cannot doubt, is according to what the. testator really intended. A new trial should be denied. New trial denied.