Boyd's Heirs v. Bigham

Gibson, C. J. The widow took, by this devise, either a fee-simple or an estate for life. If a fee, she took it subject to an executory devise to the plaintiffs on the contingency of her marriage or. death without disposal of it by will. If an estate for life, the limitation to the plaintiffs is good as a contingent remainder; and it is certainly good as the one or the other. There is, perhaps, no case in which a limitation to one and his heirs has been cut down to an estate for life in furtherance of the [107] general intent gathered from the context; but there is a series of cases in which it has been reduced to a limitation in tail. From Claches’s case, Dyer, 330, b, and Fitzgerald v. Leslie, 3 Bro. P. C. 154, it has constantly been held, that engrafting it with a limitation ovei; or dying without issue, restrains the generality of the word heirs, to heirs of the body, because the testator’s plan could not else take effect. It may be alleged that, 'in those cases, the word was at least satisfied; and that nothing was rejected to give effect to the evident intent. But would it be necessary to reject the words heirs and assigns in this case? “All my estate, real and personal,” says the testator, “of what kind or nature soever the. same may.be, I give and devise the same untó my dear wife Mary, her heirs and assigns for ever, and to 'will the same to whom she pleases, on condition she remain my widow; .and in case of marriage or death without a will, I desire my estate, real and personal, to be divided into thirteen shares,, and to be -divided in the following.manner.” Now, nothing can be clearer than that he'did not-intend to give his widow power to alien in fee by a conveyance taking effect in her lifetime, and that- the conveyance of an indefeasible fee-simple to Bigham or any. one else, would, if successful, have prostrated his whole arrangement. He expressly declares that the children i shall have the estate in certain proportions, unless she shall devise it otherwisé; and the express power to transmit it by will is an implied exclusion-of a power to transmit it by deed. It was not enough to leave a will, if it were not a will operating oh the subject-matter of the will before us; that is, operating specifically on the'land, for the testator never contemplated any alteration in the quantity or nature of the estate in her lifetime. He obviously intended that she should live on the profits while- she lived a widow.; and that she should have power to discriminate between the children at her death. True, • he did not restrict her power to a division of it among them'; but he evidently-trusted--to her natural affection for that. -Such, at a glance, is seen to be the outline of his intention; and' how is' it to be filled up so as to give it entire effect?' Evidently by giving tofihe words heirs and-assigns'their popular meaning; and reading the clause as a-devise‘to the widow and her appointees. -To say nothing of the hares natus and the hares f actus, it is enough for. the interpretation of an unprofessional man’s phrase, that in popular apprehension, the terms are convertible, nothing being more corhmon than the talk, making an heir. Heir is, indeed, a technical word of limitation; but there’ are many cases in which -it has been taken to be a word of purchase to carry out the evidentjntent. For instance, Pybus v. [108] Mitford, 1 Vent. 372, in which a testator gave land to his nephew by the designation of his heir male, and directed his daughter not to “ trouble the heir.” The same principle in Baker v. Wall, 1 Ld. Raym. 185, and in Rose v. Rose, 17 Ves. 347; the words “ my heir under this will,” were held to indicate the testator’s residuary legatee. Why, then, may not the same word indicate the widow’s devisees in the will she was empowered and expected to make ? I am unable to perceive a difficulty in the way of it. Of the word assigns, we know no more than that it was held in GrafFtey v. Humpage, 1 Beav. 46, to be a word of limitation when joined to the words executors and administrators; but, as such, it cannot be more refractory than the word heirs, which we have seen submits implicitly to the power of the general intent. ® But even if the words might not be controlled, whatjs there in the case to prevent them from being rejected ? Though every word in a W'ill is to have effect when it may, it follows not that any words must have effect to subvert the testator’s whole design. From Bamfield v. Popham, 1 P. Wins. 54, to Machell v. Weeding, 8 Simon, 4, there is a well-known series of decisions, in which an express devise for life, or for life and no longer, has been enlarged to a devise of the inheritance in tail, by implication from a devise over on failure of issue. And why ? Because, as it was held in Robinson v. Robinson, 1 Burr. 38, the policy of the law forbade such a limitation to take effect consistently with the ulterior limitations; and because the general purpose of the testator is to be carried out at the expense of every particular and inconsistent purpose. The general purpose was, in this instance, to let the widow have the absolute dominion during her widowhood, with power to transmit it by will, but not to sell the estate, and perhaps to squander the price of it; or in default of á will by her, to let the children into the enjoyment of it under the father’s will. Why he introduced words of limitation in fee to invest the widow with this power, can scarcely be conjectured. Possibly because he was ignorant of the technical effect of the terms; possibly because they are often used in wills as words of course, like the words assigns in bonds, and transfers of choses in actions; but more probably because he could not conceive of a power to sell uncoupled with an interest. But whatever the purpose, it is enough that it was inconsistent with tire principal one ; and on either of the preceding grounds, it seems to me, the widow took an estate for life, with concurrent remainders in fee, to her appointees or the plaintiffs, dependent on a contingency with a double aspect; and if [109] the limitation may be sustained as such, it shall not be construed to be an executory devise. But if not a contingent remainder, it is certainly not too remote to be a good executory devise ; and has not one of the contingencies taken place, on the happening of either of which the estate was to go over to the children in the one way or in the other? The testator’s widow did not marry, but she died intestate as to this land; and it will not be pretended that it would not have gone to the children had she retained the title. But her alienee stands precisely in her place; for an executory devise cannot be defeated by the instrumentality of a conveyance, even- though it w;ere a common recovery. The widow, indeed, 'made a will, but without disposing of the land ; and "though she disposed of the price of it, that was not the subject of the testator’s will. He gave it to the. children as land, and they were entitled, if they pleased, to have it' as land. He intended that the estate should go to the children as he had it, unless his widow should otherwise dispose of it by will; and as she has not done so, the plaintiffs are entitled. - Judgment-reversed, and entered for the plaintiffs.