McCullough v. Fenton

The opinion of the court was delivered, July 7th 1870, by Sharswood, J. “Wills, and the construction of them,” said Lord Coke, “ do more perplex a man than any other learning; and to make a certain construction of them, this exoedit jurisprudents artem2 Bulstr. 130; Lord Mansfield remarked once of a will before him: “ It is plain that the testatrix at the time of making her will had legal assistance, but it was such assistance as served only to confound, by making her use all the drag-net words of conveyancing without knowing the force of them:" Doe v. Fyldes, Cowp. 834. Every judge and lawyer of experience when called on to interpret such wills, has felt, if he has not given utterance to the wish, that the testator had been allowed to express his meaning in his own simple inartificial language without any attempt to employ legal and technical phrases. Had that been done in the will before us, it is more than probable that there would have been no difficulty or complication in it. It is our duty, however, to ascertain from the words in connection with the circumstances surrounding the testator what was his intention; for, when ascertained, that is to be carried into effect if it does not violate some established rule of policy or law. Though admitting this to be the first and cardinal canon of interpretation, we often lose sight of it in the vain endeavor to follow and conform to the decisions upon other wills where the language is similar. This is certainly a very laudable object; but we must not attain it at the expense of frustrating the lawful intention of the testator in the particular case. Nullum simile quatuor pedibus currit. No two wills are ever exactly alike; and we run no risk of introducing any novel precedent; for there is no construction, which may not be referred to some category, and will not have many fellows in company to keep it in countenance. We may mistake in the application of a principle; but that is not of much importance when the real justice of the cause between the parties is reached, because the decision can never be a precedent unless a case occur in which exactly the same words are used under the same surrounding circumstances; a contingency which may be styled potentia remotissima, and therefore not worthy to be regarded. The learned judge below was undoubtedly right in holding that under the will of John Carson, his sons John and Elijah took a' — 425 — fee simple. It was defeasible indeed upon the death of both or either without lawful issue before Elijah arrived at the age of twenty-two, at which time they were to have full possession and not sooner. The contingency was so clearly confined to that fixed period by the words of the will as to place it beyond any question. “ All my real estate” were of themselves enough to convey the fee without the word heirs; in addition to which were the circumstances that they were to pay sums in gross, and were authorized either to sell or divide, which necessarily implied a fee. Nor can it be a question that the words by which upon the death without issue of John or Elijah before coming to the possession of the land, the share of either was to be divided, equally between Hannah, Priscilla and Martha, and the survivor of the sons, conveyed to them the fee. “ Their respective shares” are shares of the estate before devised, which as we have seen was a fée. We have therefore upon the limitations .of the will thus far without serious difficulty, in the event which occurred, namely the death of Elijah before he arrived at the age of twenty-two, a vested estate in fee simple in John, Hannah, Priscilla and Martha. Then follows the clause which creates the difficulty and gives rise to this controversy: “ And further I order and direct, if any of my daughters, to wit: Hannah, Priscilla or Martha, should die without lawful issue or not being married, that then their share or shares should go to their next of kin in equal degree of the full blood.” When was this death without lawful issue or not being married in the contemplation of the testator to take place ? It seems to have been assumed below on both sides that it meant-either an indefinite failure of issue or a failure of issue liying at the death of either of the daughters, whenever that might occur. In the former case - the legal effect, according to numerous authorities to avoid the result, that as an executory devise it would be void for remoteness, is to reduce the estate of the first taker to an estate tail, with a vested remainder to the next of kin. I say a vested remainder because though a man can have no heirs while he is alive, as his heirs cannot be ascertained until his death, and therefore such a remainder is necessarily contingent, yet it is not so as to a gift or remainder to the next of kin; who are always capable of ascertainment during his life. Supposing this then to have been the true construction, the remainder as‘to Martha’s share was a vested remainder in Priscilla, and as to Hannah’s a vested remainder in John, Elijah and Ruth. These remainders were in fee; for here again the word ‘ share or shares’ carried the estate in fee before given to the next of kin. This seems to have been lost sight of upon the construction adopted in the court below; for John’s remainder upon Hannah’s estate being a vested remainder in fee, certainly passed by his deed to John Dunbar, May 16th 1818. In the view we take of the case, however, this is now immaterial. It — 426 — must be admitted that there is nothing in the words employed to take the case out of the operation of the rule as settled in Eichelberger v. Barnitz, 9 Watts 447, Vaughan v. Dickes, 8 Harris 509, and Matlack v. Roberts, 4 P. F. Smith 148, so as to make the dying without issue to mean a definite failure of issue living at the death of either of the daughters, whenever that should take place. As between these two constructions therefore the learned judge below was perfectly right in adopting the former one. But there is another construction which was not suggested to him, and which,as it appears to us, fulfils more perfectly the real intention of the testator than either of these. It is to be observed, that if Elijah had attained twenty-two or left lawful issue, his fee first given would have been absolute and indefeasible. His brothers and sisters would have had no interest in his moiety. The limitation to them was not a remainder, but an alternative or substituted fee, to take effect upon the contingency of his death without issue before that period. It seems equally plain that the devise to the next of kin of the full blood of the daughters in the event of their death “ without lawful issue or being married,” was in like manner an alternative or substituted limitation to vest only in case the first limitation in fee did not take effect. The whole is one simple and entire disposition, referred to the event of the death and failure of issue of Elijah at a fixed, definite period; and there is no reason for distinguishing the one substitution from the other, but many against it. We have seen that the limitation to the next of kin of the full blood is unquestionably in fee. If the construction which reduces the estate of the daughters to an estate tail be adopted, then we have the original shares in tail, and the accrued shares in fee; an anomaly which has been considered as inadmissible, and not within any reasonable construction of the intention. “Besides,” says Mr. Justice Bell, “ that construction would make defeasible the original shares first taken under the will, while those which might accrue by the clause of survivorship would vest absolutely: a consequence certainly never contemplated:" Caldwell v. Skilton, 1 Harris 155. On the death of Martha, then, her share would vest in Priscilla in fee, while her own original share she would have held according to this construction in tail. John’s original moiety was undoubtedly in fee; his fourth part of Elijah’s moiety was also in fee, and so was his share of Hannah’s interest upon her death as her next of kin of the whole blood, while Hannah’s own original share would have been in tail. What was the effect, or rather the want of effect, of the words “or not being married,” is settled, I agree, in Vaughan v. Dickes, 8 Harris 509, and Matlack v. Roberts, 4 P. F. Smith 148, though for myself I concur in the doubt expressed by my brother Agnew in the latter case, if the question were res integra. We must consider that these words will — 427 — not make the failure of issue definite. In that view the sentence is to be disencumbered of the marriage condition. If there was no marriage there could be no lawful issue, and as to the interest of husband and wife, it mattered not; for there is dower and curtesy of an estate tail as well as of a fee simple. But the rule is an established one to give effect to every word, when it can be done, and these words ought not to be rejected if they indicate that the intention of the testator was not an indefinite failure of issue or an estate tail, but a substituted or alternative fee. Now in this latter view they are important and very significant. If Hannah had died before Elijah, “being married,” she would have left a husband, and it was not the intention of the testator to deprive him of his curtesy, or to deny to Hannah in that event the power to provide for him by will. These words were necessary in that case, though they would have been insignificant and useless had an indefinite failure of issue been contemplated. In Doe d. Everett v. Cooke, 7 East 269, the bequest was to B. and his assigns, and after his death then to his child or children by any future wife, but in case B. should die “ an infant, unmarried and without issue,” then over'to C. and his children. B. attained majority, and died leaving a widow, hut without issue: it was held that the gift over failed. Lord Ellenborough said: “ Had he left a wife and had died an infant and no children, the testator might have intended that in such event the widow should be benefited by taking her share under the Statute of Distribution with the next of kin, or that B. should be able to make a testamentary disposition in her favor; meaning also that if he left children, they should have the estate in preference to the wife; and that if he left neither wife nor children at his death during his minority, C. and his children should have the estate; but that if he arrived at the age of twenty-one he should have power to dispose of it, though he left neither wife nor children.” So in the case of Doe d. Baldwin v. Rawding, 2 B. & Ald. 441, where a testator devised his lands to his daughter, and any other children he might leave, and to her or their heirs and assigns for ever; but in case his daughter and such other children as aforesaid should die under the age of twenty-one years, unmarried and without lawful issue, then to his wife in fee. The daughter died under age and without issue, but leaving a husband surviving; and it was held on the authority of the last ease, that the devise over failed, the word “unmarried” being construed “not having a husband at the time of her decease,” by which effect was given to all branches of the contingency. These words show, then, that the testator had reference to a definite, fixed period of time; and that could only have been the event of the death of a daughter before taking her substituted estate upon the death of one or both his sons before Elijah arrived at twenty-two. — 428 — Nor are we without -authority for thus holding. Indeed since Caldwell v. Skilton, 1 Harris 152 a (case which in all the conflict of opinions on this subject has never been denied or doubted, but on the contrary expressly approved in Jessup v. Smuck, 4 Harris 340), I think it may be laid down as a general rule, almost without an exception, that where an absolute estate in fee simple is first limited, and then upon the happening of some contingency another fee is substituted for it, a clause providing for the death of the substituted devisees or their death without issue, means only a further substitution to take effect at the period when the first substitution fails. I regard the case of Caldwell v. Skilton as identical with this ease in the material provisions of the will, and an authority in point for the construction which I have sought to establish. There the testator gave to his wife all his estate real and personal during widowhood, after her decease or marriage whichever might first happen, to his children nominatim, their heirs and assigns for ever, as tenants in common. “And in case of the death of either of my said children, his or her share or purpart to descend to the children of said child, or if said child should die without issue born alive, then the said share to be divided among and be enjoyed by my children, their heirs and assigns for ever, share and share alike-as tenants in common.” Here was first a limitation in fee to the children on the death or marriage of the wife, then in case of the death of a child, a substituted fee to his or her children — with another substitution in case there should be no issue born alive — to the survivors in fee. It was held that the death of a child without issue had exclusive reference to the period of the death or marriage of the widow, and that the children took estates in fee simple. “ Congruity requires,” says Mr. Justice Bell, “that the chance of survivorship among the-children of the testator, and the possible event upon which the limitation over to their children might take effect, should be referred to the same determinate period; or, in other words, to let in the survivors on the death of any of their brothers or sisters without issue, the contingency must happen within the same definite time, when according to the settled rules of construction, the contingency implied from the words ‘ in case of the death of any of my children,’ must occur to give place for the substitution of the grandchildren.” Then, after quoting largely from Mr. Powell’s Essay on Devises, he adds as the generalization derived from the discussion: “ I have said that to harmonize this will and to give consistency to all its parts, we must refer the possible consummation of the second contingency as creative of an estate in the survivors to the same limit. Such a construction is not only called for by reasons springing from this particular testamentary instrument, but is justified by authoritative precedent. Now the ultimate gift to the survivors is made to depend upon an actual contingency. Where, say the — 429 — determinations, this is the case and there is nothing in the will to show the contingency of dying without children was meant to operate without limit during the life of the first taker, it is, as in the other instance, restricted to the death of the testator or within a given period after his decease. Where the gift is immediate, the contingency is held determined by the first named event; where there is an intermediate estate, time may be given for the happening of the possibility during the running of the precedent interest. Examples and illustrations of this rule are afforded by Doe d. Lifford v. Sparrow, 13 East 359, which was a devise of realty: Jenour v. Jenour, 10 Ves. 562, and Grillard v. Leonard, 1 Swanst. 161, all of which are very like the instance in hand.” To which may be added Shutt v. Rambo, 7 P. F. Smith 149. A testator devised to his daughter a farm “ in fee,” and gave other real estate in fee to other children: “ should any of my children die without heirs, then the property hereby bequeathed to them shall revert to my estate.” It was held that the word “ heirs” evidently meant “issue” — and though in consequence of the Act of April 27th 1855, Pamph. L. 368, it mattered not whether it was construed to be an estate tail or a fee — yet the evident preference of Chief Justice Thompson in the ppinion pronounced was to the construction which referred the dying without issue to the death of any of the devisees in the lifetime of the testator. He refers to Schoonmaker v. Stockton’s Adm., 1 Wright 461, where under a similar limitation in case of a child dying unmarried or without issue, Chief Justice Lowrie said: “we suppose it was intended not to reduce or defeat any estate vested in enjoyment under the will, but to dispose of any that might fail to become thus vested hy the death of a child before the testator or perhaps before actual distribution.” And see Umstead & Reiff’s Appeal, 10 P. F. Smith 365. Under this interpretation of the will of John Carson, on the death of Elijah without issue before arriving at the age of twenty-two, his moiety of the estate vested in John, Hannah, Priscilla and Martha in fee simple. Upon the death of Martha her share vested under the intestate laws in her sister of the whole blood, Priscilla. The deed of partition and release of May 9th 1815, by Hannah and Priscilla conveyed their entire estate to John Carson, Jr., in fee which by deed May 16th 1818, he conveyed to John Dunbar in fee, from whom the title was regularly reduced to James McCullough, the defendant below,who was therefore entitled to the verdict. Judgment reversed.