Sager v. Galloway

Mr. Justice Trttnkey delivered the opinion of the Court, Cobham Park is the subject of ten devises, the first contingent on the birth and living to a certain age of a son of Georgena Catharine Cobham, and each of the others, on the failure of the preceding devise or devises, and of the being of a person therein described. In the same paragraph the testator declares: “In all which devises above named to the sons of my before named daughters and son Henry, and to my said nephew and niece, it is my meaning and intention that if a son, he shall take the same when ho arrives at the age of twenty-one years, and if lie dies before that age, the devise passes to the son of the next daughter, and so on as before specified. And if a daughter upon trust, that my said trustees shall have the same settled upon such daughter of any of my before named daughters, or of the said floury Cobham, or of my said niece, who may become entitled thereto by a settlement on her marriage, so that she cannot be deprived of the same, and to her heirs and assigns.” By the terms of the will when the devisee becomes entitled to take at all, he takes the fee. He shall not possess the property, or enjoy the rents and income, until after the decease of the testator’s son and daughters, to whom is given the use and income for life. If they die before he arrives at the age of twenty-one years, he shall neither possess the property, nor enjoy the income, till after that age. Should he die before that age, the devise shall pass to another person. Plainly the devise operates in favor of a described person, his heirs and assigns. It is equally plain that no son of any of the testator’s daughters, can possess or enjoy the property in his minority ; nor would the estate descend to the heirs of a son who should die before liis majority, and it is immaterial whether be were married and left children surviving. How can the meaning of the testator be doubtful? The property is devised to a person in fee when he is twenty-one years of age; and [508] any person under that age, though answering the description in all other respects, can take nothing, and no person can take through or under him. It is apparent that the testator employed apt words to express his intention. While not of great importance, it is noticeable that in the clause declaring his intention, “in all which devises,” he refers to the giving, not to the property devised. The devises, acts of giving, are numerous, the property given is the same in each. He means that a son shall take the devise.“ when he arrives at the age of twenty-one years, and if he dies before that age, the devise passes to the son ” of Ills next daughter. “Devises are.governed by the intention of the testator:-” Kerlin v. Bull, 1 Dali., 189. His intention is to be ascertained from his words in the will; and the circumstances may aid in determining their meaning. At the date of the will, or of the testator’s death, no living person was the object of the devise in fee of Cobham Park. He had no special affection or personal regard for the unborn son. or daughter of one of ten persons who might answer the description and take the estate. The first object of his bounty is a son, who shall have lived a certain number of years, of his oldest daughter. Expressly, if the son dies before the end of that time, the devise passes to the next person designated, and so on until it reaches the oldest son or daughter of his niece, who, at any age, may take the estate in fee. Instead of devising Cobham Park to a grandson, if one should be born, to take possession at a certain age if the life estate should then be ended, he devises to such grandson when he arrives at that age; and if there be no grandchild, as described, the devise passes to a child of his niece. This indicates an intention that the devise should be contingent on the son arriving at the age designated. The query of Lord Mansfield in Goodtitle v. Whitby, namely, if the object of the testator’s bounty, having married, dies before his age of twenty-one, leaving children, could the testator in such event intend to disinherit them, has no point where the testator, in case of death before that age, in plain terms devises the land to another person. That the fee vests in a grandson when he arrives at the age of twenty-one years, though the life estate in the children may not have ended, and he can have no enjoyment during the existence of such life estate, by the very words of the will, indicates an intention that the remainder should not vest before. “ It is a well known rule that a limitation shall, if possible, be construed to be a remainder rather than an executoi'y devise.” And the counsel of the respective parties have treated this devise as creating a remainder. [509] The law favors tbe vesting of estates; and where there is doubt as to the point of time at which it was intended the estate should vest, the earliest will be taken. When a testator creates a particular estate, and disposes of the ulterior interest, especially in an event which will determine the prior estate, the words descriptive of such event, occurring in the later devise, will be construed as referring merely to the period of the determination of the possession or enjoyment under the prior gift. This was the controlling principle in Kerlin v. Bull, supra, and in a number of other cases cited at the argument. In some instances, words seemingly creative of a future interest, have been construed as referring to futurity of possession, occasioned by the carving out of a prior interest, and as pointing to the determination of that interest, when the terms import contingency, and would, unconnected with and unexplained by the prior gift, clearly postpone the vesting: 1 Jarman on Wills, 805. Boraston’s Case, 3 Bep., 19, is cited as a leading authority for this construction. In that case, and others following in its wake, the construction was deemed in accord with the testator’s intention, evidenced by the prior gift. By all authority, “a devise to A., if or when he shall attain the age of twenty-one years, standing isolated and detached from the context, would confer a, contingent interest only.” When the context fails to explain the words creative of a future interest as referring to futurity of possession, the devise must be construed as if isolated. The recent case of McArthur v. Scott, 113 U. S. R., 340, is unlike the present. In that case the whole will was considered in order to ascertain the intention of the testator. It is said that the terms in which the testator expressed his intention, point to a vesting of the remainder, some of which are referred to; among them, the provision that any mortgage, or pledge, or assignment by any grandchild shall be void. There was no need of this provision unless the estate were vested. Moreover, the case came within the settled rule that, “ Where a remainder is so limited as to take effect in possession, if ever, immediately upon the determination of the particular estate, which estate is to determine by an event that must unavoidably happen by the efflux of time, the remainder vests in interest soon as the remainderman is in esse and ascertained; provided nothing but his own death before tbe determination of the particular estate will prevent such remainder from vesting in possession. This plaintiff does not come within the operation of that rule. Were the life tenants all dead he could not take possession. The remainder is not limited to take effect immediately [510] on the death of the testator’s children. It is limited to take effect after their decease, and in favor of a person when he attains a given age. Should he die before arriving at that age no person claiming under him, by descent or otherwise, would have right of possession or property. Although the plaintiff is the person who will be entitled to the property if he lives long enough, the devise passes to him when he arrives at the age of twenty-one jmars. The particular age is made a constituent part of the description of the object of the devise, and the remainder cannot vest before. The person is not ascertained before the given age. The present'capacity of taking possession, if the possession were to become vacant, distinguishes a vested remainder from one that is contingent. Wherever the remainder is limited to a person not in esse, or not ascertained; or wherever it is limited so as to require the concurrence of some dubious, uncertain event, independent of the determination of the preceding estate, and duration of the estate limited in remainder, to give it a capacity of taking effect, the remainder is contingent: Eearne on Rem., 216, 217. Having no vested interest the plaintiff has no right of action. Therefore, it would be out of place to attempt to dispose of the other points suggested in the assignments of error. Judgment affirmed.