Keating v. McAdoo

Opinion by Mr. Justice Mitchell, The will of John Keating, Sr., begins, so far as concerns this controversy, by a devise of the premises in suit to his daughter in fee, to her “ and to her heirs and assigns forever.” Is this clearly cut down to a lesser estate in any subsequent clause ? The words which are claimed to have that effect are “if any of my said children shall die without leaving lawful children, the part devised to such child shall go to and be equally divided among my other children, who shall then survive the child so dying without lawful children, and if any of my children die leaving children or a child, then such child or children shall be entitled to the same share of the estate of any of my children who shall die without leaving lawful issue that the parent of such child or children would have been entitled had such parent been alive at the time of the death of my said child so dying without [10] issue.” This provision it must be observed applies not to his daughter alone but to all four of his children who took by the residuary clause. Under our cases this might be interpreted as meaning either an indefinite failure of issue, thus creating a fee tail, or a death of the devisee in the lifetime of the testator. Recasting the general language of the clause into specific directions as to this daughter, it might be read in this way, “If Rebecca should die without leaving children, her part shall go to Joseph, John and Martha equally if they then survive, but if either Joseph, John or Martha should have died before Rebecca, leaving children, then such children shall take such part of their aunt Rebecca’s share, as their parent would have taken if he or she had survived Rebecca.” Assuming this to be a fair paraphrase of testator’s language as applied to Rebecca’s share, it would seem to indicate his actual intent to refer to the death of Rebecca in his lifetime. But if this construction be not adopted then it is clear that the only other alternative fairly open is that of an indefinite failure of issue. It is not material for the present case which view is taken, it is sufficient that there is nowhere any clear manifestation of intent to cut down the fee given to any child surviving him to a life estate. There remains the question whether the share of Rebecca was subject to a separate use trust. The words are, “ the estate which I have bequeathed to my said daughters, Rebecca and Martha, shall not be liable to the debts nor subject to the control of their respective husbands.” The words are sufficient to create a trust if such was the testator’s intention. Of themselves they are consistent with such intent but not necessarily demonstrative of it. The testator left both real and personal estate, and included both in the residuary clause, but he did so by the use of both of the technical words “ devise and bequeath.” And when he indicated his will that his entire estate should be chargeable with the legacies as well as with debts and funeral expenses, he seems to have known that the personal estate would be liable without express words, for he uses only the proper technical term to charge the land, “ the estate which I have herein devised to my said children shall be bound and subject,” etc. When however he came to express his intention in regard to his daughter’s share he used the term “ bequeath ” only. He may have known that a husband at that time took [11] his wife’s personal estate absolutely, and her realty only for life, and he certainly knew that personal estate is much more easily taken possession of and spent by a husband than land. But whatever his reason, he used the appropriate term to confine the separate trust, if any, to the personal property, and his use of technical words throughout the will is so uniformly accurate as to indicate either knowledge on his part or the assistance of counsel with such knowledge. With this fact so plainly before us we should not be justified in saying that he used the word “bequeathed” in any other than its proper and restricted sense. If this view be thought to savor of technicality, it must be remembered that the subject is technical, and there is no equity in plaintiff’s claim to induce a disregard of technicality in order to sustain their present action, against the evidence of their own conduct by deeds of partition, proceedings to bar entails, sales of land and making of titles, for nearly fifty years. Their claim has no merit either in morals or in law. Judgment affirmed.