Bullock v. Seymour

Carpenter, J. Romanta Seymour died in 1852, leaving a will by which, after making provision for the support of his son DeWitt Clinton Seymour, he devised to William H. Seymour, one of the defendants, the property, in question, as follows : — “ The residue of my property, after deducting the lawful dower of my wife Julia Maria Seymour, to be set to her equitably out of my estate, I give, devise and bequeath to my son Wm. H. Seymour, and to his heirs forever. The above devise to my son DeWitt Clinton is in lieu of all or any other share in my estate, present or contingent, and the reversion of the dower of my wife, Julia Maria Seymour, is to belong to my son Wm. H. And x case my son Wm. H. Seymour should die without childre. >r their legal representatives, then my estate shall be divided among my legal heirs.” In 1864 the defendants, being the owners of the interest evised to Wm. H. and Julia M. Seymour, united in a coneyance of the property in question to Mary A. Bullock, one ' the plaintiffs, with covenants of seizin and warranty. At e date of said will DeWitt Clinton was and still is an idiot d unmarried. Wm. H. was then unmarried, but has since , .arried, and has four children now living, the issue of said ai'riage. Wm- H. and DeWitt Clinton are the only children and heirs "at law of the said Romanta Seymour. The plaintiffs insist that at the time of the execution of the deed to the said Mary A., the defendants were not seized of the premises as a good indefeasible estate in fee simple, but that Wm. H. Seymour under the will was a tenant in tail only, and that therefore their covenant of seizin is broken. This the defendants deny. The case must turn upon the construction to be given to the will. What estate did Wm. H. Seymour take under the will ? [293] Was it an estate tail, or a defeasible fee simple ? We think he took the latter. It is a principle of the common law to which the English courts have always adhered with great tenacity, that a fee can not be limited after a fee. Thus where by deed land is conveyed to one in fee, with a limitation over to another upon the happening of a particular event, the limitation over is void. But in a will, for the purpose of giving effect to the intention of the testator, such a limitation is held to be good as an executory devise. Executory devises are not favored in law, and the English judges have gone great lengths to construe the estate in the first devisee to be less than a fee, so as to give effect to the limitation over as a contingent remainder. Thus where land is devised to A and his heirs, but in case A should die without issue then to B .and his heirs, they construe the words, “ die without issue,” to mean an indefinite failure of issue, and not a failure at the time of the death of A ; thereby giving A an estail tail by implication, and giving effect to the limitation over to B as a contingent remainder. And it is only where the language used clearly requires it, that they construe such words to mean a failure at the death of the first devisee ; as such a construction gives the first devisee a fee, and allows the second to take only by way of an executory devise. But our own courts have been less rigid in the construction of wills of this character ; and we think with good reason. In Morgan v. Morgan, 5 Day, 517, it was held “ that by the words die without children,’ is intended a dying without children living at the death of the first ’devisee.”. To the same effect are the cases of Couch v. Gorham, 1 Conn., 36, and Hudson v. Wadsworth, 8 id., 348. We think the language used in this will requires the same construction; and that consequently William H. Seymour took an estate in fee simple, defeasible upon the event of his dying without children or ■ their legal representatives at the time of his death. The only remaining question is whether, at the time of the execution of said deed, the estate of Wm. H. Seymour was still defeasible, or had become absolute. The testator doubtless had in mind the possibility that his son might die without ever having had ■ children, and provided for that contingency [294] by devising the property over, in that event to his legal heirs. And we think it is equally clear that he intended, in case his son should have children, that the fee should vest absolutely in him. It follows, therefore, that the contingency upon which the limitation over was to take effect, could never happen after the birth of children to ffm. H. Seymour, and that, upon that event, the estate in him became absolute and indefeasible. Who would be the legal heirs in the event of his two sons dying without children does not appear, but as they must have been distant relatives, the presumption arises that he would not entail the property to his son for their benefit; and we ought not to give such an effect to his will by construction unless such an intention is clearly manifest. This presumption is materially,strengthened by the consideration that the testator manifested confidence in his son’s integrity, and capacity to manage the property, by making him trustee for his unfortunate brother. We think, therefore, this construction is in harmony with the other provisions of the will, and with all the circumstances of the case, and best effectuates the general intention of the testator. The superior court is therefore advised to render judgment for the defendants. In this opinion the other judges concurred.