Toothman v. Barrett

GeeeN, PbesideNt, delivered the opinion of the Court: The only question of controversy in this case is the true construction of the will of Samuel Barrett. The appellants contended, that by the second clause of this ■will a life estate is given to the testator’s daughter, — 308 — Elizabeth Barrett, and by the third clause of this will a 'contingent remainder was given to the testator’s son, Jefferson Barrett, in fee charged with the payment of certain legacies, provided he survived the life-tenant, Elizabeth Barrett, and provided he was of ability to pay these legacies after her death as directed by the will; but if he died before the life-tenant, Elizabeth, or had not this ability to pay these legacies, then the remainder in fee of this land was to go to the testator’s executor, to bo sold and the proceeds equally divided between William Barrett, Caleb Barrett, Henry Lower, Samuel Barrett and the children of Jefferson Barrett the appellants. And this construction, they contended, is strengthened by the fourth clause of the will. The children of Caleb Barrrett, appellees, admit, that by the second clause of the will the testator’s daughter Elizabeth had a life-estate, but they contend by the third clause of this will Jefferson Barrett had a vested estate in fee-simple in these lands after the death of the life-tenant, Elizabeth, charged with the payment of certain legacies payable either before her death or in the periods of time specified after her death; that this vested remainder in fee was by this third clause of the will subjected to.be divested by Jefferson Barrett dying before the life-tenant, Elizabeth, without having paid the legacies named in the third clause of the will; and in that event, and only in that event, were these lands to be sold by the testator’s executor, and the proceeds divided- equally among William Barrett, Caleb Barrett, Henry Lower, Samuel Barrett and the children of Jefferson Barrett, the plaintiffs; and that Jefferson Barrett having through Caleb Barrett paid all these legacies, due when the suit was brought, before the death of the life-tenant, Elizabeth, the contingency, on which the vested estate in fee-simple of Jefferson Barrett was to be divested, has not occurred, and the lands therefore belong in fee-simple to the assignee of Jefferson Barrett subject to the charge of the legacies named in the will not yet due and payable. — 309 — The words in the iourth clause that certain legacies,are to be paid by Jefferson Barrett “or in either case of his death or inability as before recited by my executor “are construed to mean: “If Jefferson Barrett should die before or after the death of Elizabeth, having failed to discharge these legacies, in either case they are to be paid by my executor.” The court below adopted the appellee’s views and dismissed the bill, holding that the plaintiffs had no interest in the lands under the will, as Jefferson Barrett had not died having failed to discharge the legacies which were due. Was this the true construction of this will? There is no doubt, that the second clause of the will gives to the testator’s daughter, Elizabeth, an equitable life-estate in all the testator’s real estate. If the first part of the second clause of this will had read: “I give to my beloved son Jefferson Barrett, after the decease of my daughter Elizabeth, all my land to him and his heirs by him the' said Jefferson paying $461.00 in form and manner following,” &c., there can be no question, that the words by themselves, if uncontrolled by the subsequent words in this clause would have given Jefferson Barrett a vested remainder in fee. The addition of the words “the said Jefferson paying $461.00 in form and manner following” would not have made such vested remainder in the case we have supposed contingent; for a devise to a person after the payment of debts is not contingent until the debts are paid, such words only creating a charge. See Carter v. Barnadiston, 1 P. Wms. 505. But the words of the will are essentially different from this supposed case. By the will the testator does not give after the death of Elizabeth to “Jefferson and his heirs” but to “Jefferson or his heirs.” If the words of the will are to be taken according to their grammatical signification, they would give to Jefferson a contingent remainder; for by these words it is uncertain whether the lands are to go to him orto his heirs. If he should die before — 310 — the life-tenant, by the grammatical meaning of the words used the lands would go to his heirs; and if he should survive the life-tenant, they would go to him. His remainder therefore by the terms of the will, when construed according to their usual meaning, is a contingent remainder depending on his surviving the life-tenant. But to prevent an unreasonable or absurd result, or to prevent the defeating of the apparent intent of the testator, the word “or” has frequently been construed, as though the word “and” had been used by the testator in its stead. As a general rule, words unambiguous in themselves ought not to be changed on account of the unreasonable disposition of the property, which would result from the plain meaning of the words. If the courts took such liberties with unambiguous language used by the testator, they would in effect be making a will for the testator, because the will made by him was unreasonable. But the disjunctive “or” and the copulative “and,” are often used in conversation without due regard to their respective meanings; and sometimes they are thus loosely used by respectable authors. The courts have therefore taken the liberty frequently of correcting this blunder, when it has occurred in wills; and this to an extent they would not think of doing in the correction of any other supposed blunder, where the words of the testator, in their ordinary and grammatical sense were unambiguous.1 If this liberty of changing the words of tho'ffestator, when in themselves they are unambiguous* is confined to a few definite words, which like the disjunctive “or” and the copulative “and,” are often used improperly, and we can define; with tolerable accuracy the cases, in which the court will take such liberty, no groat danger will result. But if, on the other hand, there be no fixed and established rules defining, in what case the court will take such liberty, it is obvious, that great uncertainty must result and great mischief be done. The decided cases have settled with tolerable accuracy — 311 — the cases, in which the court will take the liberty of changing the disjunctive “or,” and reading the will as if the testator had used the copulative “and.” Where there is nothing else in the will to control the construction a devise to A and his heirs, and if he die under twenty-one, of without issue, or if he die under twenty-one or unmarried, then to B, the word “or” should be construed “and.” Therefore in such case B will take no estate unless A dies leaving no issue and under twenty-one, or in the other case unless A die unmarried and under twenty-one. See Soulle v. Gerrard, Cro. Eliz. 525 ; Mytton v. Boodle, 6 Sim. 457; Framlingham v. Brand, 3 Atk. 390; Weddell v. Mundy, 6 Ves. 341; Denndem. Wilkins v. Kenneys et al., 9 East. 366; Myles v. Dyer, 5 Sim. 435; Brewer v. Opie, 1 Call 212. In such cases the grounds, on which the courts have taken the liberty of changing the expressions used by the testator, are that it is from such a will apparent, that the testator had in his view the benefit of the issue of A ; or, in the second supposed case, the benefit of the husband or wife of A. For though these parties get nothing directly under such a will, yet they are the parties, who would derive a benefit through the parent, husband or wife, as the case might be. The very tonus of the contingency, on which the remainder over toB is to take effect, appear in such cases to have been made with reference to the preservation of this indirect interest, which the issue or husband or wife would through the first holder indirectly have. But if the word “or” used by the testator was to receive its ordinary and proper grammatical signification, this apparently leading object of the testator, to protect the indirect interest of the issue, husband or wife, as the case might be, would be disregarded and defeated ; for if we were to give the ordinary meaning to the word “or,” if A died under twenty-one, though he left children in the one case, or a husband or wife in the other, yet the estate would go over to B; and thus the children, husband or wife, as the — 312 — case Blight be, would be deprived of the indirect benefit *° them, which it was the apparent object of the testator to preserve. It is not believed in such case possible, that the testator intended this indirect, benefit to these children, husband or wife, as the case maybe, should depend on the contingency of the devisee attaining the age of twenty-one, before he died. And to avoid this consequence, supposed to be in violation of the testator’s will in all probability, the courts have in such cases taken the liberty of reading the word “or” as if the testator had used the word “and.” Whatever we may think of the reasoning, on which these decisions are based, they cannot at this day be questioned, being firmly established by many precedents. And whenever a case comes fairly within the reason of these decisions the word “or,” when used by a testator, should be read as though it were the word “and.” These and like authorities are relied upon by the ap-pellee’s counsel in this case. But they seem to me to have no sort of application. The first part of the third clause of the will, which is the only portion of it we are now considering, gives to “Jefferson Barrett after the death of Elizabeth all my land to him or his heirs.” Now under this clause, when we give to the word “or” its ordinary grammatical signification, Jefferson Barrett’s children must in any event have their interest preserved. If Jefferson Barrett outlives Elizabeth, they would be benefited by the gift oftheselands derivatively through their father ; and if he died before Elizabeth, they would under this provision get directly the lands. There is therefore no necessity for the court to take the liberty of changing the words of the will in this case, in order to carry out the apparent intent of the testator to benefit Jefferson Barrett’s children. In fact their interest is obviously promoted by giving to the testator’s will its natural and grammatical meaning. Yet in the cases before referred to the word “or” has been changed to “and” to prevent the children, or persons similarly situated, from being de — 313 — prived of all interest, even an indirect benefit, in the testator’s devise contrary to his apparent intent. There are other cases where the word “or” has been construed “and” in a will; as where such a construction would defeat an intent of the testator clearly expressed in another part of the will. See Grant v. Dyer, 2 Dow 87. There is also a large class of cases in which “or” has in a will been construed, as though the testator had used the word “and.” I refer to those cases, where the testator devises either to one class or to another class, which may co-exist; it is the property alternatively. In such cases, where there is nothing else in the will to control the construction, the word “or” is construed, as though it meant “and; ” for if not so construed, the only alternative would be to hold the devise void for, uncertainty, as it would be impossible to say, which of the two alternative persons or classes was to take. And therefore the courts, to prevent the holding of the devise void for uncertainty, are as it were forced to construe the word “or,” as though it were “and,” and to hold, that both persons or classes at the same time are entitled, for a court never holds a devise void for uncertainty, if it can be avoided. See Richardson v. Spraag, 1 P. Wms. 434; Eccard v. Brooke, 2 Cox 213; Horridge v. Ferguson, Jacob 583; Brown v. Higgs, 4 Ves. 708, 5 Ves. 495, 8 Ves. 561; Davenport v. Hanbury, 3 Ves. 257; Montagu v. Nucella, 1 Russ. 165; Jones v. Torin, 6 Sim. 255. But it is obvious, that to bring a case within the reasoning of these cases the devise must be to one class or another class of persons, both of whom may co-exist; if they could not possibly co-exist, there could be no uncertainty as to which of them should take; and the reason for construing “or” to mean “and” would not apply. Thus a devise to the children of A. or to the children of B must be interpreted to be a devise to the children of A and the children of B, otherwise the devise would be void for uncertainty. But a devise to the chil314 ^ren of A or to their heirs would be differently inter-pretcd; as the heirs of a person cannot co-exist with him, nemo est hceres viventis. In just such a case the master of the rolls says : “the effect of the word ‘or5 differs wholly from that, which must have been given to the bequest, had the word‘and’ been used.” See Gittings v. McDermott, 2 Myl. & K. 69, (7 Cond. Eng. Ch. 265.) Some of the children of B, having died in the lifetime of the testator, it was held in that case, that the next of kin, the property being personal, took by substitution what their ancestor would have, taken. So where there is a devise to A for life, and after her death toB or his heirs, which is the case prescribed by the first part of the second clause of the will under our consideration, and B. survives the testator, but dies during the life of the tenant for life, his children or heirs will take the property, and B. would not take the property as a vested remainder absolutely. This was in substance the decision of the court in Girdlestone v. Doe, 2 Sim. 225 (2 Cond. Eng. Ch. 227.) The exact case there was : “A bequest of ¿640 per an-num to A. for life, and after her decease to B or his heirsand it was held, that “or” must be construed disjunctively. There B as in the case befoi’e us, sold his interest to a third party and then died in the life time of A, the life-tenant; and it was hold, that B did not take an absolute interest, which he could dispose of, but having died in the lifetime of the life-tenant A, his as-signee took no interest. This case is substantially identical with the case under our consideration, unless the construction of the first part of the third clause of the will we are considering is controlled and altered by the subsequent portions of the will. By the first part of the second clause of this will then Jefferson Barrett took but a contingent remainder in the testator’s lands, provided he out lived the life-tenant, Elizabeth ; and in case he did not, the remainder in these lands went to his heirs or children then infants. — 315 — To what extent is this general purpose of the testator modified or changed by the subsequent provisions in the will ? This first part of the third clause of the will gave these lands to Jefferson Barrett after the death of the life-tenant, Elizabeth, provided he survived her, otherwise to his children, infants, and all but one females. But these lands were by this first part of the third clause of this will charged with the payment of legacies to the amount of f461.00, which in the estimation of the testator was nearly their full value, as appears by the other provisions of the will; for if these legacies were hot paid, the testator substitutes for them, or rather for $400.00 of 'them, four-fifths of the proceeds of the land when sold. The main object of the subsequent provisions of the will was to provide a simple and just mode of paying these legacies, in case they were not paid when they became due. This mode of payment was by the sale of the lands by the executor of the testator. If the lands became the property of the heirs .of Jefferson Barrett, by his death before the life-tenant, as all these heirs were females but one, and all infants, it would be evidently impossible for them to pay the legacies, with which the lands were charged; and therefore the testator wisely provided, that “in case Jefferson Barrett should decease previous to the death of Elizabeth; the lands should be sold by the executor of the testator, his friend Isaac McPherson.” But as in the estimation of the testator these lands might sell but for little more or perhaps no more than the $461.00 of legacies charged on them, and thus the infant daughters of the beloved son of the testator, Jefferson, might be left unprovided for, the testator wisely provides, that the small legacies, $61.00, shall be paid out of the proceeds of the lands by his executor, but that instead of his paying the four' large legacies of $100.00 each out of these proceeds, which might exhaust them, his executor should pay to each of these legatees of $100.00 one fifth of the proceeds of the lands — 316 — which remained, and that the other fifth should be paid those infant children of his beloved son, Jefferson, when they attained the age of twenty-one: thus making a provision for them in any event without seriously'injuring the other legatees. Having thus made careful provision to meet the contingency of his son Jefferson dying before the life-tenant, Elizabeth, it remained to make suitable provision for the contingency of his son Jefferson surviving the life-tenant, Elizabeth, and becoming thus the owner of these lands, in such case it is obvious, that the testator thought it quite doubtful, whether his beloved son Jéfferson would bo able to make the payment of the legacies of $461.00 charged on the lands. To enable him, if possible, to do so he makes these legacies payable on long time. These payments are extended through a period of five years after Jefferson Barrett should become vested with the lands and come into the actual possession of them by the death of the life-tenant, Elizabeth. But the testator thought it possible, if not probable, that Jefferson Barrett might not be able to pay these legacies even in this long time ; and he therefore wisely provides, if he is unable to do so, his friend and executor, Isaac McPherson, should sell these lands, pay the small legacies amounting to-$61.00 and instead of paying the four large legacies of $100.00 each, which might exhaust the funds, he should pay one-fifth of the surplus to each of these legatees ; and the remaining fifth, which under the previous provisions of the will would have gone to Jefferson, the testator provides shall be paid to his infant children on their attaining the age of twenty-one years. The reason for this modification is quite apparent. If his beloved son Jefferson should be un-able to pay this $461.00 in the long time of five years, it would probably be because of his insolvency. In which ease if this one-fifth of the surplus of this sale was paid to him, it would be at once taken by his creditor’s. And it was therefore considered wise by the testator, that in case he was un — 317 — able to pay this $461.00, it would be best to divest him of the remainder in fee in these lands, which had vested in him on the death of the life-tenant, Elizabeth, subject to this charge of $461.00, and to vest it in his infant children. That this was the scheme of the testator, as expressed in his will, seems clear from the plain and unambiguous language used by the testator. It is admitted by the ap-pellee’s counsel, that the grammatical construction of the language used by the testator must lead to the conclusion, that this was the scheme of his will. But it is contended by them, that this scheme is so unreasonable, or absurd, as to require the court not only to change the grammatical construction of the will, but to change the words used by 'the testator, and substitute other words of an opposite meaning. I can see nothing either absurd or unreasonable in the scheme of the testator’s will. On the contrary it seems to me, it was wise, prudent and natural. The language of the latter part of the third clause of the will is: “And also in case that Jefferson Barrett should decease previous to the death of Elizabeth, or fail to discharge the before recited payments due or may become due, on account of inability on the part of Jefferson, in either case, the land to be sold by my executor I shall hereafter name; and the proceeds to be equally divided between "William Barrett, Caleb Barrett, Henry Lower, Samuel Barrett, and to the child or children of Jefferson Barrett, when they may become to twenty-one years of age.” And then the fourth clause of the will adds to the legacies previously recited to be paid $11.00, and says, that they are “to be paid by Jefferson' Barrett, or in either case of his death or inability as before recited, by my executor. It is not disputed, that the grammatical and natural meaning of this language is the construction I have given it above. But .it is insisted, that to prevent an absurd or unreasonable result, the court ought to change this language of the testator, and construe the will as — 318 — though it read: “And also in case that Jefferson Barrett should to-discharge the before recited payments due or luay become due on account of inability on the part ot Jefferson, either before or after the death oí Elizabeth, and shall decease previous to the death of Elizabeth, then in either case the land is to be sold by my executor, &c.” But why should such a transposition of the language of the testator, such addition to this language, and such a change in the words of the testator be resorted to by the court ? The scheme of the will, as expressed by the unambiguous language of the testator, is not even unreasonable, much less absurd. But even if it were unreasonable and unnatural, we would not be justified in doing such violence to his language, and in effect making a will for him, because we thought his will unnatural. What good reason can be assigned, why in the latter part of the third clause of this will we should change the word “or” to “and,” or read the will as though the testator meant by the word “or” the Avord “and” ? The will on its face clearly shows, that the testator used the Avoi’d “or” in its true grammatical sense, as a disjunctive, and that he contemplated two contingencies, in Avhich the land was to be sold by his executor: for he says “in either ease the land is to be sold by my executor.” And again in the fourth clause of the will he says these legacies are “to be paid by Jefferson Barrett, or in either case of his death or inability as before recited, by my executor,” showing clearly not only Avere there tAvo contingencies, in either of which his executor Avas to sell this land, but also showing clearly Avhat these íavo contingencies were, to-wit: the death of Jefferson before Elizabeth, and his failure to discharge when due the legacies or his inability so to do. The appellees’ counsel, to avoid'the force of these Avords “in either case” used in the third and fourth clauses of the will, says, that its meaning should be construed to be “if Jefferson Barrett from inability shall fail to pay these — 319 — legacies before, or after, the death of the life-tenant, Elizabeth, in either ease the land is to be sold.” But this construction not only does obvious violence to the unambiguous language of the testator in two places in his will, but it would require us to go still further and to transpose as well as change other language of the testator. It requires us to construe the latter part of the third clause of the will as though it read “and also in case Jefferson Barrett should fail to discharge the before recited payment and should decease previous to the death of Elizabeth, the land is to be soldthe language used by the testator being “and also in case Jefferson Barrett should decease previous to the death of Elizabeth or fail to discharge the before recited payments, the land is to be sold.” Why should the word “or” be thus changed into the word “and”? By making such a change we would bring this provision of the will into direct conflict with the first part of the third clause of the will, which as we have seen provides, that Jefferson Barrett shall have the remainder in fee in these lands after the death of the life-tenant only in case he shall survive her. The courts have interpreted “or” to mean “and,” we have seen, when such interpretation was necessary to reconcile two conflicting clauses in a will. But I know no case in which this has been done, when its effect is to make two clauses in the will conflict, which would otherwise agree. Under such circumstances it would be absurd to make such change. But even if the words of the first part of the third clause of this will had been: “I give to my beloved son Jefferson Barrett, after the decease of my daughter Elizabeth, all my lands to him and his heirs, by him paying $461.00 as follows.” Instead of: “I give my beloved son Jefferson Barrett, after the decease of my daughter Elizabeth all my lands to him or his heirs, by him paying $461.00 as follows:” which was the language of the will, still we could not have changed the word “or’’ — 320 — *u ^10 latter part of this third clause of this will to “and” without doing obvious violence to the testator’s clearly expressed intent. If the word “such” in the first part of this clause had been “to him and his heirs,” it would of course have given to Jefferson Barrett a vested remainder in fee in these lands after the death of Elizabeth. And according to the principles laid down in Raney et al. v. Heath et al., 2 Patt. & H. (Va.) 206, the subsequent provisions contained in the latter part of this third clause of the will would not have converted this vested remainder into a contingent remainder; but it would have thereby became a vested remainder subject to be divested, if Jefferson Barrett died before the life-tenant, Elizabeth, or, if.he outlived her, subject to be divested by his failure to discharge the $461.00 of legacies at the time they became respectively due. .And this reasonable and unambiguous intent of the testator ought not to be overthrown, as we have seen, by transposing the language of the testator and changing the words used by him, whore it clearly appears by other parts of the will, that he used the words he did in their natural and grammatical sense. I' am therefore of opinion, that by the true construction of this will Jefferson Barrett took a remainder in fee in these lands after the death of the life-tenant, Elizabeth Barrett, contingent upon his surviving her: and if he had survived and his contingent remainder in these lands had thus vested in him at her death, it would have been liable to have been divested by his failure to pay the $461.00 of legacies at the time they respectively became due; but Jefferson Barrett having died before the life-tenant, Elizabeth, no interest in this land passed to his assignee, Caleb Barrett; and that under the provisions of this will, that in the events, which have happened this land ought to be sold, and after the payment out of the proceeds of this land of all the legacies named in this will other than the four legacies of $100.00 each to William Barrett, Caleb Barrett, Henry Lower and Samuel Barrett, that the net residue of the sale of said land — 321 — should be divided into five equal parts, one of which parts should be paid to the children of Jefferson Barrett, the plaintiffs, and Arthur and Sophronia Barrett, defendants in this cause, and the other four parts severally to the assignees, grantees or proper representatives of William Barrett, Caleb Barrett, Henry Lower and Samuel Barrett, or the proper representatives of such assignees or grantees of said parties themselves "as their rights may appear. The decree of the circuit court of Wood county of date October 13, 1877, must therefore be reversed and annulled ; and the appellants must recover of the appel-lees, Turner Chapman and Mary, his wife, Thomas Barrett, Caleb Barrett, James Gaston and Samuel Mathers and Sallie, his wife, who are the heirs of Caleb Barrett, deceased, their costs expended in this Court in the prosecution of this appeal; and this cause be remanded to the circuit court of Wood county, to be further proceeded with according to the principles laid down in this opinion, and fuither according to the rules governing courts of equity. The other Judges Concurred. Decree Reversed, Cause Remanded.