O'Brien v. Dougherty

The Chief Justice delivered the opinion of the Court: The first of the claims made by the complainant is the one that has given rise to the principal and important question in the case, and the question that has been most extensively discussed at bar; and that is, at what time did the remainder limited to the surviving children of the testator vest? Whether immediately on -the death of the testator, or not until the termination of the life estate devised to the widow? If not until the last mentioned event, the remainder would continue contingent until the event happened, at which period the then surviving children would constitute the class of devisees to take. This is a question of construction, and the whole difficulty arises upon the use of the word surviving in the limitation, and upon the meaning to be given to that word. If, by proper construction, this word refers to the time of the death of the testator, all the children then living, unless disqualified for some legal cause, would be entitled. But if, on the other hand, this word surviving refers to the termination of the life estate, as the period at which the vesting is to take place, the estate would remain contingent, and the objects to take unascertained until the death of the life tenant, even though — 156 — that event might not happen until after a long lifetime. In the meantime the estate devised in remainder remains inalienable. The case has been ably argued on both sides, and most of the authorities bearing upon the question have been brought to the attention of the court. It is, however, a question in regard to which there has been great contrariety of and fluctuation in judicial opinion, and it would be a hopeless as well as a profitless task to undertake to review all the cases, English and American, upon the subject. New terms employed in wills have given rise to more litigation than the words survivors and surviving. The intention of the testator, of course, when that can be clearly ascertained from the language of the will, must control; and many of the cases referred to depended more upon the special terms and context of the wills than upon the application of any settled or technical meaning of the words survivor or surviving. But an examination of the authorities shows beyond question that, in the absence of any special terms or context to indicate clearly the intention of the testator to the contrary, the older English authorities, and a strong current of leading "Í American authority, are very decidedly in favor of referring f survivorship to the death of the testator, rather than to the j termination of the intervening particular estate. This construction is founded upon very obvious reasons. In the first place, it is a construction that tends to preclude the possibility of a state'of intestacy, resulting from the contingent nature of the estate, and the possible survival of the tenant for life beyond the lives of all the members of the class who are designed to succeed to the possession on the death of the tenant for life. This is strongly illustrated by what was said by Lord Alvanley, M. R., in Maberly v. Strode, 3 Ves., 450. In that case it was held, the case being on a devise of both real and personal estate, that words of survivorship added to a tenancy in common in a will, should be applied to the death of the testator, except where an intention to postpone the vesting is apparent. In the conclusion óf his opinion, — 157 — after referring to the case of Perry v. Woods, 3 Ves., 204, where he had examined all the previous authorities upon the subject, the Master of the Rolls said: “The life of the son [the life tenant] is a very long period; within which it was very likely every one of those nephews and nieces might be dead; in which case there would be a total intestacy; and that is one reason why it is necessary to adopt, if possible, the construction of the word ‘survivorship’ as applicable only to the death of the testator. The construction, that the benefit of survivorship was to prevent a lapse, and that the interests vested at the death of the testator, is much the most beneficial construction. Upon these authorities, I am of opinion that upon these blind words the safest and soundest construction, best warranted by the authorities, most beneficial to the parties, most likely to be that intended, is, that the meaning is such as shall survive the testator; but that it is not meant that it should remain in contingency, and vest only in such as should happen to survive the son, with the chance of the whole being lost and a total intestacy occasioned.” . Then, again, the construction that the term surviving refers to the death of the testator, rather than to the death of the tenant for life, conforms to and promotes -the well settled rules of construction, founded in principles of reason and policy, such as that a remainder will never be construed to be contingent when it can be taken to be vested; and that estates shall be held to vest at the earliest possible period, unless there be a clear manifestation of the intention of the testator to the contrary. Doe v. Considine, 6 Wall., 475, and cases there cited. Here there is nothing to clearly indicate the intention of the testator to postpone the vesting of the estate in the surviving children until the termination of the life estate of the widow. The use of the word “revert” would rather signify a pre-existing right or estate in the children. It has no signification to warrant the conclusion that the estate was then to vest and not before. The use of the adverb “after” is in such sense as is common in a great — 158 — many of such limitations; but there never has been stress laid upon it, as determining the intention as to the time of vesting the remainder, unless used in connection with other more expressive terms. Such adverb of time is construed to relate to the time of enjoyment of the estate. Doe v. Considine, supra. The case that has given rise to the supposition that, in cases of bequests of personal estate at least, words of survivorship are prima facie to be referred to the time of distribution or enjoyment, rather than to the death of the testator, is that of Cripps v. Wolcott, 4 Madd., 12, decided by Sir John Leach, Vice Chancellor, in 1819. In that case the Vice Chancellor said that he considered it to be then settled that if a legacy be given to two or more, equally to be divided between them, or to the survivors or survivor of them, and there be no special intent to be found in the will, that the survivorship was to be referred to the period of division. But if there be no previous interest given in the legacy, then the period of division was the death of the testator, and the survivors at his death would take the whole legacy. That case has been referred to and apparently followed in subsequent cases in England relating to personal estate. But the case of Cripps v. Wolcott has been, severely criticised as being an innovation upon a pre-established rule of construction, and it has met with decided opposition from courts of high authority. It has not been accepted in England as supplying a satisfactory rule of construction applicable to devises of real estate. The rule applicable to such devises rests upon decisions made long before, as also upon decisions made subsequent to that of Cripps v. Wolcott. Mr. Jarman, a text writer of high authority both here and in England, in his Treatise on the Construction of Devises, published with his (the third) edition of Powell on Devises, after reviewing all the English cases upon the subject down to the time of that publication, says in regard to the case of Cripps v. Wolcott, on pages 748 and 749: “ The Vice Chancellor’s doctrine, in reference to cases in which no previous — 159 — interest is given, is unquestionably correct. It not only rests on the authority of Lord Cowper’s decision in Bindon v. Suffolk, recently confirmed by Smith v. Holock, but necessarily results (assuming that indefinite survivorship is excluded by the tenancy in common) from the circumstance of there being no other period than the death of the testator to which the survivorship can be referred. His honor’s position in reference to cases in which a previous interest is given, is more open to controversy. It involves a very extensive opposition to authority, proscribing a list (inclusive of cases-relating to devises of real estate, which appear not to be distinguishable in principle) of no less than nine decisions, viz.: Stringer v. Phillips, I Eq. Cas. Abr., 292, decided at the Rolls in 1730; Rose v. Hill, 3 Burr., 1881, by Lord Mansfield in the Court of King’s Bench; Wilson v. Bayly, 3 B. P. C., Toml. ed., 195, by the House of Lords; Roebuck v. Dean, 2 Ves. Jr., 265, by Lord Rosslyn; Perry v. Woods, 3 Ves., 204, and Maberly v. Strode, 3 Ves., 450, by Lord Alvanley; Brown v. Bigg, 7 Ves., 279, by Sir W. Grant; Garland v. Thomas, 1 Bos. & Pull., new rep., 82; and Edwards v. Symons, 6 Taunt., 213, by the Court of Common Pleas : in all which, notwithstanding that a previous interest was given, survivorship was referred to the death of the testatorP The author then examines some of the cases referred to by the Vice-Chancellor in support of his decision, and shows, that they do not maintain the principle for which they were cited. And he then adds: “Such, then, is the state of the authorities for and against the rule laid down by the court in Cripps v. Wolcott. Had the Vice-Chancellor been aware of the actual state of the decisions upon the subject, he would hardly have unhesitatingly propounded the doctrine which is here ascribed to him. He would probably have felt the difficulty, if not the impossibility, of encountering such a mass of authority as had established the death of the testator to be the period to which words of survivorship related, however his own judgment might have disapproved of the reasoning on which it was founded, and even admitting that — 160 — his conclusion from the whole range of the cases would have been the same, yet more confidence would have been felt in that conclusion if all the adjudications had been examined.” And in the larger and more comprehensive work of Mr. Jarman, that on Wills, he reviews the decisions both prior and subsequent to that of Cripps v. Wolcott. and after showing what the former rule was, he shows the present state of the English law to be, that where there is a gift of personal estate, to a person for life or any other limited interest, and after the determination of such interest to certain persons nominatim, or to a class of persons as tenants in common, and the survivors of them, these words are construed as intended to carry the subject of gift to the objects vuho are living at the period of distribution. But as to real estate, there is no such settled rule of construction, though there are cases in which judges have said there should be no distinction in the application of the rule. 3 Jarm. on Wills, 573 to 580. And so Hawkins, in his work on Wills, 261, says, that it is not yet settled whether the rule in Cripps v. Wolcott applies to real estate, and that the older authorities are strongly in favor of referring survivorship to the testator’s death, and he refers to the important case of Doe v. Prigg, 8 B. and Cr., 231. In this last case, decided by the Court of King’s Bench in 1828, the question arose as to the application of the rule to a devise of real estate to a class, as in the present instance. The estate was devised to the mother of the testator for life, and after her death to his wife for life, and from and after the decease of his mother and wife, he gave and bequeathed the property to the surviving children of J. and W., and to their heirs forever, the rents and profits to be divided between them equally. And the question was, to what period did the words “surviving children” refer. The case was fully argued, and the case of Cripps v. Wolcott was urged upon the court. But after time taken to consider, the unanimous judgment of that very learned and able court was delivered by Mr. Justice Bayley, who reviewed the authorities, and, in — 161 — the course of the opinion, said: “The testator’s death is in this case so much the more rational period, so much the more likely to have been intended, and falling in, as it does, with the rule of law for vesting estates as soon as they may, instead of leaving them contingent, that we are of opinion that the estate here vested in remainder immediately upon the testator’s death, in the then children of J. and W.” And that the rule as laid down by Sir John Leach is not an established one, as applied to devises of real estate, is fully shown by Lord Chancellor Westbury, in his opinion in the House of Lords, in the case of Taaffe v. Conmee, 10 Ho. Lords Cas., 64, delivered in 1862. In this country, words of survivorship appear to have been a source of perplexity to the courts, and to have given rise to a contrariety of decisions. In New York, in the case of Moore v. Lyons, 25 Wend., 118, a case involving a devise of real estate, the question was elaborately discussed, in the Court of Errors, and the authority of Cripps v. Wolcott was entirely rejected, and it was held that the words of survivor-ship should be construed to refer to the death of the testator. So, in Pennsylvania, in the cases of Johnson v. Morton, 10 Penn. St., 245, and Ross v. Drake, 37 Penn. St., 373, the Supreme Court rejected the authority of Cripps v. Wolcott with emphasis, and followed the English rule existing prior to that case, as being best calculated to subserve the ends of justice. The same conclusion has been reached and maintained, upon full examination of the cases, by the courts of Virginia, Georgia, and South Carolina. Hansford v. Elliott, 9 Leigh, 79; Martin v. Kirby, 11 Grat., 67 ; Vickers v. Stone, 4 Ga., 461; Drayton v. Drayton, 1 Dess., 324. It is true that the Supreme Courts of several of the States, whose opinions are entitled to great respect, after some fluctuation in their conclusions, hold the contrary doctrine, and maintain the principle of Cripps v. Wolcott, as applicable to both real and personal estates; and these case have been cited and relied on by the counsel for the defendants in this case. But not being able to adopt and follow the authority of Cripps v. Wolcott, — 162 — as applicable to the devise of real estate, we cannot follow the decisions based upon that case. It is certainly clear, from what we have said, and the authorities that we have cited, that the established and prevailing English rule of construction, at the time of our separation from England, and for a long time after, was that words of survivorship in a devise after a particular estate, in the absence of a clear intention to the contrary, referred to the death of the testator, and not to the termination of the particular estate. That rule, as to devises of real estate, has not been supplanted in England by any definite and conclusive announcement of the highest court of the Kingdom; and we see no good or sufficient reason for departing from it. To do so might be the means of disturbing titles otherwise good, and it is universally conceded that in no branch of the law is it more important for the courts to adhere to fixed and settled rules than in that relating to real property. If changes in established rules be desirable, let them be made by the legislature, and then no antecedent rights will be disturbed. ' It follows, that if this were a devise to the surviving children as tenants in common, the complainant would be entitled as heir of her mother, as decreed by the court below, the mother being one of the surviving children. And she would be entitled to one-fourth of the estate; for as one of the five surviving children was an attesting witness to the will of the father, the devise, so far as he, the witness, was concerned, was rendered utterly null and void, by Section i of St. 25 Geo. 2, Ch. 6, as to the real estate, that statute being in force in this District. That being the case, and the devise being to a class, and the will not apportioning the estate to the individual members of that class, the estate vested as an entirety in the members of the class capable of taking it, as if the disqualified members did not exist; and that, too, whether the devise be to the class as joint tenants or tenants in common. This would appear to be well settled, as in the case of Fell v. Biddolph, L. R., 10 C. P. 701, where there was a devise to “ children,” as a class, as tenants in common, and — 163 — the attesting witness to the will, one of the children, was, by reason of the Statute of Wills, incapable of taking at the death of the testator, and it was held, on full review of the authorities, that he could not be reckoned as a member of that class, and his share, therefore, went to the rest of the class, the other children, and not to the heir-at-law. The principle of that case is supported by many authorities. Shaw v. McMahon, 4 Dr. & W., 431; Doe v. Sheffield, 13 East, 526; Young v. Davies, 2 Dr. & Sm., 167-172; Dimond v. Bostock, L. R. 10 Ch., 358 ; In re Coleman and Jarrom, 4 Ch. Div., 165, 171, 172, 173; 3 Jarm. on Wills, 17. See also Young v. Robinson, 11 G. & J., 328. But this devise is to the surviving children of the testator, without declaring that they should take as tenants in common, or that they should take the estate to be divided, share and share alike, or in any other manner. They took the estate, therefore, as joint tenants, with the right of survivor-ship among them; and that being so, the complainant can take nothing; for, both upon the death of her mother and the death of her aunt, Mrs. Mulloy, their shares or interests in the estate accrued to the remaining surviving children, members of the class capable of taking. This is simply the consequence of the right of survivorship incident to a joint tenancy. Young v. Davies, 2 Dr. and Sm., 167; In re Coleman and Jarrom, supra; Morgan v. Britten, L. R. 13 Eq. Cas., 28; Newill v. Newill L. R. 7 Ch. Appl., 253; 3 Jarm. on Wills, 17. There is nothing in the case to sever the joint- tenancy, and there is no statute in force in this District, such as that of Maryland of 1822, Ch. 162, and of other States, whereby it is provided that no deed or devise shall be construed to create an estate in joint tenancy, unless it be expressly declared that the property shall be held in joint tenancy. The common law principle upon the subject prevails here. The remaining question is, whether the legacy of $250, given to the complainant by her grandfather’s will, was made a charge upon the real estate devised. And in regard to — 164 — this question, we think the court below was entirely right in holding the legacy to be a charge upon the real estate. As has been observed, the legacy was made payable out of the estate of the testator after the death of his wife, who was sole executrix and legatee and devisee of all the property, both real and personal, of the testator for her life. It is true, as a general rule, the personal estate of Hie deceased is the primary fund for the payment of pecuniary legacies. Here, however, the personal estate was all given to the wife for life, and was of small amount, and of a character likely to be rendered valueless by the life-long use by the widow. The legacy was not due until after the death of the widow, and we must suppose that the testator understood that the personal effects might be exhausted or rendered valueless before the legacy became due. He certainly intended the legacy to be paid; and as it was not to be paid until after the death of the executrix and legatee for life, the fair and just inference is, that he intended it to be paid out of his estate remaining after the death of the life-tenant — whether the estate remaining was real and personal, or real only. This is the fair construction, and is within the principle of the authorities. Harris v. Fly, 7 Paige, 421; 2 Perry on Trusts, Sec. 470. If, therefore, the legacy be not paid by the devisees in remainder, the complainant will be entitled to a decree for the sale of the real estate, to raise a fund for the payment of the legacy. The decree below will be reversed, and the cause remanded, that a decree may be passed in accordance with this opinion. The cost of the appeal, the one-half thereof to be paid by the complainant, the present appellee, and the other half, together with the costs in the court below, to be paid by the defendant, or out of the proceeds of sale, if the property shall be sold under a decree of the court. Decree reversed and cause remanded.