Hungerford v. Anderson

Reeve, J. This is a case stated for the purpose of taking the opinion of this court thereon. Green Hungerford the elder, by his will, gave the demanded premises to his four sons, Green, Lemuel, Stephen and Nathaniel, to them and the male heirs of their bodies, creating in them an estate in tail male. And if any of his said sons should die before they came of age, bis part was given to the survivors, or their male heirs. Stephen did die before he came of age, and before the distribution of the estate of Green Hungerford the elder, by which means his share went to the surviving brothers. The lands in question were distributed to Green Hunger-ford the younger, who afterwards died and left no sons, but left several daughters, one of whom is married to the defendant, who is in possession of the' same ; and the plaintiffs, being the male heirs of the bodies of Le-= [371] tnuel and Nathaniel, their fathers having deceased} have brought the present action of ejectment, on which this case is predicated, claiming that they are entitled to the lands under the will of Green Hungerford. The object of the parties is to learn whether the plaintiffs took any part of the estate by virtue of the will of their grandfather. I am of opinion that they took nothing on the death, of Green the younger without male issue. The entailment to him was spent, and, of course, reverted to the heirs of Green Hungerford the elder; and in its state of reversion, became in those heirs a fee-simple, as it was in Green Hungerford; so that all the heirs, male and female, of Green Hungerford, are entitled to equal Shares of the lands so entailed to Green Hungerford the younger. As to that part which was distributed to Stephen, oft his death it vested a fee-simple in the surviving brothersi One third thereof was to be distributed to Green the younger, and on his death, vested in his daughters; for this estate was not to go to the surviving brothers and the male heirs of their bodies, but to them or their male heirs; and, they all being alive, Stephen’s part vested irk them a fee-simple, and had any of them been dead, the estate would have vested a fee-simple in their male heirs; so that this part of the estate of Green the younger, which came from Stephen, descended to the daughters of Green the younger. It is true, there are no words of inheritance in the devise over of Stephen's part; neither are there any words which would furnish evidence of the intent of the devisor to give a fee-simple according to English decisions. But I take it, that, according to a well esta-tablished series of decisions, when real property is devised in a will in Connecticut, the same absolute ownership is given as if it had been a legacy of personal property. The principle, both in the English, law and in [372] ourfe, is, that the intention of the devisor shall govern. The difference arises not from any difference of prinei-pie; but, in Connecticut, we consider the gift of real property, without other words, as furnishing evidence that the devisor meant to convey a fee-simple; which, inteh* tion, in England, they do not consider as sufficiently manifested by such a devise. The plaintiffs in this ease claim the premises exclusively, contending that the will ¡of Green Hungerford the elder, gave to the devisees and their male issue cross remainders, so that the estate so devised cannot ever revert to- the heirs general of said Green the elder, while any of the male issue of any of the devisees are living. It is a universal rule of law, that cross remainders can never be created but by express words in the will, or by necessary implication. There is no pretence that cross remainders are created in this will by express words. In Order to constitute a cross remainder by necessary implication, there must appear in the will an intention that no person shall inherit any part of the estate, or take it by way of remainder, as long as any of the devisees, or any of their issue, to whom it is given, are alive. On this ground it has been determined in Dyer, 303. b. where an estate was given to divers persons, and the heirs of their bodies, and if they all die without issue of them, remainder to A. Now it is apparent that A. cannot take, unless they all cUe without issue; who, then, is to take the estate of one of them who should die without heirs of his body ? By necessary implication it must be the other devisees. So a devise to two daughters and their heirs, and if they die without issue, then to B. That is, if both die without issue, B. takes the land; but not until that time. If bne of them had died without issue, the other devisee must take it by necessary implication ; for B. could not. There are no words in this will that manifest the least intention, that if one of the devisees should die without male heirs of his body, his heirs at law should not take [373] his part, as long as there were any male heirs of the bodies of the other devisees. If this should appear, there woqld be more reason to say that there must be cross remainders; for, in thi§ case, if the plaintiffs, the male • heirs of the bodies of the other devisees, could not take, no person could. Upon examination of the authorities both where it has been decided that there were cross remainders, and where it has been decided that there were not, no one is to be found like this. No lawyer seems to have entertained an opinion that a cross remainder can arise by implication only, when on failure of the devisee’s issue, the estate is limited over to another. The presumption of law is, when a man devises an estate to two or more, to be divided betwixt them, and to the heirs of their bodies, that is, their respective heirs, that if such heirs should fail, the estate should revert to the heirs of the devisor. Every case to be found, arises where an ultimate remainder was limited, after failure of the issue of the devisees, to some person; and the inquiry has ever been, can this person to whom the remainder was limited, take the estate of one of the de-visees dying without issue ? or must he wait until all the devisees are dead without issue? The intention manifested in the will determines this. If it is clear that he cannot take the estate as long as any devisee or his issue are living, then such devisee or issue takes the share of the deceased devisee, by necessary implication. In this opinion, the other judges severally concurred.