Jamison v. McWhorter

Comegys, C. J. : The questions submitted by the foregoing case, are, in effect— 1st. What estate did Clarence Jamison take under the will of his father, the testator ? 2d. Was the mortgage made, of the “ Capelle Farm,” by virtue of lawful authority? There are two conclusions which may be drawn from the language employed by the testator in settling his estate. That language [251] —or rather so much of it as concerns the question of title is in these words—bringing the several expressions together : “ I give, devise and bequeath unto my said executor and the guardian hereinafter named and appointed for my minor children all my estate, real and personal, not herein otherwise disposed of, to have and to hold the same unto them, or the survivor of them, the survivor’s heirs and assigns. In trust nevertheless for the uses, intents and purposes hereinafter set forth and declared.” * * * “ To have and to hold the farm known as the 1 Capelle Farm,’ containing about two hundred' and twelve acres, situated in Red Lion hundred, and the farm known as the ‘ Homestead Farm,’ containing about two hundred and thirty acres, situated in St. Georges hundred aforesaid. In trust to rent the same to good and careful tenants at the best cash on share rents attainable as in their judgments shall be most advantageous, and to collect, expend and invest the same as hereinafter provided until the majority of my youngest son who shall live to attain the age of twenty-one years, then to raise out of or charge upon the said farms respectively such sum or sums as shall be necessary to make equal the shares of my sons Edgar, Clarence and Oliver, as hereinafter provided, and subject to such charge and condition. To permit and suffer my son Clarence to use, occupy and rent, and to receive the rents, issues and profits of the said ‘ Capelle Farm ’ during the term of his natural life for his proper use and benefit, and in case of the death of the said Clarence leaving a child or children, or the issue of such, remainder to such child or children or the issue of such, their heirs and assigns free and discharged from the aforesaid trust.” “ In case of the death of any of my said sons Edgar, Clarence and Oliver, without leaving any child or children or the issue of such, the share of the one so dying shall go (to) the survivors, or survivor and the issue of such as may be deceased subject to the same conditions and limitations as their own shares respectively hereinbefore designated.” It was the obvious purpose of the testator to keep the lands in the hands of his trustees during the life of his sons respectively; but he was not aware of the rule of law that a trust estate cannot be supported where no active duty is to be performed by the trustee, and the whole management of the property is in the hands of [252] the cestui que trust. When, therefore, the testator provided, as he did, with respect to the “ Capelle Farm” and the “ Homestead Farm,” he in effect gave his sons respectively legal estates in them. We are then to consider the devise, with respect to the “ Capelle Farm ” as a disposition of a legal estate: the question is what legal estate ? The plaintiff contends that the devise to him is of an estate of inheritance in fee-simple, or fee-tail which can be turned into a fee; the defendant that a life estate only is given him. They both cite authorities in support of their respective contentions. The testator’s sons were unmarried and ^without issue at his death. It may be considered settled law that where lands are devised to a person and his children, it is to them equally as tenants in common where there are any living at the date of the will; but that where there are none at that time, the words are held to be those of limitation, and the same as heirs of the body or issue. There could not well be a different construction. Adopting the reasoning of Wild’s ease, 6 Coke, 17, the children cannot take as immediate devisees, not being in rerum natura; nor in remainder, for the devise is immediate. But this is not a will of that kind, and Wild’s case does not govern it. Here the testator devises to Clarence, his son, a legal estate, for life expressly, and in case of his death leaving a child or children or the issue of such remainder to such child or children or the issue of such, their heirs and assigns, etc., and in case of his death without leaving child or children or the issue of such, his share shall go to Oliver and Edgar, or the survivor of them, and the issue of such one of them as may be then dead leaving issue, subject, ect. This is the effect of the language used by the testator. The rule in Shelly’s case has no application to the devise to to the testator’s sons. Neither in the construction of a deed or will, where the words “ child” or “ children” are used, and not heirs or heirs of the body, has the rule any place. 3 Greenleaf Cruise, Tit. 38, Chap. 14, Sec. 39; Tit. 32, Chap. 23, Sec. 28. There is, therefore, no embarassment of decision on account of that rule. It seems impossible to distinguish this case, in principle, from that of Loddington v. Kime, 3 Lev., 431; 1 Salk., 224; 1 Ld. Raym., 203. There the devise was to A for life without impeach [253] ment of waste, and in case he should have any issue male to such issue male and his heirs forever, and if A died without issue male, etc., A was held to be tenant for life, with a contingent remainder to his issue in fee, and a concurrent contingent remainder to the ulterior devisee. See Hayes on Estates Tail (7 Law Lib.), 29 and 30, and Table IV. And in Wild’s case it is said to have been resolved (the reference is to Moor, 220) “ that if a man, as in the case at bar, devises land to husband and wife and after their decease to their children, in this case although they have not any child at the time, yet every child which they shall have after, may take by way of remainder according to the rule of law.” The reason given is “ for his intent appears that their children should riot take immediately but after the decease of Rowland (the husband) and wife.” Further. Where there is a limitation to children in remainder as a class, it will vest in them as they come in esse, and will open and let in each successive member of the class until the determination of the particular estate. Doe v. Penrhyn, 3 T. R., 484, cited in 3d Greenl, Cruise, 213, note 1. In this case there is a limitation to the child or children of Clarence, who had none at the time. It is to them as a class, and to the issue of such of them as should be dead, at the time of his death, leaving issue. This shows that they were to take together, and not in succession one after the other, and precludes the idea of an estate tail. It would add nothing to the import of the language used, to have provided that they should take as tenants in common. A.nd, then, the children and grand children were to take in remainder; which they could not do if Clarence had an estate tail. Issue in tail do not take in remainder, but by descent per formam doni. From these authorities it seems clear that Clarence Jamison took only an estate for life under his father’s will in the Capelle Farm. With respect to the question of title acquired by Clarence Jamison under the sale by the sheriff in execution of the mortgage made by the Trustee under the order of the Court of Chancery of New Castle county—there does not appear to be in the will of the testator any authority to make a mortgage of the premises to raise money for the maintenance and education of the testator’s sons; nor was there any, as it appears to me, in the said Court to make [254] such order. The whole proceedings for sale of the Capelle Farm, therefore, appear to have been without authority.