Hill's Lessee v. Hill

Buchanan, Ch. J., delivered the opinion of the court. This suit is not for an undivided interest, as one of the heirs at law of Henry Oswald Hill, but for the entirety, under the limitation to Henry Vincent Hill, the lessor of the plaintiff, (in the language of the will,) in case of the death of Henry Oswald Hill, the first taker; and the question submitted is, what estate did Henry Oswald Hill take, and on what contingency was the limitation over to Henry Vincent Hill made to depend ? Did Henry Oswald Hill take an estate in fee simple absolute; an estate for life, or such an estate as would before the law of descents of this State, have been an estate tail general; or a fee determinable on a contingency; and such as would render the limitation over to Henry Vincent Hill, good by way of executory devise ? It has not been contended in argument, that Henry Oswald Hill took an estate for life only; the words, “to him and his heirs and assigns for ever,” with nothing so to restrict them, preclude such a construction; and they cannot be considered as revoked by any subsequent repugnant words, to be found in the devise. If he took a fee simple absolute, the limitation over was, upon acknowledged principles, clearly void, either as a remainder, or by way of executory devise, and nothing passed by it to Henry Vincent Hill as devisee, who could only take an undivided interest, as one of his heirs at law; and so, if he could be construed to have taken, what would have been an estate tail general, before the act to direct descents, such an es — 96 — tate, being by that act converted into a fee simple. Newton vs. Griffith, 1 Harr. and Gill, 111. But even if it were not so, and the limitation over could have operated as a contingent remainder, expectant upon the precedent particular estate tail, though not as an executory devise, the contingency on which it would have been made to depend, (an indefinite failure of issue) being too remote, yet that remainder would have been defeated by the deed, from Henry Oswald Hill to William L. Kennedy, and the re-conveyance to him, by which the supposed estate tail, on which it depended, would have been destroyed. But an estate in fee simple being expressly given by the first clause of the devise, it cannot be reduced to an estate tail, by the interpolation of words no where to be found in the will; and if it could, it would be of no avail for the purpose of setting up a remainder, expectant upon such an estate tail, since by the law of descents of this State, what would before have been estates tail general, are converted into estates in fee simple; and seeing too, that if it were otherwise, and this could be construed into a devise of an estate tail to Henry Oswald Hill, that estate tail, and the remainder limited upon it, were both destroyed by his deed to William L. Kennedy, and the re-conveyance to him. Is this then a devise of an estate in fee simple, determinable on any, and what contingency, upon the happening of which it was the intention of the testator, that the limitation over to Henry Vincent Hill should depend ? That there was some contingency in the mind of the testator seems manifest. The expression, “in case of,” not meaning “ at,” or “ upon,” but having the same signification with the word “if.” To construe it therefore, as referring to the death of Henry Oswald Hill generally, and meaning upon his death, or whenever it might happen, would be to reject the contingent or conditional words, and to introduce words of an absolute signification, which can only be done, where it is necessary to give effect to the obvious intent, which is not the case here; but on the contrary, — 97 — would have the effect to defeat the intention of the testator; as such limitation over would be void, either asa contingent remainder, or an executory devise. And as it cannot be 'supposed, that he meant to speak of the death alone of Henry Oswald Hill, (a thing certain) as a contingent event that might or might not happen, we ate put to inquire, what the contemplated contingency was. It could not have been a dying without heirs generally, as the persons selected as devisees over, and who could only take as such after his death, are themselves his heirs, and could never have taken at all under the devise ; since, so long as they lived, the contingency upon which alone the limitations over to them were to take effect, (that is, the death of Henry Oswald Hill without heirs,) could not happen. But if that was the contingency intended, and had been so expressed, and the immediate limitation over had been to a person who could not have been an heir of Henry Oswald Hill, it could not have taken effect. It would have been void as a contingent remainder, being after a fee simple; and could not have operated by way of executory devise, the event (the dying of Henry Oswald Hill without heirs) being a contingency too remote to support it. If the contingency intended, was the dying of Henry Oswald Hill without issue, children or heirs of his body generally, it would be nugatory ; since, where an estate in fee simple is expressly given, it cannot be converted into an estate in tail, by the introduction of words not to be found in the will. And if that intention had been expressed, the limitation over could not have been carried into effect. Not as an executory devise, which cannot be limited upon an indefinite failure of issue, as that would be; nor as a contingent remainder expectant upon an estate tail, under the operation of the law of descents of this State, making what would before have been an estate tail general, an estate in fee simple. But it has been urged in argument, that as the testator could not have meant the death of Henry Oswald Hill, — 98 — without heirs generally, seeing that he could not die Without heirs, so long as either of the devisees over, or the issue of any of them should be alive; and as by the words-, “ his heirs and assigns for ever,” he intended that he should take more than an estate for life, he must have designed to provide for his children ; and meant to give him an estate in fee, determinable on his dying without children, or issue of his body living at the time of his death; and that the devise must be construed, and the same effect given to it, as if immediately after the words, “ in case of his death,’’ ■the words, u without children, or issue of his body living at the time of his death,” had been added. That may have been his intention ; but if it were, quod voluit, non dixit. It is true, the intent of the testator, when it can be ascertained from the whole context of the will, is to prevail, if -consistently with the rules of law, it can. But that intent, if’hot directly expressed, must plainly and clearly appear; it shou'ld be an intent plainly -to be gathered from the whole 'will, ahd clearly showing the sense, in which expressions, otherwise doubtful, were meant to be used, and to what they were intended to be applied. And when the meaning ‘Of the terms used, ’the sense in which the testator used them, is plainly seen, the omission of express words ' of a 'corresponding meaning may be supplied; which -is to give effect to the plain intention of the testator gathered from ;the whole will, by means of the terms used. If we were to fish for the intention of this testator, we might suppose that he meant the death of Henry Oswald Hill, without issue of his body, living at the time of his death, in order to give effect to the limitation over, by way of executory devise ; on the ground that he must have intended to make provision for the children of Henry Oswald Hill, if he should have any. But, can we find that to have been the clear and plain intention of the testator; the necessary sense (to be gathered from the whole will) in which, the terms employed were used? If we cannot, to introduce the words,' “ without issue of his body living at the time of h f — 99 — death” (although perchance, it might correspond with his intention) would be, not to expound his will, but to make one for him. Guessing, though we might happen to guess right, will not do. If there was no event or period to which the words, “ in case of his death,” could be applied, as words of contingency, perhaps it would be most consonant to the rules of construction, and more safe to reject them altogether, as ambiguous, senseless and incapable of being carried into effect, than to introduce the words of contingency proposed. Without ascribing to the testator something of technical learning, a knowledge of the difference between a definite and an indefinite failure of issue and the effect and operation of a limitation over upon one, or the other, we have no means of determining which contingency he intended, if either. He may have meant the death of Henry Oswald Hill, without issue of his body living at the time of his death, or, if he intended either, he may have meant without issue of his body generally, which would seem to be the most natural to an unskilful man, not knowing the necessity of confining it to the failure of issue, at the time of the death of the first taker, in order to give effect to the limitation over, or he may have meant neither. And if there was any other contingency that might have been in the mind of the testator, to which the terms used aptly refer, as it is to be presumed that he understood what he said, and meant what his words most nearly and naturally import, in the place where they are found, and in. relation to the subject to which they are applied, in the absence of any thing expressed, to explain them, and clearly showing a different intention, that should be taken to be the contingency contemplated; instead of searching through the will for the intention, and when supposed to be discoved from the context, and not from the expressions employed, introducing words expressive of what the terms used do not import. And surely the words here used, (“ in case of his death,”) cannot of themselves, by any construction mean, a dying by the devisee without issue qf his body — 100 — living at the time of his death; though they may refer to the contingency of his being dead, at the period of the termination of the precedent estate, given to Elizabeth and Teresa Ann Hill'. And if it may have been the intention of the testator, to give to Henry Oswald Hill an estate in fee simple absolute, if he should be living, or in the event of his being alive at that time, when he contemplated the vesting of the estate under the limitation over to him, and the expressions used are such, as, standing alone and unexplained, indicate that intention, his death at that period must be taken to have been the contingency in the mind of the testator, unless there is something manifesting that he looked to a different contingency. What is there then to show that such could not have been, or was not his intention, and that he must have had some other contingency in his mind ? It is not, we think, to be found in the supposition, that he must have intended to provide for the children of Henry Oswald Hill; or because no reason is shown why they should not have been provided for. It does not appear that he had any children at that time, and the presumption is, that he had none, as he left no issue at the time of his death, and therefore the attention of the testator may not have been drawn to. the contingency of his having children. But if he had, it does not follow that they must have been the dearest objects of the testator’s benevolence. They would have been his great grand-children, and he may well have preferred his grand-children, the immediate devisees over in succession. It was a matter resting in feeling, and he certainly had his preferences; and when he intended to give an estate in absolute fee, he knew how to do it. He had previously, in another clause of his will, given such an estate to another grand-son, Henry Hill, in his own language, “ to him, his heirs, and assigns for ever,” with no precedent life estate, but to vest immediately upon his own death, • — 101 — It is clear too, that he preferred his grand-son Henry Oswald Hill, to other grand children, to whom there are limitations over of the land devised to him, and the circumstance, that the devise to him was after a precedent life es-state to Elizabeth and Teresa Ann Hill, whom he might not survive, may perhaps account for the introduction of the words of contingency, “and in case of his death,” and the consequent limitations over to Henry Vincent Hill, £fc. as the next objects of his bounty, in preference to any children that Henry Oswald HUI might have. But the devise to him being in the first instance, in the same words with the devise to Henry Hill of other lands, (“to him, his heirs, and assigns for ever,”) it would seem as if he intended to give to him the same estate, (an absolute fee) in the event of his being alive to take it, on the termination of the precedent life estate; and if not, then that it should go over ; and under that construction, if Henry Oswald IMll had died before the termination of the preceding life estate, the limitations over would have had the same operation, as if they had taken effect by way of executory devise. If instead of the words, “ and in ease of his death,” the language of the testator had been, “if he be dead,” or, “if he should be dead,” it would in the absence of any thing to explain it, and to show that it referred to some other contingency, obviously have referred to the contingency of Henry Oswald HilVs death, at the termination of the preceding life estate. It would have been equivalent to his having said, “ and if he should then be dead,” that is, at the termination of the precedent estate. And the words, “ and in case of his death,” viewed in connexion with the preceding devise of an estate for life, upon the termination of which the devise to Henry Oswald Hill was to take effect, are synonymous terms; and standing where they do, and applied to the subject in relation to which they are used, the time at which the devise to Henry Oswald Hill was to take effect, marks the period to which they refer; nothing appearing to explain them, or to show that they — 102 — point to a different contingency. And as the language of the testator imports only, what may have been his intention, there being nothing evincing a different intention, he must be understood to have meant what his language most nearly imports. We think, therefore, that as Henry Oswald Hill was living at the time of the termination of the estate devised to Elizabeth and Teresa Ann Hill, he took an absolute estate in fee, and that the limitation over to Henry Vincent Hitt failed to take effect. JUDGMENT AEEIRMED.