James v. Rowland

Irving, J., delivered the opinion of the Court. The decision of this case, which comes up on appeal from a pro forma decree passed by consent, depends upon the proper construction to be given to the following clause of the will of Watkins James, dated the 29th day of April, 1848, and admitted to probate April 10th, 1849: “ First, I give and bequeath to my son Bennett, the farm which I have lately purchased of George W. Dillahunt, containing one hundred and seventeen acres, more ' [466] or less, to hold the same only during his natural life, and after his death to fall to his son, Watkins James, should he he living, to have the same, he and his heirs, in their own proper right and behoof forever; hut if the said Watkins James should die without heirs, then I will and direct that the said farm he sold, and the proceeds arising 'therefrom, he equally divided among my four children or their heirs, viz., the heirs of Abram James, deceased, Cordelia Coffman, Jamima Parren, and Watkins James, Jr., share and share alike; the share to which the said Watkins James, Jr., may be entitled, to be equally divided between his two children, Francis and Louisa James. Rut it is my will, and I hereby further direct, that the said farm shall he, and I hereby charge it with the sum of twelve hundred dollars, to be paid by my son Bennett, or if he be dead, by his son-—James, to be paid in three equal annual instalments, after my decease.” The question is, what estate did Watkins James, son of Bennett James, take in the land'in question? It is perfectly clear that if Watkins should he living at the death of Bennett, the testator intended him to take a fee, and used the most apt words to effect that purpose. The only question is., are there any words in the will making a fee defeasible at any time; and making a good, executory devise over? The Act of 1862, ch. 161, regulating the construction of certain doubtful expressions in a will, cannot be resorted to in aid of the construction of this will, which took effect and created vested interests in 1849. Like the statute of England of 1831, from which it was evidently copied, it creates a change in the common rule of interpretation, and only affects wills made and executed after-wards, for the patent reasons that the testator is always to he understood as using the words employed, in the sense attaching to them at the time he uses them, and'that the devisee is entitled to the construction they would have received at the time they became operative, had the qúes [467] tion arisen, without being affected by an after-established statute, applying a new meaning to the words. Applying the long established rules of construction, we have no hesitation or difficulty in determining the true meaning of this testator, or of the words he uses to convey it. It is clear that he meant to give to his son Bennett only a life estate, and that if on Bennett’s death, his son, (testator’s grandson) Watkins James, was living, he was to take an immediate fee; and if when the life estate ended Watkins was dead, but he had descendants living, they were to take a fee, and that only on failure of both these contingencies at the death of the tenant for life, was the attempted executory devise to take effect. The language he uses is as strong as any that could be employed to create a fee in Watkins, “to him and his heirs in their own right and behoof forever.” The limitation over is upon failure of heirs generally, which, being an indefinite failure, cannot be supported, no matter to what time such failure is supposed to refer—the life tenant’s death, or the death of Watkins in the life-time of the tenant, or at Watkins’ death, whenever it should occur. Technical words will always receive a technical construction, and be held as used in their technical sense, unless the contrary clearly appears from the context; and where the same word is used twice, in relation to the same subject, it will be held as meaning the same thing in both instances, unless the contrary appears. 2 Jarman on Wills, 526, and 2 Wms. Ex., 971-973. It is possible the testator meant descendants by the term heirs in the executory devise, but if he did it would not alter the necessary effect of not restricting the failure of such descendants to a definite period. So that it really makes no difference whether the testator intended to refer to such failure of “heirs” at the death of the tenant for life, or at the death of his son Watkins, whenever that might occur. The result would be the same. If there [468] could be any doubt as to tbe testator’s intention, that -bis grandson should have a fee, if he lived to come into possession, at his father’s death, the charge imposed on his father, and then on him, of twelve hundred dollars to be paid in three equal annual instalments, would solve it. Such charge, personal in character, and charged on the land in their hands, without any words of inheritance, have always heen held to imply a fee. Jackson vs. Bull, 10 Johnson, 148-151; Goodtitle vs. Maddern, 4 East, 496. (Decided 16th July, 1879.) Inasmuch as we think Watkins James, son of Bennett, upon his surviving his father, took an unquestionable fee in the land devised to him, and no other objection is made to the execution of the contract of sale according to its terms, the decree will be reversed and cause remanded, to the end that a proper decree for specific performance, according to the terms and stipulations of the contract set out in the proceedings may be passed. Judgment reversed with costs, and cause remanded.