Caldwell v. Willis

George, C. J., delivered the opinion of the court. On the 17th day of December, 1841, Augustine Willis made and published his last will and testament, and, dying in a few days thereafter, it was duly admitted to probate in January, 1842. In the second clause of his will he gave his wife a life-estate in all his property, charged, however, with the support and education of his four minor and unmarried children. By the third, fourth, fifth, and sixth clauses, he provided for advancements to be made to his said four minor children, as they respectively arrived at majority or married. Each one of these clauses contained the provision for one child, so that they were all in exactly the same words, except the name of the child for which that clause made provision. The ninth clause was residuary, and directed that upon the death or marriage of the widow his land should be sold, and the proceeds, with the other personalty should be divided among his then surviving children on the same conditions and limitations provided in the third, fourth, fifth, and sixth clauses. These limitations and conditions will be shown by the following quotation from the fifth clause, which made the provision for an advancement to his son Daniel; viz., after providing for an advance of twenty-five' hundred dollars, the will provides, “ and I hereby devise the money or property to — 566 — be thus divided: to the said Daniel Willis during his life, and at his death to his child or children then living and the descendants of such child or children and their heirs for ever.” This clause then proceeded to make a limitation over of the share of Daniel, in case he died without child or children, or the descendants of such. The ulterior limitees were the three remaining of the four minor children; viz., Sallie, Ada, and the appellee, Lafayette. The names of these limitees were changed in the other clauses before mentioned, so that whenever one of the four died without issue the other three were to take the remainder. A son, Augustine, was allowed also to take in remainder, under certain additional conditions, not necessary here to mention. The testator named in other parts of the will three other children, as having been fully provided for, and he directed that they should receive nothing from his estate. Augustine died in 1842, Ada in 1844, and Sallie in 1850, both of these last unmarried and minors. The widow of the testator died in December, 1865, without having married a second time. At her death Daniel and Lafayette alone survived of the beneficiaries in the will. The executors nominated in the will all refused to act, and administration on the estate, with the will annexed, was first granted to the widow and one Dyche, jointly. Dyche resigned, and a new grant of letters was made to the widow alone, who made a final settlement of her accounts in June, 1855. After the death of the widow, in September, 1866, Daniel and Lafayette, regarding themselves as the owners in fee of the lands devised by the will, and directed by it to be sold, made partition of the same, and immediately afterward Daniel, for a valuable consideration, sold and conveyed his share to the said Lafayette in fee-simple. Daniel died in 1867, leaving three children. In July, 1878, one of the appellants, Thomas K.. Caldwell, was appointed administrator de bonis non, with the will annexed, of Augustine Willis, the testator; and he and the said three children of said Daniel exhibited this bill against Lafayette Willis, in which they seek to recover one half of the two special legacies given to Daniel and Lafayette, and the proceeds of the sale of one half of all the lands of which the testator died seised and possessed, together with the rents and profits of the same — 567 — from the death of Daniel in 1867. The bill also claims that the three children of Daniel Willis are entitled to a contingent interest in the other half of the estate, to become vested in them in case Lafayette shall die without issue ; and it is alleged that said Lafayette is fifty-eight years old, and is now without issue, and is likely to die without issue ; and this part of the bill seeks that some security be afforded by the court against the loss or destruction of it by said Lafayette, so that, in case he dies without issue, the share of the complainants, who are children of Daniel, may be forthcoming. The bill asks for a sale of the land, so that the will may be carried out. There was an answer to the bill, and the cause was tried on the bill and answer, and an agreement of the parties to the effect that the court should determine the rights of the parties under the will and decide no other question, leaving the other questions to be settled afterwards. The Chancellor dismissed the bill and the complainants appealed. Under the view which we have taken, it is unnecessary to do more than decide upon the construction of the will, as to the estate devised in the third, fourth, fifth, and sixth clauses, which make special bequests to the four children therein named. The settlement of this question will also settle the rights of the complainants under the ninth or residuary clause, since the last clause adopts the before-mentioned clauses as to the nature of the estate given under it. We quote again the provision in the will of Augustine Willis, which we are called upon to construe, as follows : “ I hereby devise the money and property to be thus divided: to the said Daniel Willis during his life, and at his death to his child or children then living and the descendants of such child or children and their heirs for ever.” It is insisted by the appellants, the children of the said Daniel, that he took only a life-estate in the devise, with remainder to them in fee. On the other hand, it is insisted that the life-estate expressly given to Daniel has been enlarged to a fee, either by the operation of the rule in Shelley’s case, or because the estate is attempted to be entailed, in violation of the rule against perpetuities. The difficulty about the construction arises from the use of the words “ descendants of — 568 — such child or children,” for it is conceded on both sides, if these words were erased from the will, so that the devise would be to D. for life, and, at his death, to his child or children then living and their heirs for ever, the devise would vest a life-estate in D., with remainder at his death to his children then living. There are but four possible meanings to the clause under consideration, so far as relates to the question as to who shall take after the death of D., and in what character, viz.: 1. That the child or children “ then living,” and the living descendants of such children, as may be then dead, will take, such descendants to take the share of their deceased parents ; 2. That the child or children (at the death of D.) living, and the descendants, then also living, of the living children, take as tenants in common, each descendant taking a full share with a living child; 8. That the child or children of D., living at his death, and their descendants, will take, the descendants to take in succession to the children, and on the death of their respective parents. And, under this meaning, the descendants would take either as purchasers after the death of their parents, or as heirs of their said ancestor ; 4. That the child or children living at D.’s death, and their descendants generally and indefinitely, - are to take as tenants in common. The appellants insist that the first meaning is the true one, and that, if they should be mistaken in that, then, at all events, the second meaning must bé adopted. There is nothing in the language of the will to authorize the adoption of the first possible meaning. The language is “ to the child or children then living and the descendants of such child or children.” The import of this is plain and clear, and there is no room for construction. The descendants referred to are the descendants of the children mentioned in the prior clause of the sentence, viz., children then living, i.e., living at the death of D. The words “ such child or children ” plainly connect the last named children with the first. It is admitted that this is the grammatical meaning of the words, but it is insisted that this meaning arises from the improper and incautious use of the word “such.” If there was any thing in the other parts of the will to show that the testator had a different intent from that expressed in this clause, we — 569 — might reject this or any other word which was inconsistent with the plain meaning of the testator, as thus shown from a consideration of the whole will. But we find no such different intent expressed. If we reject the word “such,” we have no other ground for it than a conjecture based on a presumption that the testator intended to make a provision similar to the statute relating to the distribution of intestates’ estates. It is clear, therefore, that the first possible meaning which might be attributed to the clause in question cannot be adopted. The second meaning will be discussed hereafter in connection with the fourth. We proceed now to consider the third supposed meaning ; viz., that the descendants take in succession “ to the children then living,” and either as their heirs or as purchasers. Suppose it is asserted that they take as “ heirs,” then the word “ descendants ” is wholly without force in the clause, since the word “ heirs ” is also used and expresses the exact idea which this supposition attaches to the word “ descendants.” This would be to obliterate this word entirely from the will, which we have seen cannot be done, unless a plain intent to do so appears from other parts of the will; and no such intent appears here. Take, then, the alternative meaning, possible under this supposition ; viz., that the “ descendants ” take as purchasers; then the will must be construed as if it read thus: to D. for his life, and, at his death, to his children then (i.e., at D.’s death) living, for their lives, and then to their descendants and their heirs forever. It is manifest that this construction, if adopted, would destroy the title set up by the complainants. The devise would be void, because it would be in violation of the rule against perpetuities, which requires the fee to vest within a life or lives in being at the testator’s death, and twenty-one years after the expiration of such life, or twenty-one years after the expiration of the last surviving life if more than one be named in the will. The life of a child of D. must necessarily have been in being at D.’s death, for, if the child were then en ventre sa mere, it would, for all the purposes of this rule, be considered as in being at the time of the father’s death. It is true that the descendants of the child of D. might all of them also be in existence at D.’s death, but it — 570 — is equally true that all or some of them might come into being afterwards ; and in such ease there would be added to a life in being, at the testator’s death, another life commencing after his death, and whenever this is the ease the rule against perpe-tuities is violated, and the limitation void. But we do not consider this the true construction of the will, because there is nothing in the will to show that the children of D. shall take only a life-estate, and nothing to show that the descendants shall take no interest during the lives of their ancestors, the children of D., but only in succession to them. It has now been shown that neither the first nor third of the supposed possible meanings of the devise can be adopted; it remains, therefore, to inquire which of the two remaining senses is the true one. The difference between these two meanings is, that, in the second, the devise is construed to be at the death of D. to his child or children then living, and to the descendants of such children, also living, at the time of D.’s death; and in the fourth it is supposed that, not only “ descendants ” living at D.’s death are included in the devise, but also his descendants generally, whether living at the time of D.’s death or coming into being afterwards. The “ descendant,” who seeks to make out his claim under this clause, must be a descendant of a child living at D.’s death. There is no ambiguity or indefiniteness as to the party from whom the descendant is to issue, — the ancestor must be a child of D., living at D.’s death. Both sides concede this. The point at which the controversy arises is whether all of these descendants, or a part, are to take under the will, and, if a part only, then, which part ? There is nothing in the will to suggest, nor does the argument suggest, a division of these descendants into classes, a part of whom shall take, and a part not, unless it be as to the time of the existence of the descendants, with reference to D.’s death. Divided with reference to this point of time, there can be but three possible classes of descendants, viz: 1. Those who died before D ; 2. Those in esse at the time of D.’s death ; 3. Those coming into being after D.’s death. There can be no other possible descendant of a child of D. It is manifestly impossible that the first class should have been intended, for they could not have taken; — 571 — they bad ceased to exist when the devise was to take effect; and, besides, there is nothing in the will to indicate that provision was made for deceased descendants of children when there was none made for deceased children or their living issue. As to the second class, viz., those descendants of a surviving child of D., who were in esse at the time of D.’s death, and none others, it is insisted, in support of the view that this class was meant, that the words “ then living ” should be read as if inserted after “ descendants ” in the clause under consideration. The will, under this construction, would read as if written thus: to D. “ during his life, and at his death to his child or children then living and the descendants then living of such child or children and their heirs for ever.” As written, the devise is: toD. “during his life, and at his death to his child or children then living and the descendants of such child or children and their heirs for ever.” The testator expressly describes the children of D. who are to take at D.’s death, as those “ then living,” but omits to qualify the “ descendants of such child, or children ” in the same way. Have we a right to say that the testator meant nothing by this change in phraseology, and to insert in his will words which, after being used to qualify the immediate descendants of D., his children, are omitted, as a qualification of his more remote descendants? We think not. The will bears internal evidence of having been prepared with care, under professional advice. The phrase we have quoted appears ipsissimis ver-bis four times in the will. It does not therefore owe its peculiar structure to haste or inadvertence. On four several occasions he qualifies the children of D. by the words “ then living,” and in the same sentences, and in immediate juxtaposition, with such use of these words as applied to children, he omits them in connection with descendants. We are bound, therefore, to hold that the appropriate and unambiguous language, thus deliberately adopted and repeated, expresses the meaning and intent of the testator. He must be held to have meant what he has thus plainly and deliberately expressed. But it is argued that the 26th section of the Act of 1822, Hutch. Code, p. 610, applies to this clause of the will, and has — 572 — the effect to insert “ then living ” after the word “ descendants.” This section, so far as it relates to this question, is as follows: “ Every contingent limitation in any . . . will, made to depend upon the dying of any person without . . . children, or offspring, or descendant, or other relative, shall be held and interpreted a limitation to take effect when such person shall die, not having such . . . child, or offspring, or descendant, or other relative (as the case may be), living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and as plainly declared on the face of the . . . will creating it.” We think that, if the statute applies, the position of the appellee, that the contrary intention mentioned in it is plainly and expressly declared on the face of the will, is well founded. For it is impossible to conceive that the testator intended, for the reasons before given, that the words “ then living ” should be read after “ descendants.” And if the testator did not intend the words to be inserted, it must be held that he meant to have his language construed without the qualification implied in them. But we do not think that the statute applies to the clause under consideration. It applies only to contingent limitations made to depend upon a person dying without children or descendants, &c. The clause in question contains no limitation on the death of a person dying without children or descendants. On the contrary, the clause proceeds on the idea that there will be children or descendants of D., and makes a disposition of the estate to such children and descendants ; and the question here is, not as to the validity of a limitation over to other persons, dependent upon the death of D. without children or descendants, but it relates solely to the validity of the limitation to these children and descendants of D., supposing them to have been born and not to have died. It thus appears that the second class of descendants, viz., those only living at the death of D., was not meant by the testator. We think it equally evident that the third class, or those only who were born after D.’s death, was not meant as the only descendants entitled to take. If they alone were meant by the testator, then existing issue would be excluded, — 573 — when no intent to exclude them, as & part of the descendants, is manifested in the will. This construction would make the testator draw a distinction in the distribution of his bounty against actual descendants in favor of future possible descendants, both classes being related to him and his child D. in the same degree. Such a construction will not be adopted unless there be plain words requiring it, and there are none such here; on the contrary, there is a strong implication against it. It being thus shown that the three possible classes of descendants of the children of D. taken separately were not intended, we must construct a fourth class, composed of some or all the three classes before mentioned. For the manifest reasons above stated, in rejecting the first class, as those alone meant in the will, we exclude it from this fourth class. The first class being eliminated, we have this fourth class composed jointly of those who were comprised in the second and third classes, viz., the descendants of the children of D. living at his death, and also those who might come into being afterwards. This class being the only possible class, not already ascertained to be not-included in the bequest, and being also fairly embraced in the language of.the will, must be adopted as comprising those descendants who were intended by the testator to take after D.’s death. And this being the class of “ descendants ” intended, then, also, it is established that the fourth possible meaning of the whole clause of the will under consideration is the true and correct construction of that instrument. Restating that meaning, we find tha,t the devise is to D. during his life, and, at his death, to his child or children then living and the descendants of such child or children, generally and indefinitely, as tenants in common. Is such a bequest good? is the next question. Except when the limitation is by way of contingent remainder, which may be cut off by the alienation of the particular tenant (which liability to be defeated in this way is the reason for the exception), a limitation of an estate in realty or personalty will be void, if by the terms of the instrument creating it the fee may not vest within a life or lives in being at the death of the testator, and twenty-one years and the usual period of gestation — 574 — thereafter. This rule applies as well to executory devises, when an estate in fee is given, and a limitation over, devised to another upon the happening of some contingency which will have the effect to cut short the estate devised to the first taker, and at the same time to vest it in an ulterior limitee ; as also to provisions like the present, where an attempt is made to tie up the inheritance or absolute interest in a direct bequest, and for a longer period than allowed by the above-mentioned rule. It is manifest that the devise or bequest in question, so far as it relates to the descendants of the child or children of Daniel Willis, who were not, or might not be, born at the death of said Daniel, or within ten months (the usual period of gestation) thereafter, is void; for, if such descendant could take under the will, his interest would not vest within the period prescribed by the rule, for we have the life of Daniel, which was in being when testator died, and also an indefinite period thereafter, in which the fee is to vest. The limitation being to the descendants of the children of D. indefinitely, it might happen that a person answering the description of such descendant, and therefore entitled to take under the terms of the will, might not come into being until after the period fixed by the rule above stated. For it must be borne in mind that, by the terms of the rule, the bequest will be void, if by the intent of the will the absolute estate may not vest within the prescribed limits, although as the events actually turn out, every person, who is entitled to take, comes into being within the time fixed by the rule. It thus appearing that the limitation is void as to some of the persons comprised in the class to which it is made, it results, by a well-settled rule, that it is void as to the whole class. The courts will not undertake to separate the interests of those who might take from those who cannot, for the manifest reason that no such attempt could be successful until the period should come when it would be certainly known that no other person could come into existence who would be entitled to take under the will. Until that time, it could not be known into how many shares the bequest should be divided, and, as a consequence, till then those entitled to take, if they had not been comprised in a class with the — 575 — others, could take no vested interest.' On this subject Sir William Grant in Leake v. Robinson, 2 Meriv. 363, 390, said: “ The bequests in question are not made to individuals, but to classes, and what I have to determine is whether the class can take. I must make a new will for the testator, if I split into portions his general bequest to the class, and say that, because the rule of law forbids his intention from operating in favor of the whole class, I will make his bequests what he never intended them to be; viz., a series of particular legacies to particular individuals, or, what he had as little in his contemplation, distinct bequests in each instance to different classes, namely, to grandchildren living at his death, and to grandchildren born after his death.” See 1 Jarman on Wills (3d Am. ed.), ch. is. § ii. The limitation being void, because it violates the rule against perpetuities, as to personalty then (and both sides concede that the direction to sell the land makes it personalty), the rule is that the first taker gets an absolute estate. In Harris v. McLaran, 30 Miss. 533, 570, Smith, C. J., said the estate of the first taker was absolute “ in those cases in which an intention to dispose of the whole interest is apparent, and where also conditional limitations were engrafted upon interests in the first takers, which, in the absence of such conditional limitations, would be held to be absolute interests.” The rule is laid down in the same way in 1 Fearne on Remainders, 488. The intent to dispose of the whole interest is perfectly manifest in this case. It thus appears that Daniel took an absolute interest in the property given in the will, and, being absolute owner, he had a right to dispose of it to his brother, the appellee. The bill was therefore properly dismissed, and the decree is Affirmed.