Demarest v. Den ex dem. Hopper

The Chancellor. Johannes Perry died in 1832, leaving a will, by which, after other devises, he devised as follows: “ I give unto my daughter Catharine for and during her life, the remainder of my real estate; after her death, I will and require the same shall be equally divided among her heirs, and be unto them, their heirs and assigns, for ever.” [611] At the death of the testator, Catharine had a daughter, Maria, her only child by her husband, Michael Salyer, the said Maria being then married to Lewis Hopper. After the death of the testator, and in the lifetime of Catharine, Lewis Hopper and the said Maria his wife, by deed, duly acknowledged, conveyed to Peter Bush, his heirs and assigns, all the right, title, and interest which they then had, or thereafter might have, by virtue of the said will, in the premises in question. Maria survived Catharine, and afterwards died, leaving six children. The question is, whether these children can recover the property from the said grantee of Maria and her husband. The foregoing statement is sufficient to raise all the questions involved in the case. I am of opinion that the estate which Maria had before Catharine’s death was an alienable estate. By the provisions of our statute, excluding the last clause, “ and if any child be dead, the part which would have come to him or her shall go to his or her issue in like manner,” Maria had, while Catharine lived, a vested remainder. And if this last clause can be considered as doing any thing more than declaring what would be the result in ease the person in whom the remainder was vested had not conveyed it, and had died leaving children ; if it can be considered as legislating an additional limitation to the estate ; my opinion is, that it is a limitation by way of executory devise. If it is an executory devise, then the person to whom Maria, in Catharine’s lifetime, conveyed took subject to be defeated of her estate by the happening of the contingency on which the executory devise was to take effect Blit this event did not happen, Maria survived Catharine. On the death of Catharine, the remainder was executed in possession. If Maria had not conveyed, it would have been executed in possession in her. She having conveyed, it was executed in the person who represented her, that is, her grantee. There can be no doubt that, by the word “ heirs,” first used in this will, the testator meant children. Substituting the word children, this will give a life estate to Catharine, with a vested remainder in fee to her children or child. [612] •The artificial construction adopted by the English judges hi the Shelley ease, was a clear violation ef the intention of the testator. Oar legisl&tere have --repudiated that construction by the statute; and the resalte of such a will, as declared by the statute, are just the results which the substitution of the word ehildren, instead of the word heirs, produces, that is t© say, a life ■estate with a vested remainder over in fee to the children. Of •course, if ©ne of the children die leaving Issue, and without ¿laving aliened, his interest will go to his issue. And this, I apprehend, -is all the statete means.' It is certainly all tiie testator meant; and we shoald hardly suppose that the legislature, •In a statute made for the purpose of carrying out the intention of the testator, would make a different will, by adding a limitation which would defeat the intention. The courts in England, to avoid a contingent remainder and its consequences, felt bound to say, against the dear intention of such a will, that it gave a fee to the person therein named as •devisee for life. If prohibited from sueh construction, they would certainly, to avoid the same consequences and to carry out the dear intention, have construed the word heirs to mean ckililrm, and have said that such a will gives an estate for life with a vested remainder in fee. And it cannot he doubted that courts under our institutions would have done the same, if our legislature had simply declared that such a will should net give a fee to the person therein named as devisee for life. Now the object of per statute was to restore to such a will the construction demanded by the intention. And it is admitted fey the Supreme Court that, without the l&stdause in the statute, the-estate of the children or child is a vested remainder. A vested -remainder is descendible. Has the statute, by simply declaring a result of this principle, as applied t© the ease, undone its intended work, and converted the estate, after all, into a contingent -remainder, and defeated at once the intention of the testator and its own purpose ? I think not. But, as before observed, if we are at liberty to consider this last clause as an additional limitation, it appears to rne it shoald be held to be a • limitation in the nature of an executory devise. The case presents another question; Maria survived the [613] devisee for lifer the remainder became thereby executed in possession ; could she, against her said deed,, maintain ejectment for the lands? In the view I have taken of the ease, it in not necessary for me to go into an examination of this question, or to express a decided opinion upon it; bst I am strongly inclined to think she could not, I concur in the reversal of the judgment. Judges Wall,, Seknickbon, and MoCaeteb concurred with the Chancellor.