Arnold v. Buffum

STORY, Circuit Justice. The question for the consideration of the court is, what estate Peleg took under the wiE. If he took a fee simple, which became absolute upon his attaining twenty-one years of age, then the tenant is entitled to judgment. If he took a fee tail, or a fee simple determinable upon his dying without issue, notwithstanding his arrival at twenty-one years of age, (and in this latter view the question, whether the executory devise over be not too remote, becomes immaterial because it is a devise to the heir at law) then the demandant is entitled to recover. The counsel for the demandant contends, 1st. That Peleg took a contingent remainder in the estate devised to him, depending as to one moiety, upon his arrival at age, and as to the other moiety, upon the death or [1174] marriage of the testator’s wife. 2d. That Peleg toot an estate tail only hy the devise. If these grounds fail, there is an end of the controversy. As to the first point, it seems to me impossible to read the terms of this will, and not come to the conclusion, that upon principles of law, the estate devised to Peleg, was a vested estate in remainder, to take effect in possession upon the regular determination of the preceding estate, as to one moiety upon his attaining 21 years of age, and as to the other moiety upon the death or marriage of the testator's wife. The case differs not at all in principle, from a devise to A. for 21 years, and afterwards to B. or to A. during widowhood, and after-wards to B.; in which cases it is clear, that the estate to B. would be vested in interest and not be contingent. To constitute a vested estate, it is not necessary that it vest in possession; it is sufficient if it vest in interest, that is, that there be a present fixed right of future enjoyment, and there be no condition precedent to its vesting in possession, if the prior estate were immediately determined by its natural limitation. On the other hand, a contingent remainder always supposes, that the remainder is limited to depend on an event or condition which may never happen or be performed, or which may not happen or be performed, till after the determination of the preceding estate. Pearne, Oon. Rem. (Butler’s Ed.) 3. In the ease at bar, there was no such uncertainty as to the event on which the remainder depended; the arrival at age and the death or marriage of the testator’s wife, created no condition without which the estate could not. vest, but only denoted the time when the remainder was to vest in possession. Pearne, Rem. (Butler’s Ed.) 242. The authorities, too, on this head, are decisive of the question. One of the earliest is Boraston’s Case, 3 Coke, 19. There was a devise of land to A. and B. for eight years, and after the said term to remain to the testator’s executors till such time as H. should accomplish his full age of twenty-one years; and when the said H. should come to his full age of twenty-one years, then the testator willed that H. should enjoy the lands, to him and his heirs forever. H. died under twenty-one years, and it was contended, that the remainder did not vest in H. because he did not live to attain twenty-one years of age, for that as he was not to have it until twenty-one, it was contingent on that event, it being uncertain, whether he could ever attain that age. But it was held, that the case was nothing in effect but a devise to the executors till H. attained twenty-one years of age, remainder to H. in fee; that the adverbs of time, when, &c. and then, &c. do not make any thing necessary to precede the settling of the remainder, any more than in the common case of a lease for life or years, and after the death of the lessee or the expiration of the term, the remainder to another, in which cases the remainder vests presently; that when these adverbs refer to a thing, which must of necessity happen, there they make no contingency; and it is certain, that every man must die, and every term end, and that H. would or might accomplish his age of twenty-one years, which are all one in construction of law; and that these adverbs expressed the time when the remainder to H. should take effect in possession, and not when the remainder should vest. Another case is Manfield v. Dugard, 1 Eq. Cas. Abr. 195, pi. 4, where the devise was to the testator’s wife for life, till his sou should attain to his age of 21 years, and when his son should attain to this age, then to his son and his heirs; the son lived to the age of thirteen years, and then died; and it was held, by Lord Harcourt, that the remainder vested presently in the son upon the testator's death, and was not to expect till the contingency of his attaining his age of twenty-one years should happen. These, as Lord Chief Justice Willes declared, are two very great authorities, and both of them in point; and upon these authorities, in a case where the devise was to W. U. and A. his wife, to hold to them for so long a time, and until B. C. and D. sons of W. U. and his wife, should come to and attain their several and respective age of twenty-one years, then to the said B. C. and D. and to their heirs and assigns equally to be divided between them as tenants in common, and not as joint tenants, and to take and hold their respective shares of and in the same, as they shall severally arrive at their said ages of twenty-one years, and not before, unless W. U. and his wife should, before that time, depart this life, and that then immediately on the death of the survivor of them, W. U. and his wife, to the said B. C. and D. their heirs and assigns, in manner as aforesaid; the same learned judge, and his brethren of the common pleas held, that the estate devised to B. C. and D. in case they had survived the testator, would immediately have vested in them, and have descended to their heirs, although they had never attained the age of twenty-one years. Doe v. Underdown, Willes, 293. There are many other cases to the same effect. I will mention a few of the later cases, and merely refer in general terms to the others. In Doe v. Lea, 3 Durn. & E. [3 Term R.] 41, where the devise was to trustees and their heirs, until M. L. should attain the age of twenty-four, and unto M. L. when and so soon as he should attain his age of twenty-four years; and M. L. died after twenty-one but before twenty-four, it was solemnly held by the court of king’s bench, that M. L. took a vested interest in the estate descendible to his heir at law. In Bromfield v. Crowder, 4 Bos. & P. 313, there was a devise (after two life estates) in remainder, to J. D. Brom-field. if he should live to attain the age of twenty-one years, but in case he should die [1175] before be attained tbat age, and bis brother O. B. should survive him, in that case to C. B. if he attained the age of twenty-one years, &e.; and it was resolved, that J. D. B. took a vested estate determinable upon the contingency of his dying under twenty-one years. Then came the case of Doe v. Moore, 14 East, 601, where there was an immediate devise to J. M. when he attained the age of 21 years, to hold to him and his heirs forever; but in case he should die before he attained the age of 21 years, then to his brother, &c.; and it was adjudged, that J. M. toot an immediate vested interest, liable to be divested upon his dying under 21 years of age. A still later case is Doe v. Nowell, 1 Maule & S. 327, where the devise was to J. R. for life, and on his decease to and among his children lawfully begotten, equally at the age of 21 years, and their heirs as tenants in common; but if only one child should live to attain such age, to him or her, and his or her heirs, at his or her age of 21; aud in case J. R. should die without lawful issue, or such lawful issue should die before 21, then a devise over; and it was resolved, that the children of J. R. took vested remainders. I forbear to quote other cases, although the books abound with them on the same point. Fearne, Rem. 242, 401, 547; [Pills v. Brown,] Palmer, 132, 1 Eq. Cas. Abr. p. 188, pl. 8; Goodtitle v. Whitby, 1 Burrows, 228; Doe v. Lea, 3 Durn & E. [3 Term R.] 41; Doe v. Cundall, 9 East, 400; Stanley v. Stanley, 16 Ves. 491; Chambers v. Brailsford, 18 Ves. 368; Perrin v. Lyon, 9 East, 170; Edwards v. Symons, 6 Taunt. 213; Goodright v. Parker, 1 Maule & S. 092; Denn v. Satterthwaite, 1 W. Bl. 519; Fairfield v. Morgan, 5 Bos. & P. 38. They present a mass of authority, against which it is difficult to offer any reasoning, which would not go to unsettle the most solid foundations of the law. We may then pass to the second point made by the demandant. And I am clearly of opinion, as well upon principle as authority, that the estate devised to Peleg, was a fee simple, and not a fee tail. Consider the terms of the will; the devise is to Peleg, after his arrival at age, “to be and remain to him, his heirs and assigns, forever.” These are the very terms in which a fee simple is technically expressed. To narrow the fee simple thus expressly given to a fee tail, it ought to be apparent from th.e context, that such was the testator’s intention. Let us see, therefore, if any such intention can fairly be inferred from the subsequent clause. It is in'these words. “But if my said son Peleg, should die before he attain the age of 21, or without lawful issue, then the aforesaid devised premises, &c. to descend to my male heir in fee simple.” Now, in order to maintain the demandant’s case his counsel is driven to contend, that “or,” is to be construed in the disjunctive, so that the devise over may take effect upon the happening of either of the events stated; or that the words, “before he attain the age of 21,” are superfluous and inoperative, and are therefore to be struck from the will. In respect to the first position, the necessary result of the construction contended for, would be, that if Peleg had died under age, leaving lawful issue, the devise over would have taken effect to the exclusion of such issue, against the apparent intention of the testator. It is upon this principle, that in a long line of cases upon analogous devises, it has been decided, that “or,” ought to be construed “and.” Several of these cases are referred to in Lippett v. Hopkins, [Case No. 8,380,] and I will barely cite as auxiliary, the very recent case of Right v. Day, 16 East, 67, in which the doctrine is acknowledged and confirmed, if indeed, a doctrine can be said to require confirmation, which has been acted upon ever since the decision in Soulle v. Gerrard, [Sowell v. Garret,] in the reign of Queen Elizabeth, Moore, 422, 2 Rolle, 282. As to the other, which is the favorite position assumed in the argument, it seems equally unsupportable. It is the duty of courts of justice, to give the natural construction to the words of a will, unless some manifest incongruity or repugnancy would arise; and where the words are sensible in the place they occur, and import a condition or contingency, to strike them out, or render them inoperative, would be to create and not to construe a will. Construing, then, the words as we find them in the clause now under consideration, there is no reason to restrain the estate of Peleg, to an estate tail. If that had been the intention of the testator, there is no reason, why he should have inserted the contingency of Peleg’s arrival at age, in the devise, since it could have no operation upon the estate devised to him. But if he intended a fee simple, as his previous words import, then the contingency was necessary to be expressed, as otherwise, the estate would rest absolutely in Peleg, although he should die under age, and without issue. The rule of law is indeed very well settled, that a devise to A. and his heirs, and upon an indefinite failure of his issue, a devise over to another person, shall be construed an estate tail only in A.; and the reason of the rule is, that otherwise the remainder over would be void, as the contingency would be too remote. And the like rule prevails, if the devise over be on failure of heirs, to a person who could be an heir of the first devisee, for heirs in the second devise here, must be construed merely as issue, since the first devisee could never die without heirs, while the second devisee or his heirs were in existence. But the like construction would not prevail, if the second devisee were a stranger, for no such re-pugnancy would exist, and then the natural meaning of the word heirs, would prevail, [1176] although thereby the devise over would be too remote, and consequently be void. See the cases cited in Lippett v. Hopkins, [Case No. 8,380;] Doe v. Bluck, 6 Taunt. 485, 2 Marsh. 170; Lillibridge v. Adie, [Case No. 8,350;] and cases there cited. The reasoning, on which these rules proceed, does not apply to a case where the devise over is not on an indefinite failure of issue, but on a failure of issue within a limited period/ In such a case, the devise over would not be too remote, construing the first devise to be a fee simple. Nor would there be any incongruity in the second devi-see’s being heir of the first, for the event on which the estate is to go over, is not an indefinite failure of heirs generally, but of issue, within the limited period. There being, then, no obvious inconvenience or incongruity from construing the words of a will of this kind, according to their natural sense, courts of law are not at liberty to abandon that construction. And, accordingly, the rule has become inflexibly incorporated into the law, that in such cases, the first devise shall be construed a fee simple, upon the plain ground of effectuating the intention of the testator, apparent upon the face of the wilL Hence, whenever the devise is to A. and his heirs, and if he die under age without issue, then over, the devise to A. is uniformly held to be a fee simple, and upon his arrival at age, it becomes absolute, and descendible to his heirs at law, though he should afterwards die without issue. The cases in the books upon this subject, are so numerous, that the danger is of being overwhelmed in examining them. Pells v. Brown, in the reign of King James the first, is the leading case, and it has never since been shaken. Cro. Jac. 590, and cases cited; Lippett v. Hopkins, [supra,] and cited in this case, [ante, p. 1173.] I will barely cite a. few cases, which are directly in point to the case now at bar, leaving a more minute examination to those, who have the ingenuity to doubt, or the courage to compare them. [Price v. Hunt,] Poll. 645; Barker v. Suretees, 2 Strange, 1175; Frammingham v. Brand, 1 Wils. 140, 3 Atk. 390; Collenson v. Wright, 1 Sid. 148; Fairfield v. Morgan, 5 Bos. & P. 38; Denn v. Kemeys, 9 East, 366; Porter v. Bradley, 3 Term R. 143; Roe v. Jeffrey, 7 Term. R. 589; Right v. Day, 16 East, 67; Doe v. Webber, 1 Barn. & Ald. 713; Doe v. Wetton, 2 Bos. .& P. 324. The first is reported in 1 Eq. Cas. Abr. p. 188, pl. 8. One devised lands to his wife, till his son came to the age of 21 years, and then that his son should have the lands to him and his heirs, and if he died without issue before his said age, then to his daughter and her heirs; and it was held to be a good executory devise to the daughter, if the contingency happened; and in the mean time, the fee descended to the. son as heir; and if he lived to 21, though he afterwards died without issue, or if he should leave issue, though he died before 21, yet the daughter was not to have the lands, because he was to die without issue, and before 21, to entitle her. In Eastman v. Baker, 1 Taunt. 174, the devise was to J. B. and her heirs forever, but in case the said J. B. should fortune to die, and not attain the full age of 21 years, or having no such issue as aforesaid, then over to her mother. J. B. died before her mother without issue, but having attained 21 years of age; and it was held, that J. B. took an estate in fee simple, which became absolute upon her attaining' full- age, and that the executory devise over was contingent upon the event of the daughter’s dying in the life of the mother, without attaining 21 years of age, and without having issue. In Fairfield v. Morgan, 5 Bos. & P. 38, the devise was in effect to B. the testator’s brother in fee, but in case B. should die before he attained the age of 21 years, or without issue living at his death, then to the testator’s mother. B. attained 21, but died without issue, and the house of lords, in conformity with the opinion of all the judges, held that B. took a fee simple, which became absolute on his arrival at 21 years of age, and that the mother took nothing upon the death of B. by the executory devise. The very late case of Doe v. Rawding, 2 Barn. & Ald. 441, is to the same effect. There the devise was a3 to one moiety, to testator’s wife for life, and subject to that all his estate to his daughter M. and her heirs forever, but in ease his daughter M. should die under the age of 21 years, unmarried and without lawful issue, then and in such case, the entirety of his estate, &c., to his wife in fee. The daughter died under 21, without lawful issue, but was married. And it was held, that the daughter took an estate in fee simple, which became absolute by the event of her marriage; and that the devise over did not take effect. These are decisions in the English courts, sufficient in point of authority and reasoning, to satisfy the most scrupulous juridical mind. But. I trust, it will not be deemed unfit to add a few from the American Reports, entitled to very great weight from the learning and dignity and ability of the judges. In Jackson v. Blanshan, 6 Johns. 54, the devise was of all the testator’s estate to his six children by name, and to their heirs forever, to be equally divided among them all, share and share alike; but if any of the children should die before they arrived at full age, or without lawful issue, then his share to devolve upon and be equal-, ly divided among the rest of the surviving children, and to their heirs and assigns forever. All the testator’s children survived ■him and attained full age. ’Four of them afterwards died, leaving issue, and a fifth, after arrival at full age, died without having had lawful issue. The learned judges of the [1177] supreme court of New Tort, held, that “or” was to he construed “and,” and that as all the children survived 21, they took an absolute estate in fee simple, and consequently that the devise over never took effect. Holmes v. Holmes, 5 Bin. 252, in the supreme court of Pennsylvania, is to the same purpose. There the devise to the testator’s grandson H. to hold to him and his heirs and assigns forever, to be entered upon and taken possession of by him, as soon as he arrived at the age of 21 years, or the day of his marriage, which should first happen; but that if H. should die under age, or without issue, that his estate should descend to his next brother and his heirs; but if he left no brother, then to his sisters and their heirs, share and share alike. H. entered into possession, and died seized, of full age, but unmarried, and without issue; and it was held, that H. took an estate in fee simple, with a good executory devise over in case he died under age, and without issue; but that on attaining his full age of 21, his estate became indefeasible, and on his death descended to his heirs. A similar doctrine was recognized by the supreme court of Massachusetts, in Ray v. Enslin, 2 Mass; 554, Supp., where the devise was to the testator’s daughter and her heirs forever, but in case the daughter should happen to die before she come of age, or have lawful heir of her body begotten, then after his wife’s decease, to his sister one third, and two thirds to his wife, so to be divided unto them or their heirs forever. The daughter survived the testator, and afterwards married and died, leaving lawful issue. And it was held, that she took a fee simple, defeasible upon a contingency seasonably determinable, and that her estate became indefeasible in the events that happened. I do not know, that any American decisions have ever been made, that bring the principle of these into question. I take them to be settled law, and have not scrupled to follow them on a former occasion, Lippett v. Hopkins, [Case No. 8.3S0,] and do not now hesitate to adopt them. One word, as to some of the cases cited by the counsel for the demandant, which have been supposed to intimate a different doctrine. As to Soulle v. Gerrard, Cro. Eliz. 525, it is sufficient to say, that the case was rightly decided, but the doctrine held by the court, (strange enough in several respects) is not law, and is against the current of authority. Dutton v. Engram, Cro. Jac. 427, is good law, but inapplicable, for it turned on the contingency being an indefinite failure of issue, and therefore fell within the rule already stated. Chadock v. Cowley, Cro. Jac. 695, admits of the same answer, for it was held not to be a contingent limitation to the survivor, on either’s dying without issue in the life time of the other. Fearne, Rem. (Butler’s Ed.) 243. The only remaining case, is Doe v. Rivers, 7 Term R. 276, where the devise was in effect- to the testator’s daughter on her attaining 21, and to her heirs, and in case his daughter should die without issue, then he empowered her to dispose of the whole by will, &c. as she should limit and appoint, and for want or such issue, that the same should descend and go to his own right heirs. And it was held, that the daughter took but an estate tail. The case turned altogether upon the intent of the will, and the devise over being upon an indefinite failure of issue. It was deemed so plain, that it was given up by the defendant’s counsel, and involved no question as to the estate, being devised over upon the dying of the daughter under age. Upon the whole, unless I were prepared to overturn a series of the best considered judgments, (which I have not the rashness to attempt) it is most clear, that upon the principles of law, Peleg took an indefeasible estate in fee simple, upon his attaining 21 years of age, and therefore that the judgment in this case ought to be for the tenant. Let it be so entered accordingly.