Bell v. Scammon

Gilchrist, J. A series of judicial decisions extending through a long period of years, has settled the principles by which this case must be governed and the rules by which the will must be construed, the application of which is not very difficult. The testator devises to his wife “ the improvement and income of two thirds of all his lands so long as she remains his widow.” She then holds two thirds of the lands during her widowhood. He then devises to James Scammon, “ his heirs and assigns, my workshop, with the land it stands on.” This is an express devise in fee, unconnected with and independent of any condidition attached to the subsequent devise. He then proceeds: “ also I give him the improvement of all my real estate not oth — 389 — erwise disposed of in this will, during the term of his mother’s widowhood.” The estate “ not otherwise disposed of” was one third part of the testator’s lands. He had given Mrs. Scammon the use of two thirds of his lands during her widowhood, and deducting the workshop and the land it stood upon, James would hold the remaining third during his mother’s widowhood. Thus all his lands were disposed of so long as Mrs. Scammon should remain his widow. Thus far the will is free from any doubt. The next provision is the material one, and is that about which the controversy has arisen. It is as follows: “ I also give and bequeath to him, (James,) his heirs and assigns, all my real and personal estate not otherwise disposed of in this will, ho to come into possession at the decease or marriage of my wife, on condition of his paying all my just debts and the legacies herein ordered to be paid ; but if my said son James should die before he arrives to the age of twenty-seven years, and have no male issue, then it is my will that each of my daughters should have one third part of my real estate, and his heirs the other third part.” In this provision there are several clauses which require consideration. James was to come into possession of the estate then undisposed of, at the death or marriage of Mrs. Scammon. The possession refers to Mrs. Scammon’s two thirds, as he already had possession of one third. These words are referred to here for the purpose of remarking that they convey no future interest, the estate having already been devised to him by the words preceding those w'hich refer to the possession. But this remainder in fee is devised to him “ on condition of his paying all my just debts and the legacies herein ordered to be paid.” Now a fee is conveyed to James Scammon by this devise in three different modes. In the first place, the property is conveyed to “ him and his heirs.” It needs no authorities at this day to show that these words convey the fee. Where there are no words of limitation, courts resort to other parts of the will in order to ascertain from them the intention of the testator, and a — 390 — fee is often held to be conveyed by implication, but this is done only to supply defects of expression. Stevens vs. Winship, 1 Pick. 326; Lithgow vs. Kavenagh, 9 Mass. 165; Doe vs. Fyldes, Cowp. 841; Tanner vs. Livingston, 12 Wend. 95. Where a fee is devised by express terms, it is unnecessary to imply it. In the present case, there is a personal charge upon the devisee, and for that reason also he takes the fee. 4 Kent 540 ; Doe vs. Holmes, 8 T. R. 1; Van Alstyne vs. Spraker, 13 Wend. 578 ; Fox vs. Phelps, 17 Wend. 393; Jackson vs. Bull, 10 Johns. 148. The reason for this is, that if the devisee did not take a fee, he might be a loser by paying the debts, and the testator is presumed to intend that his gift shall be beneficial to the devisee. Leavitt vs. Wooster, [14 N. H. Rep. 550.] A fee is also conveyed, because the testator has devised all his estate, and this expression is sufficient without words of limitation. Fogg vs. Clark, 1 N. H. Rep. 163 ; Brown vs. Wood, 17 Mass. 68 ; Randall vs. Tuchin, 6 Taunt. 410 ; Cliffe vs. Gibbons, 2 Lord Raym. 1324; Grayson vs. Aikinson, 1 Wilson 333 ; Hopewell vs. Ackland, 1 Salk. 239 ; Doe vs. Allen, 8 T. R. 503 ; Leavitt vs. Wooster, [14 N. H. Rep. 550.] 'The next inquiry relates to the effect of the limitation over to the daughters after the devise to James in fee. The will provides that “ if he should die before he arrives to the age of twenty-seven years, and have no male issue,” then each of the daughters should have one third of the real estate. In the construction of this limitation, the intention of the testator is undoubtedly, as has often been said, the pole star by which the court is to be guided. “ Notwithstanding, there has been for ages a system of legal construction established on the subject of devises, by which when a certain form of words is used, a construction is put upon that form, and adhered to for the sake of certainty.” Lord Mansfield, Pistol vs. Riccardson, 3 Dougl. 361; Parsons, C. J., Ide vs. Ide, 5 Mass. 501; Lord Kenyon, Doe vs. Wright, 8 T. R. 64. There are numerous authorities, that where there is a devise to a man and his heirs, but if he should die without issue, or having no issue, or leaving no issue, then over, that the first devisee — 391 — takes an estate tail, with a contingent remainder to the subsequent devisee. The words, without issue, &c. have been construed to mean an indefinite failure of issue, and the remainder over has been held void as an executory devise, because too remote, as tending to a perpetuity, for the descendants of the first taker might not become extinct for hundreds of years. See 4 Kent 274; Ide vs. Ide, 5 Mass. 500 ; Patterson vs. Ellis, 11 Wend. 259 ; Doe vs. Ellis, 9 East 382; Romilly vs. James, 6 Taunt. 263; Tenney vs. Agar, 12 East 253 ; Purefoy vs. Rogers, 2 Saund. 380 ; Doe vs. Morgan, 3 T. R. 765. But see, also, Hall vs. Chaffee, [14 N. H. Rep. 215.] If the words importing a failure of issue are restrained to issue living at the death of the first taker, there is no question that the limitation over is good as an executory devise. One class of cases in which the words are clearly thus restrained, is where the death of the first devisee is confined to a given age; as is the case with this devisee, James Scammon, the limitation over being if he “ should die before he arrives to the age of twenty-seven years, and have no male issue.” Eastman vs. Baker, 1 Taunt. 174; Toovey vs. Bassett, 10 Past 460; Glover vs. Monckton, 3 Bingh. 15. On another ground, also, the limitation over is valid. The expressions in the will show that the testator intended that the words, have no male issue, should refer to the state of things existing at the death of the devisee. If he should die without such issue, his heirs are to take one third part of the lands. Who his heirs might be must be determined upon his death. That, then, is the period to which the testator refers. It might indeed be said that the period for ascertaining who his heirs might be, was after all his descendants should become extinct. But this is not so obvious or so rational an exposition of the will as the other construction; for in order to adopt it, we must disregard the first class of heirs entirely, and the first period when the devisee can be said to have heirs, in a legal sense, although they answer all the requirements of the will. We think the testator intended the death of James Scammon, without issue living at the time of Ms death, and that the limitation over to the daughters is valid by way of executory devise. — 392 — Upon the death of James Scammon, his daughter Jane, the wife of the tenant, took a fee in the property devised to her father, by the operation of the rule in Shelley’s case, a freehold estate having been given him by the will, and the words, “ his heirs,” being words of descent and not words of purchase. This share the tenant now holds in her right. Comfort Scammon having married David Lang, her share descended upon her death to her son James, and at his death after his mother, it was inherited by his father, David Lang, as his next of kin, and the demandant now holds it by virtue of a conveyance from Lang. A question is made in the case as to the share of Melinda. She died under age, and unmarried, in the month of December, 1826. In order to ascertain who inherited her property, it will be necessary to examine our statutes regulating descent. By the act of July 2d, 1822, N. H. Laws 351, (Ed. of 1830,) it was provided, that an intestate estate should descend in equal shares among the children and their representatives, and if there were no children it should be inherited equally by the next of kin ; provided, however, that when any of the children of such intestate should die before the age of twenty-one years, and unmarried, or when any child of a person deceased testate should die before twenty-one years of age, and unmarried, such deceased child’s share in the estate should, although its other parent be alive, be inherited by its surviving brothers and sisters, &c. The act of February 3d, 1789, N. H. Laws 207, (Ed. of 1815,) contains no provision relating to the descent of a deceased child’s share in a testate estate. This act was in force in the year 1817, when James Scammon died. It permitted an estate to be disposed of according to the will of the testator, but it did not prescribe ■ the disposition of a share which a devisee might take under a will. Upon the death of her brother James, in 1819, Melinda took under the will by way of executory devise. If the act of 1789 had remained in force, the share or property of Melinda would not have been disposed of upon her death as a share in her father’s estate, but would have gone as her estate to her next of kin. The fact that she derived her estate from her — 393 — father would have no more effect upon its descent as her property, than its derivation from any other source, the will of a stranger for instance. In this State we never look to the source whence the estate was derived, to determine who shall inherit it, except in cases where the statute has made that circumstance material, and it is not made so in this instance. Parker vs. Nims, 2 N. H. Rep. 461. Melinda took as a purchaser under the will, and would have become a new stock of descent. The act of 1822 had no retrospective operation so as to regulate the disposition of Hezeldah Scammon’s estate, for that estate had already been settled, and all, the provisions of the will had been carried into effect before the passage of the act. The provisions of the statute had no relation to what once was, but which no longer remained, a share in the estate. Melinda’s property had ceased to possess that quality, and was simply her property, her interest in the land as an executory devisee. Then being a purchaser, her property was not in a condition to be operated upon by the provision relative to shares in testate estates. The general provisions of the act of 1822, regulating the descent of intestate estates, furnished the rule for the disposition of her property at her death in 1826, she being the stirps. These provisions gave to the next of kin, precisely as the act of 1789 would have done, and her mother, as next of kin, took all her property by the operation of the general rule laid down in the statute, the case not falling within any of the exceptions. McAfee vs. Gilmore, 4 N. H. Rep. 391. Melinda’s property having thus been inherited by her mother, Mrs. Scammon, the latter conveyed all her interest in the estate to David Lang, in the month of February, 1828. The deed contained the following clause, “ he, the said Lang, to take full possession at my marriage or death,” and was in consideration of “ one dollar and the love and good will I boar David Lang, as my son-in-law.” It was contended that this deed is void, as attempting to convey a freehold estate in futuro. The deed undoubtedly reserves an estate to the grantor during her life. This is its obvious construction, and the remainder after the expiration of the life estate — 394 — is all that the grantee took by the deed. There seems to be nn reason why it may not operate under the statute of uses, both as a deed of bargain and sale, and as a covenant to stand seized to the use of the grantee, by either of which modes a freehold in futuro will pass. In neither of them are any formal words required. So long ago as the time of JLevinz it was said, “ that the judges of late years have had more consideration of the substance, viz. the passing of the estate, than the shadow, viz. the manner of passing it.” 3 Levinz 372. There is a pecuniary consideration, which, however small, is sufficient in a deed of bargain and sale. The New-York decisions have settled there that this deed will pass a freehold infutwo. Jackson vs. Staats, 11 Johns. 337; Jackson vs. Swart, 20 Johns. 85; Jackson vs. McKenny, 3 Wend. 233; Rogers vs. Eagle Fire Co., 9 Wend. 611. And in two recent very acute and learned English treatises, Cornish on Uses 44 wad Burton on Real Prop.,pl. 145, it is stated, and the authorities are cited, that a deed of bargain and sale will convey a freehold in futuro. In the case of Wallis vs. Wallis, 4 Mass. 136, it is said that “ by a common law conveyance a freehold cannot be conveyed in futuro,” but no reference is made to the fact that a deed of bargain and sale derives its effect from the statute of uses. In the case of Welch vs. Foster, 12 Mass. 96, it is held that such a deed will not pass a freehold in futuro, and also in Parker vs. Nichols, 7 Pick. 115. In this case it is said by Mr. Justice Jackson that the statute of uses, 27 Henry 8, had not been adopted in Massachusetts. It has, however, been adopted in this State. Chamberlain vs. Crane, 1 N. H. R. 64; New. Par. in Exeter vs. Odiorne, 1 N. H. Rep. 237; French vs. French, 3 N. H. Rep. 234. The point is, however, so learnedly reasoned out by Mr. Chancellor Walworth, in the case of Rogers vs. Eagle Fire Co., 9 Wend. 625, 631, and the authorities so fully examined, showing that a freehold estate in futwro may be thus conveyed, that the references above made in our opinion authorize the position that the deed in this case has that operation. Whether the deed can operate as a covenant to stand seized, depends on the question whether the consideration be sufficient. — 395 — If it can operate as such a covenant, it will convey a freehold in futuro, upon all the authorities. The consideration is “ the love and good will I bear David Lang as my son-in-law.” James, the son of Comfort and David Lang, and the grandson of Mrs. Scammon, had died before the date of this deed. There was no actual relationship then existing between Lang and Mrs. Scammon, but he had been the husband of the grantor’s daughter, and the father of her grandson, both of whom wore then dead. In the ease of Gale vs. Coburn, 18 Pick. 897, the daughter of a grantor had married the grantee, but died before the date of the deed, leaving, however, two children, who were then living. A doubt was suggested whether, after the death of the wife, the consideration of marriage could be regarded as still subsisting. But it was unnecessary to decide the point, because there was a consanguinity between the grantor and his grandchildren, and Shaw, C. J., said that “ the grantor might well suppose that the most effectual mode of advancing his grandchildren was to vest the property in one, bound by every consideration of legal obligation, moral duty, and parental affection, to provide' for their maintenance, education and advancement.” If the above be a sufficient reason for holding the consideration to be sufficient, and the boundaries which exclude persons as too remote to be within its influence have never yet been defined, the consideration may be sufficient in the present case. That the grantee had been the husband and father of those nearly allied to her by ties of blood, and had bestowed on them the kindness and care which they would naturally call forth and require, would appeal as strongly to the feelings of the grantor as would the expectation of advantage to the grandchildren of the grantor in the case of Gale vs. Coburn. And there is good authority for going as far as this case requires. In Sheppard’s Touchstone 511, 512, it is said that if one, “ in consideration of nature, kindred, blood or marriage, covenant to stand seized to the use ox himself, his wife, or intended wife, children, brothers, sisters, cousins, or their wives, or intended wives, those are good considerations.” If the intended wife of a man’s cousin come within the consideration of marriage, the husband of a deceased daughter would seem to be — 396 — equally so, and in the absence of any authorities to the contrary we think the consideration in this case is sufficient. David Lang having thus acquired a title to the property devised to Melinda, conveyed it to Benjamin Lang, who conveyed it to the demandant, and the latter is entitled to judgment for two thirds of the land, with the exception of the tract levied upon by John Scammon, as stated in the case, in relation to which no question is made. Judgment for the demandant.