Abbott Et Ux. v. Essex Company

Mr. Justice GRIER delivered the opinion of the court. The questions submitted to our consideration in this case arise on the-construction of the will of John Kittredge, deceased, and on the following devise to his sons :— ■“'Item. I give to my two sons, namely, John and Jacob Kittredge, all my lands and buildings in Andover aforesaid, excepting . the land I gave to my son Thomas aforesaid, which buildings consist of dwelling-houses, barns, corn-house, gristmill, and cider-mill, all of every denomination ; also, all my live stock- of cattle, horses, sheep and swine, and all my husbandry utensils of every denomination, and all my tools that may be useful for tending the.mills- aforesaid; and also all my bonds and notes-of hand and book accounts, together with what money I may leave at -my decease; and my wearing apparel, I *212 give the same to my said sons,-John and Jacob Kittredge,' to be equally divided between thenland in consideration of what I have given my said sons, John and Jacob Kittredge, the executor of this testament, hereinafter named, is hereby ordered to see that all my just, debts and funeral charges, together with all the legacies in this will,mentioned, be paid out of that part of my estate I have given to my two sons, John and Jacob Kittredge, to whom I give each’ one bed .and bedding. “ Item. It is my will, that if either of my said sons, namely, John and Jacob Kittredge, should happen, to die without any lawful heirs of their own, then the share of Mm who may first decease shall accrue to the other survivor and his heirs.” On the trial, the demandants requested the court to instruct the jury,-“that John and Jacob took the real estate therein devised "in equal, moieties of an estate tail general, with cross-remainders in fee-simple.” ■ But the court instructed the jury, “ that the testator’s said sons, John and Jacob, took an estate in fee-simple, arid that the share of the one of the sons, who should first die without issue, in the lifetime of the other, should,, in that event, go over to the other son, by way, of executory devise.?’ To this instruction the plaintiffs excepted, and now contend:— ' 1. That the testator, by the first clause" of his will, gave to John and Jacob an estate for life only. 2. That the next clause of the will enlarges the estate for life to an estate-tail in' each of the two sons, and, by the use. of such language, the testator intended an indefinite failure of issue. The defendants, on the contrary, fnaintain that, independent of the last clause, by which the estate is given over, the sons took a fee-simple. And, secondly, that the clear intention of the testator is, that both real and personal estate should pass on a definite contingency, namely, the decease of one brother without. issue in the lifetime of the other. ■There is, perhaps, no point of testamentary construction which has undergone such frequent discussion, and is so fruitful in cases not easily reconciled, • as ■ that now brought-.under our' consideration. This has arisen, in a great measure, from the discrepancy between the popular acceptation of the phrases, “ if he die without issue,” “in default of issue,” and similar expressions, from the established -legal acceptation of them, in courts.-of justice. It is often necessary to construe these expressions as conveying an estate tail by implicátion,- in order to carry out the evident general ■ intent of the testator. Such is,,or ought to be‘,. the object of all rules of interpretation; but court rules, however convenient in the disposition of cases where the intention .is doubtful, cannot claim to be absolute or of universal application. *213 Hence it has been said, “ that courts have been astute to defeat the application of this rule of construction, harsh in itself, and often producing results contrary to the testator’s, intention.” If wills were always drawn by counsel learned in the law, it would be highly proper that courts should rigidly adhere to precedents, because every such instrument might justly be presumed to have been drawn with reference to them. But, in a country where, from necessity or choice, every man. acts as his own scrivener, his will is subject to be perverted by the application of rules of construction of which he was wholly ignorant. The rule laid down in Purefoy v. Rogers, 2 Saund. 388, “ that where a contingency is limited to depénd on an estate of free-, hold which is eatable of supporting a remainder, it shall never be construed to be an executory devise,” has been received and adopted in Massachusetts. fn England, and in some of the States here, it has been abolished by legislative interposition, as harsh and injurious. This rule, however, has never been construed, either in England or this country, to include cases where the title of the first taker is a fee-simple, and thé contingency is definite. In the case of Pells v. Brown, Cro. Jac. 590, where .there was a devise “ to A in fee, and, if he die' without issue living, then C shall have the land,” it was held to be an executory devise to C, on the contingency of A dying in the lifetime of C without issue. There is no necessary conflict between this case and that of Purefoy v. Rogers. It is true, also, that this rule has been applied where the first taker had an estate in fee; and it is conceded, ■“ that, unless there are expressions or circumstances from which it can be collected that these words, ‘ without issue,’ are used in a more confined sense, they are to have -their legal sense of an indefinite failure of issue;” but whenever such “expressions or circumstances” show the intention of the testator that the estate is to go over only,on a definite contingency, courts will give effect to such‘intention. Notwithstanding the expressions in Plunket v. Holmes, Sid. 47, derogatory of the case of Pells v. Brown, it has always been. considered “ a leading case, and the. foundation of this branch of the law.” See Williams’s Saunders, 388, b, in ndte. In Porter v. Bradley, 3 T. R. 143, where lands were devised to A and his heirs, and if he die leaving no issue behind him, then over, it was decided that the limitation over was good- by way of executory devise ; 'and Lord Kenyon acknowledges the case of Pells v. Brown to be “ the foundation and magna chcirta of this'branch of the la ” deciding that the words, “leaving no issue behind him,” showed clearly that the testator did not contemplate an indefinite failure of issue. ; *214 In the case of Roe v. Jeffery, 7 T. R. 589, where the devise was “ to A and his heirs, and in case he should depart this life and leave no issue, then to B, C, and D, and the survivor or survivors of them, share and share alike,” it was held that the devise-to B, C, and T>, was a good executory devise. In delivering the opinion of the court in that case, Lord Kenyon observes: “ This is a question of construction, depending on the intention of the party; and nothing can be clearer than if an estate be given to A in fee,, and by way of an executory devise, an estate be given over, which may take place within a life or lives in being, &c., the latter is good by way of executory devise.- The question, therefore, in this and similar cases is, whether, from the whole context of .the will, we can collect when an estate is given to A and his heirs forever, but if he. die without issue, then over, the testator -meant without issue living at' the death of the first taker. Thé rule was settled as long ago as in the reign of James I., in the case of Pells v. Brown. That case has never been. questioned or shaken, and is considered as a cardinal point on this head of the. law.” "Without referring to. any more of the numerous English and American cases brought to our notice by the learned counsel, of like tenor, it will be sufficient to notice the case of Richardson v. Noyes, 2 Mass. 56. There the devise was “ to my three sons, A, B, and C, all my other lands, &c.; also my wifi is, that if either of them- should die without children, the survivor or survivors of them to iiold the interest or share of each or any of them-so dying without children as aforesaid;” and it was held to pass an estate in fee-simple, determinable on the contingency of either of them dying without issue, and. vesting by way of executory devise. See also the case of Ray v. Enslen, 2 Mass. 554. These cases fully adopt the principles of the English cases we have just referred to. The case of Parker v. Parker, 5 Metc. 134, has been quoted as containing a contrary doctrine; but it does not appear that the question of definite or indefinite failure of issue was made by the counsel or adverted to by the com’t in-the decision. Our inquiry must be, therefore, from an examination of the whole context of this will:— 1. Whether, independent of the second clausé, by which the estate is limited over, the sons took an estate in fee-simple, or only, a life estate; and, •2. Whether he intended to give over the share of each son to the other, on the contingency of his death, without issue living at the time of his decease, or upon an indefinite failure -of issue. • 1. There aré no words of inheritance, in this first clause of the deyise; to John and Jacob; but such, words are not absolutely *215 necessary in a will to the gift of a fee. The subject of this devise is described as “that part of my estate.” The word “ estate,” or “ that part of my estate,” has always been construed to describe not only the land devised, but the whole interest of the testator in the subject of the devise; thus, a devise of “my estate, consisting of thirty acres of land, situate, &c.,” will carry a fee. Moreover, the legacy given for the maintenance of Sarah Devinny, “ to be paid out'of that part of my estate given to John and. Jacob,” would be defeated by their death before she arrived at the age of eighteen, if the devise to them was a life estate only. The intention of a testator must be drawn from the whole context of his will. .And it is not necessary to look alone at the words of the gift itself to ascertain the intention of the testator as to the quantum of the estate devised, if it can be gathered, from expressions used in any part of it, what he 'supposed or intended to be the nature and extent of it. It will not admit of a doubt, also, that the testator intended that both of his sons should have the same estate in the devised premises, which were “ to be equally divided between them.” John is charged personally, in respect of the estate given him, with the payment of all the debts and legacies.. The testator calls it the “ consideration ” to be paid for that part of his estate given to his two sons; ánd though John was appointed executor, whose duty it became, as such, to see to the payment of the debts and legacies, the charges are to be paid by him at all events out of the estate devised to him and Jacob, and not out of the rents and-profits only. By their acceptance of the devise, they became personally liable. In such cases, it is well settled that the devisee takes a fee, without words of inheritance. On this point, therefore, we are of opinion that John'and Jacob each took a fee in their respective “ share” or moiety of the estate devised to them.. ■ 2. It remains to consider the effect of the' second clause of the will, which is in these words : “ It is my will, that, if either-of my said sons, namely, John or Jacob, should happen to die without any lawful heirs of their own, then the share of him who may first decease shall accrue to the other survivor and his heirs.” Viewing this clause free from the confusion of mind produced by the numerous conflicting decisions of courts, and untrammelled by artificial rules of construction, we think that no two ■minds could differ as to the clear intention of the testator. By “ lawful heirs of their own,” he evidently meant lineal descendants or “ issue.” The .contingency contemplated is as definite as language can make it — “ if either son should happen to die without heirs of their own during the life of the other.” *216 The person to take, on the happening of this contingency, is precisely described — “ the other survivor”. It is true, that cases may be found which decide that the term “survivor” does not of itself necessarily import a-' definite failure of issue, and no doubt there are many cases where it ..would be necessary to disregard the obvious' import of this term, in order to carry out the general, intent, of a testator, otherwise apparent; but a large number of English, and nearly all the American, cases acknowledge the force of this term as evidence of the testator’s intending a definite contingency. The other words of this clause, connected with it, clearly describe .a definite contingency, and the .individual who is to take, on its .happening: “the share of him •who shall first decease without heirs shall accrue to the other survivor ;” — on the death, of' one, the other is to take — a definite contingency and a definite individual'. ■Again, it is the “ share,” or the estate-previously given, not of him who dies without issue, generally, but of him who may first decease, that is- given over to the other survivor. This “ share” also consisted of personal and real property. As to the former, the testator could certainly not mean ah indefinite failure of issue, yet both, personalty and realty, are within the same category, and, as one “ share,” they are subject to the same contingency. It is said to be a rule of construction, that the words “ dying without issue,” will be construed to mean “ an indefinite failure of issue” as to real estate; but with regard to personalty, it shall be taken to'mean “a failure at the death.” There are several cases to this effect. Lord Kenyon, in speaking of them in Roe v. Jeffery, very justly remarks that “ the distinction taken in Forth v. Chapman, 1 P. Wms. 663, that the very same words in a will should receive one construction when applied to one portion of the devise, ¡and another construction as .applied to another, is not reconcilable with reason.” Without making an array of cases, we may state that many of the English, and nearly all the American cases, seem to concur in the truth and force of this observation; and consider a “share” of.an estate, consisting of'both realty and personalty, given over on a Contingency to the “ survivor,” as clear evidence that the testator did not intend an indefinite failure of issue. A rule of-construction which would give different meanings to the same words, in the same sentence, could only be tolerated where, from the whole context of the will, it is evident that without such construction ‘the general intent' of the testator as to the disposition of his realty would be frustrated. Lastly, construing, this clause as providing for an indefinite failure of- issue, and as vesting each of the sons with an estate tail by implication, the survivor would .take an estate in fee- *217 simple in his brother’s share, while he had an estate in tail in his own ; a result most improbable, which could hardly have been contemplated by the testator, and which ought not to be imputed to him without clear expressions indicating such an intention. On the whole, we are of opinion that- the instructions given to the jury by the court below are correct, and that the judgment should be affirmed.