Boyd v. Sachs

Bryan, J., delivered the opinion of the Court. The decisive question in this case depends upon the construction of a will. Daniel McDonald having executed his. last will and testament in such manner as to pass real estate, died in the year eighteen hundred and forty-five. In the determination of this case it is necessary to take into view every portion of the will, and we shall therefore quote the bequests and devises at large: “I give, devise, and bequeath all of my estate, of whatsoever kind or nature, to my beloved wife, for and during the term of her natural life, .provided that during the same time she continue a widow and unmarried. “And after her death, I will and bequeath all my personal estate remaining at the time of her death, to be equally divided among my children, or their representatives, {per stirpes) living at the time. “And as to my real estate, I give and devise the same, after her death, to my son Daniel and his heirs, provided, however, that from the time of his or their receiving the same and coming to possession, he or they shall pay annually, for the space of ten years thereafter, the sum of one hundred dollars each annually to my daughters, Mary Jane and Caroline, if living, and if dead, to the heir or heirs or legal representatives of the said Mary Jane and Caroline, or the survivor of them. “And I do further will, that in case of the death of my son Daniel, before his mother, that the said real estate so devised to him shall go to his sisters aforesaid and their heirs as tenants in common, and that, in the event of the marriage of both or either of them, their shares shall be so secured as to be free from any debts, contracts, or obligations of their respective husbands. ⁴⁹⁵ “And further, 1 do will that in the event of any future marriage of my wife aforesaid, that from that time all claim and right of my wife to the benefits of this will shall cease, and the provisions herein respecting my children, shall take effect immediately thereon.” The widow, Jane McDonald, in the year eighteen hundred and forty-eight, married Michael McDonald, who died within a few weeks after the marriage.

During the same year she married Seaver Hatch, who died in the year eighteen hundred and fifty-five. The son of the testator, and the two daughters executed deeds to their mother after the death of Hatch, her third husband. The deed of the daughter Mary Jane, executed in eighteen hundred and sixty, conveyed to her mother for life, all her estate and interest under the will of the testator. Daniel, the son, and Caroline, the other daughter, having previously made conveyances to their mother, executed a deed in eighteen hundred and sixty-six, which conveyed to her in fee all their right, title and estate in the real estate devised by the will of the testator.

Mary Jane, in eighteen hundred and sixty-two, married Francis J. Boyd, and died in eighteen hundred and sixty-four, having previously devised all her property to her husband. Mrs. Hatch mortgaged the real estate above mentioned in eighteen hundred and eighty-one to Bruce Jenkins, and it was afterwards sold-under the mortgage to Louis Sachs, one of the defendants. Daniel McDonald, the son, died in eighteen hundred and eighty-two. Mrs. Hatch died in eighteen hundred and ninety.

Boyd brought an action of ejectment against Sachs and wife and Freedenberg, to recover the real estate devised by McDonald’s will. Judgment having been rendered against the plaintiff, he has appealed to this Court. Although the plaintiff’s declaration proceeds for the whole of this property, in reality, as shown by the prayers for the instruction of the jury, he claims only ⁴⁹⁶ an undivided half of it. It is clear upon the face of the will that the testator intended that every interest which he had given to his widow should cease and be divested in case she should marry again.

In the first place, it was given expressly on the condition that she should continue a widow and unmarried; and, secondly, he declared by a special clause of his will that, in the event of her marriage, all her claim and right to the benefits of the will should cease, and the provisions respecting the children should take effect immediately. Subject to these conditions "all of his property was given to the wife for life, and after her death to the children. By the third of the clauses of the will which we have quoted, the real estate was given to his son Daniel and his heirs, encumbered with certain charges in favor of his daughters. When the widow married again, her life estate was defeated, and brought to an end, as effectually as if she had died; her rights were entirely extinguished, and the allotment of the property to the children was to be made without reference to her.

This is explicitly stated in the last clause of the will. And without this clause it would have been the necessary result of its proper construction deduced from the manifest purpose of the testator. In Clark, et al. vs. Tennison, et