Chew's Lessee v. Weems

⁴⁸⁷ It is objected that the cases cited, are cases of precedent fees with subsequent limitations, but that no precedent fee is limited in this instance» To this objection it is answercd, that there is not one case to be found in the books which turned on this distinction; but all the reasons assigned, and which governed the determination, was to carry the party’s intent into execution, as it would not be presumed he would disinherit the children of his son» In the case of Framlingham v. Brandy 1 Wils. 140. the case of Barker v. Surtees is mentioned, but not the least notice is there taken of this objection» These are the last cases in the books on the subject, when, too, all the former authorities had been revised, and the point settled. The argument that a precedent fee shall not be divested, operates strongly against them» For in the case at bar, a fee vested by descent in the son (who was heir at law) till the contingencies happened, and the testator shall not be supposed to be defeated. An estate in fee is more to be regarded when by descent, than one by devise or any other purchase j wherefore it is that if the testator devises in fee to his heir at law, he shall take nodring by the devise, but his title by descent being most worthy shall be preferred. Porfiar est dispositio legis quam hominis» All the reasons assigned in the cases are, that it shall not be presumed che testator intended to disinherit his son, for by construing all the other cases into estates tail, the effect in favour of the issue would have been the same they now contend for.

It was objected, that this shall not be construed an ex-ecutory devise, but as a contingent remainder. Answer: It has been shewn that take it either way, as the contingencies never happened, the limitation over cannot take effect. But what is the rule suggested to make it a remainder ! It is that wherever there is a particular estate capable of supporting a remainder, it shall not be construed an executory devise.

They say, here is a particular estate tail, capable of supporting a remainder. But how is this estate tail created! It is by striking out the words :i if he should die under age" and by the same rule, you ⁴⁸⁸ make a particular estate of any thing, by striking out the words. Thus, if lands are given to a man and his heirs, strike out the words his heirs, and there is an-estate for life created without difficulty, capable of supporting any remainder, and so it might be in every other instance.

But that words ought not to be struck out, see the cases befpre cited. ' The meaning of the rule is, that where a particular .estate is created by the express words of the will, and not where a particular estate is made by striking out what words you please. That this is an executory devise upon every rule of law? respecting executory devises. There are three\sorts of executory devises ; two of freehold estates, and one of chattels real. The executory devise applicable to the present case, and the only one which need be mentioned, is where a man disposes of his estate in future on a contingency, and in the mean time suffers it to descend to the heir. 2 Bl.

Com. 173. Here is a fee-simple given to the Weems to arise on future contingencies, that is, the death of the son underage, and without issue. Till these happen, the fee descends to the heir at law. It is therefore a complete executory devise within the definition of it, cited by Blackstone, and the contingency never happening, there is nothing to take it from the heir.

Such a disposition as this would be void as a remainder, there being no particular estate to support it, therefore it can only be good as an executory devise. Another objection made, was, that the verb should die is repeated, which makes it in the nature of several contingencies. To this it is answered; suppose the verb had not been repeated, it must have been supplied in construction, otherwise the will would be nonsense. If the words had been, if my son should die under age, or xoithout issue, the question naturally would be asked, or xvhat without issue 5 and it would occur to every one, or should die without issue.

The will, therefore, says no more than what Judges would be obliged to add, in expounding it. These words would have been supplied in construction, but it be ⁴⁸⁹ iñg more perfectly expressed, they contend it should operate as an injury to the child» The maxim of law is ex-pressio eorum quae taeite insunt nihil operatur» How will 'this objection avoid the reason the Courts have all along relied on, in construing or, and, to benefit the child and his issue and this was the ruling principle ? In Lord Vaux’s case, it did not depend on the repetition of the verb, but on the particular expressions of the will, and it was to give the estate to the son and heir» In 3 AtL 390. Lord Vaux’s case was cited for the same purpose as they now use it, but the Court disregarded it.

By 2 Burr. 920. it is the same thing whether it be directly expressed, or plainly to be collected from the will. It is also objected that the word or is expressed, and that the sense of the expressions must be adhered to. Answer. This argument would apply to all the cases cited, and is therefore tantamount to saying these cases are not law.

The policy of the law does not consist in preserving the strict grammatical meaning of an expression, but in expounding the will, so as to comply with the testator’s intent. If testator gives lands to his brother John, and his brother’s name is William, yet the devise shall operate, and William shall be substituted in the room of John, and the expression give way to the intent. All the cases likewise cited for supplying contingencies, will be subject to the same objection, for the testator did not expressly declare those contingencies, but they were inferred in order to comply with his intention. Remarks on the cases cited contra» Lord Vaux’s case, Croc Bliz* 269» There were these words superadded, “ which of the said times, days or hours, come first’’ and by this repetition, and mentioning so particularly which came first, there was reason to suppose them several contingencies.

This case is cited in 3 Atk. 390. and is disregarded. Further, the reason assigned for this opinion is denied to be law, viz. because the disjunctive which came last made the precedent contingen ⁴⁹⁰ c^es °f ^ same nature. The construction there was ill favour of the heir. Here it is to defeat the heir.

In the case of Soulle v. Gerrard, Cro. Eliz. 525. adjudged an estate tail. But that case being before the doctrine of executory devises, the rule of law then was, that no estate, even in a will, could be limited after a fee. But since the doctrine of executory devises has been introduced, no part of a will under these circumstances is to be void, but the devise shall pass a fee with an executory devise over, in case both of the contingencies happened. & Atk. 390.

Upon examining the principles of this case, it will be found expressly in point for us. At that time a devise after a fee, by way of executory devise not being known, the Court were obliged to reject the words “ if he die within “ age” But suppose they had thought they could have given the will such a construction as to have given operation to all the words, then per Walmsley and Owen, page 526. they would have construed the word or, as the copulative and, and would not have let the remainder over take place till both contingencies happened. It is then clear that at this time of day, by the introduction of executory devises, all parts of the will is to take effect. How then would the Judges, in the case of Soulle v. Gerrard, have determined the point, had they given effect to all the words; they themselves say they would have given the same construction we contend for.

This case then is a case in point for us. The only reason why this case was denied to be law, is because effect was not given to all the words. 3 Atk. 390. 12 Mod. 277. Comyns, 95. Hilliard v. Fennings, 1 Raym. 505. did not turn on this point, but on the execution of the will.

It is a mere dictum of Holt, and by the report of this case in Comyns, 95. it appears he was at first influenced in his opinion by the case of Soulle v. Gerrard, which afterwards, on more mature reflection, he denied to be law. As to Holds reasoning that it might have been the intention of the testator to restrain his son from marrying under age, certainly if that had been his intent, he would have expressed it more fully ⁴⁹¹ and explicitly. This conic! not have been the intention, neither would the words have that effect, for suppose the son had married under age, and had afterwards attained Ills age, and died leaving issue, it cannot be supposed the testator intended the remainderman should take against the issue | so that this objection supposes the absurdity, that if he married under age and had issue, and died under age, the limitation over would take effect, but that if he married under age and had issue, and then attained his age, that they should not. How does this hinder his marrying’ indiscreetly?

But this dictum of Holt (which from Co myns5 Report, 95. it appears he afterwards retracted) is ox so little weight, that we find Mr. Carthew, in his report of the case, has not even mentioned it, and as he was of counsel in the cause, it is to be presumed he has given the most accurate report, and mentioned all the material points. The case of the Bishop of Oxton v. Leighton, 2 Veru. 377. has nothing to do with the point, or at least one must have great penetration to see how it applies. The memorandum at the end of the case must have related to some other argument, and short as it is, it is full of inconsistencies. It mentions the point to have been adjudged, in the case of Hilliard v. Jennings, which is evidently a mistake, for in every report extant from that case, it appeal's ic never was adjudged.

It is reported in 1 Raynn 505. Co myns, 90. 12 Mod. 276. Cartln 514. From CartheiPs Reports it could not have been determined, as it was an issue out of chancery, to try whether a will was executed agreeably to the statute of frauds, and the operation of die devise was not under consideration; therefore, every thing said on that subject, must have been mere obiter dicta„ It is also imposible thatPoivell could cite Soulle v. Gerrard, in Cro.

Eliz. and Price v. Hunt, in Pollexfen, to prove the same point ; for the determinations in those cases are as different as black and white, the one giving an estate tail, and ⁴⁹² rejecting part of the words, the other giving effect to the whole, and construing the fee to vest on his attaining his age. The case of Woodward v. Glassbrook, 2 Vern. 388. is overruled by 2 Stra. 1175. 3 Atk. 390. Vernon is not considered a very exact reporter. 2 Vez. 610. Brownsword v. Edwards, 2 Vez. 243.

The rule of construction, is this: where the words are express, and there is no reason appearing from the will to suppose the testator meant differently from what he has expressed, the Court will construe the will according to the expressions j but where the expressions do not co-operate with the intent, and the testator does not give any particular estate to-his child, but plainly indicates .that on the happening of the contingencies, he shall have some estate, but does not say what estate, the Court will suppose he intended to provide for his child in the most ample manner, and to give him a fee on the happening of such contingencies. Therefore, where a testator gives an estate over in case his son die before twenty-one, he shall be supposed to intend him a fee, if he attain his age ; for the particular estate not being mentioned, the Court must go on general principles, and will suppose the testator meant he should have the highest estate. But where the testator has expressly declared he shall have an estate tail on the happening of the contingencies, the Court will not intend a greater estate than the parent has carved out, unless, from the context of the whole will, it appears he intended to give a greater. To apply this reasoning.

In the case cited, the particular estate that the child shall have on the happening of the contingencies, is declared, to wit, an estate tail, and many circumstances appear from the will, to shew the testator intended such an estate, and no other; which makes it still stronger; for where there is a particular estate expressed, and there does not appear from other parts of the will any reason to suppose he meant a different estate than what he has declared, that estate only shallbe given, a fortiori, when it appears from other parts of the will that he ⁴⁹³ Intended that particular estate. The testator has expressed that he only intended to give an estate tail; for, 1st. He gives the fee to trustees for particular purposes, which shews he did not intend the devisee should have it, see p. 248, 2 P. Wins. 195. 2d. He expressly declares if the devisee should live to attain his age of twenty-one years, or have issue, then he was to have an estate tail; this, as Lord Hardwicke observes, was the material point, p. 248.

There was, therefore, no reason to resort to construction, as In our case, to find out what estate the testator intended, on the happening of the contingencies, because he has declared it, and nothing appears to shew the testator intended a different estate. In the case cited, the boy attained his age, and took an estate tail, because the testator expressly gave him one. It was construed an estate tail with remainder over, and therefore the remainder shall vest, because as the Lord Chancellor says, p. 249. he made his original devise capable of a proper remainder, in which case, (that is where the particular estate is expressed by the testator,) the Court will always construe it a remainder. By this may be inferred that the rule goes on the express estate given, nothing appearing that the testator intended a different estate than that expressed.

In page 249. it is said to be the intent of the testator war-, ranted by the words, which shews they relied on the words, there being nothing to shew the testator intended differently. As for the argument, that the will says, u if a John Brownsword shall die before the age of twenty-a one and without issue, and that both of the contingencies ci must happen before the girl can take it Is expounding the will in part only, laying hold of these words without considering the former. The testator meant and has expressed it, that if either of the contingencies happened, John Brorvnsrvord should have an estate tail, but if neither happened, the' estate was to go over to the girl. There is no reason to construe this an estate in fee to the son, on the happening of either of the contingencies, for the testator has declared the estate he shall have: if he have issue, an ⁴⁹⁴ estate tail; if he attain his age, only an estate tail; but if neither happen, then the estate to go over.

So that he has declared what estate he shall have on the happening of either contingency, and the other words, are only to shew who is to have the estate on the failure of both. It is said, that if the first devise had been to John and his heirs, the construction would have been different. This supports our reasoning. Suppose there had been no words of limitation, the Court would have construed it an estate in fee to-pass, as most beneficial to the child, and giving effect to every expression.

The word heirs co-operates with this construction, and the Court have so expounded it. Had they thought the testator meant only an estate tail on the son attaining his age, they might have construed the word heirs to mean heirs of the body, as is done in many other instances where the intent is apparent; but they construe it to pass a fee, thinking the testator intended a fee on the happening of either contingency. In Southby v. Stonehouse, 2 Vez. 610. the devise is no more than this ; I give to my husband the lands, &c. during his life ; after his death to my child; if the child has no issue, then over; for the words “ if I should leave no “ child,” make no contingency, being nugatory. They mean nothing but what must be implied, for unless she left a child, it could not take.

It is nothing more than a plain estate tail to the child, and if he should die without issue, to go over. There is nothing to control the words expressing the party’s intent. The following opinion is in the hand-writing of the late Daniel Dulany, Esquire, in the case of Chew's Lessee v. Weems. Mr. Dulany was then one of the Council of the Province, and one of the Judges of the Court of Appeals.

The first sheet of this opinion is not to he found, • * * * If the devise be to A. and his heirs, and on his death without heirs, to B. a stranger, the intent and the legal import of the term heirs corresponding, the limitation over is void; but if B. be a relation of A.'s, capable of taking as his general heir, it is otherwise. That the policy of the ⁴⁹⁵ law guards only against effects, appears also hence, that a person may take as a purchaser from a description of every course of descent. Vid. Burr.

Rep. 1106. Ld. Raym. 568. Gomyns, 51.

P. Wins. 23. 7 Co. 4. 3 Lew. 70. Gilb. Dev. ■'17.27. Suppose the testator had been a single man, and had devised in similar expressions to his wife and to a cousin, with a limitation over to W. C. it would have been clear on the above, that there would have been no limitation of a .fee precedent to the limitation to W. C. either absolute or constructive.

What is there then in the present case to make it different ? There is no expression on the will itself j there is nothing but the precedent limitation being to a child in útero matris, and the argument must proceed on the presumption, that the testator meant an effectual provision for the child. Admit it, and the consequence will be only, that on this presumption there ought to be an effectual provision for the child