Holmes v. Mitchell

Tuck, J., delivered his opinion as follows: In the interpretation of wills, the intention of the is to be gathered from the entire instrument, and less it violates some established principle of law there is a general intention, and a particular minor latter must give place. It is immaterial in what p r tention is found. The words are the means to assert?}!: and, however scattered, if they explain it, they are td.bc^cd lecled and put together, that the will may have the effect in ⁵³⁶ tended. If would, in many cases, prejudice the désign of the' testator, if courts seized upon one clause, or upon one word only, and looked no further.

As subservient to indicate the' intention the law requires us to consider all the words of the' will, wherever they are. It is true that certain terms have received a technical meaning, and a téstator will be presumed to have used them iifthat sense, unless'the- contrary appears' by the will. But at last the intention must govern; and so controlling is this guide, unless it contravene some established rule of law over which it can exert no influence, that the rule in Shelley’s case, though of early origin, and sanctioned by numerous cases, as of binding authority where it is applicable, does not necessarily stamp a legal méani'ng Upon the will in all cases in which térms within the words' of that rule are' employed, but the intent of the testator will have effect. Lyles vs. Digges, 6 H. & J., 364 .

Ram, on Wills, 64, 109. Chelton vs. Henderson, 9 Gill, 432 . Other instances might" be given, in which expressions in wills have received an interpretation different from their legal import, because such technical meaning would have frustrated the design of the testator. Looking to the whole will in the case before the court, and giving to its terms their ordinary and plain signification, in which they were doubtless employed by Mr. Semines, and in which sense it is our duty to apply them, ( 1 H. & J., 422; 1 Johns.

Ch. Rep., 228 ,) it appears to me that he intended that all the property devised in trust to the appellee, together with the increase of the animate personalty, should constitute’ a trust estate, until the arrival at age of the youngest of Mrs. Floyd’s children; the income in the meantime to be applied by the trustee as therein directed. It is said, however, on the part of the appellant, that, conceding this to have been his design, he has used the word “income,” by which the law defeats that intent; and the cases in 1 Har. & McH., 160, 352; 9 Gill and Johns., 77; 10 Gill and Johns., 458, are relied upon to' show that by force of this term the issue of the negro women, born during the lifetime of William Holmes, belong to him and Mrs. Floyd. It' ⁵³⁷ is true, that on the authority of these cases, children bom during a life estate, or a term, belong to the tenant of the limited estate; and the same principle was applied where the “úse” or “profits” of female slaves were given or reserved.

It is important, however, to consider the difference between the first two and the last two of these decisions. The Court of Appeals,- in the case of Hope vs. Hutchins, 9 Gill and Johns., 77, in which the “use of the property,- and all profits arising therefrom,” were held to pass a usufructuary interest in the corpus, and the profits, for life, said, that the two cases in 1 H. & McH. had nothing to do with the question then before the court, because in them, the property in the female slave, the'mother, was vested in the' tenant for life; whereas, there was nothing more reserved to Mrs. Hope than a limited and temporary right of user, which expired at her death; and that the issue as well as the corpus passed to the donee. The same principle is recognized in Worthington vs. McPherson, 5 Gill, 51 , where the judge who delivered the opinion in Sutton vs. Crain, 10 G. & J., 458 , said, that the profits of the estate bequeathed to the son of the testator,- belonged to him,- (and not to the remainder man,)' “in virtue of the vested estate that he took in the principal fund by the devise.” In the cases in 9 and 10 G. & J., the property in the mother did not pass to the first taker, but the increase was adjudged to pass, in the one case, as part of the profits, and in the other, as part of the use of the mother. It is manifest that this effect was not the result of any supposed legal meaning of the words employed, which nothing could control, to be applied in all cases' where a party is entitled, for a limited time, to the services of a female slave.

For if this' were so the hirer of a negro woman would be entitled to her issue born during the period of service, not only by force of the word used, but because the case would be within' the very reason assigned by Mr. Dulany in Somerville vs. Johnson, 1 H. & McH., 352 , “That the issue ought to go to the person to whom the use was limited, otherwise having nó interest worth regarding he might not take care of the issue. And that it ⁵³⁸ would only be a reasonable satisfaction for the expenses of maintenance, and for the time lost by the parent.” Indeed the reason of the rule applies much more strongly, in the case of hiring for a short period, because it might happen that nearly all the time of the parent would be lost to the party entitled to her labor, besides the expenses of herself and child. But the principle has never been extended to such cases, because they must be governed by the universal usage and understanding of the country, which forbid the idea that any property in the issue could be acquired under such circumstances ; besides, the contract of hiring carries but the labor and service, and passes no property in the slave hired. 10 Gill and Johns., 478. Here, again, we see that the idea of property in the mother, has much to do in determining who is entitled to the increase.

In the will in Sutton vs. Crain, the word “use” occurs in three clauses. In the first two it was held to pass only a right to the service and labor of the slaves. Why? Because that intent was manifest from the context.

In one instance the-increase was bequeathed over, and in the other it is connected! with the word “hire,” which qualified the meaning of the’ word use¿ From- these- cases it appears that the Court of Appeals did not consider this rule of construction as applicable, without qualification or exception, to all eases where the issue or profits of the mother were given by the will. And there is-no warrant by any authority before the court, for saying that these terms, proprio vigore, import an intent in law, that the-increase-shall belong to the person entitled to the use of the corpusand that they cannot receive a different construction, according to the design of the testator as shown by other' parts of the will, or in conformity with the usage of the country, as in 10 G. & J. In the will under consideration another term is employed, which, it is supposed, is equivalent in law to the words use and profits. Conceding for argument’s sake, that if either of these expressions had been employed by Mr. Semines th® ⁵³⁹ issue would pass to the appellant and Mrs. Floyd, it does not follow that the word “income” must have the same effect. It does not appear that any judicial tribunal has held it to be synonymous, in law, with the issue of slaves.

In the creation of trusts in regard to land, negroes, and other property in mass, as here, the application of the “rents, issues and profits,” is a common form of expression, and though it is quite reasonable to suppose that during the eighty yeais that have elapsed since the effect, now contended for, was given to the word “use,” cases have occurred in which the question might have been raised, we do not find that any suggestion has been made, that the issue, as soon as born, became separate and distinct from the trust estate, and passed absolutely to the cestui que trust, as part of the use or profits. “Though the practice does not make the law, yet it is very strong argument of it.” Houlditch vs. Birch, 4 Taunt., 611. In one case, however, in which it was used in connection with the enjoyment of a life estate in negroes and other chattels, it would seem that the court considered that there was a difference between “increase” and “income,” according to the different kinds of property composing the corpus of the estate; the words, “increase and hires,” being appropriately applicable to negroes and other animate personalty; “accumulations and income,” to other chattels. It is true that no point was made as to the legal meaning of these expressions; but it so happens, that in several instances in which they are used, a difference as to their proper application is impliedly recognized. Evans vs. Iglehart, 6 G. & J., 190, 191.

I do not understand that it is insisted for the appellant that Semmes, by using this word, designed that the issue should pass to his uncle; but that the law gives this effect to the will, because this term was employed. It may be safely assumed, I think, that if he had intended the issue to pass to the appellant, he would not have used the word “income,” as expressive of such purpose. It is not so employed generally. In common parlance it conveys no such idea.

In ⁵⁴⁰ law it has not received that interpretation. Why should we give it a legal meaning different from its ordinary accceptation? Where words are well understood to have acquired a fixed legal definition, they must be so interpreted; but to place a meaning upon a single word not commonly so understood, merely because of a supposed or actual analogy between it and some other that has been so construed, would, in many cases, (and I think in this,) defeat the obvious intent of the testator, and allow the court to make for him a will that he would not haye made for himself. When we .consider the circumstances under which wills are often prepared by persons not acquainted with the force of words, as technically understood, every intendment should be made against giving such legal effect to expressions that may have been used in their common acceptation, because we thereby, more generally, succeed in arriving at the intention of the testator.

It is upon this principle that “courts of justice are astute as well in discovering the real intention of the testator, and the means by which that intention is to be carried into effect, as in securing to the objects of his affection and bounty the enjoyment of the property devised, in the mode and for the time that it is given, as far as is consistent with those principles which haye been established as the great land-marks controlling such dispositions of property.” 9 Gill, 437 . Technical rules, such as the one relied upon here, which are founded on no great principle of policy, and which set aside, while they profess to seek, the will of the testator, must continually be contested and often invaded. They give rise to expensive litigations and distressing family quarrels, for the very reason, that they reject the plain common sense in which the expressions of the will were employed; and it is not in human nature to submit to such a construction without contest, Mekonkey's Appeal, S. C. Pa., 1 Am. Law Reg., 342 .

I do not think, however, that the counsel for the appellant have succeeded in bringing this case fully within the principle of the decisions pn whiclv they rely, ever assuming as they dq thftt income, use and profits, jnpap tire same thing. ⁵⁴¹ ,Ln the first place, whether the trustee has or not “an interest worth regarding,” it is his duty to take care of and provide for the issue, which it is supposed would not be the case with a tenant for life, or person entitled to the use, if the increase belonged to the remainder man. So that neither the persons entitled to the income or those in remainder can complain of any probable loss on that account, for if this duty were neglected the trustee might be removed. And in regard to the expenses of the mother and her loss of time, and the support of the infant, these are all, in the first instance, to be met by the trustee. He has no right to call on the appellant for any contribution to such objects.

Legally the property is the trustee’s; and the law casts upon him the obligation of providing such necessaries and comforts as are usually required in such cases. In the case of a tenant for life, where the possession and use are in the tenant, these burdens fall on him as an obligation from which he cannot escape as long as he is the owner of the property. 10 G. & J., 478 . But not so with the appellant. No such charge rests upon him.

He is not obliged to pay one cent towards the expenses of the estate. It is true, that his share of the income may be diminished by the disbursements of the trustee for attending the mother and maintaining the increase. But this is a necessary consequence of keeping the property together for trust purposes. He might, with as much reason, claim the possession and ownership of any one of the negroes who might happen to fall sick, because his loss of time and doctor’s bills had lessened the amount derived by him from the estate as income.

It is not merely the loss of time and expense that give title to the increase in the cases where such claim of the tenant for life has been allowed, but it is also the obligation which the law imposes on him to take care of the mother and the issue, because being obliged to defray such expenses, the bequest might possibly prove a loss where a benefit was intended. 1 H. & McH., 353 . 30 G. & J., 478 . The cestui que trust, if he derives no benefit from the property, is certainly not obliged to incur any expense while it is under the management of the trustee. ⁵⁴² But conceding that the term employed must have the same effect as if it were use or profits, the intention of the testator, as shown by the whole will, must defeat that pretension. Supposing that he had a motive for every clause it contains, we should, as far as practicable, give effect to each. He appears to have had a peculiar regard for his negroes.

Some he sets free and provides for. To one he gives his watch and wearing apparel, and to another his furniture. Having relatives for whom he desires to make provision, he leaves a mass of property, land, negroes, stock, &c., in trust, for the purposes declared in the will. Why did he create a trust at all if all that he designed could have been effected by means of direct bequests?

I do not say that the principle of the decisions above mentioned and relied upon by the appellant, does not, in many cases, apply as well to trust as to legal estates, but I find this trust created, and I must presume that he had a motive for using that mode of testamentary disposition. One effect of, and probable inducement to which, would be to keep the property together in the hands of a friend in whom he reposed confidence, and not to subject the infant .remainder men to the hazards that might attend the management of the estate by Mr. Holmes and Mrs. Floyd. Mrs. Floyd was a feme covert, and this arrangement may have been deemed necessary to prevent her husband’s interfering with her interest, as if it had passed by a direct devise. The effect of the construction contended for by the appellant would be to give the increase to her husband, which, I am quite sure, the testator never designed, for in that case the trust, as to her, would have been unnecessary.

For some reason he chooses not to intrust them with the possession of the property at all, but makes it the duty of the trustee, according to my construction, to hold and manage the entire estate, and apply the income for their mutual benefit. He holds the legal estate, while they are entitled to the usufruct, not to be taken by them as of their own estate, but to be applied by him. Another reason for creating the trust may have been, that the negroes, whom from considerations of kindness and affec ⁵⁴³ lion for bis relatives he could not manumit, should be kept together on the estate, the increase to follow the legal title in the trustee, and not to be separated from their parents, as would have been the consequence of a direct bequest of the use to the appellant. 6 Gill and Johns., 195. He nowhere shows any greater regard for Mr. Holmes than for the other devisees, as far as this property is concerned, except that he gives him one-half the income, before the others can enjoy any thing; and, as if to compensate for this, he gives them the property ultimately in fee.

It is manifest that he designed that these children should take something substantial and beneficial under his will. And, yet, according to the appellant’s construction, it might happen that at the termination of the trust they would have nothing but the land, with superanuated negroes, worn out implements, and little or no stock, the land itself, perhaps, greatly deteriorated by reason of insufficient means for cultivating it. This might, indeed if the life estate continued for a considerable time would be, the necessary consequence; because the same rule which would give the issue of the slaves to the appellant and Mrs. Floyd, would also give to them the increase of all the animate-property. And the argument of his counsel would deny to the trustee the right of supplying, from the proceeds of the estate, what might be actually necessary for carrying on the farm, for the cost of any thing so purchased would be so much-taken from the income, the whole of which is claimed by the' appellant, as applicable for the benefit of himself and Mrs. Floyd.

If in the case of Somerville vs. Johnson, the tenant for life was entitled to the increase, because, otherwise, what was designed as a bounty might prove a loss. Why may not the same reasons apply in behalf of these infants? It is impossible to suppose that the testator designed that his will should receive a construction by which the appellant and Mrs. Floyd would be entitled to the increase of all the animate' property, if thereby the trustee would be prevented from-carrying on the estate, and keeping the whole together for the ultimate benefit of the cestui que trusts in remainder. By ⁵⁴⁴ one interpretation, the appellant and the other' parties would be benefitte'd, the former immediately, and the latter remotely: by the other, all the advantages would enuré to the appellant and Mrs. Floyd, and all the losses fall on the remainder men.

But then it is said that the word's in the will by which- he devises “the farm, together with the rest of the property so as aforesaid left in trust, to the children of Mrs. Floyd,” most clearly show that he designed- for them only what might remain of the' original property at the arrival at age of her youngest child', because if he had intended the increase to go over with the corpus he would- have said so. It may, with, as much force be argued, that' if he bad intended the increase to pass to Holmes and Mrs. Floyd, and not as part of the trust estate, he would have used a word more eXpressive of such- purpose than “income;” and if no words be used of contrary effect- the issue would be so held by the trustee, as owner of the legal estate. It is supposed that the will shows by these terms what the testator designed should go to Mrs; Floyd’s- children at the termination of the trust. But effect is sometimes’ — nay often — given to wills beyond the terms employed.

In Hamilton vs. Cragg, 6 H. & J., 16, a testator left to a person, for life, certain negroes-men and women— by name, “to possess and enjoy during her natural life, them and thei-r increase, and after her death the above named negroes to be free.” There, as here, theré was no limitation over of the increase. It was decided, however, that the increase born during the lifetime of the tenant for life, were not slaves, but became free at her death; because, though not directed to be free, and the emancipation was confined in-terms to the above named negroes, it -was merely descriptive of the persons who were to take their freedom;- and as the will made no difference in the condition of the mother and children-, during Mrs. Turner’s life, none at her death was intended, but all were equally the objects of the benevolence of the testatrix-. In the case before us the legal estate in the corpus is in- the appellee, and unless the increase be given to another expressly or by necessary implication, it must accom ⁵⁴⁵ pany that title, and constitute a part of the trust properly, 6 G. & J., 185 . But it is only necessary to extend this view of the appellant’s counsel to show that the position is untenable.

The application of the income does not cease at the death of Holmes, though his interest then terminates. After that event it is still to be applied for “the mutual benefit of Mrs. Floyd and her children,” and, at her death, for the use and benefit of her children, until the majority of the youngest, when the trust is to terminate. After the death of the