James v. Rowland

Irving, J., delivered the opinion of the Court. The decision of this case, which comes up on appeal from a pro forma decree passed by consent, depends upon the proper construction to be given to the following clause of the will of Watkins James, dated the 29th day of April, 1848, and admitted to probate April 10th, 1849: “ First, I give and bequeath to my son Bennett, the farm which I have lately purchased of George W. Dillahunt, containing one hundred and seventeen acres, more ' ⁴⁶⁶ or less, to hold the same only during his natural life, and after his death to fall to his son, Watkins James, should he he living, to have the same, he and his heirs, in their own proper right and behoof forever; hut if the said Watkins James should die without heirs, then I will and direct that the said farm he sold, and the proceeds arising 'therefrom, he equally divided among my four children or their heirs, viz., the heirs of Abram James, deceased, Cordelia Coffman, Jamima Parren, and Watkins James, Jr., share and share alike; the share to which the said Watkins James, Jr., may be entitled, to be equally divided between his two children, Francis and Louisa James. Rut it is my will, and I hereby further direct, that the said farm shall he, and I hereby charge it with the sum of twelve hundred dollars, to be paid by my son Bennett, or if he be dead, by his son-—James, to be paid in three equal annual instalments, after my decease.” The question is, what estate did Watkins James, son of Bennett James, take in the land'in question? It is perfectly clear that if Watkins should he living at the death of Bennett, the testator intended him to take a fee, and used the most apt words to effect that purpose.

The only question is., are there any words in the will making a fee defeasible at any time; and making a good, executory devise over? The Act of 1862, ch. 161, regulating the construction of certain doubtful expressions in a will, cannot be resorted to in aid of the construction of this will, which took effect and created vested interests in 1849. Like the statute of England of 1831, from which it was evidently copied, it creates a change in the common rule of interpretation, and only affects wills made and executed after-wards, for the patent reasons that the testator is always to he understood as using the words employed, in the sense attaching to them at the time he uses them, and'that the devisee is entitled to the construction they would have received at the time they became operative, had the qúes ⁴⁶⁷ tion arisen, without being affected by an after-established statute, applying a new meaning to the words. Applying the long established rules of construction, we have no hesitation or difficulty in determining the true meaning of this testator, or of the