Smith v. Clark

Mason, J., delivered the opinion of this court. The testator, after having devised his home farm to his wife Harriet Smith, for her natural life, with remainder over in fee, to his four single daughters, as tenants in common; and his other estate, to his son Walter Smith in fee, he proceeds by the fourth clause of his codicil, to make the following additional devise, to wit: “4th. And whereas, since the execution of the said will, I have purchased from Motley Young a parcel of land called ‘'Swanston’s Lot,* and whiclx is particularly described in a deed from said Young and wife to mo, of the fifteenth of February 1844, and which parcel of land was purchased by me as a support for die estate on which 1 now reside, and the estate devised by me to my son Walter, now therefore I do give and devise and bequeath the said parcel of land to my said wife and my three daughters, Salina Huntington, Cornelia and Rozcna, and my son Walter, on the express condition that the ¹⁹⁴ same is not, at any time, to be cleared or converted into arable land, but that they are respectively to be allowed to take therefrom as much wood and timber as will be required and necessary, with care, for the purpose for which it was purchased as aforesaid.” To declare the proper meaning and legal effect of the above clause, is our duty upon the present appeal. The question as it arises upon the record is, whether the plaintiff, Walter Smith, acquired such a title to Swanston’s Lot, under the above recited clause of the codicil, as will enable him to maintain this action against the defendant, as alienee of the other devisees?

In other words, whether the several devisees took a fee-simple interest in Swanston’s Lot, or a mere incorporeal hereditament, or easement to cut timber, &c? That two different and distinct interests may be created in different persons to the.same land, cannot be denied, as for example, a right of common, or estovers, or way, may exist in one party, while the absolute right to use the property for all other purposes may exist in another. And, in this case, it was clearly within the power of the testator to have devised two distinct interests in the land in question to different persons, as the fee to one, and the mere right to cut wood therefrom to another, but the point is, does the language of the will manifest such an intention, and in such terms as to effectuate it ? We think not.

It is clear to our mind that the purpose of the testator was, to confer a substantial, valuable benefit upon each of the devisees mentioned in the clause in question, and that benefit was to consist of the enjoyment of the whole estate. No interest, in terms, is attempted to be reserved or carved out of the land for any other person, and if any other did take, it would be by mere operation of law, and contrary to the clear intention of the testator. The difficulty which has arisen, grows out of the circumstance, that the testator attempted to do that which the law will not permit him to do, to the extent he proposes, namely, to prescribe the mode by which this benefit or property, during all time, was to be enjoyed by the devisees. To adopt the views of the appellant, the interest in this land, as a ¹⁹⁵ distinct right, would virtually become unalienable, or rather a right inseparable from that to sell the main tract.

It is substantially an attempt to restrict a devisee from ever dividing and selling in separate parcels his real estate, which would be a condition wholly inconsistent with a fee-simple interest, as well as public policy. As we have said, the testator designed this land as a benefit for his children, and none others. If they think proper to use'that, right or benefit in a mode different from that designed by the testator, or to abuse or sacrifice it, no one but themselves is prejudiced