Wollen v. Frick

Miller, J., delivered the opinion of the Court. A very difficult and embarrassing- question arises in this case, as to the construction of the will of Rachel Watson, executed in December, 1834, and admitted to probate in January, 1835. By this will the testatrix, after directing payment of her debts, devises to her friend, Zachariah Woollen, his heirs, executors and administrators, all the rest, residue and remainder of her estate, real, personal and mixed in trusty to pay out of the income thereof certain annuities, (the principal annuitants being her -mother, her sister Caroline Price, and her two brothers,) and then follows these provisions : “And the residue of such income, with the several sums or amounts above enumerated for my sister and brothers, as the same may cease to be paid to them respectively as aforesaid, I give and bequeath to my son Henry Watson, if he be living, during the residue of his natural life; and if he should be living after my said’ sister ceases to be single, or departs this life, which ever shall first happen, and he shall also (have) survived both of my said brothers, or left issue or descendants, then I give and devise to my said son Henry Watson, his heirs, executors, administrators and assigns absolutely, not only the income but also the entire principal of the said rest, residue and remainder of my estate: But in case of the decease of my said son Henry Watson, before my said sister ceases to be single, or if my two brothers above named or either of them survives him, then (in case my ⁴³⁷ said son shall not leave issue or descendants,) I give, devise and bequeath to my said friend Zachariah Woollen, his heirs, executors, administrators and assigns absolutely, not only the income of my estate intended for my said son, but also the entire princiiial of the said rest, residue and remainder of my estate.” Henry Watson survived his two uncles, the brothers of the testatrix named in the will, and died without ever having had issue; but his aunt Caroline Price, survived him and had not been married up to the period of his death. In this state of case the question is, did the limitation of the real estate to Woollen take effect, or is it void for remoteness as a limitation over after an indefinite failure of issue of Watson?

It appears that Watson in his life time, had consulted the qaost distinguished and eminent lawyers of the State as to his rights under this will, and the opinions of Messrs. Johnson, Schley and McMahon, found among his papers have been printed and submitted for our consideration. In these opinions the very question we are now to pass upon has been elaborately discussed. In addition to these we have the very able arguments of counsel at bar.

We have examined the question with the aid thus afforded, and are all of opinion the limitation to Woollen is good. The reasons upon which this conclusion is based we shall now state. This will took effect prior to the passage of the Act of 1862, ch. 161, and it cannot he doubted that if it contained simply a devise to A for life and “in ease he shall not leave issue or descendants” then over, the limitation over as to real estate would be void. These words, according to their settled legal construction, import a general or indefinite failure of issue, and whenever 'found in a will must be taken in their technical legal sense, unless there be something clearly demonstrating a different intention on the part of the testator, restricting thém to a ⁴³⁸ definite failure of issue, or a failure of issue at the death of the first taker.

Authorities need not be cited for a rule of construction so familiar and well established as this. If, therefore, the only previous devise in this will were to Henry Watson, for life, and that was, immediately followed by this limitation over to Woollen, there would be the implication of an estate tail in Watson, (made a fee by our statutes,) and of necessity the remainder over would fail, or be barred by law, and if there was not enough in these words to imply such an estate tail, still if there were nothing in the previous devises to give a meaning to the words “in case he shall not leave issue or descendants,” they would make a limitation over, after an indefinite failure of issue. But by reference to the previous devises it will be seen that these words in the limitation over, are what are termed referential words, the reference being to the same contingency in which the fee is given to Watson, only taking the converse side of that eontingenc3r. By the previous devises it is clear, the testatrix intended the life interest of her son should be enlarged to afee if he survived the single life of his aunt, and the natural lives of both his uncles, or if he left issue or descendants, whether he survived his uncles and the single life of his aunt or not.

Now leaving out of view the contingency depending upon survivorship, Watson is to have the property in fee if he leaves issue or descendants, and if he does not, then Woollen is to have it in fee. So that when you determine the moment when the “leaving of issue or descendants” gives Watson the fee you determine the moment when that contingency has either failed, or taken effect as to Watson, and therefore, also the period when the limitation over is to take effect if at all. The intention of the testatrix as to Watson’s estate cannot be doubted. It cannot be questioned, that if Watson leaves issue or descendants at his death, his title to the "fee is complete, and that at his death or within the ⁴³⁹ usual period of gestation thereafter, it must be determined whether he is ever to have that estate in fee.

If he then has no issue or descendants, he never can have them, a,nd therefore, all possibility of that contingent estate ever vesting in him then must cease. It must be observed, there is no estate given to the issue, or to await the running out of issue. Both the life estate and the contingent fee are given to Watson himself. The issue are not designated as parties to whom the estate is limited, but the leaving of them is fixed as the contingency upon which the tenant for life will take the fee.

That is the period at which the fee is to begin and if there are none at the deatli of Watson, or within the usual period of gestation thereafter, there can be none afterwards to vest the fee. Now the testatrix certainly intended that when Watson’s estate should fail, the limitation over to Woollen should take effect, and hence the will, after enumerating the contingencies in which the fee is given to Watson, when it gives the estate over to Woollen, evidently refers to and repeats those contingencies, and in the direct and exact converse of them gives it over to Woollen. Thus it says : “if my said son should be living after my sister ceases to be single, or departs this life, and he shall have also survived both of my said brothers, or shall have left issue or descendants, then I give and devise to my said son” the property in fee; “but in case he dies before my said sister ceases to be single, or if either of my said brothers survive him, then in case he shall not leave issue or descendants, I give and devise to my friend Zachariah Woollen,” the property in fee. Her plain design was that the moment the one estate in fee failed the other should take effect, and the words “left issue or descendants” in the devise to her son, and “in case he shall not leave issue or descendants” in the limitation over to Woollen, were intended to refer to the same contingency and the same period, and to give the estate in fee the one or the other ⁴⁴⁰ direction according to the determination of that contingency.

It is therefore the case of a devise for life to Watson, on which remainders in fee are limited on a contingency with a double aspect. It is not the case of a fee to Woollen limited on a fee to Watson, and therefore not the case of an executory devise. If Watson once gets the fee by leaving issue or descendants, or by surviving both his uncles' and the single life of his aunt, it cannot be doubted that all the limitations over forever cease. If the fee be once vested in Watson bj either of these contingencies it- forever excludes any possible future interest in Woollen.

There are, therefore, here two contingent fees not limited to take effect the one upon or after the other, but the one to take effect to the entire exclusion of the other, and the falling out of the contingencies is to decide which of the two is to take effect. It is a case falling within and illustrating the doctrine stated in Fearne on Contingent Remainders, 373, thus : “although a fee cannot, in conveyances at common law, be mounted on a fee, yet two or more several contingent fees may be limited merely as substitutes or alternatives, one for the other, and not to interfere; so that one only take effect, and every subsequent limitation be a disposition substituted in the room of the former, if the former should fail of effect.” It is also very similar to the case of Clagett vs. Worthington, 3 Gill, 83 . It is very plain from this view of it, that this will does not present a case for the implication of an estate tail in Watson, nor for the application of the rule in Shelley’s Case. There is