The opinion of the court was delivered by
Bell, J.
I am satisfied, from the reasoning submitted on the part of the plaintiff below, and upon the authority of all the cases, that by the phrase “ in case of the death of either of my children,” the testator did not mean death generally, or whenever it might happen, but in the contingent sense of death occurring within a particular time, in which case the devise over was to take effect by way of substitution, and not as a limitation engrafted on, and qualifying the fee given to the children. It is very obvious it was not intended to cut down the absolute fee given to them, in every event, and yet such must be the result if the testator meant the indefinite death of any of his children, contended for by the defendant as marking the period of transmission. Under that reading, if the first takers died leaving children, the estate would go over to the latter, in fee, as purchasers, and if the former died, indefinitely, without children, it would go to the surviving brothers and sisters absolutely. The practical effect would be to reduce the first estate to an interest for life, merely, notwithstanding the explicit use of technical terms conferring a fee, evidently employed with a distinct notion of their legal meaning; Clayton vs. Lowe, 5 Barn. & Ald. 636. Besides, that construction would render defeasible the original shares first taken under the will, while those which might accrue by the clause of survivorship, would vest absolutely; a consequence, certainly, never contemplated; Pain vs. Benson, Atk. 80, Exparte West 1 B. C. C. 575. Congruity, therefore, requires that the1 chance of survivorship among the children of the testator, and the possible event upon which the limitation over to their children might take effect, should be referred to the same determinate period; or in other words, to let in the survivors on the death of any of their brothers or sisters, without issue, the contingency must happen within the [156]*156same definite time when, according to the settled rules of construction, the contingency implied from the words “ in case of the death of any of my children,” must occur to give place for the substitution of the grand children. Now, had the testamentary disposition ended with the gift to the children of a deceased child, no doubt could be entertained that to give it effect, the death of the parent must occur before the time fixed for enjoyment, whether that be the death of the testator, or at some other given period. The cases collected by Mr. Powell, in the 27th chap, of his treatise on devises, abundantly shew, that where there is nothing to indicate an adverse intent, additional limitations, dependent on no other contingency than is implied from the language “ if any of them die,” or “ in case of death,” cannot be referred to the event of death whenever it may happen — which would be to give a forced signification to such words, — but must be construed as referring to death in association with some additional circumstance, which makes it actually contingent. That circumstance, it is said, is naturally in regard to the time of its happening, and that time, where the gift is immediate, is necessarily the death of the testator, there being no other period to which the death can be referred. But as a testator is not supposed to anticipate himself surviving the object of his bounty, this construction is only made from necessity, and gives way where the contingency of the death of the first beneficiaries may be referred to some other time, which is always the case where the gift is limited to take effect at some period subsequent to the testator’s death; as where there is a precedent particular interest carved out of the fund or estate, 2 Pow. 758, 768. These rules are applicable whether the corpus of the gift be personalty or realty, where the whole interest on each is given, subject to be defeated by the implied contingency : although most of the cases reported, present bequests of moveable property. In the instance before us, the children were to take all the testator’s estate, real, personal and mixed, after the death of their mother, to whom an estate for life was given. Had she-survived the testator, the period of the children’s enjoyment would have been deferred until after her decease, and consequently, the first contingency might have had place at any moment during her life; but as the will was ambulatory until the death of the testator, the prior death of his wife confined the contingency to the period of his life, the will being subject to the same construction it would have received had the devise of the particular estate been altogether omitted.
I have said that to harmonize this will, and to give consistency to all its parts, we must refer the possible consummation of the second contingency, as creative of an estate in the survivors, to the same limit. Such a construction is not only called for by reasons springing from this particular testamentary instrument, [157]*157but is justified by authorative precedent. Here, the ultimate gift to the survivors is made to depend upon an actual contingency. Where, say the determinations, this is the case and there is nothing in the will to shew the contingency of dying without children was meant to operate without limit, during the life of the first taker, it is, as in the other instance, restricted to the death of the testator, or within a given period after his decease. Where the gift is immediate, the contingency is held determined by the first named event; where there is an intermediate estate, time may be given for the happening of the possibility during the running of the precedent interest. Examples and illustrations of this rule are afforded by Doe & Lifford vs. Sparrow, 13 East. 359, which was a devise of realty; Jenour vs. Jenour, 10 Ves. 562, and Gillard vs. Leonard, 1 Smanst. 161, all of which are very like the instance in hand. The last, although a bequest of personalty, appears to me to be identical in principle. But the learned author to whom I have already referred, more than once, deduces a rule from the decisions, which I think, covers and decides this controversy. “ Where, says he, a devise in fee is followed by several alternative limitations over, which aggregately provide for the death of the devisee under all circumstances ; as where there is a devise over if he die, leaving children, and another if he die without children, the case then becomes analagous to that of a limitation if he die generally, and accordingly the words are held to refer to the death of the devisee in the fife time of the testator.— Indeed, he adds, to hold them to refer to death at any time, would be to cut down the devisee’s estate in fee simple to an estate for life;” a consequence, I have already shewn, would follow in our case, if the contingencies were allowed to spread over the whole lives of the devisees. The authority cited, in support of the proposition I have stated is Clayton et al. vs. Lowe, 5 Barn. & Ald. 636, which is so directly applicable here, I must be permitted to give its syllabus.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Bell, J.
I am satisfied, from the reasoning submitted on the part of the plaintiff below, and upon the authority of all the cases, that by the phrase “ in case of the death of either of my children,” the testator did not mean death generally, or whenever it might happen, but in the contingent sense of death occurring within a particular time, in which case the devise over was to take effect by way of substitution, and not as a limitation engrafted on, and qualifying the fee given to the children. It is very obvious it was not intended to cut down the absolute fee given to them, in every event, and yet such must be the result if the testator meant the indefinite death of any of his children, contended for by the defendant as marking the period of transmission. Under that reading, if the first takers died leaving children, the estate would go over to the latter, in fee, as purchasers, and if the former died, indefinitely, without children, it would go to the surviving brothers and sisters absolutely. The practical effect would be to reduce the first estate to an interest for life, merely, notwithstanding the explicit use of technical terms conferring a fee, evidently employed with a distinct notion of their legal meaning; Clayton vs. Lowe, 5 Barn. & Ald. 636. Besides, that construction would render defeasible the original shares first taken under the will, while those which might accrue by the clause of survivorship, would vest absolutely; a consequence, certainly, never contemplated; Pain vs. Benson, Atk. 80, Exparte West 1 B. C. C. 575. Congruity, therefore, requires that the1 chance of survivorship among the children of the testator, and the possible event upon which the limitation over to their children might take effect, should be referred to the same determinate period; or in other words, to let in the survivors on the death of any of their brothers or sisters, without issue, the contingency must happen within the [156]*156same definite time when, according to the settled rules of construction, the contingency implied from the words “ in case of the death of any of my children,” must occur to give place for the substitution of the grand children. Now, had the testamentary disposition ended with the gift to the children of a deceased child, no doubt could be entertained that to give it effect, the death of the parent must occur before the time fixed for enjoyment, whether that be the death of the testator, or at some other given period. The cases collected by Mr. Powell, in the 27th chap, of his treatise on devises, abundantly shew, that where there is nothing to indicate an adverse intent, additional limitations, dependent on no other contingency than is implied from the language “ if any of them die,” or “ in case of death,” cannot be referred to the event of death whenever it may happen — which would be to give a forced signification to such words, — but must be construed as referring to death in association with some additional circumstance, which makes it actually contingent. That circumstance, it is said, is naturally in regard to the time of its happening, and that time, where the gift is immediate, is necessarily the death of the testator, there being no other period to which the death can be referred. But as a testator is not supposed to anticipate himself surviving the object of his bounty, this construction is only made from necessity, and gives way where the contingency of the death of the first beneficiaries may be referred to some other time, which is always the case where the gift is limited to take effect at some period subsequent to the testator’s death; as where there is a precedent particular interest carved out of the fund or estate, 2 Pow. 758, 768. These rules are applicable whether the corpus of the gift be personalty or realty, where the whole interest on each is given, subject to be defeated by the implied contingency : although most of the cases reported, present bequests of moveable property. In the instance before us, the children were to take all the testator’s estate, real, personal and mixed, after the death of their mother, to whom an estate for life was given. Had she-survived the testator, the period of the children’s enjoyment would have been deferred until after her decease, and consequently, the first contingency might have had place at any moment during her life; but as the will was ambulatory until the death of the testator, the prior death of his wife confined the contingency to the period of his life, the will being subject to the same construction it would have received had the devise of the particular estate been altogether omitted.
I have said that to harmonize this will, and to give consistency to all its parts, we must refer the possible consummation of the second contingency, as creative of an estate in the survivors, to the same limit. Such a construction is not only called for by reasons springing from this particular testamentary instrument, [157]*157but is justified by authorative precedent. Here, the ultimate gift to the survivors is made to depend upon an actual contingency. Where, say the determinations, this is the case and there is nothing in the will to shew the contingency of dying without children was meant to operate without limit, during the life of the first taker, it is, as in the other instance, restricted to the death of the testator, or within a given period after his decease. Where the gift is immediate, the contingency is held determined by the first named event; where there is an intermediate estate, time may be given for the happening of the possibility during the running of the precedent interest. Examples and illustrations of this rule are afforded by Doe & Lifford vs. Sparrow, 13 East. 359, which was a devise of realty; Jenour vs. Jenour, 10 Ves. 562, and Gillard vs. Leonard, 1 Smanst. 161, all of which are very like the instance in hand. The last, although a bequest of personalty, appears to me to be identical in principle. But the learned author to whom I have already referred, more than once, deduces a rule from the decisions, which I think, covers and decides this controversy. “ Where, says he, a devise in fee is followed by several alternative limitations over, which aggregately provide for the death of the devisee under all circumstances ; as where there is a devise over if he die, leaving children, and another if he die without children, the case then becomes analagous to that of a limitation if he die generally, and accordingly the words are held to refer to the death of the devisee in the fife time of the testator.— Indeed, he adds, to hold them to refer to death at any time, would be to cut down the devisee’s estate in fee simple to an estate for life;” a consequence, I have already shewn, would follow in our case, if the contingencies were allowed to spread over the whole lives of the devisees. The authority cited, in support of the proposition I have stated is Clayton et al. vs. Lowe, 5 Barn. & Ald. 636, which is so directly applicable here, I must be permitted to give its syllabus. The testator after bequeathing a specific legacy, devised all and every other part of his real and personal estate to be equally divided between his three grand children, share and share alike, forever ; and also, that if either of them should' happen to die, without child or children, lawfully begotten, that then such part or share of the one so dying should be equally divided among the surviving grand children; but if any of his grand children should die, and have a child or children, such child or children should have their parent’s share equally divided among them, share and share alike. It was held that, upon the death of the testator, the grand children took an indefeasible estate in fee simple, as tenants in common. It will be perceived the only difference between that case and the present is, that there, there was no precedent estate for life given, while here, provision wa¡s made for such an interest. This was, however, rendered nugatory by [158]*158the death of the testator’s wife, living himself, and had she survived, the only effect would have been to refer the determination of the contingency to the period of her decease, instead of confining it to the death of the testator ; a difference without practical consequence, since our tenants in fee survived both them father and mother. The substitution of the word “issue” for “'child or children,” in our devise, works no difference of effect since it is only referable to the before designed object, namely: children of a deceased child; Hayes vs. Gray, 29, 30, Goodright vs. Dunham, Doug. 264. As opposed to this array, the defendant cites our own case of Lippincott vs. Warder, 14 S. & R. 115. But, if it decided any thing further than the nature and extent of the estate to which the testator’s late widow Christiana, was entitled, under his will, it ought not to be accepted as a ruling precedent in this enquiry. It was submitted without argument, and the point on which the present controversy turns, was not at all brought to the notice of the court. It was evidently not felt as of importance, and the Judge who delivered the opinion, expressly professed to avoid giving any construction to the will, further than the case seemed to require, which was the present right of the widow and guardian to recover from the executor. Certain it is there was no disposition shewn to overrule the long train of English determinations on this point, to which reference has been made. Besides, there, there was no direction that the first takers should hold as tenants in common, a feature the decisions treat as of considerable moment in ascertaining the period of survivorship. On the whole, I prefer to rest this determination on the reasoning and authorities already given. It will be found that in these, the precise point was agitated and much considered, and though the cases differ in their choice of the testator’s death or the expenditure of the particular estate (where there is one) as fixing the limit within which the defeasible character of a devise or bequest is to expire, they all agree in referring it to one or other of those periods, unless some peculiar provision points to a different time.
Judgment affirmed.