Downing v. Wherrin

19 N.H. 9

• Court: Superior Court of New Hampshire
• Decided: July 15, 1848
• Status: Published

Opinion

Gilchrist, C. J.

The question in this ease is, whether the limitation over, after the death of Josiah, is void as an executory devise, on account of the contingency on which it is to take place being too remote. Is the limitation over to take effect only in case of the indefinite failure of the issue of Josiah, that is, in the words of the statute de donis, if his issue shall fail, or is it to take effect, if he shall have lawful issue living at the time of his death ? If the former, it is void as an executory devise, and Josiah was tenant in tail. If the latter, it is a good executory devise, and upon the death of Josiah, the estate vested in the persons named in the will.

It is said in 2 Powell on Dev. 583, that “ where the preceding devise is sufficient to give a fee, the convenience is all on the side of the restricted construction, which renders that fee defeasible on his not leaving issue at his death, and takes the estate out of the power of the first taker, who might, if he were tenant in tail, (as he would be if the words were construed to mean an indefinite failure of issue,) defeat the estate over by suffering a common recovery. To prevent this consequence, the courts have generally lent a willing ear in favor of the restricted, and which we have seen to be the popular construction of these words.”

The general position is every where, in all the cases and discussions, from the time of Pells v. Brown, Cro. Jac. 590, decided in the year 1620, to the present time, recognized as law, that the words dying without issue, without something to qualify them, and to point out some particular period at which the estate shall vest, import an indefinite failure of issue. It is unnecessary even to refer to the cases which establish this position, for there is no decision contrary to it. The difficulty under which the courts have labored is, to determine what words shall be considered as qualifying the general expressions, and whether the language used, upon a reasonable construction of it, points out some definite period when the limitation over shall take effect.

The rule uniformly recognized and practised upon by the courts, from the time of the Year Books to the present day is, that a devise, in fee with a remainder over, if the devisee die without issue or heirs of the body, is a fee cut down to an estate tail, and the limitation over is void by way of executory devise as being too remote, and founded on an indefinite failure of issue. Now a definite failure of issue is where a precise time is fixed by the will for the failure of issue, as in the case of a devise to A., but if he die without lawful issue, living at the time of his death, then over. An indefinite failure of issue is the very converse of the other, and means a failure of issue whenever it shall happen, sooner or later, without any definite period within which it must happen. It means the period when the issue or descendants of the first taker become extinct, and when there is no longer any issue of the issue of the grantee, without reference to any particular time or any particular event, and an executory devise, to take effect at such a remote period of time, is void, because it might tie up property for generations. Hall v. Chaffee, 14 N. H. Rep. 220.

In considering this question, it may be remarked that when an executory devise is duly created, it is wholly exempted from the power of the first devisee or taker. The essential difference between a contingent remainder and an executory devise is, that the first may be barred or destroyed by several means, whereas an executory devise cannot be prevented from taking effect when the contingency happens, either by fine or recovery, or by any alteration of the estate, after which it is limited. 6 Cruise’s Tit. Dev. ch. 17, § 14; Moffat v. Strong, 10 Johns. 12; Jackson v. Bull, 10 Johns. 19; Jackson v. Robins, 16 Johns. 597.

It is a stable and inalienable interest, and the first taker has only the use of the land pending the contingency named in the will, and if this be valid as an executory devise, Josiah Downing could not defeat it by his deed to Margaret Wherrin. It is also to be remarked that a devise, to take effect upon a general failure of issue, is void, whether the issue fail or not. It is of'no importance how the fact turns out; it is void at the commencement, if it be thus limited. 6 Cruise’s Dev. ch. 17, § 23.

It has been considered that there was some ambiguity in the expression, “if he should die without issue,” or “without leaving issue,” and a construction has been put upon them, or upon words so nearly like them, that the difference cannot be appreciated, which makes the limitation over void, as too remote. “ Leaving issue,” as to realty, means leaving at the time of death. Cole v. Goble, 20 Eng. L. & Eq. Rep. 237. In that case, Lord Ch. Jus. Jervis says “ it is well understood that the words ‘ having issue ’ mean to apply generally, and not at the time of the death.” It was there held that a devise of land to the testatrix’s granddaughter, Mary Ann, “ but in the event of her dying without having any lawful issue,” then over, gave the devisee an estate tail. This decision is consistent with the general position stated in 2 Jarman on Wills 418, that words referring to the death of a person without issue, whether the terms be “ if he die without issue,” “ if he have no issue,” or “ for want or in default of issue,” unexplained by the context, import a general indefinite failure of issue. The intention of the testator is the guide of the court, but that intention must be gathered from the legal meaning of the words he employs, and the court are not at liberty to indulge in speculations as to what he probably might have meant.

Did the testator, in this case, intend that the devise 'over should not take effectuntilallthe descendants of Josiah should become extinct, however remote they might be, or did he intend that it should take effect at the death of Josiah, if there were no issue of his living at that time 1 This is the simple question now before us. Is there any thing to point out the time when the testator intended the devise should take effect 1 If the failure of issue would be an event ascertained at the death of Josiah, it would seem that the testator could not have contemplated the failure of Josiah’s remote descendants. Now if Josiah should not marry and have lawful issue of his own body, at what time are his brothers to take ? The will answers this question. It is after Ms death, that is, upon Ms death; as soon as he is dead ; and this seems to us to be the simple and obvious construction of the will, to show that he meant that if Josiah left no issue surviving him, the land should go to his brothers, and to repel the idea that he contemplated some remote period when his issue should become extinct in some future generation. It was the state of things existing at the time of Josiah’s death, which was to determine whether the future estate to his brothers should ever come into enjoyment or not.

The failure of issue will be confined to the death of the first taker, where the expression is combined with some event personal to the devisee, as in case of his dying unmarried and without issue, the word and being construed to mean or. Wilson v. Bailey, 3 Bro. P. C. 195, is one case of this kind. There, in case both of the sons of the testator, M. & J., should happen to die unmarried, and neither of them should have any issue lawfully begotten, certain leasehold estates devised to them were devised over. M. died unmarried, J. married but had no issue, and it was held that the devise over took effect, the word and, connecting the two parts of the condition, being construed in the disjunctive.

Here the condition is, that M. should die unmarried, and should not have issue lawfully begotten. If either of these events should happen, the devise over would be good.

In the present case, the condition is that Josiah should not marry and have lawful issue. Construing it like the case cited, if either event should happen, the devise would be good, and both are matters personal to the devisee.

In the case of Glover v. Monckton, 3 Bing. 13, there was a devise to the testator’s son in fee, but if he should die under twenty-one, or if he should live to twenty-one, and afterwards die without lawful issue, then over. It was held that the limitation over was a good executory devise, in the event of his dying without issue living at bis death. This decision is confirmed by the subsequent case of Doe v. Johnson, in the Exchequer, 16 L. & Eq. Rep. 550. The devise there was to S. J. in fee, but if he should die before twenty-one, and if after twenty-one he should die unmarried, or having been married, without lawful issue, then over. It was held that S. J. did not take an estate tail, but took an estate in fee simple, with an executory devise over, in the event of his dying under twenty-one, or after that age, dying without leaving issue living at the time of his death. It is said by the court that'it would be a very forced construction of the devise to hold that the third event (the dying having been married without lawful issue) pointed not to his death without leaving issue then living, but to the failure of issue of his body, at any period however remote. .

Here the expression is combined with some event personal to the devisee.

In the case of Doe v. Frost, 3 B. & Ald. 546, there was a devise in fee to W. F., “ but if he should have no children, child or issue, the said estate is, on the decease of the said W. F., to become the property of the heir at law.” It was held that W. F. took an estate in fee, with an executory devise, in the event of his dying without leaving children at his decease. Holroyd, J., says, “ the will contemplates a failure of issue at the decease of William Frost,” and the case is a strong one on the effect of the words “ on the decease.” It would be difficult to discriminate between “ at his decease ” and “ after his death,” for after, unless there be something to designate a period of time, means immediately after.

In the case of Davies ex parte, 9 L. & Eq. Rep. 88, the testator devised the residue of his property to his son, Matthew, in fee, provided that if he should die without leaving any lawful issue of his body, certain freehold estates should, at his death, be divided into two parts, which were devised over. It was held that Matthew took an estate in fee, with an executory devise over, to take effect in the event of his dying without issue living at the time of his death. The case of Doe v. Frost, above cited, was much relied on by the court.

Where the subject-matter disposed of by the will is personal estate, there seems to be no doubt entertained that the words “at” or “ after” the decease of the devisee restrain the failure of issue to the time of his death, and that the devise over is good. The more prominent cases, and the precise words in them, are as follows : Pinbury v. Elkin, 1 P. Wms. 563, “ then after her decease;” Wilkinson v. South, 7 Term 555, “ after his decease;” Gawler v. Cadby, Jac. 346, “ in case of her death ;” Rackstraw v. Vile, 1 Sim. & Stu. 604, “ at their death.” In Pinbury v. Elkin, Lord Hardwicke says the words “then after” mean immediately after. In Donn v. Penny, 19 Ves. 546, Sir W. Grant says the doubt upon the case of Pinbury v. Elkin is whether the word “ after ” be fairly construed or not. If, however, he said, that construction was right, there was no doubt it afforded a distinct period, the decease of the first taker, to which the dying without issue was to be referred.

But the cases are equally strong in this particular, where the words refer to a devise of lands. In addition to the cases of Doe v. Frost and Davies ex parte, above referred to, is the decision in Robinson v. Grey, 9 East 1. In that case there was a devise in trust for the benefit of daughters, but if they should die without leaving issue, then after the decease of the survivor of the daughters, in trust for a grandson in fee. It was held that the‘limitation over was good.

A distinction has been made between a devise of lands and a devise of personalty, upon a dying without issue. In the former case, the words are always taken to mean whenever there is a failure of issue, and the limitation over is void. In the latter case, they are construed in the ordinary sense, and mean dying without leaving issue at the time of the death. This distinction was first taken in Forth v. Chapman, 1 P. Wms. 663, and the decision has given rise to much litigation. Its soundness has been affirmed and denied by many eminent lawyers, some adhering to it, and others holding that there is no difference between a limitation of real and personal property. Among those who do not recognize the distinction are Lord Loughborough, in Chandler v. Price, 3 Ves. 99, Lord Alvanley, in Rawlins v. Goldfrap, 5 Ves. 440, Lord Kenyon, in Porter v. Bradley, 3 Term 146, and in Roe v. Jaffrey, 7 Term 595, Sir W. Grant, in Barlow v. Salter, 17 Ves. 479, and the case of Dansey v. Griffiths, 4 M. & S. 62. On the other side are Den v. Shenton, Cowp. 410, and Crooke v. De Vandes, 9 Ves. 197, Lord Eldon, and Noe v. Ewart, 7 Ad. & El. 636. The question now before us is not involved in the above cases, and they are referred to merely on the question whether there should be any difference in the construction of words disposing of real and personal estate. Chancellor Kent says it would be difficult to ascertain the balance upon the mere question of authority, but the importance of uniformity in the construction of wills relative to. the disposition of real property has, in a great degree, prevailed over the distinction, though in bequests of personal property the rule will more readily than in devises of land be made to yield to other expressions or slight circumstances in the will, indicating an intention to confine the limitation to the event of the first taker dying without issue living at his death. 4 Kent’s Com. 282.

Now the question that has been made, and which has been discussed in the cases relative to this distinction is, whether the words dying without issue mean issue living at the death. There are no cases which decide that the words after his death, in a devise of lands, do not mean issue living at the time of his death. There are two cases where similar words were used. One is Walter v. Drew, 1 Com. 373, where there was a devise of lands to W., and after the death of the said W., then over, and it was held that W. took an estate tail. The other is Doe v. Cooper, 1 East 229, where there was a devise, of lands to R. C., but if he should die without leaving lawful issue, then, after his decease, to G. H. It was held that R. C. took an estate tail. But in neither of these eases was the force of the words referring to the death at all presented to the notice of the court, or remarked upon ; and in the latter case R. C. was held to take an estate tail to accomplish the general intention of the will.

In the case of Hall v. Chaffee, 14 N. H. Rep. 215, a testator devised land to his daughter in fee, provided, however, that if she should die without issue born alive of her body, to heir her estate, then, &c. It was held that the words to heir her estate showed that the testator meant the death of the first taker, without issue living at the time of her death, and that the limitation over was valid by way of executory devise, being to take effect upon a definite failure of issue. The words “ after her decease ” also occurred in the devise, but the question of their effect did not require to be settled.

Whether we hold that a different construction should be given to the words of devise, as they may affect real or personal estate, does not seem, in this case, to be very material. If we recognize the distinction, it does not follow that the words after his death do not mean the same thing, both in devises of real and personal property. Where the property is persona], they restrict the words of devise to issue living at the death. Where the devise is of land, there are strong authorities for holding that they have the same effect, and there are none which say that they do not. And as it was the obvious meaning of the testator that the brothers of Josiah should take, if he had no issue living at the time of his death, we think his intention may legally be carried into effect, and that the limitation over is good.

It stated in the demurrer that this is not a case for the jurisdiction of a court of equity. The prayer of the original bill is, that Josiah’s deed should be decreed to be void, for it is very clear that it stands in the way of the rights of the plaintiffs under the will. Whatever doubts might once have been entertained of the jurisdiction of a court of equity, in such a case, have been settled by modern decisions, and the relief afforded seems to be on the principle of a bill quia timet, lest the deed might be injuriously used against the party, or might throw a cloud or suspicion over his title. Tanner v. Wise, 3 P. Wms. 296. In Hamilton v. Cummings, 1 Johns. Ch. Rep. 522, Chancellor Kent said that the weight of authority and the reason of the thing are equally in favor of the jurisdiction of the court, whether the instrument is or is not void at law, and whether it be void from matter appearing on its face or from proof taken in the cause. “ The jurisdiction of this court,” says Chancellor Walworth, “ to set aside deeds and other legal instruments, which are a cloud upon the title to real estate, and to order them to be delivered up and cancelled, appears to be now fully established.” 1 Powell on Dev. 628, note 1; Pettit v. Shepherd, 5 Paige 501; 2 Story’s Eq. § 604.

The judgment of the court is that the estate limited to the brothers of Josiah Downing, is valid by way of executory devise, and there must be a decree for the plaintiffs, according to the prayer of the bill.