Mr Chief Justice Marshall
delivered the opinion- of the Court.
This is a writ of .error brought to a. judgment rendered in an ejectment by thepourt of .the United, States, for the Western district of.Virginia. The.judgment was pronounced on a case agreed. Three.questions have been made at the bar:
T. Is the condition on .which the.testator -has devised his real estate in trust to William .King, a condition precedent or subsequent 1
2. If subsequent, at what time does the estate vest in possession 1
3. What is the nature of the estate, when vested ‘l
1. Is the condition precedent, or subsequent?'
The vyordsof the will are, “-In case of having-no children, I then, leave and bequeath -'all my real estate, at the death of my wife to William King, son of brother James King, on condition of his marrying a daughter of William Trigg and my niece Rachel his wife, lately. Rachel Finlay, in trust, for the-eldest sqn or issue, of said marriage, and'in case such marriage should not take place, I leave and bequeath said estate to any child, .giving preference to age, of William and Rachel Trigg that will marry a child bf my brother James King’s, or of sistér Elizabeth’s, wife of John Mitchel, and to their issue.”
It was admitted in argument, and is certainly well settled(a), that there are no. technical appropriate words which always determine whether a devise be oh a condition precedent or subsequent. The .sarne words have been determined differently; and-the question is always a question of intention. If the. language of the particular clause, or of the whole will, [375] shows that, the act on which the state depends, must bp performed before the estate can vest; the condition is of course-precedent ; and unles§ it bé performed, ihe devisee can take nothing. - If, on the contrary, the act does not necessarily precede the vesting of the estate, but may-accompány. or follow .it, if this is to be collected' from the whole will, the condition is subsequent.
In the case under consideration,' the testator does not in terms give his.real estate to William King on his marrying the daughter of William and Rachel Trigg, but at the death of his, the testator’s wife, on condition of his marrying a daughter of William and Rachel Trigg. Whatever doubt may be entertained respecting the lands riot given to the wife for life,,the testator has expressed clearly his intention, that the.lands encumbered with his wife’s life estate should come to the possession of William Ring at her death. He gives the estate at ihat time, without requiring that the condition annexed to it should, bp previously performed. The estate then vests ..in possession, whether the condition' on which it was to. depend be or be not performed. It cannot be .supposed to have been his intention that the devisee should take possession under this devise, before the interest vested in him. The interest, therefore, must have vested previously, or at the time. The language of the testator does, not indicate the intention that the marriage must, fake place during the life of his wife; nor do.the circumstances of the parties justify us in imputing such an intention to him. The time of her death was uncertain, and it" might follow close upoh his own. The contemplated marriage could not possibly take place until the lapse of many years, because one of the parties had not come into existence. William and Rachel. Trigg had not at the time, and never have had, a daughter. The testator therefore has fixed a time when, the estate is to vest, which might probably precede the happening of the event on which its continuance is to depend. This is clearly a condition subsequent, as to those lands in which an estate for life is given to the wife of the testator.
Does any reason exist which will authorise a distinction between those lands in which the wife took a life estate, and [376] those of which no other present disposition.is. made in the willl
The testator makes no distinction. In one clause he gives, “his whole real.estate, at the death of his wife.to William King, son of his brother James King, on condition,” &c.: If, as the language would seem to indicate; thé devisee was entitled to possession of the whole property at the same time, that is, at the death of the testator’s wife, it would follow that the condition on which the .whole depends is a condition, subsequent. If the devise should be construed; as the defendant in error contends, to give William King a right to. the immediate possession of that part of the estate.of which no other disposition is made, does this circumstance furnish any reason for the opinion, that this part of the state depends on a condition precedent We think not. The will might then be construed as if it were expressed thus : “ in case of having no children, I then leave and bequeath all my real estate, subject to the devise to my wife for life, to William King, son of my brother James King, on condition of his marrying,” &c. This is the most unfavourable manner for the defendant in error in which the question can be presented. It waives the benefit derived from'fixing a time for the possession of a considerable part of-the estate, which might very probably precede the event on which its continuance is made to depend. Had even this been the language of the will, the estate in the lands would, we think, depend on a ’condition subsequent.
It is a general rule, that a devise in words of the present time, as I give to A. my lands in B. imports, i;f no contrary intent appears, an immediate interest which vests in the devisee on the death of the testator. It is also a .general rule, that if an estate be given on a condition, for the performance of which no time is limited, the devisee has his life for performance. Thé result of those two principles seems to be, that a devise to A., on condition that he shall marfy B.,. if uncontrolled by other words, takes efi’ect immediately ; and the .devisee performs the condition, if he marry B. at any time during his fife. The condition is subsequent. We have found no case in which a general devise [377] in words, importing a present interest in a wifi, making no other disposition of the property, on a condition which may be performed at any time, has been construed from the mere circumstance that the estate is given on condition, to require that the condition must be pérformed before the estate can vest. There are many cases in which the contrary principle has béen decided(a). We'think then that the condition on which the devise, to William King depended, was a condition subsequent.
2. The second point is one of more difficulty. Does that part of the real estate which is not otherwise expressly disposed of, vest in William King immediately, or at the death of the testator’s wife?
The words are, “ in cáse of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King, on condition,”.&c.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr Chief Justice Marshall
delivered the opinion- of the Court.
This is a writ of .error brought to a. judgment rendered in an ejectment by thepourt of .the United, States, for the Western district of.Virginia. The.judgment was pronounced on a case agreed. Three.questions have been made at the bar:
T. Is the condition on .which the.testator -has devised his real estate in trust to William .King, a condition precedent or subsequent 1
2. If subsequent, at what time does the estate vest in possession 1
3. What is the nature of the estate, when vested ‘l
1. Is the condition precedent, or subsequent?'
The vyordsof the will are, “-In case of having-no children, I then, leave and bequeath -'all my real estate, at the death of my wife to William King, son of brother James King, on condition of his marrying a daughter of William Trigg and my niece Rachel his wife, lately. Rachel Finlay, in trust, for the-eldest sqn or issue, of said marriage, and'in case such marriage should not take place, I leave and bequeath said estate to any child, .giving preference to age, of William and Rachel Trigg that will marry a child bf my brother James King’s, or of sistér Elizabeth’s, wife of John Mitchel, and to their issue.”
It was admitted in argument, and is certainly well settled(a), that there are no. technical appropriate words which always determine whether a devise be oh a condition precedent or subsequent. The .sarne words have been determined differently; and-the question is always a question of intention. If the. language of the particular clause, or of the whole will, [375] shows that, the act on which the state depends, must bp performed before the estate can vest; the condition is of course-precedent ; and unles§ it bé performed, ihe devisee can take nothing. - If, on the contrary, the act does not necessarily precede the vesting of the estate, but may-accompány. or follow .it, if this is to be collected' from the whole will, the condition is subsequent.
In the case under consideration,' the testator does not in terms give his.real estate to William King on his marrying the daughter of William and Rachel Trigg, but at the death of his, the testator’s wife, on condition of his marrying a daughter of William and Rachel Trigg. Whatever doubt may be entertained respecting the lands riot given to the wife for life,,the testator has expressed clearly his intention, that the.lands encumbered with his wife’s life estate should come to the possession of William Ring at her death. He gives the estate at ihat time, without requiring that the condition annexed to it should, bp previously performed. The estate then vests ..in possession, whether the condition' on which it was to. depend be or be not performed. It cannot be .supposed to have been his intention that the devisee should take possession under this devise, before the interest vested in him. The interest, therefore, must have vested previously, or at the time. The language of the testator does, not indicate the intention that the marriage must, fake place during the life of his wife; nor do.the circumstances of the parties justify us in imputing such an intention to him. The time of her death was uncertain, and it" might follow close upoh his own. The contemplated marriage could not possibly take place until the lapse of many years, because one of the parties had not come into existence. William and Rachel. Trigg had not at the time, and never have had, a daughter. The testator therefore has fixed a time when, the estate is to vest, which might probably precede the happening of the event on which its continuance is to depend. This is clearly a condition subsequent, as to those lands in which an estate for life is given to the wife of the testator.
Does any reason exist which will authorise a distinction between those lands in which the wife took a life estate, and [376] those of which no other present disposition.is. made in the willl
The testator makes no distinction. In one clause he gives, “his whole real.estate, at the death of his wife.to William King, son of his brother James King, on condition,” &c.: If, as the language would seem to indicate; thé devisee was entitled to possession of the whole property at the same time, that is, at the death of the testator’s wife, it would follow that the condition on which the .whole depends is a condition, subsequent. If the devise should be construed; as the defendant in error contends, to give William King a right to. the immediate possession of that part of the estate.of which no other disposition is made, does this circumstance furnish any reason for the opinion, that this part of the state depends on a condition precedent We think not. The will might then be construed as if it were expressed thus : “ in case of having no children, I then leave and bequeath all my real estate, subject to the devise to my wife for life, to William King, son of my brother James King, on condition of his marrying,” &c. This is the most unfavourable manner for the defendant in error in which the question can be presented. It waives the benefit derived from'fixing a time for the possession of a considerable part of-the estate, which might very probably precede the event on which its continuance is made to depend. Had even this been the language of the will, the estate in the lands would, we think, depend on a ’condition subsequent.
It is a general rule, that a devise in words of the present time, as I give to A. my lands in B. imports, i;f no contrary intent appears, an immediate interest which vests in the devisee on the death of the testator. It is also a .general rule, that if an estate be given on a condition, for the performance of which no time is limited, the devisee has his life for performance. Thé result of those two principles seems to be, that a devise to A., on condition that he shall marfy B.,. if uncontrolled by other words, takes efi’ect immediately ; and the .devisee performs the condition, if he marry B. at any time during his fife. The condition is subsequent. We have found no case in which a general devise [377] in words, importing a present interest in a wifi, making no other disposition of the property, on a condition which may be performed at any time, has been construed from the mere circumstance that the estate is given on condition, to require that the condition must be pérformed before the estate can vest. There are many cases in which the contrary principle has béen decided(a). We'think then that the condition on which the devise, to William King depended, was a condition subsequent.
2. The second point is one of more difficulty. Does that part of the real estate which is not otherwise expressly disposed of, vest in William King immediately, or at the death of the testator’s wife?
The words are, “ in cáse of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King, on condition,”.&c.
These words certainly import that the whole.estate should vest in possession' at the same time, and.mark with precision when that -tii$e shall be. This express provision can be controlled only by a strong and manifest intent, to be collected from the whole will. But the intent of the testator is the cardinal rule in the construction of wills; and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail; although in giving effect to it same words should be rejected, or so restrained in their application, as materially to change the literal .meaning of the particular sentence.
The counsel for the defendant in error insists that the intent to give the real estate not otherwise disposed of immediately to William King, is apparent on the face of the will, and must control the construction of-the clause under consideration. This proposition has been so fully discussed at the. bar, that the court'need-only restate the principles which have been already advanced in the argument.
[378] Of the immense estate left by the testator, about one half, inclqding her dower, was given to his wife and oihers for her life: The residue was given to William King.immediately, on the trust mentioned in the will, or given by implication to the testator’s wife, or was permitted to descend to his heir at law.
As the devise to William King was on a condition subsequent, it may be construed, so far as respects the time of taking possession, as if it had been conditional. The condition opposes no obstacle to his immediate possession, if the intent of the testator shall require that construction.
We will first consider the supposed implied devise to the wife.
As William King was riot the heir of the testator, a devise to him at. her death does not necessarily imply an estate in herduring life; and the will itself furnishes strong, reason for rejecting this construction. His wife, as might well be supposed, was first in his mind, and was kept in mind throughout .the will. He notices her legal right to dower, so as to avoid a possible implication that what he gave her was in lieu of dower, and to secure her from the necessity^ofrelinquishing all interest in the estate bequeathed to her as preliminaryto"' claiming her dower. She claims her dower under the will, as she does the other large estate bequeathed to her. It is not probable that a person who was careful to notice even that to which she would have been entitled under the law, would have omitted totally a very large property which she could claim only under the will. He even notices the remainder of a small property in the. occupancy of his. father; and mentions his wife in many other parts of his will, in a manner to add to the improbability of his having totally omitted her name, when a very large benefit was intended. It seems to us to be contrary to reason and to the ordinary rules of construction to intend, that a large estate is given by an unnecessary implication to a wife wh'o takes her dower in the whole, and also a large part by express words; We think it very clear that there is no implicative devise to the wife.
Does the property in question descend to the heir at law [379] during the life of the wife % Was it the purpose of the testator to die intestate with respect to it until her death 1
We cannot think that such was his purpose; or that his will authorizes the court to say so.
The introductory clause indicates an intention to disposé of all his estate. He says, “ I, William King, have thought proper to make and ordain this to be my last will and testament, leaving and bequeathing my worldly estate in the manner following.” These words are entitled to considerable influence in a question of doubtful intent, in a. case where the property is given, and the question arises between the heir and devisee respecting the interest devised. The words of the particular clause also carry the whole estate from the heir, but they fix the death of the testator’s wife as; the time when the devisee shall be entitled to possession. They are, “ In case of having no Children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of. brother James King,” &c.
It is admitted that if this clause stood alone, unexplained by other parts of the will, the real estate, not otherwise disposed of, would descend to the heir. The law gives to him whatever is not given to ’others. But if other provisions, in the will show an intent that the legal title of the heir should not prevail, those.other provisions must be respected in construing the instrumént(a).
When the will was made, the testator’s father was alive, and was consequently tobe considered as his heir. He was an old man; and the provision made for him seems to have contemplated only a comfortable supply for the wants of one who had grown up and lived in simple unexpensive habits. The testator gives him for life the houses in which he then resided, with so much land as.he might choose to farm, what fruit he might want, and -the spring house, subject to the direction of his wife; also the sum of $200 per annum during his life; and, if fire should destroy his Fincastle house, a [380] fárther sum of $220 per annum, while his income from that source should be suspended. This property is given to his wife for life on the death of his father. These moderate provisions for the heir, contemplating only.the ease and comfortable supply of the wants of'an old man, comport very little with the idea of leaving an immense estate, consisting among other articles of numerous tracts of land, TÓfnote from each other, most probably of very difficult management, to descend to h'im; It is not probable that this estate would be left to descend to him for the life of Mrs King. Her surviving him was probable, and the testator expected she would survive him. The lands devised to him are given to her for life.
The father, who was the presumptive heir when the will was made, died during the life of the testator. This event is not supposed to affect the construction of the will. But were it otherwise; vtfére it supposed that he might look forward to that event, and contemplate his brothers and sisters as his probable heirs-; ,he will furnishes arguments of great weight in support of the opinion, that he did not intend them to take any thing not expressly devised to them. The heirs of the testator, at the time of his death, were James King, a brother of the whole blood, Nancy Finlay, a sister of the whole blood,Elizabeth and Polly, the daughters of Elizabeth Mitchel, a sister of the whole blood,' Samuel King, a brother of the half blood, and Hannah Allen, a sister of the half blood; Each of these persons is noticed in the will. For some of them, an ample provision is made." To others, less favour is shown. The legacies to his bróther and sister of the half blood are inconsiderable;. while his bequests to those of the whole blood are large. No one of them is omitted. The circumstances that his mindvwas clearly directed to each, and that he has carefully measured but bis bounty to each, discriminating between them só as to show great inequality of affection, operate powerfully against the opinion, that he intended to leave a. very large property to descend upon them by the silent operation of law.
The whole will proves the primary, intention of the testator [381] to have-been to keep his immense real estate together, and to bestow this splendid gift on.some individual who should proceed from the union of his own family with.that of his wife. In case of having no children, he gives all his real estate, at the death of bis wife, to William, the son of his brother James, on condition of his marrying a daughter of William Trigg apd Rachel Iris wife, in trust for the eldest son or issue of said marriage; If such'marriage should not take place, he gives said éstate to ady child, giving preference to age, of William and. Rachel Trigg, who should marry a child Of his brother James, or of his-sister Elizabeth. William Trigg was the brother of his wife. His primary object then is the issue of a marriage between his nephew William King and a daughter of William Trigg", by his then wife, the niece of the testator. His second object was the issue of any marriage which might take place between ány child of William and Rachel Trigg, and any child of his brother James or of his sister Elizabeth. That both these objects have been defeated -by the course of subsequent events, does not change the construction of the will. The:testator undoubtedly expected the one or the other of them to take place, and his intention , respecting the immediáte interest of" thé. devisee or the descent to the heir, is the same as if a daughter had afterwards been born to William and Rachef Trigg* who bad intermarried with William King. The will, therefore is -to be construed in that respect, as if the contemplated marriage had been actually consummated. It was- not very probable, at the date of. the. will, that the devisee of this -immense fortune might come into existence in less than twenty years, nor-that the. wife might live fifty years. In.the meantime.no provision whateVer-is made- for him. To what purpose should the profits of the estate intended, for him be withheld during the life time of the testator’s wife, since those profits were not.to be received by her? Why should her death be the event On which lands in which no intérest was given toher,.sh6uld be enjoyed by the devisee ? We perceive at. once the reason why the der vise of those lands in which she had a life, estate, should take effect at her death; but there is no reason for postpaiiing-the possession of lands from which she could derive no [382] benefit, and which were not' given to others to the same period.
The devise over too has considerable influence in this question. It may be on a contingency too remote to be supported by law; but the testator’s intention is not the less manifested on that account.. He did not suppose it too remote; and .in fact it might have happened in a few : years. Had William King, the devisee, died young, or had William or Rachel Trigg died without leaving a daughter, a fact which has áctually happened, and any child of William and Rachel Trigg had married a child of James King or of Elizabeth Mitchel, then the whole estate is given to such child, and to the issue of the marriage. Had either ofthese- events taken place, the estate is given from the heirs. It consists very well with the general intention of the testator and his mode of thinking, as manifested in his will, to suppose an intention that the profits should accumulate for the benefit o,f those for whom the estate was designed; we can perceive nothing in the will to countenance the idea, that,he contemplated the descent of these lands to his heirs. Nothing could be more contrary to his general purpose than the distribution which the law would make of his real estate among his heirs. This may be the result of a total' failure of all the provisions in the will, but' cannot be considered as the immediate effect, if a contrary intention is perceived, and if the words can be so construed as to support that intention.
The words used by the testator show that nothing was farther from his mind than a partial intestacy. He says, he has thought proper to make his will, “ leaving and. bequeathing his worldly estate in manner followingafter making a considerable provision for his wife, and devising to others during her life, he gives “ all his real estate .at her death” to his nephew, on condition, and on failure to perform the condition, gives “ the said estate” over. Being about tp devise ali bis estate to his nephelv, and knowing that his wife and others would hold a large part of it for her life, it was obvious that his nephew could not take all till her death. But if he devised the whole estate, that.which could not be taken by the wife or by others for her life, would pass to the nephew, [383] if a clear intention appears in the whole will'to intercept the descent to the heir; although the clause taken literally, would postpone the possession, even of that part iti which the wife has no interest, till her death. To effect this intention, the.'court will vary the,strict meaning.of. words,, and: sometimes transpose them. 1 Call, 132. The word “ all” may be transposed, so that the-clause may read, “ in case' of having no children, I then leave my real estate, all, at the death of my wife, to William King,” &c.< Let the clause. be thus read, and no one could hesitate on its construction. The whole estate is devised to William King ; but the possession, of that part of it which is given to the wife or others for her life* is.postpóned till her death. The whole will bears ma^ks of being written by a man whose language was far from being accurate,, and whose words, if taken literally., would in some instances defeat his intentión. That intention, we think, was to devise his whole real estate to William King, in trust, on a condition subsequent, postponing, the possession of that part of it- which was given to the wife and others for her life; till her death.
3. The third point is one of great interest to the parties. Did William King take an estate which,- in the events that have happened, enures to his own benefit; or is he in the existing.state of things.to be considered as.a trusteesfbr the heirs of the testator 9
This question cannot property be decided in thisucahse; It belongs to a court of chancery, and will be determined when the heirs shall bring a bill to enforce the execution of the trust.. We do not mean to indicate any opinion upon it. The-legal title is, we think, in William King, whoever .may claim the.beneficial interest, and the judgment is therefore affirmed with costs.