Jackson ex dem. Herrick v. Babcock

12 Johns. 389

Opinion

[Spencer, J.

It was not the intention of the court, to overrule that case. On the contrary, we declared,, in Jackson v. Bull, that it was a correct decision.J,

It appears to ine~ that the decision in Jackson v. Bull is not founded in principle. A fee is claimed, by implication, oa the ground that the testator meant to benefit the dèvisee~ by the devise of the estate to. him~ Now, the devise~, whether the charg~ is personal, or, on the estate devised~ stands on no better or different ground ; it cannot be that he is bound to pay the debts and legacies, at all events, or beyond the estate devised ; for the devisee is not chargeabie beyond the estate devised t& him.

Footnotes

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2. The iestator gives. all his estate to his wife. "to be at her abs~lute disposal, according to an agreement," &c. Th~ word, " estate," ~in1ess restrained by other words, will carry a fee.** But it is said, that by referring to the marriage articles, that ii~strurnent must govern, in ascertaining the intention of the testator. The testator ñrst uses words in his will, which carry a fee, and then refers to the agreement made before marriage, without expressing what his intention was,- in those articles. That agreement cannot restrain, or abridge, the meaning of the words first used in the will, especially when the testator was an unlearned person. The words, “ to be at her absolute disposal,” further show the intention to give a fee. • In Jackson, ex dem. Bush, v. Coleman,†† the testator gave to his wife, "the use of all his real and personal estate, to use and dispose of at her pleasure,” it was held, that the wife took an estate in fee.

Again, the testator does not devise over his estate, in case his wife should survive him, but only in case she should die before him. His giving small legacies to each of his children, shows, also, an intention to disinherit them. As to the marriage articles, there can be little doubt that the intention of the parties was to create a joint estate, the whole of which should go to the survivor.

Platt, J.,

delivered the opinion of the court. The only question is, whether Mary, the widow of John Herrick, sen., took an estate for life, or an estate in fee, under the will of her husband.

It is an established rule, that no technical words are necessary to devise a fee, and that the intention of the testator, to be cob lected from the whole will, is to govern ; but the phraseology and combinations of words used in wills, are infinitely various,, and, therefore, the application of any general rule is often very difficult.

The words used by the testator in this case are these: “ I give, bequeath, and devise unto my wife Mary, after payment of my debts and funeral charges, all my estate, both real and personal, that I may be in possession of at my decease, to be at her absolute disposal, according to an agreement made with her on" the 27th day of October', 1802.”

I see no ground to contend that this devise falls within that class of cases which give a fee by implication, where the payment of debts is charged upon the devisee personally, or specif * cally upon the land devised.

The intention, here, is clear, that the residue of the estate should go to the wife, after the debts and funeral charges were paid from the funds which the law provides; not that the1 whole estate should vest in the wife, subject to the payment of debts, as a condition of the devise. This doctrine is well examined, and most of the leading cases on this point are ably reviewed', in the case of Jackson, ex dem. Townsend, v. Bull. (10 Johns. Rep. 148.)

The words “ all my estate, both real and personal,” “ to be at her absolute disposal,” are, undoubtedly, sufficient to vest cs fee,• unless those words are controlled and limited by the terms sf the written agreement to which the will expressly refers. (Jackson, ex dem. Bush, v. Coleman, 2 Johns. Rep. 391. and. the cases there cited.)

There is no question that, since the statute of wills, as well as before, a will may be construed in connexion with another instrument of writing, to which it refers. (Powell on Devises, 22. 49. 52.) Hence it becomes - necessary to examine the •marriage articles, in order to determine the question before us. It is inferrible, from that agreement, that the husband acquired property in right of his wife, 'and that they both contributed to the joint fund. What was the original proportion of each, does not appear. It may be, that the fund was composed chiefly of the property of thé Wife.

The husband may, therefore, have obeyed a good conscience, in disinheriting his children in favour of his widow; arid I see nothing in the agreement to control the words in the will. When the agreement was made, the parties could not foresee whether the joint fund would consist of real or personal estate, when the event of survivorship should occur; they, therefore, say, “ the survivor shall possess and enjoy the whole of such joint property.”

When the will was made, the testator spoke with reference to the actual condition of the' fund at that time ; and he thereby devises to his wife “ all his estate, both real and personal,” “ to be at her absolute disposal, according to the agreement,” &c< By the Will, the testator shows that, he understood and intended that the agreement was to give the full and complete benefit of survivorship in all his real and personal estate. The agreement and the will appear to me to be perfectly consistent; and thb words ie all my real estate, at her absolute disposal,” are sufficient to carry a fee.

It is said by the counsel for the plaintiff, that, in using the Words “ heirs and assigns,” in the devise to his children, the testator shows that he understood' the meaning and effect of those Words; and' that, in using other words in the devise to his wife, he manifests an intention not to give a fee.

I think this weighs but little in judging of the testator’s intention ; for, although the word heirs is the most apt, it is not the only word to devise a fee.

The contingent devise to the children seems to me to afford a strong inference in favour of the widow’s claim to the fee.

The testator says, “ It is my intention, that if my said wife shall decease before me, that my real and personal estate shall b.e equally divided among my children, and their heirs and - assigns.” Now, if he intended that his- wife should have only a life estate in the event of her surviving him, why did he not limit the remainder to his children ? It is true, his children would take, as heirs, the same estate which such a limitation would give them; but it is equally true, that the contingent de-. vise to them, on the event that his wife should die before him, was also inoperative and- superfluous. If the widow has not <z fee, then the remainder, after her life-estate, is undisposed of by .the will; and quoad hoc, the testatorJias died intestate. Such a construction would defeat the intention of the testator.

In my opinion, therefore, the case shows a title out of the lessors of the plaintiff; and the defendant is entitled to judgr jnent.

Judgment for the defendant,

1 N. R. L 316. sess. 36. c. 93 s. 4, 5.

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Holdfast v. Martin, 1 Term Rep. 411. Fletcher v. Smiton, 2 Term Rep. 656. Meny v. Wise, 2 Vern. 564. 690. 3 P. Wms. 295. Jackson v. Delancey, 11 Johns. Rep. 365.

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2 Johns. Rep. 391.