Jackson ex dem. Nicoll v. Brown

13 Wend. 437

Opinion

By the court,

Savage, Ch. J.

The counsel for the plaintiff makes three general points : 1. That Richard F. Nicoll, the lessor, took an estate for life by express limitation under the will of his grand-father; 2. That the lessor, the first son of Samuel Benjamin and the grandson of the testator, to effect the plain and manifest general intent of the testator, took an estate in tail male, under the will of his grand-father; 3. That the lessor took an estate in tail male by implication.

The leading point of the defence is, that Samuel Benjamin Nicoll took an estate tail by implication, which was converted by our statute into an estate in fee simple; and that the premises in question, therefore, passed to the defendants as residuary devisees under the will of their father, Samuel Benjamin Nicoll.

It is an established principle, in the decission of questions arising under wills, that the intention of the testator shall be effectuated, in so far as such intention is consistent with the rules of law. It is a principle of law, that perpetuities shall not be permitted to exist-—real estates shall not be so conveyed or devised as to be inalienable beyond a certain period, because such perpetuities tend to the inconvenience and prejudice of commerce and of society. In Long v. Blackall,7 T. R. 102, Lord Kenyon says that the rules respecting executory devises and common law conveyances are similar, and cannot be rendered inalienable by the former longer than by the latter ; that in marriage settlements, the estate may be limited to the first and other sons in tail; and until the person to whom the last remainder is limited shall be of age, the estate is inalienable. The courts have allowed executory devises to extend as far, He adds, “ It is an established rule, ecutory devise is good if it must necessarily happen within a life or lives in being and twenty-one years, and the fraction of another year, allowing for the time of gestation.” Where perpetuities have been attempted by means of estates tail, they have been defected by fines and common recoveries; but where an attempt is made to perpetuate an estate by means of executory devises, neither fine nor common recovery can bar such an estate. An executory devise cannot be barred by fine, because the title of the executory devisee is not through, or as privy to the first taker, but quite independent of him; it cannot be barred by common recovery, because the recompense, which in supposition of law is the ground of barring the issue in tail and those in reversion and remain-that an ex-der, does not extend to an executory devise. Hence it became necessary for the courts to prescribe limits to this new species of settlement; and it has been established as a rule, both in law and equity, that such estates shall not be rendered inal- ‘ ienable for a longer period than that above mentioned; that being in analogy to the case of strict entails, which cannot be protected from fines and recoveries longer than the life of the tenant for life in possession, and the attainment of twenty-one by the first issue in tail, to which are added, in executory devises, a few months for the case of a posthumous child. Fearne,444, n. Hargrave's Law Tracts, 518. It follows that an executory devise cannot be limited upon an indefinite failure of issue.

By means of an executory devise, an estate may be devised to any number of persons for life successively, if in esse at the death of the testator—to infants in venire sa mere, and to persons unborn. Such is the law in England, and such it is here, with the exception that, by our revised statutes, 1 R. S. 723, § 15, 16, 17, successive estates for life shall not be limited to more than two persons in being at the creation thereof; and if limited to more than two, all the life estates subsequent to the two first entitled shall be void. That an estate for life may be limited to an unborn infant, has been decided in a case arising under the identical will upon which this case de 3 Johns. Cas. 18. It seems to have been doubted ponnei.jy w]ie^ier a limitation for life to an unborn person was good ; but it is now well settled that it is, and also that an esiate limited to the issue of such unborn person to take as purchasers would be void, being a possibility upon a possibility, or, as Mr. Ju st ice Wilmot expresses it in Chapman v. Brown, 3 Burr. 1635, “ a nonentity upon a nonentity,” which the law will not admit. 4 Cruise, 423. 1 East, 452. 3 T. R. 83. 2 Fearne, 502. Thus, if an estate be limited in succession, first to a person in being for life, and after his decease to his unborn children, and afterwards to the children of such unborn children, this last remainder is absolutely void, and there is no carrying the estate to them but by comprising them in the extent of the estate limited to their parents, namely, to the unborn children of the person in being; that is, by giving-such unborn children of the person in esse an estate of inheritance which is an estate tail. Fearne, 502. The same principle prevails in marriage settlements; for though an unborn child mayr take an estate for life as well as an estate tail, yet such estate would not descend to the issue of such child; and no estate limited to such issue as purchasers would be good. Fearne, 503, and cases there cited.

In the case of Chapman v. Brown, 3 Burr. 1626, one Joshua Brown, by will, devised certain premises, first to his wife for life; then to his brother Thomas until the eldest son of another brother, Reginald Brown, should attain the age of 24; then to such eldest son, whose name was William, for his life; then to the first son of William, and the heirs male of his body; and for want of such issue, the second, third, and every other-son of William and their heirs male; and for wantof such issue of William, then to the second son of Reginald Brown for life, and to the first son of the body of such second son and his heirs male, <fcc. He continues the divises further in the families of his other brothers, and declares his intention to be, to have the estate continue in his name and blood so long as it shall please God to permit the same. The several estates were enjoyed by the widow; by Thomas, the father of William ; and by William, the nephew of the testator. After the testator’s death, his brother Reginald had a son born, which was his second son, whose name was Thomas. William ed leaving issue a daughter; upon his death, Thomas, the second son of Reginald, entered and suffered a common recovery. He devised to the defendant. The lessor of the plaintiff was the heir at law of William, and also of the testator. The question was, whether Thomas, the second son of Reginald (which Thomas was not born till after the death of the testator) took an estate tail under the will, or only an estate for life. The court held that Thomas, the second son of Reginald, as the will stood, took an estate tail; an estate for life was devised to him, then to the first son of his body and his heirs male. The court laid down the proposition that the unborn son of an unborn son could not take, and that to effectuate the general intent of the testator, the word son should be construed a word of limitation, and an estate tail given to the second son of Reginald. Lord Mansfield said, that for the purpose of attaining the intent, words of limitationshall operate as wordsofpurchase; implications shall supply verbal omissions; the letter shall give way ; every inaccuracy of grammar, every impropriety of terms, shall be corrected by the general meaning, if that be clear and manifest. Mr. Justice Wilmot said, the question is, what this testator intended, and whether we can give it effect in part. At the time of the testator’s death, William, the first son of Reginald, was born ; Thomas, the second, was not born. He certainly meant the same estate to Thomas as to William; but that intention cannot take effect, according to the rules of law; you cannot limit a nonentity upon a nonentity—a possibility upon a possibility. It was necessary that the second son of Reginald should be tenant in tail, in order to give the intention of the testator effect. If the devise to the son of Reginald’s second son should be a nullity, the general heirs at law of the testator would take, though never so many heirs male from Reginald should be living. Let his intention, therefore, take place as far as it can go, but no farther. He also adds, that words in a will are to be construed words of limitation or of purchase, as they will best effectuate the intention of the testator. The divise was held to convey an estate tail. This decision was affirmed by the house of lords. This case has been relied on by the counsel for both parties now before the court. As I understand it, it is an authority for the plaintiff. It proves that the unborn son of an unborn son cannot take as a purchaser, but only as heir : and therefore, to effectuate ' the general intent of the testator, to wit, to continue the.es-, tate in the family as long" as possible, an estate tail must be; given to the immediate ancestor of such unborn son of án nn-j born son, who in that case was the second son of Reginald' Brown. In the case now under, consideration, the lessor of the plaintiff was the son of Samuel Benjamin, the first devisee, for life. He, Samuel Benjamin, was living at his father’s death ; the devise to him for life was good; the devise to the lessor being the unborn son of a person m being at the testator’s death, was also good ; but the unborn son of the lessor cannot take as a purchaser; as to him, therefore, the word son must be construed a word of limitation, and not of purchase, which gives to his father, the lessor, an estate tail. The testator has declared his general intent to be, to continue the estate in his family, so that the entail could not be docked until the estate came to his great grandson. In the language of Mr. Justice Wilmot: “ Let his intention, therefore, take place as far as it can go, but it can go no farther.’’ Humberston v. Humberston, P. Wms. 332, was similar in principle. Humberston, the testator, devised his estate to the Draper’s Company, in trust to convey the premises to his godson, Matthew Humberston, for life ; and after his death, to his first son for life ; and so on to about fifty first sons, without malting any disposition of the fee. Lord Chancellor Cowper said, that though an attempt to make a perpetuity for successive heirs be vain, yet, so far as is consistent with the rules of law, it ought to be complied with; and therefore let all the sons of these several Humberstons that are already born taire estates for their lives; but when the limitation is to the first son unborn, then the limitation to such unborn son shall be in tail male. An application of this case to the case now before us will produce this result—the life estate to Samuel Benjamin, he being born before the death of the testator, was good as an estate for life; but when the limitation is to the first unborn son, (the lessor,) such limitation shall be in tail male; and. having an estate tail, our statute gave him an estate in i • i * u 5 , ice simple. It cannot be necessary to cite more cases, although there are many more in books ; but I will refer to a learned note of Mr. Butler, to page 203, of the 8th ed. of Fear ne., for a full explanation of the doctrine of approximation, or as it is called the cypres doctrine, which the courts in their construction of wills have long adopted, and in some instances carried very far. It has been adopted in cases where the testator clearly intended to give estates which were contrary to the rules of law ; and in construing such devises, the courts primary object was to give effect to the general intent of the testator, which was, that the issue of the devisee should take the land, and that the mode in which the issue should take, was his secondary object, or his particular intent. In order, therefore, to effect the testator's intent as far as possible, {cy pres,) the courts adopt that construction of the devise, which, by including ths issue of the devisee, satisfied the testator’s general intent, that the issue should take; but which in part defeated his particular intent, by giving to his issue estates different from those intended by the testator.

Perhaps it might have been sufficient, for the decision of this case, to have relied upon the case of Sledfast v. Nicoll, 3 Johns. Cas. 18, which arose upon the devise to the testator’s eldest son, William, who had two sons, William and Henry. Upon the death of the testator, William the son entered and died; upon his death, William the grandson entered. He died, leaving his wife enseint with a son; but as there was no son of William at his death, his brother Henry (who by the will was entitled in default of issue male of William) entered, and was defendant in that suit. It was held that the posthumous son of William should take in the same manner as though he had been born in his father’s lifetime. Whether such posthumous son could take in that case, was the principal question before the court; but the general validity of the devise was not questioned. Kent, justice, says that the posthumous son of the grandson, if he takes at all, must take as a purchaser; that the son and grandson took only estates for life : they were both living at the death of the testator ; and the court, in that case, declared that the unborn great grand- should also take as a purchaser in tail male. The posthumous son in that case was considered as in esse, and as asifhe had been bom in the lifetime of his father. He was one degree farther removed from the testator; but in so far as the nature of the estate which he took is concerned, he occupied the same place as the lessor in this case. His father was living in the life of the testator ; he was therefore the first unborn son of a tenant for life who was living before the death of the testator, and the court said he was tenant in tail: he took as if he had been born at his father’s death. So also, in accordance with the cases which I have cited, the lessor being the first unborn son of a tenant for life, who was living at the death of the testator, he should take an estate tail.

The defendants’ counsel concedes several of the positions above assumed. He admits that a devise to unborn children of unborn children is void; that the first estate of inheritance limited by the will being void, the lands cannot descend in the manner intended by the testator in tail male, without enlarging one of the previous estates for life, and converting it into an estate tail male ; that the rules of law require this to be done to cany into effect the general intent of the testator, although at the expense of defeating the particular intent-; and that this may be accomplished, by giving an estate in tail male to Samuel Benjamin, or by giving him an estate for life, with remainder to his sons in tail male in succession ; and he insists that the intention of the testator will be best promoted by raising an estate tail in Samuel Benjamin. He relies upon the language of the devise over to the eldest daughter of Samuel Benjamin, in default of issue male. It is as follows: “And in default of the issue maleofmysaidson Samuel Benjamin, I devise the said remainder to the first or eldest daughter of my said son Samuel Benjamin for life,” &c. This, it is insisted, means an indefinite failure of issue; that the word 'issue is used as the designation of a class of heirs who take in unlimited succession, and not as adesignatiopersonarumreferring to particular individuals. It is also contended, that the expression such issue in the clause, limiting the estate over to the son of the son of Samuel Benjamin is a designatio persones, and not nomen collect hum, and that therefore an estate tail cannot be properly raised upon that limitation, but upon that, devising the estate to the daughters upon the failure of male issue. I do not think it necessary to go at large into the abstruce learning upon these peculiar expressions, contenting myself with following the general principles applicable to the construction of wills, viz. first ascertain the general intent of the testator, and then carry that intent into effect as far as the mies of law will permit. There cannot be a doubt that the word son, as used in the will before us, is to be considered as a word of purchase, a designatio personen ; and the words issue, or such issue, refer to the son or sons previously mentioned, and not to heirs as a class. Such is the plain intent of the testator; and whatever may be the strict gramatical construction, we are bound, in the language of Lord Mansfield, to give such construction, that “ every inaccuracy of grammar, every impropriety of terms, shall be corrected by the general meaning, if that be clear and manifest.” See Rogers v. Rogers 3 Wendell, 503. By raising the estate tail in Samuel Benjamin, we should defeat the general intent of the testator, to wit, that of continuing the estate in his descendants as long as the rules of law will permit. If the will gave Samuel Benjamin an estate tail, our statute converted it into an estate in fee simple ; but if Samuel Benjamin took only an estate for life, then the perpetuity is carried one degree farther in the family of the testator. If the law will permit that to be done, then it is the duty of the court to do it, as more nearly effecting the intention of the testator. The will in question is drawn much like those in the cases above alluded to, particularly Chapman v. Brown; but neither in that case nor in the others was such a question agitated.

It is not necessary to find in the will words conveying the idea of an indefinite failure of issue, in order to defeat the perpetuity by raising an estate tail; an estate in fee is given by implication of law to prevent a perpetuity. The plain and declared intent of the testator was, to give Jife estates only to his own son Samuel Benjamin, to Samuel Benjamin’s sons and his grandsons in succession. The sons were intended to take as purchasers, and not as heirs. The word issue clearly related to the word sons. There is, therefore, no ground for construing the failure of sons to mean an indefinite failure °f issue. The testator intended that the lessor should take as purchaser, and not as heir. This intention is consistent £^e mIes °f law, and should be carried into effect. It was also the testator’s intention that the lessor should take an estate for life only. Thai intention is contrary to the rules of law, as tending to a perpetuity ; that intention the court cannot effectuate. But to execute the general intent as far as possible, the lessor must take an estate of inheritance&emdash;a fee simple. He is therefore entitled to judgment.