Loveren v. Lamprey

22 N.H. 434

• Court: Superior Court of New Hampshire
• Decided: July 15, 1851
• Status: Published

Opinion

Eastman, J.

The demandant, Theodore Loveren, claims the premises for which this suit is instituted, as brother and heir of Benjamin Loveren deceased. The tenant, Lewis Lamprey, claims them as residuary devisee of Ruth Loveren, the widow of the said Benjamin.

There is no question made as to the heirship of Theodore Loveren. It is conceded that he is the brother of Benjamin, and that he is entitled to judgment in his favor, unless Benjamin, by his will, devised the property to his wife, Ruth. Nor is there any controversy that Lewis Lamprey, the tenant, is one of the residuary devisees of Ruth, and as such has a good defence to this action, if by the will of Benjamin the premises passed to Ruth.

On the 15th of November, 1813, Benjamin made and published his last will and testament, and, after bequeathing sundry legacies to different individuals, introduced into it the following residuary clause. “ I give and bequeathe to my beloved wife, Ruth Loveren, all the residue and remainder of my estate, wherever it may be found, to her and her heirs and assigns, to be improved and disposed of as she pleases; hereby revoking all wills and testaments by me heretofore made or subscribed, and ratify and confirm this to be my last will and testament.”

The said Benjamin Loveren died on the 12th day of October, 1848, and said will was proved and allowed on the 15th of November following. Whatever real estate he owned at the time of making his will, and which had not been disposed of prior to his death, and was not necessary for the payment of his debts and the specified legacies, vested in his wife at his decease, by virtue of this will. So far there can be no controversy. But it appears by the case, that, in 1825, he sold the greater part of his real estate for the sum of five thousand four hundred dollars, and purchased the demanded premises for the sum of three thousand two hundred dollars, and owned and occupied the same, from that time until his death. The property demanded, then, was real estate acquired after the making of the will. Bid it pass by the will ? This is the question upon which the whole case turns.

The English doctrine undoubtedly is, that real estate acquired after the making of the will, does not pass thereby. And this, notwithstanding the language may be such as would show clearly the intention of the testator that it should pass, were it not for the legal, technical construction which it has for a long time received. In other words, certain phrases and expressions, when introduced into wills, have been construed to mean something different from their ordinary, common acceptation.

It is also equally well settled, by the same decisions, that after-acquired personal property will pass, and that the same general expressions which will carry personal property, will not pass the real estate. Butler v. Baker, 3 Coke, 25 a; Bunker v. Coke, 1 Salk. 237 ; Doe v. Underdown, Willes, 293 ; Hogan v. Jackson, Cowp. 305; Brydes v. The Duchess of Chandos, 2 Ves. Jr. 427; Harwood v. Goodright, Cowp. 90; Wind v. Jekyl, 1 P. Wms. 572; Durour v. Motteux, 1 Ves. 322 ; 2 Black. Com. 378; Wyndham v. Chetwynd, 1 Burrows, 429.

At common law, the English rule has been the received doctrine in many of the jurisdictions in this country, our own among others. Ballard & al. v. Carter, 5 Pick. 114 ; Mimuse v. Cox, 5 Johns. Ch. Rep. 441; 4 Greenl. Rep. 341; George v. Green, 13 N. H. Rep. 521. Yarious reasons have been given for the existence of the rule, and its origin traced to different causes. It is not necessary to repeat them here. They may be found in Powell on Devises, 151, 152 ; Ballard & al. v. Carter, 5 Pick. 114; 2 Black. Com. 378; George v. Green, 13 N. H. Rep. 521. But these reasons, we apprehend, are more satisfactory to the landed interests and policy of.England, than to the general sentiment which pervades our own country. Hence we find that the Legislatures of several of the States have swept away many of the established rules in the construction of wills, and, as is well observed by Chaneeller Kent, relieved the Courts from the study of a vast collection of cases, and from yielding obedience any longer to the authority of many ancient and settled rules which were difficult to shake and dangerous to remove. Massachusetts, Connecticut, New York, and several other States, have taken this course ; not only in regard to the disposition of after-acquired real estate, but in many other respects. Speaking of some of the alterations in New York, Chancellor Kent further says, “ their simplicity and good sense recommend them strongly to our judgment; and they relieve the law from a number of technical rules which are overwhelmed in a labyrinth of cases ; and where detected and defined, they are not entirely free from the imputation of harshness and absurdity. The tendency of the provisions is to give increased certainty to the operation of a devise.”

The statute of this State took effect March 1st, 1843, and being passed for the purpose of altering the common law, it is our duty, we think, to give it as liberal a construction as judicial decisions will warrant, that the intention of the Legislature may be properly carried out. The provision which is particularly applicable to the present case, is as follows: “ Any estate, right, or interest, in any real property, acquired by the testator, after making his will, shall pass thereby, if such shall clearly appear to have been his intention.” Rev. Stat. Chap. 156, § 2.

Notwithstanding this statute, real estate, as the statute itself shows, is not to pass, unless it shall clearly appear that such was the intention of the testator. It becomes therefore important to determine, what was the intention of the said Benjamin as expressed in his will.

At the time of making the will he had no children, and no parents living; and he had no children afterwards. His nearest of kin were his brothers and sisters. To two of his brothers and sisters he gave legacies of one hundred dollars each. But he gave nothing to the demandant, neither did he make any provision whatever for his wife, except such as is to be found in the residuary clause. Situated as he was, then, it would be a very-unusual if not unnatural course, that, without making any specific provision for his wife, he should make his will simply to give these few legacies, and then leave his whole estate to be administered upon according to law. Had he entertained any such intention, he would in all probability have so said, as one short paragraph could have expressed the whole matter. But, independent of the intention which is to be gathered from the situation of the testator, and the general tenor of the will, the phraseology of the residuary clause is sufficient to show the intention. He gives and bequeathes to his wife all the residue and remainder of his estate wherever it may be found. By this, the meaning is obvious, that every thing not before disposed of should pass to her. And he gives it to her and her heirs and assigns, and to be improved and disposed of as she pleases. This is an absolute unconditional bequest, and the expressions clearly pass all the property, independent of the legacies, which the testator owned at the time of making the will. They are sufficient to carry an estate in fee. A devise of all my estate, all my interest, all my ¡property, all my right, all my title, and many other expressions of the like import, will carry an estate of inheritance if there is nothing in the other.parts of the will to limit or control the operation of the words. So, if an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee. Doe v. Morgan, 6 Barn. & Cres. 512; Comyn’s Dig. Title Devise, n. 4; 4 Kent’s Com. 335.

It is clear, also, that the phraseology is such as would pass all the personal property owned at the time of the decease. “ General words,” says Shaw, Ch. J., “ may as well include all which a testator expects to acquire, as what he then actually owns. The term all my property, may as well include all which may be his at the time of his decease, as all which is his at the date of his will; and will be so construed unless there be words in the description which limit and restrain it.” Wait v. Belding, 24 Pick. 136. And in Cushing et. al. v. Aylwin, 12 Met. 169, the Court say, “ We think it is generally true that where a will purports to dispose of the testator’s whole estate or property, the intention is to dispose of all the estate or property of which the testator may be the owner at the time of his death, unless some thing in the will should be opposed to such an inference.” So in Brimner v. Sohier, 1 Cush. 133, the matter is treated as settled, that wherever there is a bequest of the whole estate or of all the residue of the estate of the testator, the after-acquired personal property passes. If, therefore, prior to the passage of the statute, the words of this will would be sufficient to carry all the personal property the testator owned at the time of his death, and the statute has removed the distinction existing at common law, between bequests of after-acquired personal and real estate, there would seem to be no good reason for not applying the same signification to the words in the one case as in the other.

Had this will, then, been made subsequent to the passage of the Revised Statutes, we should find no difficulty in holding that all the property, real and personal, which the testator owned at the time of his decease, and which was not specifically devised or needed for the payment of his debts, passed by the residuary clause of his will to his wife Ruth. In this conclusion we are sustained by the authorities cited.

But the will was made in 1818, many years before the passage of the Revised Statutes. The testator, however, did not die till 1848. And hence the question arises, whether a will made prior to the passage of the Revised Statutes, but the testator not dying till afterwards, can be affected by that section of the statute which we have quoted.

The argument against allowing the will to - operate upon the after-acquired real estate is based upon the position, that, by giving the statute such a construction, it will be made to operate retrospectively. If such be the effect, it is clear that the property cannot pass; for confessedly and rightfully the general doctrine in this country is, that ex post facto and retrospective laws are unconstitutional, inoperative, and void. Authorities upon this point are numerous. N. H. Bill of Rights § 23 ; Merrill v. Sherburne et al. 1 N. H. Rep. 199; Woart v. Winnick, 3 N. H. Rep. 473; Dow v.Norris, 4 N. H. Rep. 19 ; Clark v. Clark, 10 N. H. Rep. 381; Bedford v. Shilling, 4 Serg. & Rawle, 401; Brunswick v. Litchfield, 2 Greenl. Rep. 28; Society for Propagating the Gospel v. New Haven, 8 Wheeler, 493. But what is a retrospective statute within the meaning of our constitutions and laws? It is not a remedial statute, properly so called; neither is it one which is to operate upon contracts subsequently made, or rights subsequently acquired; but one which impairs contracts already existing, and affects and changes rights already vested. And what are vested rights, but such as are determined, settled, fixed; such as are not liable to any contingency ? Unless our conception of the meaning of “ vested rights ” is entirely erroneous, we cannot discover wherein any thing had become vested by the will of Benjamin Loveren until his decease. Up to that time no rights whatever were fixed, but all was expectant, contingent, and uncertain. It was in his power to destroy his will at any time, or make a new one, and no one could say that he had the least legal interest in his property till after his death.

In Miller et al. v. Dennet et al. 6 N. H. Rep. 109, it was decided that the statute of 1809, directing how joint tenancies should be created, was not, when applied to conveyances made before the passing of the act, a retrospective law within the meaning of the Constitution, nor a law impairing the obligation of a contract. Chief Justice Bichardson, in delivering the opinion of the Court, holds the following language: “ The statute applied to the deed, in this case, would take away no vested right. Neither John nor William had any vested interest in the moiety of the other. The acquisition of the whole estate by survivor-ship, would have been, in either, nothing more than a hope or expectation, like the expectation of a child to inherit the estate of a parent. The statute, thus applied, operates upon an existing estate, but not retrospectively within the meaning of the Constitution. It can no more be considered a retrospective law than a statute altering the descent of intestate estates. It neither gives nor takes away any right or interest.” To the same effect are Holbrook v. Finney, 4 Mass. 568 ; Miller v. Miller, 16 Mass. 59; Annable v. Patch, et al. 3 Pick. 360, 363; Binghart v. Turner, 12 Pick. 539. These decisions, although not based upon facts like those involved in the present case, yet promulgate doctrines analagous to those contended for by the tenant, and quite as decisive.

But we are not without authority upon the precise point under consideration. We have before suggested that several States, as well as our own, have passed statutes brushing away the distinctions existing between real and personal estates, and making the devise operate upon all the real estate owned by the testator at the time of his death. These statutes have most of them undergone a judicial examination. The statute of New York took effect in 1830, and was in the following words: “ Every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death.” New York Rev. Stat. vol. 2, p. 57, § 5. The case of De Peyster v. Clendenning, 8 Paige’s (N. Y.) Rep. 295, was decided in 1840. The will in controversy was made in 1828, but the testator did not die till 1836. In delivering the opinion, Chancellor Walworth says: “ Although this will was made before the Revised Statutes went into effect, yet, as the testator died long after-wards, the validity of the trusts and the provisions of the will must depend upon the law as it was when the will took effect by his death.” “ A will does not take effect from its date, but only from the death of the testator.” The case of Bishop et al. v. Bishop, 4 Hill’s (N. Y.) Rep. 138, was decided in 1843. There, the will was made in 1825, but the testator did not die till 1840; and the Court say: “ By the law as it stood in 1825, when the will was made, the estate would have gone to the heirs at law of the testator ; but the statute which took effect in 1830, ten years before the testator died, has given a different direction to the property, The will did not take effect until the testator died, which was in 1840, and then the case fell under the influence of the new statute.” These two cases must be regarded as settling the question in New York. The case of Van Kleeck v. The Dutch Church, 20 Wendell, 499, decided in 1838, and cited by the plaintiff’s counsel, is not in conflict with these decisions. The point did not arise in that case, and was not decided; and the most that can be drawn from it is the dictum of an honorable Senator, incidentally stated, in delivering his views upon the question before the Court.

The statute of Massachusetts went into operation April 30, 1836, and is as follows: “Any estate, right, or interest in lands acquired by a testator, after the making of his will, shall pass thereby in like manner as if possessed at the time of making the will, if such shall clearly and manifestly appear, by the will, to have been the intention of the testator.” Mass. Rev. Stat. chap. 62, § 3. In Cushing et al. v. Aylwin, 12 Met. 169, the will was made in 1834 ; the property in dispute was purchased by the testatrix in 1840, and she died in 1841. The Court, in the opinion given, used this language : “ The demandants contend that the Revised Statutes do not apply to a will previously made. But we think there is no sufficient reason for this limited construction of the statute. The object of the statute was to obviate an inflexible rule of the existing law, which had been found to operate injuriously, by defeating, not unfrequently, the intention of the testator, however clearly expressed; and there seems to be no good reason why the provision should not apply as well to wills made before as to those made after the statute, where the' will had not taken effect before that time by the death of the testator. That the legislature had the constitutional power to enact such a law is not to be denied; and we think that such was the intention.” This case, it will be perceived, is precisely in point. So, also, is Pray et al. v. Waterson et al. 12 Met. 262; and we do not find any thing in the Massachusetts reports indicating a different doctrine. In the last case the Court also remark, that the object of the statute was to abolish the rule of the common law, which, in most instances, defeats the intention of those who devised all their estates.

It would seem, however, that a somewhat different doctrine prevails in Connecticut and Pennsylvania. By the statute of Connecticut it is enacted, that “ any person having power to dispose of real estate by will or testament, may, by such will, devise real estate not only by him owned at the time of making the same, but acquired afterwards.” In Brewster v. McCall, 15 Conn. R. 274, it was held that the after-acquired real estate would not pass where the will was made prior to the passage of the statute. The ground of the decision was stated to be, that the general rule is, that statutes shall not be construed retrospectively, unless, by express terms or otherwise, such appears to be the manifest intent of the legislature. The examination of the point was very brief, and the authorities quoted to sustain it of a general character. It will be perceived, also, that the phraseology of this statute differs to some extent from that of Massachusetts and our own. The two latter provide that the property shall pass, while that of Connecticut enacts that any person may by such will devise, &c.

The Pennsylvania statute is very similar to our own, and is in these words: “ The real estate acquired by the testator after making his will, shall pass by a general devise, unless a contrary intention be manifest on the face of the will.” Law of Penn, passed April 8, 1833. In McCullock v. Souder, 5 Watts & Serg. 198, it was held, that, where the will was dated prior to the passage of the act, it could not operate upon after-acquired property ; that such a construction would be- giving the act a retroactive effect; and that the act of the assembly was to be left to operate upon wills made after the passage of the act. The opinion of the Court was very brief, and based upon a few decisions made upon the Statute of Mortmain of 9th George II., chap. 36, but which do not appear to us very satisfactory in sustaining the opinion.

The case from 3 Call’s (Ya.) Rep., cited by the plaintiff’s counsel, turned principally upon the question of the intent of the testator, and not upon the point now under examination. After devoting considerable time to the consideration of this case, the conclusion to which we have arrived is, that the intention of the testator was to give his wife all his property, real and personal, which he might own at the time of his decease, after paying his debts and the specified legacies. That the will, not taking effect till the death of the testator, falls under the influence of the Revised Statutes ; and to construe the statute as taking effect upon the will is not giving it a retrospective operation. And we arrive- at this result the more readily as thereby we carry out the intention of the testator, which is the acknowledged fundamental principle in the construction of wills.

Judgment for the tenant.