Reid v. Stuart

13 W. Va. 340

• Court: West Virginia Supreme Court
• Decided: May 7, 1878
• Status: Published

Opinion

Green, President,

delivered the opinion of Court :

Mrs. Elizabeth Stuart, by her will, gave to her daughter, Elizabeth A. Reid, certain lands in fee simple, then by a codicil in 1859, she gave these lands to her and her husband, William B. Reid, jointly, her interest to be held by her brother, John Stuart, as trustee, for her separate use, for her and her heirs forever, and his interest to be held by him for life, remainder to her (Elizabeth A. Reid’s) heirs forever.

The question submitted to us by these appeals is: What is the construction of this codicil V

It is obvious, that this codicil giv.es to Mrs. Reid a fee simple estate in one moiety of these lands. The only change effected by this codicil in her interest in a moiety of the lands devised to her by the will is, that by the will she would have had a legal title to them in fee simple, while by the codicil she would'have an equitable title to them in fee simple, the legal title being held by her trustee for her separate use.

In the petition for the appeal in the first of these cases the counsel say, that under this codicil Mrs. Reid only had a life estate in one moiety of these lands ; and they insist, that the codicil invested her trustee with the legal title, that the property might be preserved to her heirs presumptive, her brothers, and not to be absolutely at her disposal as it was by the will.

The codicil uses the appropriate and exact language, to confer on her a tee simple interest; and it is impossible to construe it as meaning anything else. The object, in changing her estate from a legal to an equitable estate, was obviously not to change the extent of her interest, but to make it an equitable estate for her separate use, so that neither the lands nor rents nor profits should be subject to the control or debts of her husband.

The interest of William B. Reid in one moiety of these lands under this codicil is equally clear. It is made expressly a life estate only. In this petition for an appeal it is said, that it is manifest, that on the death of Mr. Reid, his wife surviving him, his interest was intended to pass to her for life, and after her death to her heirs presumptive, her brothers. I can see nothing in this will, or codicil, which indicates such intention. On the contrary, it is obvious from the very words of the codicil, that his interest terminated with his life, it being expressly declared to be but a life estate. He had i j no interest in these lands, which could have survived to his wife, even if the right of survivorship had not been abolished by statute. The one moiety of the lands, a life estate in which he held, if his wife survived him, was at her death to pass to her heirs, but no disposition is made by the codicil of this moiety for the time, which might intervene between his death and her death, and it would therefore necessarily pass to the heirs of the testatrix, Elizabeth Stuart, as undisposed of by her will.

The only real question, presented by these cases, of any difficulty is: What becomes, after his death • and after the death of his wife, of the moiety of the lands in which he had a life estate ? The codicil says, it shall pass to the heirs of Mrs. Reid forever; and apparently it must go to the same person or persons that the moiety of the lands, left to Mrs. Reid in fee simple, undisposed of by her, must go, for they both pass to the heirs of Mrs. Reid forever. It would seem to be a strange interpretation, which could give a different distillation, after Mrs. Reid’s death, to the one moiety of the lands held by Mrs. Reid, if undisposed of by her, and the other moiety held by Mr. Reid, for, by the very terms of the codicil, they are both to go to the heirs, of Mrs. Reid forever.

It is obvious, as we have seen, that the word heirs, when used with reference to the moiety of the land, which by this codicil was to go to Mrs. Reid, was used in its ordinary legal sense; but it is earnestly insisted, that the same words were used in a different sense, when used in reference to the moiety of the lands, given to Mrs. Reid for life; and that in that connection the meaning, intended by the testatrix, was not Mrs. Reid’s heirs, in the ordinary legal sense of the word, but Mrs.^Reid’s presumptive heirs, her brothers, the persons, who would have been her heirs, at the time Mrs. Stuart made this 'codicil,or died.

As a consequence of this interpretation of the words “Mrs. Reid’s heirs,” it is contended, that immediately on the death of Mrs. Stuart, the testatrix, there vested in these presumptive heirs of Mrs. Need, her brothers, a remainder in fee in the moiety of lands, devised to Mr. Reid for life; and this being a vested remainder, it was not in the power of the Legislature of West Virginia, ten years afterwards, to divert it, and ‘that therefore, though there was inserted in the Code of West Virginia, passed in 1868, (see Code of W. Va., ch. 78, §1, p. 484) a provision, making the husband the sole heir of the wife, when she died without descendants, yet this provision of the law must be inoperative, so far as the vested remainder of Mrs. Reid’s brothers in this land was concerned.

The first enquiry then is : Are the words in the codicil “remainder after the death of Mr. Reid to Mrs. Reid’s heirs forever” to be interpreted according to their ordinary legal signification, or are they to be interpreted as meaning, remainder after the death of Mrs. Reid to the presumptive heirs of Mrs. Reid forever ?

The general rule is, that “technical words should have their legal effect, unless from subsequent inconsistent words it is very clear, that the testator meant otherwise, or unless a judicial mind sees with reasonable certainty from other parts of the will, that such was not the intention of the testator. See Jesson v. Wright, 2 Bligh 1; Jordan v. Adams, 6 C. B. 764; Quick’s ex’or v. Quick, 21 N. J. Equity 17, 18; Harvey v. Olmsted, 1 Coms. 489.

The authorities all agree, that the natural presumption is, that a testatrix knows the legal meaning of the word, heir; and therefore, if she used it without any expression, showing it was not used in its legal sense, it must be understood, as so used by her. See Campbell v. Rawdon, 18 N. Y. 416; Williamson &c. v. Williamson &c., 18 B. M. 371; Morten v. Barrett, 22 Me. 264; Doe v. Parratt, 5 B. & C. 48 (11 E. C. L. R. 139).

Is there any thing in Mrs. Stuart’s will or codicil, to show, that in using the words “remainder after Mr. 'Reid’s life to the heirs of Mrs. Beid forever,” the testatrix did not use the wod heirs in its ordinary legal signification ? There is but a single matter, which can with any reason be urged as raising any doubt, as to whether she did use this word in its legal sense. That is, the codicil on its face shows, that the testatrix knew, that Mrs. Beid was living when she made this codicil.

There are numerous authorities, which hold, that when by a will a present and immediate devise is made to the heirs of a person known to be living, or when the heirs, to whom such a devise is made, are said to be living? the word ‘heirs/ in such cases will be construed to mean heirs apparent, or children, and will not be regarded as used in its ordinary legal signification. See James v. Richardson, 1 Vent. 334; 7 Jones 97; 3 Keb. 832; Pollex 457; 2 Lev. 232; S. G. reversed T. Raym. 330; Judgment of reversal reversed in House of Lords, 1 Eq. Ca. Abr. 214; Burchel v. Dardant, 2 Vent. 311; 1 P. Wms. 233; Goodright v. White, Wm. Black. 1010; Darbison v. Beumont, 1 P. Wms. 229; 5 B. & C. 48 (11 Eng. C. L. B. 145); Campbell v. Rawdon, 18 N. Y. 416. Conklin v. Conklin, 3 Sandf. Ch. 70.

This position has been questioned; and in deeds it has been held, that a conveyance or grant to the heirs of a living person is void for want of grantee. See Morris) &c. v. Stephens, 10 Wright (46 Pa. St.)200; Hall v. Leonard, &c. 1 Pick. 27. But when in a will an immediate devise is made to the heirs of a person known to be living, the weight of authority and reason is, that the word heirs, under such circumstances, should be interpreted to mean heirs apparent, or children. And though it has been said, that such interpretation can only be given, when the will on its face shows, that. the testator knew, that the person, to whose heirs the devise is made, was living, see Heard v Horton, 1 Den. 168, yet this distinction is said in Wigram on Wills, O’Hara’s ed. page 301, to be rather nebulous, and fit only for the elementary stages of jurisprudence, where cypres or liberal constructions are raised.

The criticism seems to me just; and the will ought to be construed in the same manner, whether it shows on its face, that the testator knew the party to be living,-or whether this knowledge on the part of the testator is shown otherwise. If the devise is a present one, to take effect immediately, and it is made to the heirs of a person known to the testator to be living, it is reasonable to construe it as intended as a devise to the children or heirs apparent. For if the testator did not mean by the word heirs, heirs apparent, then his devise could not possibly take effect immediately; and yet this is the expressed purpose of the testator. But this reasoning has no application when the devise to the heirs is not present or immediate, but is the limitation of a future estate, after some preceding estate. There is no necessity to construe the word heirs as meaning heirs apparent in such a case, to effect the expressed purposes of the testator. The strict legal signification may in such a case be attached to the word heirs, and yet the purposes, expressed by the testator, be fully carried out; for the estate, devised to the heirs, is not intended to vest, or come into possession, till the termination of some present estate, created by the same will; and giving to the word heirs its usual legal signification, the testator’s will is not, as in the other case, necessarily defeated. For though the party, whose heirs are given such future estate, be living, yet he may die before the particular estate ends, and must die at some time; and his heirs will then be in existence to receive the future estate intended by the will to be devised to them, to take effect at a future time.

In accordance with these views, it has been held by the Court of Appeals of New York, in Campbell v. Rawdon, 18 N. Y. 412, “ that the rule construing the word heirs in a will, in respect to a living person, as meaning' heirs apparent, is inapplicable to the devise of a future estate ; and in such case the word, heir, has its strict legal meaning, unless a different intention appears clearly from the context. ” and in accord with this is Criswell’s Appeal, 5 Wright (41 Pa.) 288, and Richardson, &c., v. Wheatland, 7 Metc. 169.

It is true, that the decision of the Supreme Court oí New York, in Heard v. Horton, 1 Denio 165, already criticised on another point, does not accord with these decisions; but it is not sustained by the authorities, it cites; and the difference between a present and a future devise does not seem to have occurred to the court, and no comment is made upon it. The decision in this case, too, on this point, is in effect overruled by the decision of the Court ot Appeals of New York, in Campbell v. Rawdon, 18 N. Y. 417, in which case the decision of the Supreme Court was'reversed. But even the case oí Heard v. Horton, 1 Denio 165, if good law, would be no authority 'for holding, that the word, heirs, could in such a case be construed to mean, heirs presumptive, as contended for by counsel in the case before us. I know no case, in which under such circumstances, it has been contended, much less decided, that the estate could vest in heirs presumptive.

There is an obvious difference between heirs presumptive and heirs apparent in this respect: if the heir apparent lives, he must on the death of the ancestor become the legal or real heir. There can be no contingency, which can happen, which can possibly prevent him from becoming the legal heir, if he lives. But the heir presumptive, if he lives, may never become the legal heir; for befoie the death of the ancestor some legal heir may come into existence, who will take the estate in preference to the heir presumptive. This consideration seems to me to reduce almost to an absurdity the claim of the heirs presumptive, that they can have a vested estate during their ancestor’s life, under such circumstances ; but in truth the heir apparent can have no vested estate in such a case. In such a case neither the heir apparent nor the heir presumptive has any estate. The legal heirs, according to the strict meaning of the word, heirs, have a contingent remainder. Such a remainder is necessarily contingent, because until the death of the ancestor the heir must necessarily be unknown or undetermined. This conclusion is sustained by the reasoning of all the judges in the case of Moore v. Little, 41 N. Y. 66; for though in that ease the judges differed in opinion, it was principally on the interpretation of'a New York statute; and the reasoning of all of them supports the conclusion, 1 have reached.

Fearne, in his work on remainders, divides contingent remainders into four classes. His last class is, when the person, to whom the remainder is limited, is not ascertained, or not in being; and, as an. example of this sort of contingent remainder, he puts the case of “ a devise to A. for life, remainder to the right heirs of B., then living.” See Fearne on Remainders, p. 9. This is approved by Chaucellor Kent (see Kent’s Com., vol. 4, p. 208); and in Beinley v. Carter (17 Weekly Reporter) it was held by the lords justices of appeals in chancery, “ that the children of a person, to whose heirs a remainder was limited after the death of such person, had no interest in the estate during the life of such person.” I have not seen this decision, but it is thus stated by Grover, judge, in Moore v. Little, 41 N. Y. 92; and in the case of Richardson, &c., v. Wheatland, 7 Metc. (Mass.) 169, it was expressly decided, that “a devise of a remainder after a life estate, to the heirs of H. who was living, was contingent till the death of H, and vested on her death in those, who were then her heirs at law.” This decision is one directly in point in the case we have under consideration; and it is, as we have seen, sustained both by authority and reason.

To construe the codicil to Mrs. Stuart’s will, as giving a vested estate in remainder to the brothers of Mrs. Reid in tbe land, devised to ber husband for life, would,' it seems to me, obviously violate herjwill, as it has been expressed in the codicil. I can not suppose, she ever could have intended such a result. To use the language of the court in Wood’s Appeal, 6 Harris (18 Pa.) 481, “ children might have been born to Mrs. Iteid after-wards; and by this construction they would have been entirely excluded, because they were not in existence, to answer the description of “ heirs,” at the time of the death of the testatrix. Such an effect would be startling; and such a construction is therefore entirely inadmissible.”

To avoid so unreasonable a result it is said, that though it were clear the testatrix looked to the period of Mrs. Reid’s death, as the period when the estate was to vest, yet she meant by the words, heirs of Mrs. Reid, those that would be her heirs according to the law existing at the date of her codicil, or her death, that is^ Mrs. Reid’s brothers, and not those, who would be the heirs of Mrs. Reid according to the law existing at her* Mrs. Reid’s death, to-wit, her husband.

Mrs. Reid could-have no heirs during her life; and the use of this term is a strong indication, that the testatrix had no particular persons in view, as the favorite objects of her bounty; and that she looked to the period of Mrs. Reid’s death, as the time for ascertaining the persons, who were to take this remainder under this description. When she made use of a term of known legal signification, and one which can not, according to the rules of law, apply to any persons but those, who answered that description at the death of Mrs. Reid, we are bound to believe, that she used the term in its legal sense, unless there is something in the will or codicil to indicate a contrary intention; and there is nothing, as we have seen. We have no right to interpolate a word, for the purpose of rendering her codicil a devise to the presumptive heir, and thus deprive the legal heir of the estate expressly devised to him. It is ini-'portant to the peace of society and the stability of titles, that we should not for light causes depart from an acknowledged general rule of construction.

I have adopted in this reasoning almost the exact words of Lewis, judge, in delivering the opinion of the court in Wood’s Appeal, in 6 Harris (18 Pa.) 481. It is applicable to the case before us as to that case, though that was a case of a devise to the testator’s heirs; and after the making of the will, and before the testator’s death, the law was changed, whereby different persons became his heirs.

Aden’s estate, 2 Wallace, Jr., Circuit Court Reports, p. 368, was a similar case. That ease shows, that though the surrounding circumstances render it probable, that the will of a testator has been thwarted by the change in the law of descents after the writing of a will, if the word, heir, receives its usual legal signification, yet it was held, the courts will not, to avoid such results, change the word heir, or put a different construction on it, unless there is something on the face of the will, requiring such novel construction to be placed on this word. And even though the surrounding circumstances tend strongly to to show, that such change in the law will defeat the testator’s probable will, unless the legal signification of the word, heir, is abandoned, still this legal meaning is so clear and fixed, that in such a case its 'meaning cannot be controlled or fixed, even though there be words in the will, which tend in some degree to show, that the word, heir, was used in a sense different from its legal signification.

In that case John Aspden, of Pennsylvania, left this country in 1776, because of his adhesion to the English government during the revolution; he owned then a small quantity of land, which was confiscated because of his treason. When he left here, he rvent to England, where he resided almost all the time till 1824, though a jury found he was technically domiciled in Pennsylvania, when he died. By his will, made in 1791, “he gave all his real and personal estate to his heir at law, or lawful heir, first paving his debts and certain small legacies to A. B. & C.” He died worth $250,000.00, all in personal property, owning no real estate, though ho still claimed the real estate he had owned in Pennsylvania, which had years before been confiscated. At the time this will was made the English common law of descents was in force. It was afterwards changed by statute law. By the common law A. B. & C. would not only not have been his heirs, but they were absolutely incapable of inheriting from him.

One John Aspden, of England, was his heir by the common law. Evidence was offered to show, that the circumstances surrounding the testator showed clearly that he meant to leave al-1 his property to John Aspden; but it was rejected, because the words heir at law or lawful heir, clearly and fixedly meant the person, on whom the law of Pennsylvania, where he was technically domiciled, casts' the real estate of an intestate at the time of his death, and could not be explained by parol evidence. Nor was it allowed to be varied in its meaning by the fact, that the heir at law was required to pay A. B. & C. certain legacies. Though by the new law of descents, A. B. & C. were these heirs at law. The court held, that the whole estate went to A. B. & C. as the persons meant by the phrase “ heirs at law, or lawful heirs and they got the Avhole of it, worth when the case was decided in 1855, some $750,000.00, to the entire exclusion of John Aspden, who would have been the sole heir at law, if the law had remained as it was, when the will Avas Avritten.

I conclude therefore, that by the codicil to Elizabeth Stuart’s will, William B. Beid had a vested life estate in one equal moiety of all the lands, devised in the will to Elizabeth A. Beid, Avitb a remainder for the life of Elizabeth A. Beid to the heirs of the testatrix, with remainder in fee to the heirs at law of Elizabeth A. Beid, and that ¥m. B. Reid is her heir at law, she having ~ died before her husband, said Wm. B. Beid, leaving no descendants, and while the statute law of West Vir-£>hda, where this real estate was, provided, that in such case her husband should be her sole heir. The remainder in fee in the moiety of the lands, in which he held a life estate, thereby became at once vested in him ; and merging with his life estate he became the fee simple owner of one moiety of said lands; and by virtue of his being her sole heir, he became the fee simple owner of the other moiety of said lands, excepting the Raleigh lands, sold by her in her lifetime.

The objection, made in the petition for an appeal in the first of these causes, that John Stuart in his individual right was not a party to the suit, is unavailing. In the first place, though in the heading of the bill he is styled John Stuart, trustee, yet in the body of the bill the plaintiffs are said to be John Stuart and Elizabeth A. Reid. He is not there called John Stuart, trustee, and I think might be regarded as personally before the court, but from the decree, rendered in that cause, he has not appealed; and we may infer, that he does not complain of it. In the second suit he is a formal partjr defendant ; the same, construction is put on Elizabeth Stuart’s will and codicil by the decree, as in the first suit; and from it he has appealed. He is therefore formally before this court as a party, as he clearly was in the second suit in the court below; and the decree being the same, so far as his interest is concerned, in both cases, I can see no possible injury, which can result to him from deciding both cases on their merits.

As to the other matters, contained in the decree of April 27, 1371, in the case of Wm. B. Reid and wife et al. plaintiffs, v. Wm. R. Stuart et al., defendants, and William B. Reid, plaintiff, v. Elizabeth A. Reid et al., defendants, the appellants have no interest; and as to those portions of the edecree the appeal was improvidently awarded. And in the same manner they bave no interest in the other portions of the decree, entered on Friday,the 16th day of June, 1876, in the case of A. L. Ellett & Co. v. Wm. B. Reid, et al., defendants, affecting other matters than those discussed in this opinion; and as to those portions of said decree each of said appeals should be dismissed,- as improvidently awarded. And the residue of each of said decrees must be affirmed; and the ap-pellees in each of said causes must recover of the ajtpel-lants, severally, their costs expended, severally, in each of these causes in this court, and $30.00 damages in each of these causes.

The other Judges coNcurred.

Decree Aeeiriied as to Appellants.-