The Chancellor.
The last exception taken to the report was disposed of by arrangement between the counsel. It was agreed, on the part of the defendant, Thurman, that the decree should contain a provision, that the assets which might subsequently come to the hands of the defendant, as executor, should be duly accounted for in the course of ad* ministration, and this was all the security required on the part of the plaintiffs. As to the 2d, 3d, and 4th exceptions, they relate to some small matters of account said to have been omitted by the referees; and there is nothing before [226] the court to enable me to judge of the truth and force of these exceptions. The objection to any such alleged omissions, ought to have been made to the referees on the making up of their report There remains for consideration the first, and which was the only material exception taken.
This exception is, that the referees have determined that the defendant, Thurman, is entitled to an estate in fee in the two houses and lots mentioned in the report, whereas, they were not called on to decide this point, and, if they were, they ought to have decided it differently.
It was suggested upon the argument, and, I think, not denied, that this point of law was raised, and discussed on both sides, before the referees. If this be so, it is now too late for the plaintiff to object to the jurisdiction of the referees over the question ; and it appears to have been a point put in issue by the pleadings, and proper for the consideration" of the referees under the submission. By the original bill, the defendant, Thurman, was called on, as executor, to account, among other things, for the rents and profits of the real estate whereof his testator died seised ; and, by the answer, he sets up an absolute title in himself in fee, under the will, to the two lots which are the subject of discussion, and denies that he is accountable for the rents and profits of them. The reference was made, by consent, to one merchant and two gentlemen of the bar, with directions to state an account, and to decide on all questions in dispute between the parties, “ as well matters of law as of fact.” I have no doubt, therefore, that the question of law, on the title of Thurman to the two houses and lots in New-York, was in issue, and properly embraced by the submission.
After the parties have chosen to submit a point of law to gentleman of the profession, it may be doubted whether the court ought to permit the discussion to be renewed here, without showing a case of gross and palpable mistake. In this case, however, a reservation appears in the rule of submission, by which the report was declared to be liable te [227] exceptions by either party, as a master’s report would be. This reservation may have been intended to be confined to that part of the submission which was the ordinary subject of reference to a master, and this is, perhaps, the better construction of the rule. But I do not wish to construe the rule rigorously, in this case, nor to deprive the parties of a resort to the opinion of the court on the question of law arising upon the will; and I shall only observe, that after such, a reference as the one before us, the objection should be supported upon pretty clear and solid grounds.
As Richardson, the first devisee, and John, a devisee named subsequent to the defendant, died in the lifetime of the testator, their names may be considered as struck out of the will. The devise then is of the two houses and lots, 6i with every right agreeable to the deeds of the same, to be delivered to the defendant as soon as he comes to the age of 21 years; and if he dies before he comes to age, and without male issue,” than the devise over was to bis nephew, the plaintiff, Roosevelt.
If the will had stopped here, it. seems to be conceded that the defendant would have taken an estate in fee, or an estate tail, under the English law, which by our statutes is now turned into an estate in fee.
The construction is plausible, that by the devise of the lots, “ with every right” belonging thereto, under the deeds, the whole interest of the testator therein passed. He gives the houses with the ground, and every other building, and every right, agreeable to the deeds. The words are not free from ambiguity; if he meant by them only a description of his estate, and not of his entire interest therein, yet the limitation of “ dying without male issue” made it an estate tail. This construction of those words appears to be well settled. (Whiting v. Wilkins, 1 Bulst. 219. 8 Viner, 211. pl. 11. 4th Resolution, in 1 P. Wms. 605. 2 Bro. 558. 578. Doe v. Applin, 4 Term Rep. 82. Denn v. Slater, 5 Term Rep. 335. Stanley v. Leonard, Amb. 355.) The fee [228] vested on his attaining the age of 21, or having male issue* Either event was sufficient; for the word and, in the devise, is not here to be read or, but is to be taken in its natural and grammatical sense. The case of Doe v. Jessep, (12 East, 288.) is to this very point; and it was there held, that the words in a will are to be construed according to their natural sense, unless some obvious inconvenience, or incongruity, would result from so construing them. Why should we, as Lord Ellenborougk observed, read or for and, and give the estate over, upon the happening of one only of the events, when no inconvenience would ensue by construing the word in its natural sense. In the case referred to, the devise was to a natural son; “ and if he die before 21, and without issue,” then to the testator’s father and the mother of the son; and, on a different construction, if the son had happened to die before 21, leaving issue, that issue could not have taken. So here, if Thurman had died under age, and had left issue, the reading the word and as or, would have disinherited that issue as to the devise, and this could hardly have been the testator’s meaning. To prevent siifch a result, the courts have frequently reversed the rule by turning or into and. (2 Ves. 249.)
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The Chancellor.
The last exception taken to the report was disposed of by arrangement between the counsel. It was agreed, on the part of the defendant, Thurman, that the decree should contain a provision, that the assets which might subsequently come to the hands of the defendant, as executor, should be duly accounted for in the course of ad* ministration, and this was all the security required on the part of the plaintiffs. As to the 2d, 3d, and 4th exceptions, they relate to some small matters of account said to have been omitted by the referees; and there is nothing before [226] the court to enable me to judge of the truth and force of these exceptions. The objection to any such alleged omissions, ought to have been made to the referees on the making up of their report There remains for consideration the first, and which was the only material exception taken.
This exception is, that the referees have determined that the defendant, Thurman, is entitled to an estate in fee in the two houses and lots mentioned in the report, whereas, they were not called on to decide this point, and, if they were, they ought to have decided it differently.
It was suggested upon the argument, and, I think, not denied, that this point of law was raised, and discussed on both sides, before the referees. If this be so, it is now too late for the plaintiff to object to the jurisdiction of the referees over the question ; and it appears to have been a point put in issue by the pleadings, and proper for the consideration" of the referees under the submission. By the original bill, the defendant, Thurman, was called on, as executor, to account, among other things, for the rents and profits of the real estate whereof his testator died seised ; and, by the answer, he sets up an absolute title in himself in fee, under the will, to the two lots which are the subject of discussion, and denies that he is accountable for the rents and profits of them. The reference was made, by consent, to one merchant and two gentlemen of the bar, with directions to state an account, and to decide on all questions in dispute between the parties, “ as well matters of law as of fact.” I have no doubt, therefore, that the question of law, on the title of Thurman to the two houses and lots in New-York, was in issue, and properly embraced by the submission.
After the parties have chosen to submit a point of law to gentleman of the profession, it may be doubted whether the court ought to permit the discussion to be renewed here, without showing a case of gross and palpable mistake. In this case, however, a reservation appears in the rule of submission, by which the report was declared to be liable te [227] exceptions by either party, as a master’s report would be. This reservation may have been intended to be confined to that part of the submission which was the ordinary subject of reference to a master, and this is, perhaps, the better construction of the rule. But I do not wish to construe the rule rigorously, in this case, nor to deprive the parties of a resort to the opinion of the court on the question of law arising upon the will; and I shall only observe, that after such, a reference as the one before us, the objection should be supported upon pretty clear and solid grounds.
As Richardson, the first devisee, and John, a devisee named subsequent to the defendant, died in the lifetime of the testator, their names may be considered as struck out of the will. The devise then is of the two houses and lots, 6i with every right agreeable to the deeds of the same, to be delivered to the defendant as soon as he comes to the age of 21 years; and if he dies before he comes to age, and without male issue,” than the devise over was to bis nephew, the plaintiff, Roosevelt.
If the will had stopped here, it. seems to be conceded that the defendant would have taken an estate in fee, or an estate tail, under the English law, which by our statutes is now turned into an estate in fee.
The construction is plausible, that by the devise of the lots, “ with every right” belonging thereto, under the deeds, the whole interest of the testator therein passed. He gives the houses with the ground, and every other building, and every right, agreeable to the deeds. The words are not free from ambiguity; if he meant by them only a description of his estate, and not of his entire interest therein, yet the limitation of “ dying without male issue” made it an estate tail. This construction of those words appears to be well settled. (Whiting v. Wilkins, 1 Bulst. 219. 8 Viner, 211. pl. 11. 4th Resolution, in 1 P. Wms. 605. 2 Bro. 558. 578. Doe v. Applin, 4 Term Rep. 82. Denn v. Slater, 5 Term Rep. 335. Stanley v. Leonard, Amb. 355.) The fee [228] vested on his attaining the age of 21, or having male issue* Either event was sufficient; for the word and, in the devise, is not here to be read or, but is to be taken in its natural and grammatical sense. The case of Doe v. Jessep, (12 East, 288.) is to this very point; and it was there held, that the words in a will are to be construed according to their natural sense, unless some obvious inconvenience, or incongruity, would result from so construing them. Why should we, as Lord Ellenborougk observed, read or for and, and give the estate over, upon the happening of one only of the events, when no inconvenience would ensue by construing the word in its natural sense. In the case referred to, the devise was to a natural son; “ and if he die before 21, and without issue,” then to the testator’s father and the mother of the son; and, on a different construction, if the son had happened to die before 21, leaving issue, that issue could not have taken. So here, if Thurman had died under age, and had left issue, the reading the word and as or, would have disinherited that issue as to the devise, and this could hardly have been the testator’s meaning. To prevent siifch a result, the courts have frequently reversed the rule by turning or into and. (2 Ves. 249.)
But the principal difficulty has arisen from the subsequent part of the will, in which it is declared that “ the first possessor, as soon as his first male child should come of age, it is my will that the right of the said houses be to him, his" heirs and assigns, but not to be disposed of by him before his eldest son comes of age.” It is contended, on the part of the plaintiffs, that here is an executory devise engrafted on the preceding fee; and, on the part of the defendant, that it is only a temporary restriction intended by the testator upon the power of alienation, and that the restriction is so far void as-being repugnant to the nature of the estate.1 It appears to me, on an examination of the will, that the' latter is the sounder construction. ■ The limitation over, to Roosevelt, is upon the event of the defendant’s dying [229] under age, and without male issue. There is no provision for the remainder over, on the event of the first male child dying under age, and the omission shows that the testator could not have had in contemplation the case of a limitation over, except upon the event of the nephew himself dying under age and without such issue. The will also directs, that “ whoever gets ti e houses” shall have no claim to the 1,000/. legacy, but his share shall go to the other relations; and, as the defendant takes the houses upon either construction, he loses his legacy. It is not probable, when we recur to the known value of such a pecuniary legacy, at so early a period as the date of the will, that the testator intended that any estate in those two houses, short of a fee, should be a substitute for it. If we compare the several provisions in the will, it seems to have been the testator’s general design, that all the legacies and grants should vest at the age of 21. Thus, the pecuniary legacies of 1,000/. are to be paid as the legatees respectively come of age, and these very lots are "to be given to the devisee (and three were named in succession) when he comes of age. So the limitation over is to vest whenthe plaintiffis of age ; and all the residue of the estate, real and personal, is to bé divided, and paid to the residuary legatees at the same per od. The existence of an executory devise, in this case, is not, then, in furtherance of the uniformly-declared intentions and policy of the will. The idea of an executory devise is, where the testator gives absolutely to one, and, upon the happening of an event gives the same estate to another. But here is no designation of the person who is to take, by way of executory devise, if the defendant should die without any male child being of age. It is not the plaintiff, Roosevelt, for the event had long before happened, and must have happened, upon which the limitation to him was determined; and he has, in consideration thereof, his share (being here a moiety) of the legacy, which the defendant lost on taking the estate. In short, the general scope or design of the will was to fix and [230] close all the interests, as soon as the objects of the testator’s bounty came °f age ; and this last strange and perplexed provision was not intended in favour of Roosevelt, (for it has no allusion to him,) hut it seems to have been meant as a check to an improvident waste, or alienation of the estate, by the defendant, during the early part of his life ; and being an intention inconsistent with the rules of law, it must be rejected,
I am, accordingly, of opinion, that the exceptions be overruled, and with costs, as to all, except the last; and that the report be confirmed, with a provision in the decree as to future assets.
Decree accordingly, (a)