Finlay v. King's Lessee
28 U.S. 346

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U.S. Supreme Court

Finlay v. King's Lessee, 28 U.S. 3 Pet. 346 346 (1830)

Finlay v. King's Lessee

28 U.S. (3 Pet.) 346

Syllabus

The testator was seized of a very large real and personal estate, in the States of Virginia, Kentucky, Ohio, and Tennessee. After snaking, by his will, in addition to her dower, a very liberal provision for his wife, for her life, out of part of his real estate, and devising, in case of his having a child or children, the whole of his estate to such child or children, with the exception of the provision for his wife and certain other bequests, his will declares:

"In case of having no children, I then leave and bequeath all my real estate at the death of my wife to William King, son of brother James King, on condition of his marrying a daughter of William Trigg's, and my niece Rachel his wife, lately Rachel Finlay, in trust for the eldest son or issue of said marriage, and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said William and Rachel Trigg, that will marry a child of my brother James King or of sister Elizabeth, wife to John Mitchell, and to their issue."

The testator died without issue. He survived his father, and had brothers and sisters of the whole and half blood who survived him, and also a sister of the whole blood, Elizabeth, the wife of John Mitchell, who died before him. William and Rachel Trigg never had a daughter, but had four sons. James King, the father of William King, the devisee, had only one daughter, who intermarried with Alexander McCall. Elizabeth, the wife of John Mitchell, had two daughters, both of whom are married, one to William Heiskill, the other to Abraham B. Trigg.

By the Court:

"We have found no case in which a general devise in words importing a present interest, in a will making no other disposition of the property, on a condition which may be performed at any time, have been construed, from the mere circumstance that the estate is given on condition, to require that the condition must be performed before the estate can vest. There are many cases in which the contrary principle has been decided. The condition on which the devise to William King depended is a condition subsequent."

It is certainly well settled that there are no technical appropriate words which always determine whether a devise be on a condition precedent or subsequent. The same words have been determined differently, and the question is always a question of intention. If the language of the particular clause or of the whole will shows that the act upon which the estate depends must be performed before the estate can vest, the condition of course is precedent, and unless it is performed, the devisee can take nothing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole will, the condition is subsequent.

It is a general rule that a devise in words of the present time, as "I give to A. my lands in B.," imports, if no contrary intent appears, an immediate interest which vests in the devisee on the death of the testator. It is also a general

Page 28 U. S. 347

rule that if an estate be given on a condition for the performance of which no time is limited, the devisee has his life for performance. The result of these principles seems to be that a devise on condition that he shall marry B., if uncontrolled by other words, takes effect immediately, and the devisee performs the condition if he marry B. at any other time during his life. The condition is subsequent.

The intent of the testator is the cardinal rule in the construction of wills, and if that intent can be clearly perceived and is not contrary to some positive rule of law, it must prevail, although in giving effect to it, some words should be rejected or so restrained in their application as to change their literal meaning in the particular instance.

As the devise in the will to William King was on a condition subsequent, it may be construed, so far as respects the time of taking possession, as if it had been unconditional. The condition opposes no obstacle to his immediate possession if the intent of the testator shall require that construction.

The introductory clause in the will states "I, William King, have thought proper to make and ordain this to be my last will and testament, leaving and bequeathing say worldly estate in the manner following." These words are entitled to considerable influence in a question of doubtful intent in a case where the whole property is given and the question arises between the heir and devisee respecting the interest devised. The words of the particular clause also carry the whole estate from the heir, but they fix the death of the testator's wife as the time when the devisee shall be entitled to possession. They are "In case of having no children, I then leave and bequeath all my real estate at the death of my wife to William King, son of brother James King." The whole estate is devised to William King, but the possession of that part of it which is given to the wife or others for life is postponed until her death.

Quaere: did William King take an estate which, in the events that have happened, enures to his own benefit, or is he, in the existing state of things, to be considered a trustee for the heirs of the testator? This question cannot be decided in this cause; it belongs to a court of chancery, and will be determined when the heirs shall bring a bill to enforce the execution of the trust.

This was an ejectment brought in the District Court of the Western District of Virginia, and the question involved in the suit was the construction to be given to the will of William King, deceased, formerly of Washington County in Virginia.

The cause was argued in the court below, on the following case agreed; and the judgment of that court being in favor of the defendant in error, the plaintiffs brought the case into this Court.

"The following is the case agreed: "

"We agree that William King departed this life on 8

Page 28 U. S. 348

October 1808, having first duly made and published his last will and testament, which was afterwards admitted to record in the County Court of Washington County in Virginia, where he had resided, and is in the words and figures following: "

" Meditating on the uncertainty of human life, I, William King, have thought proper to make and ordain this to be my last will and testament, leaving and bequeathing my worldly estate in the manner following, to-wit: "

" To my beloved wife Mary, in addition to her legal dower of all my estate, the dwelling house and other buildings on lot number ten in Abingdon, where I now reside, together with the garden, orchard, and that part of my fruit hill plantation south of the great road and lands adjacent to Abingdon, now rented to C. Finlay and Co., and at my father's decease, including those in his occupancy on the north side of the great road, for her natural life."

" I also will and declare that in case my beloved wife Mary hath hereafter a child or children by me, that the said child or children is and are to be sole heirs of my whole estate, real and personal, excepting one-third part of specified legacies and appropriations hereinafter mentioned; which, in case of my having children, will reduce each legacy hereinafter mentioned to one-third part of the amount hereafter specified, and the disposition of the real estate, as hereafter mentioned in that case wholly void."

" In case of having no children, I then leave and bequeath all my real estate at the death of my wife to William King, son of brother James King, on condition of his marrying a daughter of William Trigg and my niece Rachel his wife, lately Rachel Finlay, in trust for the eldest son or issue of said marriage, and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said William and Rachel Trigg that will marry a child of my brother James King or of sister Elizabeth, wife to John Mitchell, and to their issue -- and during the lifetime of my wife, it is my intention and request that William Trigg, James King, and her do carry on my business in co-partnership, both salt works and merchandizing,

Page 28 U. S. 349

each equal shares, and that in consideration of the use of my capital they pay out of the same the following legacies: "

" To John Mitchell, on condition of his assisting and carrying on business with them at the usual salary as formerly, viz., $1,000 per year, for from two to five years, as they may wish his assistance. An additional sum of $10,000, payable five years after my decease, and to each of his children upon coming of age $1,000 more than the general legacy hereafter mentioned."

" To Connally Finlay a like sum of $10,000, payable in five years."

" To my nieces Elizabeth Finlay and Elizabeth Mitchell (being called for my grandmother with whom I was brought up) $10,000 in twelve months after marriage, provided they are then eighteen years of age; if not, at the age of eighteen; to each of my other nephews and nieces at the age of eighteen, that is children of my brother James, sisters Nancy and Elizabeth, $1,000 each -- to each of the children of my half-brother Samuel and half-sister Hannah $300 each, as aforesaid; to my said sister Hannah, in two years after my decease $1,000; and to my said half-brother Samuel, in case of personal application to the manager at Saltville or to my executors in Abingdon, on the 1 January annually during his life $150, if not called for on said day to be void for that year, and receipt to be personally given."

" It is my wish and request that my wife, William Trigg, and James King, or any two of them that shall concur in carrying on the business, should either join all the young men that may reside with me and be assisting me in my decease that are worthy, or furnish them with four or five thousand dollars worth of goods at a reasonable advance, on a credit of from three to five years, taking bonds with interest from one year after supply."

" In case my brother James should prefer continuing partnership with Charles S. Carson (in place of closing the business of King, Carson & King as soon as legal and convenient), then my will is that William Trigg and my wife carry on the business, one-third of each for their own

Page 28 U. S. 350

account and the remaining third to be equally divided between the children of my brother James and sister Nancy and Elizabeth."

" To my father, Thomas King, I leave during his life the houses he now resides in and occupies at Fruit hill, together with that part of my land in said tract north of the great road that he chooses to farm, with what fruit he may want from the orchard, the spring house being intended for a wash house with the appurtenances, subject to the direction of my beloved wife Mary, as also the orchard, except as aforesaid. I also leave and bequeath to my father the sum of two hundred dollars per annum during his life, and if, accidentally, fire should destroy his Fincastle house and buildings, a further sum of two hundred dollars per annum while his income from there would cease."

" I also leave and bequeath to the Abingdon academy the sum of $10,000, payable to the trustees in the year 1816, or lands to that amount, to be vested in said academy with the interest or rents thereon forever."

" Abingdon, Virginia, 3 March, 1806."

"WILLIAM KING"

" Test. WM. D. NEELSON"

" JNO. DOHERTY"

" I hereby appoint William Trigg of Abingdon and James King of Nashville executors of my last will and testament enclosed, written by my own hand and signed this 3 March. 1806."

"WILLIAM KING"

" The other wills of previous dates to said 3 March, 1806, being void."

"WILLIAM KING"

"We agree that William King, at the time of his death, was seized and possessed of seventy-six tracts of land in the said County of Washington, containing in the whole 19,473 acres of land, on one of which tracts is the salt works, which have, since his death, been leased for years, at the annual rent of $30,000; also of nineteen lots in the Town of Abingdon in Washington County, nine of which produced

Page 28 U. S. 351

an annual rent of $660; also of fourteen tracts of land in the county of Wythe, containing 3,494 1/2; also of eighteen tracts of land in the State of Tennessee, containing in the whole 10,880; also of shares in town lots in several of the towns in the said State of Tennessee. We also agree that the said William King survived his father in the will mentioned; that the said William King had brothers and sisters, to-wit: James King, a brother of the whole blood; Nancy, a sister of the whole blood, the wife of Connally Finlay in the will mentioned; Samuel King, a brother of the half blood; Hannah, a sister of the half blood, the wife of John Allen; all of which brothers and sisters before named survived the said William King; that another sister of the said William King, of the whole blood, died before him, and was named Elizabeth, the wife of John Mitchell, who is mentioned in the will."

"We agree that William King, the lessor of the plaintiff, is the same William King, the son of James King, brother of the testator, mentioned by him in the will."

"We further agree that William Trigg, in the will mentioned, departed this life on 4 August, 1813, leaving Rachel Trigg, in the will mentioned, his widow, and four sons, the said Rachel having borne them to the said William Trigg, and not having borne any daughter to him the said William Trigg, at any time, which said sons are now living; that Mary, who was the wife of the said William King, is still living, aged forty-three years, and is now the wife of Francis Smith."

"We further agree that William King, the lessor of the plaintiff, is married to Sarah Bekem; that James King had only one daughter, named Rachel Mary Eliza, who is now the wife of Alexander McCall; and that Elizabeth, the wife of John Mitchell, had only two daughters, to-wit Elizabeth, who is now the wife of William Heiskill, and Polly, who is now the wife of Abraham B. Trigg."

"We agree that William King the testator died seized and possessed of the house and lot in the declaration mentioned. We agree the lease entry and ouster in the declaration supposed,

Page 28 U. S. 352

and that the defendants are in possession of the house and lot in the declaration mentioned."

"If upon this state of facts, the lessor of the plaintiff ought to recover at this time, we agree that judgment shall be entered for him, and that if the court shall be of opinion that he ought not to recover until after the death of Mary, the wife of Francis Smith, or that he ought not at any time to recover, judgment shall be entered in favor of the defendants. We also agree that the property in controversy is worth more than $2,000. "

Page 28 U. S. 374

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