J.B. devises all his real estate to the testator's son, J.B.
Jr., and his heirs lawfully begotten, and, in case of his death
without such issue he orders A.Y., his executors and
administrators, to sell the real estate within two years after the
son's death, and he bequeaths the proceeds thereof to his brothers
and sisters by name and their heirs forever, or such of them as
shall be living at the death of the son, to be divided between them
in: equal proportions, share, and share alike. All the brothers and
sisters die, leaving issue. Then A.Y. dies, and afterwards J.B.
Jr., the son, dies without issue. Heirs is a word of limitation,
and none of the testator's brothers and sisters being alive at the
death of J.B. Jr., the devise to them failed to take effect.
Quaere whether a sale by the executors, &c., under
such circumstances is to be considered as valid in a court of
law?
However this may be, a sale thus made, after the lapse of two
years from the death of J.B. Jr., is without authority and conveys
no title.
Quare under what circumstances a court of equity might
relieve in case the trustee should refuse to exercise the power
within the prescribed period or should exercise the same after that
period?
A power to A.Y. and his executors or administrators to sell may
be executed by the executors of the executors of A.Y.
Page 21 U. S. 496
This was an action of ejectment brought in the court below by
the plaintiffs in error to recover the possession of a messuage and
lot in the City of Philadelphia. The special verdict in the case
stated that on 8 August, 1768, John Bleakley, of Philadelphia,
being then in London, made and duly executed his last will, as
follows:
"In the name of God, amen. I, John Bleakley, of Philadelphia,
Esquire, now in London and shortly bound to Philadelphia, being in
perfect health and of sound and disposing mind, memory, and
understanding, and considering the certainty of death, and the
uncertainty of the time thereof, do therefore make and declare this
my last will and testament in manner following -- that is to
say:"
"First and principally, I commend my soul to God and my body to
the earth or sea, as He shall please to order, and as for and
concerning my worldly estate, I give, devise, and bequeath the same
in manner following, that is to say:"
"First I will and desire that all my just debts and funeral
expenses (if any) be fully paid and satisfied as soon as
conveniently may be after my decease. Also I give and bequeath to
my brother, David Bleakley, living in the north of Ireland, the sum
of ten pounds sterling. Also I give and bequeath to my brother
William Bleakley, living near Dungannon, the sum of ten pounds
sterling. Also I
Page 21 U. S. 497
give and bequeath to my sister Margaret Harkness, of Dungannon,
the sum of one hundred pounds sterling. Also I give and bequeath to
my sister, Sarah Boyle, wife of the Rev. Mr. Boyle, the sum of ten
pounds sterling. Also I give and bequeath to my cousin Archibald
Young, of Philadelphia, an annuity of thirty pounds, Pennsylvania
money, to be paid to him out of the rents and profits of my real
estate on the 25th day of March in every year during the joint
lives of him, the said Archibald Young, and my son, John Bleakley
or his heirs lawfully begotten. But in case of the decease of my
said son without issue lawfully begotten as aforesaid in the
lifetime of the said Archibald Young, then the said annuity is to
cease, and in lieu thereof I give and bequeath unto the said
Archibald Young and his assigns the sum of four hundred pounds
sterling, payable out of the proceeds of my real estate when the
same is sold and disposed of according to the intention of this my
will, hereinafter mentioned and before any dividend is made of the
proceeds of my said estate. And this legacy or bequest is made to
my said cousin Archibald Young not only for the natural affection I
have and bear to him as a relation, but also as a full compensation
for the services he has already rendered me and in lieu of his
commissions for the trouble he may hereafter have in the execution
of this my will. All the rest and residue of my estate, real and
personal, of what nature, kind or quality the same may be or
consist, and hereinbefore not particularly disposed of, I give,
Page 21 U. S. 498
devise, and bequeath to my son John Bleakley and his heirs
lawfully begotten, and in case of the decease of my said son
without such issue, then I do direct and order my said cousin
Archibald Young, his executors or administrators, to sell and
dispose of my real estate within two years after the decease of my
said son, John Bleakley, to the best advantage. And I do hereby
give and bequeath the proceeds thereof to my said brothers David
Bleakley and William Bleakley and my said sisters Margaret Harkness
and Sarah Boyle and their heirs forever, or such of them as shall
be living at the decease of my said son, to be divided between them
in equal proportions, share and share alike, after deducting out of
such proceeds the sum of 400 pounds sterling, hereinbefore given
and bequeathed to the said Archibald Young, immediately on the
decease of my said son without issue in lieu of the annuity above
mentioned. And in case my said son should die before he attains the
age of twenty-one years without issue lawfully begotten as
aforesaid, then my will and mind is that the remainder of my
personal estate, hereby intended for my said son at his own
disposal, if he should live to attain the age of twenty-one years,
shall go to and be divided amongst my said brothers and sisters
with the proceeds of my real estate, as is hereinbefore directed to
be divided. And I do hereby nominate and appoint the said Archibald
Young and my said son John Bleakley executors of this my will,
hereby revoking and making void all former wills, codicils, and
bequests by me at any time or times
Page 21 U. S. 499
heretofore made, and do ordain this will to be as and for my
last will and testament. In witness whereof,"
&c.
The testator died in the month of January, 1769. His brothers
and sisters all died, leaving children (who are still alive) at or
about the following periods,
viz., Sarah Boyle between the
years 1760 and 1770; William in the year 1775; David in the year
1790, and Margaret Harkness in the year 1794. The children were of
full age or nearly so when the above will was made, and were
personally known to the testator. Archibald Young died in May,
1782, having duly made and executed his last will and testament,
whereby he appointed Robert Correy his executor, who, on 24 April,
1797, made his last will and testament, and thereof appointed
Eleanor Curry and James Boyd the executors, and died in June,
1802.
John Bleakley, the son, died on 3 September, 1802, without issue
and of full age, having previously executed his last will and
testament, whereof he appointed J. P. Norris his executor, and
thereby directed his real and personal estate to be sold and the
proceeds, after paying certain legacies, to be divided among
certain of his relations. On 25 May, 1803, the said Norris, for a
valuable consideration, sold and conveyed the premises in dispute
to W. Folwell, who, on 21 April, 1810, conveyed the same for a
valuable consideration to the defendant. On 1 February, 1805,
Eleanor Curry, and James Boyd, the executors of R. Correy (who was
the
Page 21 U. S. 500
executor of A. Young), by deed, bargained and sold the premises
in question to James Smith, which deed was afterwards cancelled,
and subsequently, on 27 March, 1820, they sold and conveyed the
said premises to the lessor of the plaintiff, who, at the time of
his purchase, had notice of the death of the brothers and sisters
of John Bleakley in the lifetime of his son.
Upon this special verdict, judgment having been rendered
pro
forma for the defendant in the court below, the cause was
brought by writ of error to this Court.
Page 21 U. S. 531
MR. JUSTICE WASHINGTON delivered the opinion of the Court, and
after stating the case proceeded as follows:
The material question to be decided is whether the power given
to A. Young, his executors and administrators, to sell the real
estate of the testator was legally exercised? If it was not, then
the plaintiff in error, who claims under a sale made by the
executor of Young, acquired no title under it, and the judgment
below is right.
It was contended by the counsel for the defendant that by the
death of Young as well as of the brothers and sisters of the
testator in the lifetime of John Bleakley, the son, the devises to
them to arise out of the power to sell never took effect, and
consequently, there being no person in existence at the death of
the son, to receive the proceeds of the sale, or any part of them,
the power was unduly exercised. The premises upon which the above
argument is founded, as well as the conclusion drawn from them,
being controverted by the counsel on the other side, our inquiries
will be confined to those two points.
With respect to the devise of the 400 pounds to A. Young, a
majority of the Court is of opinion that by the words as well as
from the obvious intention of the testator, that sum was not to be
raised except in the event of the death of John
Page 21 U. S. 532
Bleakley, the son without issue in the lifetime of Young. During
the joint lives of the son or his issue and Young, the latter was
to receive an annuity of 30 pounds out of the rents and profits of
the real estate. But if the son should die without issue in the
lifetime of the said Young, the annuity was in that event to cease,
and the 400 pounds was to be raised for his use out of the proceeds
of the real estate, when the same should be sold according to the
intention of the will, as thereafter mentioned. The contingency on
which the devise of the 400 pounds was to take effect is in no
respect connected with that on which the devise of the proceeds to
the brothers and sisters was to depend. The 400 pounds is expressly
given in lieu of the annuity in case Young should survive the son
without issue, in which event it was to cease.
The contingency upon which the devise of the proceeds of the
real estate to the brothers and sisters was to take effect was the
death of the son without issue, and since it was possible that the
particular estate of the son might endure beyond the life of Young,
the power to sell for the benefit of the brothers and sisters is
extended to his executors and administrators. It is true that by
the clause which gives the power to sell, taken independent of the
devise to Young, it would seem as if the 400 pounds was at all
events to be first deducted out of the proceeds of the sale and
paid to him in the same event as the residue was to be paid to the
brothers and sisters -- that is, on the death of the son without
issue. But the
Page 21 U. S. 533
two clauses must of necessity be taken in connection with each
other, the one as containing the bequest to Young and the
contingency upon which it was to take effect, and the other as
pointing out the fund out of which it was to be satisfied. If the
former never took effect, it is clear that the latter was relieved
from the burden imposed upon it.
A very good reason appears for making the devise of the 400
pounds to Young to depend upon his surviving the son without issue,
since it would be in that event only that he would want it, the
annuity, which it was intended to replace continuing until that
event happened. But no reason is perceived why the devise over to
the brothers and sisters of the testator or the execution of the
power for their benefit should have been made to depend on the same
event, a trustee to sell being provided in the executors of Young
in case he should die before the power could be executed.
Having shown, it is believed, that the devise of the 400 pounds
to Young never took effect in consequence of his death in the
lifetime of John Bleakley, the son, it becomes important to inquire
whether the devise to the brothers and sisters of the testator
failed in consequence of their having all died in the lifetime of
the son. The operative words of the will are
"I give the proceeds thereof [of his real estate] to my said
brothers and sisters and their heirs forever, or such of them as
shall be living at the decease of my son, to be divided
Page 21 U. S. 534
between them in equal proportions, share and share alike."
The court has felt considerable difficulty in construing the
above clause, with a view to the intention of the testator, to be
collected from the whole of the will, and of the circumstances
stated in the special verdict. Some of the judges are of opinion
that the devise is confined, both by the words and by the apparent
intention of the testator, to the brothers and sisters who should
be living at the death of the son without issue, considering the
word "heirs" as a word of limitation, according to its general
import, and that there is no evidence of an intention in the
testator to give the part of a deceased brother or sister to his or
her children, which ought to control the legal meaning of that
word, when used as it is in this clause. On the contrary, they
think that the use of it in the devise of the proceeds of the real
estate, and the omission of it in the devise of the personal
estate, and yet declaring that the latter is to be divided amongst
his brothers and sisters, with the proceeds of his real estate as
thereinbefore directed to be divided, strongly indicates the
intention of the testator to give the proceeds of the real estate
to the same persons who were to take the personal estate. Others of
the judges are of opinion, that an intention to give the proceeds
of the real estate to the children of a deceased brother or sister,
as representing their ancestor, is fairly to be collected from the
will, which strongly intimates that the testator did not
Page 21 U. S. 535
mean to die intestate, as to any part of his real or personal
estate.
Upon a question of so much doubt, this Court, which always
listens with respect to the adjudications of the courts of the
different states, where they apply, is disposed, upon this point,
to acquiesce in the decision of the Supreme Court of Pennsylvania,
in the case of
Smith's Lessee v. Folwell, 1 Bin. 546, that
the word "heirs" is to be construed to be a word of limitation, and
consequently that the devise to the brothers and sisters failed to
take effect by their deaths in the lifetime of the son.
Whether the conclusion to which that court came, and which was
pressed upon us by the plaintiff's counsel, that the contingencies
on which the power to sell was to arise having never happened, the
sale under the power was without authority, is well founded in a
court of law need not be decided in this case, because the majority
of the Court is of opinion that by the express words of the will,
the sale was limited to the period of two years after the decease
of John Bleakley, the son. The circumstance of time was no doubt
considered by the testator as being of some consequence, or else it
is not likely that he would so have restricted the exercise of the
power. But whether it was so or not, such was the will and pleasure
of the creator of the power, and that will could only be fulfilled
by a precise and literal exercise of the power. The trustee acts,
and could act, only in virtue of a special authority conferred upon
him by the will; he must act, then, in the way
Page 21 U. S. 536
and under the restrictions which accompany the authority. If an
adjudication were wanted to sanction so plain and obvious a
principle of law, it is to be found in a case reported in the Year
Book, 15 Hen. VII, pp. 11-12.
Under what circumstances, a court of equity might relieve in
case the trustee should refuse to exercise the power within the
prescribed period or should exercise the same after that period
need not be adverted to in this case, since this is a question
arising in a case purely at law.
The sale in this case, then, having been made about eighteen
years after the death of John Bleakley, the son, the trustee acted
without authority, and the sale and conveyance was absolutely void
at law.
MR. JUSTICE JOHNSON.
I have no hesitation in conceding that if all the objects had
failed for which the power in this will was created, the power
itself ceased both at law and in equity. Those objects were:
1. The raising of the legacy of 400 pounds for Young.
2. The sale and distribution of the testator's estate among his
own relatives.
If neither of these objects remained to be effected, the power
under which the plaintiff makes title was at an end.
The words on which the legacy depends are these:
"but in case of the decease of my said son without issue, as
aforesaid, in the lifetime of the said Archibald Young, then the
said annuity is to
Page 21 U. S. 537
cease, and in lieu thereof I give and bequeath unto the said
A.Y. and his assigns the sum of 400 pounds sterling, payable out of
the proceeds of my real estate when the same is sold and disposed
of according to the intention of this my will herein after
mentioned and before any dividend is made of my said estate."
The question which this clause presents is whether the legacy
was given upon the single contingency of the son's death without
issue or upon the double contingency of his death without issue in
the lifetime of A.Y.
This question appears to me to be settled by the testator
himself, for in a subsequent part of the will, speaking of this
same legacy and of course with reference to the clause bequeathing
it, he says, "the sum of 400 pounds sterling, hereinbefore given
and bequeathed to the said A.Y. immediately on the decease of my
said son without issue." The testator, then, has attached this
construction to his own words, and that the clause containing this
bequest will well admit of that construction is obvious, for there
is no necessity for joining the first member of the sentence, which
contains the double contingency, to the last member, which contains
the bequest. And the effect of the will, without this connection
(which I cannot but think forced and unnecessary) will be to give
the pecuniary legacy absolutely on the event of the son's death
without issue, but at the same time to declare that the annuity
should no longer run on whenever this bequest took effect. This
would literally be giving it in lieu of the annuity,
Page 21 U. S. 538
and would fully satisfy those words in the will.
Indeed this construction appears irresistible when we consider
another part of the will.
The power to sell is extended to the executors and
administrators of A.Y. They therefore were authorized to sell in
the event of the death of the son without issue although he should
survive A.Y. Yet we find the testator, when obviously contemplating
the event of the son's surviving Young, expressly directing the
payment of this legacy before the proceeds should be distributed
among his devisees over. This could only be consistent with a
bequest upon the single contingency of the son's death without
issue, independently of Young's survivorship.
Nor is there the least ground for contending that this bequest
is upon a contingency too remote, since the sale and devise over
are expressly limited to take effect upon the death of the son,
thereby restricting the generality of the words "issue" and
"heirs," so as to mean issue living at his death. This too is
consistent with those acknowledgments of the testator of a debt of
gratitude to A.Y., and not only of a debt to accrue, but of a
subsisting debt. The annuity is given
in praesenti, and so
is its substitute, the legacy. The words are, "I give and
bequeath," thus vesting a present interest, although the payment is
deferred to a future time and event. The views of the testator are
easily explained: if his son or his issue took the estate, his
bounty to Young was to be limited to the annuity. But if it should
go over to his collateral
Page 21 U. S. 539
kindred, the testator enlarges his bounty, and gives this
substitute for the annuity, at the same time that he frees his
estate from a charge that would embarrass the sale.
Nor can I possibly admit the doctrine that the power to sell was
either at law or in equity limited to the duration of two years
after the death of the son without issue. The words are
"then I direct and order my said cousin, A.Y., his executors and
administrators, to sell and dispose of my real estate within two
years after the decease of my said son."
Here the words are clearly imperative, and their effect is both
to confer the power generally and to exact the execution of it in
two years. The intention of the testator must prevail both at law
and in equity in construing his words, and when they will admit of
a construction which will make the power commensurate with the
views of the testator in creating it, I hold that to be the true
construction both in law and equity. It is only when the power
given admits not of this latitude by construction that the aid of
courts of equity is resorted to in order to carry into effect the
views of the testator. By possibility, the executors of A. Young
may have been minors, or may not have proved his will until the two
years had expired, or a sale during that time may have been stayed
by injunction or by the want of purchasers, and it would be
difficult to show why in any one of these events the power should
have ceased. Certainly no reason can be extracted from the
provisions of the will, whence an intention could be inferred to
restrict the power to sell to the
Page 21 U. S. 540
period of two years. Everything favors the contrary conclusion.
For whose benefit was this injunction to sell within the specified
period imposed upon the executor? Clearly for that of the brothers
and sisters, in order that under it they may have compelled the
executor to proceed to sale within the time limited. It would be
strange, then, if a provision so clearly intended for their
interests should have put it in the power of the executor, either
willfully, or by laches, to defeat their interests, and let in the
heir at law.
This is not the case of a mere naked power; it is a power
coupled with a trust. The executor was to sell, that he might
possess himself of the value in money and distribute it among the
cestuis que trust. In such cases it has been well observed
that "the substantial part is to do the thing," and that "powers of
this kind have a favorable construction in law, and are not
resembled to conditions, which are strictly expounded."
I am therefore of opinion that the words creating this power
will well admit of being construed into a general devise of the
power, and that the object intended to be answered necessarily
requires that construction.
The
dictum cited from the Year Books, therefore
(besides that it has not been very correctly translated), has no
application to this case, since it supposes the actual restriction
under the will, which I deny to be imposed in the present instance
upon the true construction of its words.
Being therefore of opinion that both the legacy to Young and the
power to sell subsisted
Page 21 U. S. 541
at the date of the sale to the plaintiff, these views of the
case are sufficient to sustain the sale to the plaintiff, and the
subsequent questions would arise only upon the distribution of the
remainder of the purchase money after satisfying the legacy.
Nevertheless, I will make a few remarks upon that part of the will
which relates to the devise over to the testator's family, since it
serves to elucidate by another application the principle upon which
I have formed my opinion respecting the legacy to A. Young.
On the subject of the devise over to his brothers and sisters,
the testator has again been his own expositor. It is very clear
that if the words "or such of them as shall be living at the
decease of my said son" stood alone and unexplained, the relative
them might be applied grammatically with more propriety to the word
"heirs" than to the words "brothers and sisters," and thus perhaps
give those words the effect of words of purchase. But the testator
himself gives these words a distinct application in the latter part
of his will when disposing of his personal estate, concerning which
he says that it shall be "divided among my brothers and sisters
with the proceeds of my real estate as hereinbefore directed to be
divided." Under the words here used by the testator, it is clear
that the brothers and sisters only could take, and not the
brothers' and sisters' children, thus restricting the word "heir"
to its natural and appropriate signification, from which, it can be
converted into a word of purchase only by the clear and controlling
intent of the testator. This
Page 21 U. S. 542
construction is further supported by those words which require a
distribution of the proceeds of the real estate equally, share and
share alike, to the legatees -- a distribution which could not take
place
per stirpes, or in the event of one or more brothers
surviving, and the death of the rest, leaving issue, living at the
death of the son.
On this point, therefore, I concur with the Supreme Court of
Pennsylvania, and only regret that I cannot concur both with that
court and this on the other bequest.
Upon the question so solemnly pressed upon this Court in the
argument how far the decision of the court of Pennsylvania ought to
have been considered as obligatory on this Court, I would be
understood as entertaining the following views:
As precedents entitled to high respect, the decisions of the
state courts will always be considered, and in all cases of local
law, we acknowledge an established and uniform course of decisions
of the state courts in the respective states as the law of this
Court; that is to say that such decisions will be as obligatory
upon this Court as they would be acknowledged to be in their own
courts. But a single decision on the construction of a will cannot
be acknowledged as of binding efficacy, however it may be respected
as a precedent. In the present instance, I feel myself sustained in
my opinion upon the legacy to A.Y. by the opinion of one of the
three learned judges who composed the state court.
Judgment affirmed.
