Where marriage articles, executed as an antenuptial settlement,
recited the intention of the parties to provide a jointure for the
wife in lieu of dower, and then property was conveyed to a trustee,
for the use of the husband for life, then for the use of the wife
for life, and in case of the death of the wife during the lifetime
of the husband, leaving issue of the said marriage, one or more
children then living, then from and immediately after the decease
of the husband, upon trust for the child or children of the said
intended marriage, this does not include grandchildren.
The wife having died before the husband leaving no child alive,
but only grandchildren, these did not take.
The cases examined. A motion to amend the decree and mandate of
this Court so as to exclude the grandchildren from the distribution
of the fund, as legatees, upon the ground that they had elected to
renounce their interest under the will of their grandfather, and
claim under the marriage settlement, overruled.
The opinion of the court states the marriage articles between
Thomas Law and Elizabeth Park Custis, and the further history of
the matter, up to the death of Thomas Law in 1834.
In 1832, Thomas Law executed a will, in which he bequeathed
$5,000 each to Thomas Law and Edmund Law, the sons of the late John
Law, Esq., of Washington. These parties were represented by Henry
May, their administrator, and one of the appellants. James Adams
was the executor of the will.
He also bequeathed to a lad named Joseph Edmund Law, the son of
Mary Robinson the sum of $1,000. This was the complainant below,
and appellee in this Court.
In 1838, the above-named Joseph E. Law filed his bill in the
circuit court, by his next friend, Mary Robinson against Adams, the
executor, praying that he might be ordered to invest the sum of
$1,000, and pay the interest thereof to the complainant; and by an
amended bill, prayed that Edmund and Thomas Law, Edmund Rogers,
Eliza Rogers, and Eleanor Rogers, and the other heirs of Eliza P.
Custis, together with sundry other persons, might be made
parties.
In order to understand the position of the respective parties,
it is proper to mention that the only child of the marriage between
Thomas Law and Eliza P. Custis, was a daughter
Page 58 U. S. 418
named Eliza, who intermarried with Lloyd N. Rogers. Eliza Rogers
died in the lifetime of her mother. At the time of these
proceedings, Edmund Rogers and Eleanor Rogers were the only
surviving children of Lloyd N. Rogers and Eliza, his wife.
On the 29th of December, 1832, during the lifetime of Thomas
Law, Lloyd N. Rogers obtained from the Orphans' Court of Washington
County, D.C., letters of administration upon the personal estate of
Mrs. Elizabeth P. C. Law, and, as administrator, claimed the
arrearages of the annuity of $1,500, payable to Mrs. Law, with
interest thereon, from the periods respectively when the said
annuity became payable and was in arrears.
This claim arose in this way. On the 9th of August, 1804, Thomas
and Eliza Law, being desirous of separating, owing to domestic
differences, Law executed to George Calvert and Thomas Peters a
deed of certain real estate, to secure, by way of mortgage, to his
said wife, Eliza P. Law, an annuity during her life of $1,500, for
her own separate use and benefit, the said real estate, at her
death, to be reconveyed to Thomas Law and his heirs, clear of all
encumbrances imposed by Calvert and Peters.
It should have been mentioned that, by a codicil to his will,
Thomas Law bequeathed to his grandchildren, Edmund, Eliza, and
Eleanor Rogers five thousand dollars, with a provision that it
should be null and of no effect if they should set up a claim under
the marriage settlement.
All the parties being before the circuit court, an interlocutory
decree was passed referring the case to the auditor, and James
Adams was appointed trustee to sell the property &c.
The auditor made six reports, running from October, 1848, to
September, 1852, on which day the last was filed. Exceptions were
filed by Henry May, administrator of Thomas and Edmund Law, and
also by Adams, the executor of the will. It is not material to
state any other exceptions than those upon which the case came up
to this Court. These related to the two following claims:
1. The claim of Lloyd N. Rogers, as administrator of Eliza P.
Custis, the wife of the testator, amounting in fact to
$29,249.33.
2. A claim of Edmund and Eleanor Rogers, grandchildren of Thomas
Law and his wife Eliza P., $66,154.84.
If these claims should be admitted, the estate would be
exhausted and there would be nothing for the legatees.
In December, 1852, the circuit court passed a final decree
overruling the exceptions and establishing, amongst other things,
the two following orders:
Page 58 U. S. 419
1. That the defendants, Edmund Law and Eleanor A. Rogers, as
grandchildren of Mr. Law and children of Mrs. Rogers, take under
the words of the deeds of 1796, 1800, and 1802.
6. That the administrator of Mrs. Law is entitled to the arrears
of the annuity of $1,500, from the 9th of August, 1804, to the
death of Mrs. Law, with interest.
From this decree, May and Adams appealed to this Court.
MR. JUSTICE GRIER delivered the opinion of the Court.
James Adams, the appellant, whose account, as executor of Thomas
Law, deceased, was the subject matter of the decree below, excepts
to it for the allowance of the two following items:
1. The claim of Lloyd N. Rogers as administrator of Eliza P.
Custis, the wife of the testator, amounting to the sum of
$29,249.33.
2. A claim of Edmund and Eleanor Rogers, grandchildren of Thomas
Law and Eliza, amounting to $66,154.84.
1. As the Court is equally divided as to the legality of the
first item, the decree must stand affirmed as to that amount
without further remark.
2. The claim of the grandchildren will require more extended
notice.
This claim is founded on certain marriage articles executed
between Thomas Law, of the first part, Elizabeth Park Custis, of
the second part, and James Barry, of the third part, on the 19th
day of March, 1796. They recite that a marriage is intended between
said Thomas and Elizabeth, and that "it is the wish and design of
the parties that a jointure should be made to the said Elizabeth,
in lieu and bar of all claim on the estate" of said Thomas &c.
In consideration of the marriage portion money &c., the said
Law conveys to James Barry certain real estate
"to the said James Barry, his heirs and assigns forever upon the
trusts and to and for the uses, intents, and purposes following,
that is to say: for the use of the said Thomas Law, his heirs, and
assigns, until the solemnization of the said intended marriage, and
afterwards to permit and suffer him, the said Thomas Law, to
receive all the issues and profits of the said lands and premises
during the term of his natural life, for his own use; and
immediately after the decease of the said Thomas Law, in case the
said Elizabeth Park Custis shall
Page 58 U. S. 420
survive him, her intended husband, that she, the said Elizabeth
Park Custis, shall have, accept, and receive the issues and profits
of the said lands and premises for and during the term of her
natural life to and for her own use and benefit; but in case the
said Elizabeth shall depart this life in the lifetime of the said
Thomas Law leaving issue of the said marriage one or more children
then living, then from and immediately after the decease of the
said Thomas Law, upon trust for the child or children of the said
intended marriage, to be equally divided between them, if more than
one; to have and to hold the same lands and premises, as tenants in
common in fee simple, share and share alike; and if only one child,
then to such child, his or her heirs and assigns forever; but in
case there shall be no issue of said marriage, then, upon the death
of the said Thomas Law and Elizabeth Park Custis and the survivor
or survivors of them, to revert back to the said Thomas Law, his
heirs, or assigns, or subject to be disposed of by him by last will
and testament, or other deed, as he may judge proper."
The marriage between the parties was solemnized in the same
year. Afterwards, in 1800, Mr. and Mrs. Law joined in another deed,
substituting Thomas Peters as trustee instead of Barry, and other
property in place of that conveyed to Barry, but subject to the
conditions and limitations of the marriage articles. And again in
1802 another change was made in the property, subject to the same
limitations. The daughter and only child of this marriage
intermarried with Lloyd N. Rogers, and died before her mother,
leaving children, the claimants, Edmund and Eleanor Rogers. Mrs.
Law died in 1832, and the testator in 1834.
The only question for our decision is whether the grandchildren,
Edmund and Eleanor Rogers, took anything by the deed of
settlement.
It is clear from the face of this deed that it is an executed
marriage settlement, and that it must be expounded on legal
principles applicable to other deeds. limitations, either of legal
or equitable estates, receive the same construction in a court of
equity as in courts of law.
"In executed trusts, whether by deed or will, the rule of law
must prevail, and the apparent intention must give way to those
fundamental rules, which for ages have served as landmarks in the
disposition of property."
2 Spence's Equity 131.
The trustee in this deed had no duty to perform, and as the
estate is not limited to his own use, the trusts are but uses, and
are executed as such by the statute. The object and purpose
declared by the parties are to secure a jointure to the intended
wife in lieu and bar of dower and to release the marital rights
Page 58 U. S. 421
of the husband over the separate estate of the wife in
possession and expectancy. The settled property belonged entirely
to the husband. The estate limited to the wife is contingent on her
surviving her husband, in whom an estate for life is absolutely
vested. If the life estate of the wife should vest by the
contingency of her survivorship, there is no provision for the
children or issue of the marriage, and the fee reverts to the right
heirs of the husband. The estate limited to the children of Mrs.
Law is a contingent remainder, depending on the event that Mrs. Law
shall "depart this life in the lifetime of said Thomas Law, leaving
issue of said marriage, one or more children then living,"
&c.
Does this description include grandchildren? We think it does
not.
The word "issue" is a general term which, if not qualified or
explained, may be construed to include grandchildren as well as
children. But the legal construction of the word "children" accords
with its popular signification -- namely as designating the
immediate offspring.
See Jarman on Wills 51. It is true,
in the construction of wills, where greater latitude is allowed, in
order to effect the obvious intention of the testator,
grandchildren have been allowed to take, under a devise "to my
surviving children." But even in a will, this word will not be
construed to mean grandchildren unless a strong case of intention
or necessary implication requires it. Hence it is decided that a
power of appointment to children will not authorize an appointment
to grandchildren.
Robinson v. Hardcastle, 2 Bro.Ch. 344; 4
Kent's Com. 345. In
Reeves v. Brymer it is said by Lord
Alvanley that "children may mean grandchildren when there can be no
other construction, but not otherwise." 4 Ves. 697.
The declared object of this deed is jointure, not a settlement
for the issue of the intended marriage, for there is no provision
made for them in case the wife should survive the husband. The
contingency, also, on which this remainder depends is not the
leaving issue generally of the marriage, but the "issue" to whom
the estate is limited are described and defined to be "one or more
children living," to be equally divided between them if more than
one, and, "if only one child, to such child, his heirs," &c.
There is no provision for the issue of deceased children or for
grandchildren under any circumstances. The parties have carefully
defined what they mean by "issue," and the court, in construction
of their solemn deed, has no right to distort its plain meaning to
meet contingencies not provided for. It is an ancient and well
settled rule of construction that
"Where a deed speaks by general words and afterwards
descends
Page 58 U. S. 422
to special words, if the special words agree to the general
words, the deed shall be intended according to the special words,
for if the general words should stand without any qualification,
the special words would be altogether void and of no effect."
8 Rep. 307.
Hence, in the construction both of wills and deeds, where the
instrument has not so carefully as in the present case limited the
word "issue" to children living &c., but where the term is used
without qualification, and is in another part of the same
instrument supplied by the word "child" or "children" as a synonym,
the courts have uniformly restrained its signification to children.
Thus, in
Carter v. Bentall, 2 Beav. 557, where the devise
was a moiety to "issue" of his daughter, and if only one child then
to such one child, and the trustee was ordered to lay out the
dividends in the maintenance of such "issue," Lord Langdale, M.R.,
held that the word issue was thus explained by the testator to mean
"children."
In the case of
Loveday v. Hopkins, Ambler 273, it was
held that grandchildren were not entitled under a bequest to
"heirs," because the term appeared, by the context of the will, to
be used in the sense of "children."
In
Swift v. Swift, 8 Sim. 168, by marriage articles the
jointure property was limited, after the death of the survivor, on
the "issue" of the marriage living at the death, in equal share if
more than one, and if but one, to go to such "child." The only
child of the marriage died before the contingency, leaving a child.
It was held that "issue" was to be construed "child," and the
legacy did not vest in the grandchild.
It would lead to too great prolixity to examine particularly the
very numerous cases in which similar language has received the same
construction. A reference to a few more directly in point will
suffice.
Fitzgerald v. Field, 1 Russell 430;
Needham
v. Smith, 4
id. 318;
Ridgeway v.
Munkittrick, 1 Drury & Warren 84;
Peel v. Catlow,
9 Sim. 373;
Jennings v. Newman, 10
id. 223;
Tawney v. Ward, 1 Beav. 563;
Winn v. Fenwick, 11
id. 438;
Campbell v. Sandys, 1 Schoales &
Lefory 281.
Being of opinion, therefore, that the grandchildren took nothing
under the limitations of the deed of marriage settlement, the
decree of the court below is reversed as to the allowance of
$66,154.84 made to Edmund and Eleanor Rogers, and affirmed as to
the residue, and the record remitted, with directions to make
distribution accordingly.
Order
This cause came on to be heard on the transcript of the
record
Page 58 U. S. 423
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Washington, and was
argued by counsel. On consideration whereof, it is the opinion of
this Court that the grandchildren took nothing under the
limitations of the deed of marriage settlement; whereupon it is now
here ordered, adjudged, and decreed by this Court that so much of
the decree of the said circuit court as allows $66,154 81/100 to
Edmund and Eleanor Rogers be and the same is hereby reversed and
annulled, and that the residue of the said decree be and the same
is hereby affirmed, and that this cause be and the same is hereby
remanded to the said circuit court with directions to make
distribution accordingly, and to proceed therein in conformity to
the opinion of this Court.
And it is further ordered and decreed by this Court that the
costs in this Court be paid out of the fund by the trustee.
After Order
Messrs. Brent and May having, on a prior day of the present
term, to-wit: on Friday the 16th instant, filed a motion in the
words and figures following, to-wit:
"The above appellants come here and move the Honorable Supreme
Court so to amend their decree and the mandate to be remanded
thereon as to declare that the grandchildren of the testator,
Thomas Law, by reason of their election and renunciation as shown
in the interlocutory decree of the circuit court, see page 66 of
the record, are not entitled as legatees of said testator to
participate in the distribution of the fund in controversy. And in
making this motion, the appellants suggest that this question
arises on the record in this Court, and that it is the practice of
this Court to settle all questions apparent on the record to
prevent future appeals, and especially where, as in this case, the
effect of the election and renunciation only becomes material in
carrying out the decree of this Court, disallowing the claim which
the appellees elected to abide by, all of which is respectfully
submitted."
"ROBERT J. BRENT"
"H. MAY,
for appellants"
And the court having duly considered the same, MR. JUSTICE
M'LEAN announced the following decision thereupon, to-wit:
"The Court hold that the pleadings in the case do not embrace
the point stated in the above motion. The heirs referred to, the
children of Mrs. Rogers, having relinquished all claim under the
will, and claimed under the deed of settlement, the Court held they
were not entitled to any part of the estate under the deed of
settlement, on a construction of that instrument. Under these
circumstances, whether they can claim as distributees of the
general estate is a question not considered by the Court. The
motion is therefore overruled."
* MR. CHIEF JUSTICE TANEY having been formerly consulted as
counsel, did not sit on the trial of this cause.
