The following clause in a will, namely:
"I give to my two sons,
viz., John and Jacob, all my
lands &c., livestock &c., tools &c., bonds &c., to
be equally divided between them, and the executor is ordered to pay
debts out of that part of the estate."
"Item. It is my will that if either of my said sons, John and
Jacob, should happen to die without any lawful heirs of their own,
then the share of him who may first decease shall accrue to the
other survivor and his heirs,"
gave an estate in fee simple to John and Jacob, and the share of
the one who first died without issue passed over to the other son
by way of executory devise.
Page 59 U. S. 203
The part of the will which gave rise to the question is stated
in the opinion of the Court.
It was admitted by the parties that said testator died in the
year 1775; that his will was duly proved August 5, 1776; that his
two sons, John Kittredge and Jacob Kittredge, survived him; that
said John Kittredge died in the year 1826, never having been
married; that said Jacob Kittredge died in the lifetime of his
brother John, on July 15, 1807, leaving the following children,
namely: John Kittredge, his oldest child, who died, without ever
having had issue, on the 10th of January, 1823; Jacob Kittredge,
his next oldest child, who died December 18, 1831, having had issue
one child, who is the demandant, Hannah Kittredge Abbott; Thomas W.
Kittredge, his next child, who is now alive; Hannah Kittredge, his
next child, who died intestate on the 28th of October, 1815, never
having had issue; George W. Kittredge, his next child, who died
July 4, 1836, intestate, having had issue one child, Jacob
Kittredge, who is now alive; and William H. Kittredge, his last
child, who died intestate on the 1st of October, 1849, never having
had issue. The marriage of the demandants was also admitted, and
that the surviving son of Jacob Kittredge, the devisee named in
said will, and also his surviving grandchild, had, before the
commencement of the suit, released and conveyed to demandants all
their interest and title in the demanded premises.
The demandants thereupon submitted, and requested the judge to
instruct the jury, that by the said will of John Kittredge, his two
sons John and Jacob, therein named, took and became seised as to
the real estate therein devised to them in equal moieties of an
estate tail general, with cross-remainder in fee simple, it being
material and necessary, to enable the demandants to maintain the
issue on their part, to prove that estates tail as aforesaid were
so devised by the said will. But the judge refused so to instruct
the jury, but did instruct them that under said will, the
testator's said sons, John Kittredge and Jacob Kittredge, took and
became seised of an estate in fee simple, and that the share of the
one of the said sons who should first die without issue in the
lifetime of the other of said sons would in that event go over to
said other son by way of executory devise.
A writ of error brought up this ruling for review.
Page 59 U. S. 211
MR. JUSTICE GRIER delivered the opinion of the Court.
The questions submitted to our consideration in this case arise
on the construction of the will of John Kittredge, deceased, and on
the following devise to his sons:
"
Item. I give to my two sons, namely, John and Jacob
Kittredge, all my lands and buildings in Andover aforesaid
excepting the land I gave to my son Thomas aforesaid, which
buildings consist of dwelling houses, barns, corn house, grist
mill, and cider mill, all of every denomination; also, all my
livestock of cattle, horses, sheep and swine, and all my husbandry
utensils of every denomination, and all my tools that may be useful
for tending the mills aforesaid; and also all my bonds and notes of
hand and book accounts, together with what money I may leave at my
decease; and my wearing apparel, I
Page 59 U. S. 212
give the same to my said sons, John and Jacob Kittredge, to be
equally divided between them; and in consideration of what I have
given my said sons, John and Jacob Kittredge, the executor of this
testament, hereinafter named, is hereby ordered to see that all my
just debts and funeral charges, together with all the legacies in
this will mentioned, be paid out of that part of my estate I have
given to my two sons, John and Jacob Kittredge, to whom I give each
one bed and bedding."
"
Item. It is my will that if either of my said son --
namely John and Jacob Kittredge -- should happen to die without any
lawful heirs of their own, then the share of him who may first
decease shall accrue to the other survivor and his heirs."
On the trial, the demandants requested the court to instruct the
jury "that John and Jacob took the real estate therein devised in
equal moieties of an estate tail general, with cross-remainders in
fee simple." But the court instructed the jury
"That the testator's said sons, John and Jacob, took an estate
in fee simple, and that the share of the one of the sons, who
should first die without issue, in the lifetime of the other,
should, in that event, go over to the other son, by way of
executory devise."
To this instruction the plaintiffs excepted, and now
contend:
1. That the testator, by the first clause of his will, gave to
John and Jacob an estate for life only.
2. That the next clause of the will enlarges the estate for life
to an estate-tail in each of the two sons, and, by the use of such
language, the testator intended an indefinite failure of issue.
The defendants, on the contrary, maintain that, independent of
the last clause, by which the estate is given over, the sons took a
fee simple. And, secondly that the clear intention of the testator
is that both real and personal estate should pass on a definite
contingency -- namely the decease of one brother without issue in
the lifetime of the other.
There is perhaps no point of testamentary construction which has
undergone such frequent discussion and is so fruitful in cases not
easily reconciled as that now brought under our consideration. This
has arisen in a great measure from the discrepancy between the
popular acceptation of the phrases "if he die without issue," "in
default of issue," and similar expressions, from the established
legal acceptation of them in courts of justice. It is often
necessary to construe these expressions as conveying an estate tail
by implication in order to carry out the evident general intent of
the testator. Such is or ought to be the object of all rules of
interpretation, but court rules, however convenient in the
disposition of cases where the intention is doubtful, cannot claim
to be absolute or of universal application.
Page 59 U. S. 213
Hence it has been said
"that courts have been astute to defeat the application of this
rule of construction, harsh in itself and often producing results
contrary to the testator's intention."
If wills were always drawn by counsel learned in the law, it
would be highly proper that courts should rigidly adhere to
precedents, because every such instrument might justly be presumed
to have been drawn with reference to them. But in a country where,
from necessity or choice, every man acts as his own scrivener, his
will is subject to be perverted by the application of rules of
construction of which he was wholly ignorant.
The rule laid down in
Purefoy v. Rogers, 2 Saund.
388,
"that where a contingency is limited to depend on an estate of
freehold which is capable of supporting a remainder, it shall never
be construed to be an executory devise,"
has been received and adopted in Massachusetts.
In England and in some of the states here it has been abolished
by legislative interposition as harsh and injurious. This rule,
however, has never been construed, either in England or this
country, to include cases where the title of the first taker is a
fee simple, and the contingency is definite.
In the case of
Pells v. Brown, Cro.Jac. 590, where
there was a devise "to A in fee, and, if he die without issue
living, then C shall have the land," it was held to be an executory
devise to C on the contingency of A's dying in the lifetime of C
without issue. There is no necessary conflict between this case and
that of
Purefoy v. Rogers. It is true also that this rule
has been applied where the first taker had an estate in fee, and it
is conceded
"that unless there are expressions or circumstances from which
it can be collected that these words 'without issue' are used in a
more confined sense, they are to have their legal sense of an
indefinite failure of issue;"
but whenever such "expressions or circumstances" show the
intention of the testator that the estate is to go over only on a
definite contingency, courts will give effect to such intention.
Notwithstanding the expressions in
Plunket v. Holmes, Sid.
47, derogatory of the case of
Pells v. Brown, it has
always been considered "a leading case, and the foundation of this
branch of the law."
See Williams' Saunders 388, b, in
note.
In
Porter v. Bradley, 3 T.R. 143, where lands were
devised to A and his heirs, and if he die leaving no issue behind
him, then over, it was decided that the limitation over was good by
way of executory devise, and Lord Kenyon acknowledges the case of
Pells v. Brown to be "the foundation and
magna
charta of this branch of the law" deciding that the words
"leaving no issue behind him" showed clearly that the testator did
not contemplate an indefinite failure of issue.
Page 59 U. S. 214
In the case of
Roe v. Jeffery, 7 T.R. 589, where the
devise was
"to A and his heirs, and in case he should depart this life and
leave no issue, then to B, C, and D, and the survivor or survivors
of them, share and share alike,"
it was held that the devise to B, C, and D was a good executory
devise. In delivering the opinion of the court in that case, Lord
Kenyon observes:
"This is a question of construction, depending on the intention
of the party, and nothing can be clearer than if an estate be given
to A in fee, and by way of an executory devise an estate be given
over which may take place within a life or lives in being &c.,
the latter is good by way of executory devise. The question,
therefore, in this and similar cases is whether, from the whole
context of the will we can collect when an estate is given to A and
his heirs forever, but if he die without issue, then over, the
testator meant without issue living at the death of the first
taker. The rule was settled as long ago as in the reign of James I
in the case of
Pells v. Brown. That case has never been
questioned or shaken, and is considered as a cardinal point on this
head of the law."
Without referring to any more of the numerous English and
American cases brought to our notice by the learned counsel of like
tenor, it will be sufficient to notice the case of
Richardson
v. Noyes, 2 Mass. 56. There the devise was
"to my three sons, A, B, and C, all my other lands &c.; also
my will is that if either of them should die without children, the
survivor or survivors of them to hold the interest or share of each
or any of them so dying without children as aforesaid,"
and it was held to pass an estate in fee simple, determinable on
the contingency of either of them dying without issue, and vesting
by way of executory devise.
See also the case of
Ray
v. Enslen, 2 Mass. 554. These cases fully adopt the principles
of the English cases we have just referred to. The case of
Parker v. Parker, 5 Metc. 134, has been quoted as
containing a contrary doctrine, but it does not appear that the
question of definite or indefinite failure of issue was made by the
counsel or adverted to by the court in the decision.
Our inquiry must be, therefore, from an examination of the whole
context of this will:
1. Whether, independent of the second clause, by which the
estate is limited over, the sons took an estate in fee simple, or
only a life estate, and
2. Whether he intended to give over the share of each son to the
other on the contingency of his death without issue living at the
time of his decease, or upon an indefinite failure of issue.
1. There are no words of inheritance in this first clause of the
devise to John and Jacob, but such words are not absolutely
Page 59 U. S. 215
necessary in a will to the gift of a fee. The subject of this
devise is described as "that part of my estate." The word(s)
"estate" or "that part of my estate" has always been construed to
describe not only the land devised, but the whole interest of the
testator in the subject of the devise; thus, a devise of "my
estate, consisting of thirty acres of land, situate &c.," will
carry a fee. Moreover, the legacy given for the maintenance of
Sarah Devinny, "to be paid out of that part of my estate given to
John and Jacob," would be defeated by their death before she
arrived at the age of eighteen if the devise to them was a life
estate only. The intention of a testator must be drawn from the
whole context of his will. And it is not necessary to look alone at
the words of the gift itself to ascertain the intention of the
testator as to the quantum of the estate devised if it can be
gathered from expressions used in any part of it what he supposed
or intended to be the nature and extent of it. It will not admit of
a doubt also that the testator intended that both of his sons
should have the same estate in the devised premises, which were "to
be equally divided between them." John is charged personally, in
respect of the estate given him, with the payment of all the debts
and legacies. The testator calls it the "consideration" to be paid
for that part of his estate given to his two sons, and though John
was appointed executor, whose duty it became, as such, to see to
the payment of the debts and legacies, the charges are to be paid
by him at all events out of the estate devised to him and Jacob,
and not out of the rents and profits only. By their acceptance of
the devise, they became personally liable. In such cases it is well
settled that the devisee takes a fee without words of
inheritance.
On this point, therefore, we are of opinion that John and Jacob
each took a fee in their respective "share" or moiety of the estate
devised to them.
2. It remains to consider the effect of the second clause of the
will, which is in these words:
"It is my will that if either of my said sons -- namely John or
Jacob -- should happen to die without any lawful heirs of their
own, then the share of him who may first decease shall accrue to
the other survivor and his heirs."
Viewing this clause free from the confusion of mind produced by
the numerous conflicting decisions of courts and untrammeled by
artificial rules of construction, we think that no two minds could
differ as to the clear intention of the testator. By "lawful heirs
of their own" he evidently meant lineal descendants or "issue."
The contingency contemplated is as definite as language can make
it "if either son should happen to die without heirs of their own
during the life of the other."
Page 59 U. S. 216
The person to take on the happening of this contingency is
precisely described "the other survivor." It is true that cases may
be found which decide that the term "survivor" does not of itself
necessarily import a definite failure of issue, and no doubt there
are many cases where it would be necessary to disregard the obvious
import of this term in order to carry out the general intent of a
testator, otherwise apparent; but a large number of English and
nearly all the American cases acknowledge the force of this term as
evidence of the testator's intending a definite contingency. The
other words of this clause, connected with it, clearly describe a
definite contingency, and the individual who is to take on its
happening: "the share of him who shall first decease without heirs
shall accrue to the other survivor;" on the death of one, the other
is to take -- a definite contingency and a definite individual.
Again, it is the "share," or the estate previously given, not of
him who dies without issue, generally, but of him who may first
decease, that is given over to the other survivor. This "share"
also consisted of personal and real property. As to the former, the
testator could certainly not mean an indefinite failure of issue,
yet both, personalty and realty, are within the same category, and,
as one "share," they are subject to the same contingency. It is
said to be a rule of construction that the words "dying without
issue" will be construed to mean "an indefinite failure of issue"
as to real estate, but with regard to personalty, it shall be taken
to mean "a failure at the death." There are several cases to this
effect. Lord Kenyon, in speaking of them in
Roe v.
Jeffery, very justly remarks that
"The distinction taken in
Forth v. Chapman, 1 P.Wms.
663, that the very same words in a will should receive one
construction when applied to one portion of the devise and another
construction as applied to another, is not reconcilable with
reason."
Without making an array of cases, we may state that many of the
English and nearly all the American cases seem to concur in the
truth and force of this observation, and consider a "share" of an
estate, consisting of both realty and personalty given over on a
contingency to the "survivor" as clear evidence that the testator
did not intend an indefinite failure of issue. A rule of
construction which would give different meanings to the same words
in the same sentence could only be tolerated where, from the whole
context of the will, it is evident that without such construction
the general intent of the testator as to the disposition of his
realty would be frustrated.
Lastly, construing this clause as providing for an indefinite
failure of issue and as vesting each of the sons with an estate
tail by implication, the survivor would take an estate in fee
simple
Page 59 U. S. 217
in his brother's share, while he had an estate in tail in his
own -- a result most improbable, which could hardly have been
contemplated by the testator and which ought not to be imputed to
him without clear expressions indicating such an intention.
On the whole, we are of opinion that the instructions given to
the jury by the court below are correct, and that the judgment
should be
Affirmed.