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not happen until long after the death of the first taker. They might be led to regard any such other intent, collected from the whole will, if such a case should happen, not to be consistent with the positive rule of construction given by the statute to the words heirs and issue. Yet, when we consider the endless discussions, and painful learning, and still more painful collisions of opinion, which have accompanied the history of this vexatious subject, it is impossible not to feel some relief, and to look even with some complacency, at the final settlement, in any way, of the litigious question, by legislative enactment.a

• The English statute of wills of 1 Victoria, c. 26, declares, that the words "die without issue," or "die without leaving issue," or other words which may import either a want or failure of issue, are to be construed to mean dying without issue living, at the death of the person, and not an indefinite failure of issue, unless a contrary intention shall appear by the will, without any implication arising from the words denoting a want or failure of issue, and if such intention appears, the case is exempted from the provision of the statute. The New-York Revised Statute makes no such exception. Here, also, the English law is rescued from all that body of learning and litigation which has so long been a fruitful source of discussion and acute investigation.

The great objection to legislative rules on the construction of instruments, and to all kinds of codification, when it runs into detail, is, that the rules are not malleable; they cannot be accommodated to circumstances; they are imperative. And such interference is the more questionable when a permanent, inflexible construction is attempted to be prescribed even for the words used by a testator in his will. The noted observation of Lord Hobart naturally occurs, that "the statute is like a tyrant-where he comes he makes all void; but the common law is like a nursing father, and makes only void that part where the fault is, and preserves the rest." It is not, however, to be understood that even a statute prohibition will destroy those parts of an instrument or contract, which are not within the prohibition, or dependant upon the part prohibited, provided the sound part can be separated from the unsound. 1 Ashmead, 212. Other cases on this point are collected in the American Jurist, No. 20, art. 1, and No. 45, art. 1; and in Goodman v. Newell, 13 Conn. Rep. 75. In this last case the history and character, and true principle and limitation of the maxim are well and fully explained.

mon v.

It was a point discussed by Mr. Justice Cowen, with learning and ability, in SalStuyvesant, 16 Wendell, 321, how far a will, invalid under the statute as to some of its provisions, would be sustained as to others not in conflict with the statute; and when a will would be avoided in toto, on the ground that the invalidity of portions of it, defeats the main intention of the testator. The same question was again discussed by him and the other judges of the supreme court, in Root v. Stuyvesant, 18 Wendell, 257, in a case on appeal from the court of chancery, with great force and upon sound authority. The final judgment in the case, as rendered by a majority of the senate, was against their opinions, but those opinions were exceedingly well stated. They held that powers and limitations in a will which

(3.) Of dying without issue as to chattels.

The English courts long since took a distinction between an executory devise of real and of personal estate, and held, that the words dying without issue made an estate-tail of real property, yet that, in respect to personal property, which is transient and perishable, the testator could not have intended a general failure of issue, but issue at the death of the first taker. This distinction was raised by Lord Macclesfield, in Forth v. Chapman, and supported afterwards by such names as Lord Hardwicke, Lord Mansfield and Lord Eldon. But the weight of other distinguished authorities, such as those of Lord Thurlow, Lord Loughborough and Sir William Grant,

a

is brought to bear against such distinction. There is *282 such an array of opinion on each side, that it be

passed the limits prescribed by statute, were to be considered as valid, so far as they were capable by the terms of them, of being executed within statutory limits, and that they were void so far only as they transgressed those limits. The independent provisions in a will, which were free from objections, would be sustained and not overthrown, on the ground that another independent provision was contrary to law. Thus a will not duly executed to pass real property, would, nevertheless, be good to pass personal estate. An illegal provision would not destroy a legal one, unless the latter essentially depended upon the former. The rule is to save all that agrees with the statute. If, however, said Chancellor Walworth, in another case, a deed be declared void by statute, on account of some illegal or fraudulent provision therein, all the provisions of the deed must fall together. Rogers v. De Forest, 7 Paige, 277. Finally, in the court of errors, in Hone's Executors v. Van Schaick, 20 Wendell, 564, the same salutary principle, advanced by the judges of the supreme court, in Root v. Stuyvesant, was declared, and adopted, and settled in the last resort. A bequest in a will, in itself free from objection, and having no necessary connection with a trust adjudged void, was held to be valid, and a like principle had been established in Hawley v. James, 16 Wendell, 61, and was also established in Darling v. Rogers, in the court of errors, on appeal from chancery, 22 Wendell, 483. It is now considered to be the settled rule of law in New-York, that the will of a testator is to be carried into effect, so far as that intention is consistent with the rules of law. That although some of the objects for which a trust is created, or some future interests limited upon a trust estate are illegal and void, yet if any of the purposes of the trust are valid, the legal title vests in the trustees during the continuance of such valid objects of the trust, provided the legal be not so mixed up with the illegal objects of the trust that the one cannot be sustained without giving effect to the other. Irving v. De Kay, 9 Paige

Rep. 521. 528.(1)

1 P. Wms. 663.

(1) Affirmed in the court of errors. S. C. 5 Denio's R. 646. Dupre v. Thompson, 4 Barb. S. C. Rep. 280.

comes difficult to ascertain the balance upon the mere point of authority; but the importance of uniformity in the construction of wills, relative to the disposition of real property, has, in a great degree, prevailed over the distinction; though in bequests of personal property, the rule will, more readily than in devises of land, be made to yield to other expressions, or slight circumstances in the will, indicating an intention to confine the limitation to the event of the first taker dying without issue living at his death. The courts, according to Mr. Fearne, lay hold, with avidity, of any circumstance, however slight, and create almost imperceptible shades of distinction, to support limitations over of personal estates."

• Fearne on Executory Devises, by Powell, 186. 239. 259. Doe v. Lyde, 1 Term Rep. 593. Dashiell v. Dashiell, 2 Harr. & Gill, 127. Eichelberger v. Bernetz, 17 Serg. & Rawle, 293. Doe ex dem. Cadogan v. Ewart, 7 Adolph. & Ellis, 636. The conflict of opinion, as to the solidity of the distinction in Forth v. Chapman, is very remarkable, and forms one of the most curious and embarrassing cases in the law, to those well disciplined minds that desire to ascertain and follow the authority of adjudged cases. Lord Hardwicke, (2 Atk. Rep.314.) Lord Thurlow, (1 Bro. 188. 1 Ves. jr. 286.) Lord Loughborough, (3 Ves. 99.) Lord Alvanley, (5 Ibid. 440.) Lord Kenyon, (3 Term Rep. 133. 7 lbid. 595.) Sir William Grant, (17 Ves. 479,) and the court of K. B., in 4 Maule & Selw. 62, are authorities against the distinction. Lord Hardwicke, (2 Atk. Rep. 288. 2 Ves. 180. 616.) Lord Mansfield, (Cowp. Rep. 410. Den v. Shenton, 2 Chitty's Rep. 662.) Lord Eldon, (9 Ves. 203,) and the House of Lords, in Keily v. Fowler, (6 Bro. P. C. 309,) are authorities for the distinction. As Lord Hardwicke has equally commended and equally condemned the distinction, without any kind of explanation, his authority may be considered as neutralized, in like manner as mechanical forces of equal power, operating in contrary directions, naturally reduce each other to rest. In the case of Campbell v. Harding, 2 Russell & Mylne, 390, it was held at the Rolls, and afterwards by the chancellor on appeal, that where, by will, a sum of stock and also real estate were given to C., and in case of her death without lawful issue, then over, she took an absolute interest in the stock, inasmuch as the bequest over, limited after a general failure of issue, was void. The old rule was re-asserted. The American cases, without adopting absolutely the distinction in Forth v. Chapman, are disposed to lay hold of slighter circumstances in bequests of chattels, than in devises of real estate, to tie up the generality of the expression dying without issue, and confine it to dying without issue living at the death of the party, in order to support the devise over; and this is the extent to which they have gone with the distinction. Executors of Moffat v. Strong, 10 Johns. Rep. 12. Newton v. Griffith, 1 Harr. & Gill, 111. Royall v. Eppes, 2 Munf. Rep. 479. Brummet v. Barber, 2 Hill's S. C. Rep. 544,545. Williams v. Turner, 10 Yerger, 287. Robards v. Jones, 4 Iredell N. C. Rep. 53. In Arnold v. Congreve, 1 Tamlyn, 347, it was said by the Master of the Rolls to be now perfectly well settled, that there is no difference with respect to a limitation of freehold and personalty; and the rule was

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*283

*The New-York Revised Statutesa have put an end to all semblance of any distinction in the contingent limitation of real and personal estates, by declaring that all the provisions relative to future estates should be construed to apply to limitations of chattels real, as well as to freehold estates; and that the absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance, and until the termination of not more than two lives in being at the date of the instrument containing the limitation or condition, or, if it be a will, in being at the death of the testator. In all other respects, limitations of future or contingent interests in personal property, are made subject to the rules prescribed in relation to future estates in land.

The same limitation under the English law, which would create an estate-tail if applied to real estates, would vest the whole interest absolutely in the first taker, if applied to chattels.b (1) And if the executory limitation, either of land or

also declared in Zollicoffer v. Zollicoffer, 3 Battle's N. C. Rep. 438, on the ground of the presumed intention of the testator that executory limitations of land and chattels were to be construed alike, and to go over on the same event; and in this last case in N. C., the limitation over a devise of land and chattels was held good where the gift was to the children, and in case of either dying without lawful heirs of the body, his share to go to the survivors. In Mazyck v. Vanderhost, 1 Bailey's Eq. Rep. 48, it was held, that in a devise of real and personal estate to B., and to the heirs of her body, but if she should depart this life leaving no heirs of her body, then over, the word "leaving" restrained the otherwise indefinite failure of issue to the death of the first taker, and that the limitation over was good by way of executory devise as to the personal estate, but was too remote and void as to the real estate, although both species of property were disposed of by the same words in the same clause of the will. This sanction of the case of Forth v. Chapman was in the court of appeals in South Carolina, in 1828, but the reporter, in an elaborate note annexed to the case, questions the reason, justice and applicability of the rule to the jurisprudence in this country, and ably contends that the rule of construction which imputes a difference of intention to a testator in respect to his real and personal estate, when he devises both by the same words, ought to be abandoned. See the case of Moody v. Walker, 3 Arkansas Rep. 147, to the same point, and that case contains an able and elaborate discussion of the doctrine of executory devises. • Vol. i. 724. sec. 23: vol. i. 773. sec. 1, 2. Vide supra, p. 271. Attorney-General v. Bayley, 2 Bro. 553.

Knight v. Ellis, ibid. 570. Lord

(1) A bequest of a legacy or a residue (of personal property) to J., and if he die in testator's lifetime, without children, to C., gives nothing to J.'s children by implication. Addison v. Busk, 11 Eng. L. & E. R. 304.

chattels, be too remote in its commencement, it is void, and cannot be helped by any subsequent event, or by any modi-. fication or restriction in the execution of it. The possibility, at its creation, that the event on which the executory limitation depends, may exceed, in point of time, the authorized period, is fatal to it; though there are cases in which the limitation over has been held too remote only pro tanto, or in relation to a branch of the disposition.a

*IV. Of other matters relating to executory devises. *284 When there is an executory devise of the real estate, and the freehold is not, in the mean time, disposed of, the inheritance descends to the testator's heir until the event happens. So, where there is a preceding estate limited, with an executory devise over of the real estate, the intermediate profits between the determination of the first estate and the vesting of the limitation over, will go to the heir at law, if not otherwise appropriated by the will. The same rule applies to an executory devise of the personal estate; and the intermediate profits, as well before the estate is to vest, as between the determination of the first estate and the vesting of a sub

Chatham v. Tothill, 6 Bro. P. C. 450. Britton v. Twining, 3 Merivale, 176. Paterson v. Ellis, 11 Wendell, 259. See, also, supra, vol. ii. p. 354.

• Fearne on Executory Devises, 159, 160. Phipps v. Kelynge, ibid. 84. A limitation to an unborn child for life is not good, unless the remainder vests in interest at the same time. A gift in remainder, expectant upon the death of unborn children, is too remote. 4 Russell, 311. In Hannan v. Osborn, 4 Paige, 366, there was a devise of real and personal estate to a sister and her children, with devise over, if she should die, and all her children, without leaving children. The sister had but one child at the making of the will and at the testator's death. It was beld, that the sister took an estate for life, and the child a vested remainder in fee, subject to open and let in after born children, but that the limitation over was void, as being too remote as to the after-born children. In that case the real and personal estate was held subject to the same rule, and the chancellor said that there was no difference in principle under the New-York Revised Statutes on this subject, between the devise of real and personal estates, in respect to limitations over. See, also, Gott v. Cook, 7 Paige, 521, and Hone v. Van Schaick, 7 Paige, 222, to the same point. (1)

b Pay's Case, Cro. Eliz. 878. Hayward v. Stillingfleet, 1 Atk. Rep. 422. Hopkins v. Hopkins, Cases temp. Talb. 44.

(1) Collin v. Collin, 1 Barb. Ch. R. 681.

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