Opinion · New York Court of Appeals

Chrystie v. . Phyfe

Chrystie v. . Phyfe, 19 N.Y. 344 (New York Court of Appeals 1859)

Type
Opinion
Court
New York Court of Appeals
Jurisdiction
New York
Date
1859-06-05
Topic
general

The lot of land in controversy between the parties to this action, is on the northerly side of Fulton street, in the city of New York. It was the property of the late Thomas Mackaness, at the date of his will and at the time of his death. The will was dated on the 15th of February, 1806, *Page 346 and he died shortly afterwards. The fourth, and, in this case, the only material clause of the will (although it may be proper to refer to some of its other provisions) is in the following words: "Fourth, I give and devise unto my said daughter, Margaret Thornton Mackaness, her heirs and assigns forever, my dwelling-house and lot of ground distinguished by number thirty-two, adjoining Partition street in the city of New York, with the appurtenances; but if my said daughter, Margaret Thornton Mackaness, shall die unmarried and without leaving a child her surviving, then I give, devise and bequeath the said last-mentioned dwelling-house and lot of ground, with the appurtenances, and also all such other parts of my real and personal estate as by this my will are given, devised and bequeathed to her, to my daughters Elizabeth Harvey and Mary Prowitt, their heirs and assigns forever, in equal parts to be divided. But if my said daughter Margaret Thornton Mackaness shall die, either before or after my decease, leaving lawful issue, then I do give, devise and bequeath the part and parts, share and shares of my real and personal estate, by this my will given, devised and bequeathed to her, …

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CHRYSTIEv. PHYFE,19 N.Y. 344(1859)
CHRYSTIE and wifev. PHYFEet al.
Court of Appeals of the State of New York.
June Term, 1859
Page 345
Marshall S. Bidwell,for the appellants.Alexander W. Bradford,for the respondents.
STRONG, J.
The lot of land in controversy between the parties to this action, is on the northerly side of Fulton street, in the city of New York. It was the property of the late Thomas Mackaness, at the date of his will and at the time of his death. The will was dated on the 15th of February, 1806,Page 346and he died shortly afterwards. The fourth, and, in this case, the only material clause of the will (although it may be proper to refer to some of its other provisions) is in the following words:

"Fourth, I give and devise unto my said daughter, Margaret Thornton Mackaness, her heirs and assigns forever, my dwelling-house and lot of ground distinguished by number thirty-two, adjoining Partition street in the city of New York, with the appurtenances; but if my said daughter, Margaret Thornton Mackaness, shall die unmarried and without leaving a child her surviving, then I give, devise and bequeath the said last-mentioned dwelling-house and lot of ground, with the appurtenances, and also all such other parts of my real and personal estate as by this my will are given, devised and bequeathed to her, to my daughters Elizabeth Harvey and Mary Prowitt, their heirs and assigns forever, in equal parts to be divided. But if my said daughter Margaret Thornton Mackaness shall die, either before or after my decease, leaving lawful issue, then I do give, devise and bequeath the part and parts, share and shares of my real and personal estate, by this my will given, devised and bequeathed to her, unto such child or children, if one only to him or her solely, and his or her heirs and assigns forever, if more than one, to them, their heirs and assigns forever, equally to be divided between them, share and share alike, and in case my said daughter, Margaret Thornton Mackaness, shall die without lawful issue, and if at her death either of my said daughters Elizabeth Harvey and Mary Prowitt shall then be dead, and shall have a child or children then living, I give, devise and bequeath the part or parts, share or shares of my real and personal estate by this my will devised and bequeathed to their respective mothers so being dead, to such child or children, if one only, to him or her the whole, and to his or her heirs and assigns forever; and if more than one, to them their heirs and assigns forever, in equal parts to be divided."

The testator's daughters Elizabeth Harvey and Mary Prowitt each had a husband living at the time when the will was made.Page 347To the former he devised another lot of ground and dwelling-house during the term of her natural life, and upon her death and that of her husband he devised the same to her child or children, if she should leave any; and to his daughter Mary Prowitt he devised the rents, issues and profits of another dwelling-house and lot (the title to which he vested in trustees) during her natural life, and upon her death he devised such house and lot to her child or children in fee, if she should leave any. The will is some sixty folios in length, and exhibits a strong disposition in the testator to control the destination of his property for a long period, and in minute and often unimportant particulars: and it seems that some ten months afterwards he deemed it proper to add a memorandum to his will to bestow some trifling additional legacies. Where so much is attempted, it rarely happens that there are not inconsistencies which give rise to disputes and litigation.

Upon the death of the testator, his daughter Margaret entered into possession of the dwelling-house and lot in Partition (now Fulton) street devised to her. She afterwards intermarried with Charles Ludlow, by whom she had three children. She survived her husband and two of their children, who died in early infancy: she died on the 27th of June, 1853. Her only child who survived her was her daughter, Elizabeth Ludlow, who subsequently married Thomas W. Chrystie, and they are the plaintiffs in this action. On the 17th of May, 1815, the said Charles Ludlow and his wife Margaret (then late Margaret Thornton Mackaness) executed and delivered to the late Duncan Phyfe a conveyance in fee of the said dwelling-house and lot in Fulton street, for the consideration of $9,250. He thereupon entered into the possession of such premises and continued to occupy them until this action was instituted, which was originally against him, and upon his death was continued against the defendants, who, with the exception of William Vail, are his heirs-at-law. The plaintiffs contend that Duncan Phyfe acquired by the conveyance to him only an estate for the life of Mrs. Ludlow, while the defendants insist that he obtained the fee simple absolute.Page 348The question is simply one of title under the will and deed, as clearly none has been acquired by adverse possession.

In the construction and application of wills, and especially of those containing complicated provisions, the following are reasonable and well-settled rules:

The intentions of the testator shall prevail if they are consistent with each other and conformable to the principles of law:

The language used shall receive its ordinary interpretation, except where some other is necessarily or clearly indicated:

Where words are equivocal that explanation shall be given which will preserve consistency, in preference to one which would create inconsistency:

If possible, some effect shall be given to each distinct provision rather than that it should be annihilated:

Where at first a special, and subsequently a general term is used, plainly having reference to the same matter, the latter should be limited to the former, and

Where, after the application of liberal principles of interpretation, there is yet a palpable contradiction between two directions as to the same matter, the latter should prevail.

Some of these rules are applicable to the case under consideration; and under them I should not think that there could be much difficulty or doubt, but for the reasoning of the learned judge who gave the prevailing opinion in the Supreme Court.

In the first and second clauses of the will the testator devises portions of his real estate to his two elder daughters, both of whom were then married and had children; to one of them directly, and to the other through trustees: both expressly during life. In the devise to his third daughter, in the first sentence of the fourth clause, he gives the dwelling-house and lot of ground in Fulton street, to her, "her heirs and assigns forever." The change of phraseology is material, and clearly indicates a different intent from what had been expressed before. The testator evidently designed to give some preference to his third daughter; probably as he might leave her in a comparatively unprotected state, and possibly from aPage 349higher regard for his youngest child, who was still an inmate of his family, than for her elder sisters who had married and had other homes. Aged men are often influenced by such, and sometimes by more unaccountable, considerations It would not contradict the intent disclosed in the primary devise, to qualify the fee so as to make it determinable upon some more probable contingency; but it would of course be repugnant to make such subsequent provisions as to prevent the fee from vesting in any case. An interpretation to the various provisions of the fourth clause, which would give to the testator's daughter, Margaret, a determinable fee, would be much more consonant with the testator's expressed intention, than one which would confer upon her only a life estate. The testator, in dictating the clause, seems to have had in view three contingencies, one of which must almost necessarily happen: that his daughter, Margaret, might never marry; or that she might marry and have no children; or that she might marry and have lawful issue. In the event of her dying unmarried, there was a clear and direct devise over to her sisters in fee. It was probably inferred that if she should die unmarried it would be at an early age, and then there would be a strong motive to devise, and thus to secure the property, to the other daughters. But it seems to me that it was not designed that they should succeed to the estate in any event if their younger sister should marry. The devise over to them is only upon an expressed double contingency, her dying unmarried and childless. It was contended on the argument that this should be construed in the alternative, as otherwise the contingency of her dying without leaving a child her surviving, would be unmeaning; as she could not, of course, leave a lawful child (and such is undoubtedly the proper construction of the term) without being married. That would make the terms simply superfluous, and would involve no contradiction. Full meaning can be given to both contingencies by transposing them, as is often done where such provisions are connected by the conjunction "and," when that is necessary to make them sensible. (1Jarm. on Wills,437,Page 3502Paige,122.) The devise over would then read, that if the daughter (Margaret) should die without leaving lawful issue, and unmarried, then the estate should go to her sisters. But, on the other hand, to construe the two conditions in the alternative, would not only render the first one nugatory, as she could not leave a lawful child without marrying, but would render it necessary to change the copulative conjunction, "and," into the disjunctive "or." Such a substitution is sometimes allowable, but is never permitted when the exchange would counteract a previously clearly expressed intention, or when it would operate as a divesture of an estate previously devised. It would undoubtedly create an additional restriction upon an estate in fee to make it determinable upon either of two contingencies instead of both, and in this instance it would be hostile to a strongly expressed intent. Neither would the fee previously devised to Margaret be determinable in the event of her marriage, unless she should leave a child surviving her; and whether that would terminate it I shall consider hereafter. The testator may have been influenced in giving the fee to the daughter in the events of her marrying and leaving no child, or if she should leave children, then an estate to her for life and the remainder in fee to such children, by his anxiety to procure for her an advantageous marriage: and certainly, to a man who might be influenced by interested motives in proposing that connection, it would seem far better that a considerable property devised to the lady should belong absolutely to her, or if she should have children, eventually to them; than that, in a contingency not very uncommon or improbable, it should go over to others. It is true that in the latter part of the same clause there is a devise over to the children of her sisters, if she should die without lawful issue, and the other daughters should then be dead; but that is qualified by limiting it to what he had previously given to the mothers, and could not so operate as to extend such estate. Although the expressions are general, yet they could not be so construed as to dispense with a condition necessary to the investiture of an eventual estate in the mothers. The childrenPage 351could only take, where their mothers might have taken if they had survived their sister; neither is it rulable to apply the terms used in making a mere substitutional disposition of an estate, so as to alter what is before clearly expressed in reference to the same matter.

If I am right in my conclusion that the testator's daughter would have had the fee if she had married, determinable only upon her leaving lawful issue, then it is not necessary that any provision in the will should be distorted so as to carry a presumptive fee, in order to prove his consistency. We are at full liberty to construe his language according to the ordinary rules. The testator, in the next sentence after that giving an eventual estate to the two eldest daughters, in the building and lot in Fulton street, provides, that if his daughter Margaret should die, either before or after his decease, leaving lawful issue, then he gives, devises and bequeaths the part and parts, share and shares of his real and personal estate, by his will given, to her, unto such child or children: if one only, to him or her solely, and his or her heirs and assigns forever; if more than one, to them, their heirs and assigns forever, equally to be divided between them, share and share alike. This, in the event which has happened, is the most important provision. If it be clearly expressed, as I think it is, it must prevail, whether it qualifies or contradicts the previous gift. (1Jarm. on Wills,411;Co. Litt.,112,b;2Atk.,372; 5Ves.,243; 6id.,100; 2Taunt.,109.) The actual intent cannot be doubted. It was that, if his daughter should leave a child or children, he, she or they should take the remainder in fee. It was contended by the counsel for the defendants, that this clause was inserted merely to prevent a lapse which might otherwise have happened if the daughter had died in the lifetime of the testator. But if so, why use the words either before or after his decease? He could not have mistaken their meaning. They are clearly and strongly expressed. Terms of art may be, and frequently are, misunderstood by those who have not made them their study. But the words "either" and "before or after," are understood by any one at allPage 352acquainted with the English language. Such words cannot be struck out without doing violence to the manifest intention of the testator. The word "before" may have been used to prevent the lapsing of the devise; but the words "either" and "after" indicate clearly an intent to make the provision general. We are not authorized to strike out or pervert the words in a will. Most assuredly not, where they, as universally understood, are in accordance with the evident plan and design of the testator. From some cause the testator, in any instance, seems to have preferred his grandchildren to his children. He was evidently determined that either of his daughters having children should not have it in her power to divert his property from them. In this particular I can discover no difference in reference to either of the daughters. It cannot be rationally inferred that the testator, in making the disposition in favor of Mrs. Ludlow's children, if she should leave any, simply intended to provide for the continuance of the absolute fee in her in that event. He, doubtless, knew that it would be unnecessary for that purpose, as the primary estate would be no further restricted than by such express provision as would impair it. Besides, he must have considered that if the absolute fee should continue in her after she had children, she could sell the entire property, and thus divert it from the children altogether. That he certainly did not design. It may seem singular that any man should prefer giving an absolute title to his property to grandchildren who can be in many cases but little, and in some are not at all, known to him, to vesting it in his children, who have been the first (in date, if not in degree) objects of his affection. Still it was evidently so with this testator, as it has been with many others. Some importance seems to have been attached by the Supreme Court to the word "assigns," used by the testator in the primary devise to his daughter Margaret, and it was considered as indicative of an intent that the absolute title should be vendible by her. No reliance was placed upon that by the counsel for the defendants on his argument in this court, and with reason, as the word is generally used where the fee isPage 353determinable, as well as where it is intended to be absolute. It was used in Medcef Eden's will, and yet it was decided that the son to whose estate it was applied, who died without issue in the lifetime of his brother, took at first a determinable fee which eventuated in a mere life estate. (16Johns.,382.) The instances of a similar application of the term are quite numerous.

It was insisted in behalf of the defendants, that even supposing that there were expressions in the will which of themselves would indicate an intent to give to the testator's daughter, Margaret, a life estate only, if she should leave children, yet the devise to her children would constitute the whole an estate tail in her, within the rule inShelly's case. The rule established in that case, and which prevailed in this State until the Revised Statutes of 1830 commenced operation, was, that where an estate of freehold was limited to a person, and in the same instrument there was a limitation, either mediate or immediate, to his heirs, or the heirs of his body, the word "heirs" was to be taken as a word of limitation; or in other words, the ancestor took the whole estate comprised in those words: if it was to the heirs of his body, an estate tail; but if to his heirs generally, a fee simple. The word "heirs" was construed as a word of limitation, and not of purchase. The reason of the rule was, that if the heir should take as a purchaser, he would defraud the lord of the fruits of his tenure, to which he would have been entitled upon a succession as heir. Upon the subsequent abolition of feudal tenures, the reason for the rule no longer existed, but the rule itself remained. As it had become a rule of property, it would have been wrong to abolish it; but the reason for it having ceased, courts have not been inclined to extend it, as in most cases it was opposed to the actual intent of the testator. Hence it has not been applied to any case, except where the words used to designate the secondary devisees, were words of limitation, such as `heirs,' or `issue of the body;' and even in cases where those words were mentioned, the rule was inapplicable if the devise was only to a designated portion of them. In the casePage 354under consideration, although the secondary devise is upon the event of the death of the daughter leaving lawful issue, yet it is to her "child or children," and to his, her, or their heirs and assigns.

The contingency is, her leaving issue; but the devise is to her child or children, and to him, her or them as the stock or stocks of their descent, and not as the stock of the mother. In such cases "child or children" are never deemed words of limitation. There is one class of cases, and one only, in which the term "children" is considered as a word of limitation; that is, where there is a present devise to one and his children, when he has no children at the time. There if the word "children" should be interpreted as words of purchase, future children could not take at all, and in order that the will of the testator may operate favorably to them and not confine the gift to the parent for life, "children" is then deemed a word of limitation. (Wild'sCase,6Rep.,17.) There are other cases, however, in which it has been held that a devise to one and her heirs, "say children," gave her a life estate only, with remainder to the children. (Crawfordv.Trotter,4Madd.,361.) Jarman, in his addition to Powell on Devises (vol. 2, 502), says that where there is a devise to A. and his wife, and after their death to their children, it is now admitted, on all hands, that it gives an estate for life to the parents, with remainder to the children for life.

If so, words of inheritance superadded to the children would not enlarge the estate of their parents. In the matter ofSanders(4Paige,293), Chancellor WALWORTH decided that the term "children," in its natural sense, is a word of purchase, and it is to be taken to have been used as such, unless there are other expressions in the will which show that the testator intended to use it as a word of limitation only. InRogersv.Rogers(3Wend.,503), the Court for the Correction of Errors decided that, when there was a devise to A.B. during his natural life, and, after his decease, to the children of his body lawfully begotten, followed by ahabendumclause, "to have and to hold unto A.B. for and during hisPage 355natural life, and after his death to the heirs of his body lawfully begotten, and their heirs and assigns forever," A.B. took only a life estate with a remainder in fee to his children. InDoev.Perryn(3D. E.,484), there was a devise to B., the wife of A., for life, remainder to the children of A. and B. and their heirs forever, and for default of such issue, over. It was held that the word "issue" was qualified by the word "children," and that the children of A. and B. took the remainder in fee. In many of these cases it is true that the first estate was given expressly for life, but in this case it was expressly limited to the same duration, if the first taker should die leaving children. I have quoted them mainly to show that "children" is not a word of limitation, and that, therefore, the rule inShelly's casecannot apply. I am satisfied that Mrs. Ludlow did not acquire an estate tail, nor was the verbal reduction of her primary estate to one for life deprived of its intended effect, by any express limitation. Neither was an estate tail created by implication. It is undoubtedly the rule that, where land is devised to one primarily, without any words of limitation, or even expressly for life, and there is subsequently a devise over of the same lands, upon the general failure of the heirs of his body or of his issue, the latter evinces an intention that it should go to him and such heirs or issue, and he takes an estate tail by implication, and under the rule inShelly's case. But that is only upon a general failure of such heirs or issue, however remote that may be. But if such failure is restricted to the death of the first taker then it does not convert the nominal life estate into an estate tail, but gives a remainder to the heirs or issue at his death by implication, and, upon their failure at the time, carries a substituted estate to the next devisee, by way of executory devise. In this case the devise over is not upon an indefinite failure of the issue of Mrs. Ludlow. But it is to her child or children, and they must, of course, be born in her lifetime. In the instance of Eden's will, to which I have alluded, the devise over was in general terms upon the failure of issue, but it was held that was saved by its being made expressly to the survivor.Page 356In this case the devises over are: first, if Mrs. Ludlow should not leave a child her surviving; second, if she should die, leaving lawful issue, then to such child or children; and the third, if she should die without lawful issue, and at her death either of the testator's other daughters should then be dead, and should have a child or children then living: all of them refer clearly to the time of her death, and the devises over are to take effect then, if ever. Besides, if these devises over merely qualify an estate in terms in fee simple, they do not have a tendency to convert that into an estate tail, which our statute abolishing estates tail would constitute a fee simple absolute. In the case ofAndersonv.Jackson(16John.,382), there had been a devise to each of the testator's two sons, his heirs and assigns forever, as and for his own proper lands and tenements, in as full, large, ample and beneficial manner to all intents and purposes as the testator could or ought to enjoy the same; and there was in a subsequent part of the will a provision that "if either of the said sons should depart this life without lawful issue his share or part should go to the survivor:" and it was decided by the Court for the Correction of Errors, that that these words did not create an estate tail, but that there was a valid executory devise to the survivor, in the event of the death of the shorter liver without issue. In that case the devise in the first instance was quite as emphatically of a fee simple absolute as in the case under consideration. In the case ofFosdickv.Cornell(1John.,440), there was a devise to the testator's son William and his heirs forever, and there was a subsequent provision to the effect that if William should happen to die without heirs male of his own body, the land should return to his surviving brothers and sisters; and it was held that the primary estate in fee was not converted into an estate tail, but that the gift over was valid as an executory devise. InJacksonv.Staats(11John.,337), the testator had devised certain lands to his sons Samuel and Joachim, and their heirs, and he subsequently directed that if any one of his eleven children should happen to die without heirs, then his or their parts or shares should be dividedPage 357among the rest of the children. The court held that the limitation over was valid as an executory devise. Judge SPENCER said "that the point whether the limitation over operates as an executory devise or to create an estate tail admits of very little difficulty. I believe none of us have ever doubted the correctness of the decision inFosdickv.Cornell,and it would be a waste of time to review the authorities there cited."

Upon the whole, I am satisfied that the primary devise to the testator's daughter Margaret was reduced by the restrictions subsequently imposed upon it, and the events which subsequently happened, either to a determinable fee or a life estate, and that in either case the devise over to her child upon her death carried upon that event an estate in fee to her daughter Mrs. Chrystie.

The judgment at the general term must be reversed, and that rendered at the special term must be affirmed.

JOHNSON, Ch. J., and SELDEN, ALLEN, GRAY and GROVER, Js., concurred in this result.
COMSTOCK, J. (Dissenting.)
I consider the decision of this case made by a majority of my associates plainly erroneous; and, as briefly as I am able, I will proceed to state the grounds on which my dissent is placed. On the part of the plaintiffs it is claimed that by a provision in the fourth clause or section of the will of Thomas Mackaness, the premises in question, in case his daughter Margaret should die leaving children, were devised directly to such children; in other words, that her children were to take as purchasers, and not by descent from their mother. One of the plaintiffs is the daughter and only child of Margaret, and they claim solely under this alleged devise. In order to maintain their title, they must show either, (1) That the devise of the same premises to the testator's daughter Margaret was of a mere life estate; or (2) If that devise was in fee, then that it was a fee of such a peculiar character that it was not descendible to her children, if she should leave any; in other words, that the same fourth clausePage 358of the will gave one fee to Margaret, and then another by way of executory limitation to her children. Unless Margaret took, in the primary devise to her, simply a life estate, then the estate of inheritance given to her must in some way be reconciled with the estate of inheritance supposed to be given to her children. Looking only at the particular provision in which those children are mentioned, it requires but the slightest possible mental effort to say that the testator intended to give the estate to them on the death of their mother. But this conclusion is manifestly of no value until we first examine and determine what estate or interest was devised to Margaret herself. That point being settled, if there is then room to let in the supposed fee of her children, the plaintiffs' title can stand; otherwise it cannot.

The very learned and discriminating counsel for the plaintiffs has himself altogether rejected the theory that in the primary devise to Margaret, her heirs and assigns, a mere life estate was given to her. I agree with him in that respect. But some of my associates, who vote to reverse the judgment, if I understand them, think differently. That question will, therefore, be first examined; assuming for this purpose that the alternative is between a life estate in Margaret on the one hand, and a fee determinable only on the event of her leaving no children on the other.

By the clause under consideration, the testator, in the first place, devised the premises in question to his daughter Margaret, "her heirs and assigns forever," with a limitation over, in the event of her dying unmarried and without issue, to her sisters or their children. If the devise had stopped here there would not have been room for the slightest hesitation in saying that Margaret took a fee, and not a life estate merely. The devise to her and her heirs, with the limitation over, would together constitute a fee determinable on the event specified. It was once a question whether a devise of this nature did not create, or was not an attempt to create, an estate tail. But that point has long been settled (Fosdickv.Cornell,1John.,440;Jacksonv.Anderson,16id.,382.) The material thingPage 359to be observed is, that no jurist or lawyer ever supposed that such a limitation over, engrafted upon such a primary devise, had the effect of reducing that devise to a life estate. True, the estate might last only for a single life, but it might last forever, and would last forever, unless the specified event occurred, to wit, the failure of issue at the death of the first taker. Such an estate is a determinable fee, which becomes a fee simple absolute as soon as the condition is discharged. It is also an estate which can be sold, and the purchaser takes it with the determinable quality. But when that quality becomes extinct — in other words, when it becomes no longer possible for the devise over to take effect — the estate is unfettered and the purchaser holds it absolutely. These views are elementary, and I think they present precisely the condition of the title in the present case. Margaret and her husband conveyed her estate, and the defendants hold under that title. If the condition on which the premises were given over was gone when she died, leaving issue, their estate is now an absolute fee.

But the testator, after thus devising, in plain terms, the fee to Margaret and then to her sisters contingently on her failing to leave children, proceeded to make a provision concerning such children, if she should leave any. That provision has some peculiarity of phrase which has occasioned whatever there may be of doubt in the case. He declared that, if his daughter Margaret should die "eitherbefore or afterhis decease leaving lawful issue," then, not merely the particular estate mentioned in the fourth clause now in question, but the part and parts, share and shares, of real and personal estate," given to her by the whole will, should go to such child or children, their heirs, c., if one only to him or her solely, if more than one, then "equally to be divided between them, share and share alike." This provision, however obscure in other respects, has one clear and intelligible purpose, about which there can be no difference of opinion. As the law was at the time the will was made, if Margaret had died before the testator, the devise of the fee to her would have lapsed entirely,Page 360so that her children could not take in succession to her. The premises in question, in that event, and all other interests devised or bequeathed to her, would have been undisposed of by the will. Against that event the testator very distinctly provided, by declaring that the children should take everything which the will gave to her; and, of course, in such an event, they would take by purchase as substituted devisees or legatees. And I am of opinion, notwithstanding the redundancy of expression, that this was the testator's whole intention in making that provision. He had already, in the plainest possible language, given to his daughter the fee, and, if she survived the testator, her children would take the estate under the canons of descent, "equally, share and share alike." But he further intended that the devise should not lapse by her death before his own, in other words, that the children should have the estate notwithstanding such an event. In expressing this idea, and no more, he might have said, not inappropriately, "I intend and declare that the estate herein given to my daughter Margaret shall go to her children, if she diesas well before as aftermy decease." Such language would scarcely have been ambiguous, connecting it with the previous devise to her and her heirs. It could hardly be claimed that such words would change the character of a plain devise in fee, which had preceded them. But the language used does not materially differ. We may read the testator's mind thus: "I have already given this estate in fee to my daughter, provided she has children, and such children, of course, will inherit it. But she may die before this will can take effect, and, therefore (to prevent a lapse), whether she dies before or after my decease I still intend they shall have it." I am entirely convinced that the testator intended no more than this. If, however, he had a further design, I think it was merely to qualify the general words of inheritance contained in the primary devise, so as to make the estate descendible only to the issue of his daughter. This would not change the result, because it would be an attempt to create an estate tail which the statute converts into a fee simple.Page 361

A construction which concedes a fee to the children of Margaret as purchasers, and to her only a life estate, of course requires us to strike out the clear and precise words of inheritance contained in the devise to her. Can this be done? A glance at the other dispositions of his estate made by the testator, will show that it cannot. He had two other daughters who were married. In the first clause of the will he gave to one of them a dwelling-house and lot "during her natural life," on her decease to her children, who might then be living, and their "heirs and assigns forever." If there should be no such children, then he gave the same house and lot to the husband "during his natural life," and on his decease then over to the testator's other two daughters (Margaret being one), their "heirs and assigns forever;" and there was a further limitation to their children in fee, in case they, or either of them, should be dead at the time when the preceding limitation should take effect. In the second clause other real estate was devised to trustees for the benefit of his other married daughter "during her natural life," and on her decease the same estate was given to the use of her children, and to the "heirs of their bodies forever." This was plainly an attempt to create an estate tail. The second clause also contained contingent limitations in fee, in favor of the testator's other two daughters and their children. In the third clause certain other real and personal estate was given to the testator's wife and to his unmarried daughter Margaret "during their joint natural lives," and the natural life of the survivor; and in case the daughter survived the wife, then the same real and personal estate was given to Margaret, "her heirs and assigns forever." In the fifth clause he gave all his real estate in Nova Scotia to his three daughters, their "heirs and assigns forever." The sixth and seventh clauses contained some bequests of personal estate which need not be specified. In the eighth and last clause the testator, amongst other things, disposed of all the residue of his estate, giving to his wife, to Margaret, and to one of the married daughters, each a fourth part, declaring, in each instance, the devise and bequest toPage 362their "heirs, executors, administrators and assigns forever." The other fourth he placed in trust for the other married daughter "during her natural life," and after her decease then for her children, "their heirs, c., forever."

Now, the other parts of the will which have just been referred to, support, very decisively, the construction which the precise and technical words of inheritance contained in the fourth clause are, in themselves, entitled to receive. It cannot fail to be observed that the testator, throughout his will, expressed himself in very plain and unambiguous language, in regard to the different estates and interests which he intended to create. When he designed to give a life estate he said so in the most exact language, and when an estate of inheritance he employed the very words adapted to that purpose. It is true, that in all parts of the will there is great redundancy of expression tending to obscure the general sense, but the quantity of estate intended to be given to each devisee is, nevertheless, defined in terms, the meaning of which is free from all doubt. When we find then, that in the particular devise now in question, the testator used the language upon which the law, according to universal understanding, raises a fee, and moreover the very language employed for that purpose in nearly every other clause in the will, it would seem impossible to conclude that any other estate was intended.

And there is still another argument entitled to great weight, to be derived from a general survey of the will. In nearly every clause an estate of inheritance in the various parcels of the testator's lands, and in some of them absolute interests in his personal property, are given directly or contingently to his daughter Margaret, and in no instance a mere life estate. Now, referring once more to the provision in the fourth clause, concerning her children, we find that it includes not only the house and lot, which is the subject of the general controversy, but whatever estate or interest is given to her by the will at large in any portion of the testator's property. If, therefore, that provision is allowed to reduce the fee in this house and lot, so plainly devised to her, to a mere life estate, it must havePage 363the same effect upon all other parts of the will containing limitations in her favor; and the consequence will be that none of those limitations gave her more than a life estate. This conclusion we know to be false, and in rejecting it we must also reject a construction which seems inevitably to lead to it.

The difficulties above stated, in the way of considering the devise to Margaret as one of a mere life estate, are so great that the counsel for the plaintiffs, in the argument before us, wisely rejected that construction. He conceded that a fee was given to her, and yet claimed that her children, if she should have any, took the same fee, not by descent from her, but by a direct devise to them to take effect as soon as she died. This, too, is the view taken in the opinion of my brother STRONG, so far as I am able to comprehend him. It remains to be seen how a result so curious and remarkable is attained. The process is as follows: The devise over to the sisters of Margaret and their children was contingent on her dying "unmarried and without leaving a child." The argument for the plaintiffs is, that the word "and," as here used, creates a double condition, so that it must be performed in both its branches before the devise over could take effect. In other words, Margaret must die both unmarried and without a child or else the sisters and their children were not to have the estate. According to this construction Margaret took a fee under the devise to her determinable in one aspect, on not marrying, and in another on having children if she married. Thus, the limitation in favor of the sisters would at her death determine her fee if she never married, and the one in favor of her own children would determine it provided she married and left children. Between these two contingencies another was possible, to wit, marrying and having no children, and in this way only was it possible that the so-called fee given to her might not terminate with her life. It is conceded that she took a fee, and this is the construction on which that concession depends. Reading the will in this way, the fee would be displaced at her death in either of two events: 1st, if she neverPage 364married; 2d, if she married and left a child, an event which actually occurred. But if she married and died without issue, then her fee would become absolute.

This construction, I suppose, is worthy of a serious consideration, or it would not have engaged the favorable attention of some of the judges of this court. But for that difference in opinion I should have thought it a proposition too plain to require an argument, that the testator designed to give the estate to the sisters of Margaret or their children, on the single contingency of her dying without leaving lawful issue. I ought, perhaps, to concede that his intention would have been more grammatically expressed, if the word "or" instead of "and" had been used in expressing the condition on which the devise over was to take effect. But every lawyer knows that in wills and other instruments one of these connectives is often used where the other would express the intention with more exactness and precision. (Fairfieldv.Morgan,5Bos. Pull.,38;Jacksonv.Blanshan,6John.,54;Sayward,v.Sayward,7Greenl.,210.) The courts have uniformly adhered to the intention, even at a slight sacrifice of the grammar. In the limitation before us, the intention of the testator does not admit of a doubt. If his daughter Margaret never married she could not have lawful issue. She might marry and still have none, and that was the precise event on which the estate was to go over to other objects of the testator's bounty.

If we adopt the construction contended for on the part of the plaintiffs, these are the results: If Margaret had no children in consequence of never marrying, the sisters or their children were to take the estate on her decease. But if she had none in consequence of sterility, they were not to have the estate. So if she married and lived in a state of vestal seclusion from her husband, that would be a performance of the condition so as to defeat the limitation over. If, on the other hand, she fulfilled the primary design of that institution, and became the mother of children, the penalty would be the loss of the fee, under the limitation over in favor of those children. No example of such a will is found in the books,Page 365and I venture to say that such a will was never made. It is very common in testamentary dispositions to devise a fee to a son or daughter, and on failure to leave issue, then over to surviving sons and daughters, or other relatives having claims on the testator's regard. But I repeat, there is no instance of a will where the limitation over was made to depend on a double condition, so that marriage, without issue, would defeat it. The uniform and natural intention in all such cases is, to give the estate to others on the failure of issue or descendants to take the inheritance of the primary devisee. To construe this devise differently is to impute to the testator a singularity of motive, rarely if ever found to exist.

Then as to the limitation in favor of the children of Margaret, if she should leave any, I have already, in refuting the construction which gives to Margaret a mere life estate, explained the object of that provision. Let us now look at it again in view of the fee which is conceded to her under the primary devise. What kind of a fee is this, if the plaintiffs are right in saying that the children were, in any event, to take the same fee as purchasers, and not by descent from their mother? Such a fee was never heard of before. It is very common to give a life estate to a son or daughter, with remainder in fee to issue. But a devise of a fee to the first taker, with an executory limitation in fee to his or her issue I have never seen. The fee is often given over to others by way of executory limitation, on failure to leave issue, but such a limitation over to the issue, after a fee to the ancestor, would be a disposition of property somewhat grotesque and remarkable. So there are instances, almost innumerable, of fees at the common law, and of attempts to create fees, since our statute abolishing entails, descendible only in a direct line to issue or descendants. These are known as estates tail. But a fee transmissible to remote or collateral kindred, yet incapable of descent to issue, is an estate hitherto without a name. I do not deny that such an estate can be created. But it needs at least one example of the kind in all the books in order to render plausible a construction which imputes to the testator a designPage 366of giving such an estate to his daughter in the will now before us.

There is another view which is decisive against this construction. The concession of an estate given to Margaret, which could endure beyond her lifetime, is entirely upon the idea that the limitation to her sisters would be defeated if she married although she left no issue. Every other possible event, as we have seen, would terminate her interest when she died, and so reduce it to a mere life estate. If she did not marry, the estate on her death was to go to her sisters. If she married and had children it was to go to them (so the plaintiffs insist) not by descent but by the direct gift of the testator. These limitations must take effect, if ever, at the time of her death, and would, of course, reduce her estate to one for life, but for a third possibility, to wit, dying without issue after being married. Now if the testator, in that event, meant that the estate should not go to the sisters, we cannot be mistaken in supposing that he meant the same thing in respect to the sisters' children. These children were to stand in place of their mothers, if the latter should happen to die before the decease of Margaret; in other words, before the limitation over could take effect. Let us mark, then, the language of this substituted devise. It is if in case Margaret should die "without lawfulissue," the sisters should be dead leaving children, then their (the sisters') shares were to go to such children. Here is no double condition. The sisters' children were, in the event of their mothers' death, to take the estate on the single contingency of Margaret's "dying without lawful issue," whether she married or not. No one, I am sure, will contend that the contingency is single as to the children and double as to their mothers. The former were simply to take the place of the latter; and inasmuch as the precise language of the provision renders it certain that the former were to take on the single event of a dying without issue, so we may be certain of the same intention in regard to the latter. I do not see how this can be made plainer.

What then is the result? If, as the plaintiffs insist, thePage 367children of Margaret were to take as purchasers on her death, inevitably her estate was one for life only. She would either leave issue or she would not. If she did, such issue were to have the estate by the testator's own gift, and not by descent from their mother. If she did not, then the sisters or their children were to have it. One of these limitations would terminate the estate given to Margaret the moment she died, and such an estate is a life estate. This, I suppose, will not be doubted. But it is conceded that she took a fee, and not a life estate. The reasons for this concession I have heretofore stated. The irresistible consequence is that her fee was not determinable according to the plaintiffs' construction on her dying leaving issue, but on the opposite event, single in its nature, of dying without issue, whether she did or did not marry. This is the defendants' construction and it is mine, and this leaves the children of Margaret to take only under the canons of descent in case the devise did not lapse by the death of their mother before that of the testator. I adopt this construction because it is an easy and natural one, and because difficulties absolutely insurmountable are in the way of any other. I will only add that I am as confident that such was the intent of the testator as I am of the fact that he made the will.

I think the judgment should be affirmed.
DENIO, J.
I wish to add a few words in confirmation of the construction which Judge COMSTOCK has given to the clause limiting the estate to the testator's other daughters, in case his daughter Margaret should die "unmarried and without leaving a child, her surviving." According to the argument of the plaintiffs' counsel both circumstances were essential to enable the executory limitation in favor of the other daughters to take effect, namely, that Margaret should die either without ever having been married, or without leaving a husband, as well as without leaving a child surviving her; so that if she were married, though she died childless, her sisters, or their issue, would not take as devisees, but the estate would descend, ifPage 368she died without a will, as in the case of the intestacy of a person seised in fee simple. If this is the true construction of the clause, it may well be that the sentence immediately succeeding the one mentioned, in which her children are referred to, should be construed as an alternate executory limitation in their favor. By the will, as thus interpreted, the fee simple, carefully limited to Margaret in the first instance, was certainly to be defeated by force of the subsequent limitations, if she left children, and was also to be defeated in favor of her sisters, if she did not leave children, except in the event of a marriage which had not been followed by issue which survived her; so that the only contingency which would preserve the inheritable estate would be an unfruitful marriage. In every other event it was to be defeated. I do not wish to add any thing to show the improbability of such an intention, or its incongruity with other independent provisions of the will; but I think a critical examination of the fourth article alone will show that the death of Margaret without surviving issue, simply, and without any other circumstance was the event which was to enable the other daughters of the testator to take. The intention of the testator was, that the issue of the other daughters should stand in the place of their mothers in case the latter should die leaving issue, before the limitation should take effect by the death of Margaret. It was plainly the intention that the issue of the other daughters should take upon the same precise event upon which their mothers would have taken if they had been living, and upon no other contingency. The single object of the clause upon that subject was, to enable the issue to represent their mothers. But, in making the provision, it became necessary again to define the event upon which the fee simple given to Margaret was to be superseded by this executory limitation, and it was stated to be "in case my said daughter Margaretshall die without lawfulissue;" and if, at her death, the other daughters should then be dead, c. In order to hold that any other circumstance than simply the death of Margaret without issue was necessary to give the estate to the other daughters, we must impute toPage 369the testator an intention to give it to the issue of these daughters in an event in which he would have withheld it from their mothers. This would be hostile to the language as well as to the apparent scope of the provision substituting the daughters for their mothers, for it is the parts and shares bequeathed to their respective mothers which the issue are to have, if they happen to be the parties representing these branches of the family at the death of Margaret.

If the question were to be determined upon the primary language alone, I should, I think, concur in the conclusion arrived at by Judge COMSTOCK. The sentence seems to me to be elliptical. What the writer meant to say, I presume, was: "If my said daughter Margaret shall die unmarried and" also if she shall die "without leaving a child her surviving, then," c. But however this may be, and admitting that the language here is equivocal, yet, when the testator came again to speak of the contingency upon which the property was to go to the other branches of his family, he leaves no doubt but that the event was the death of his daughter Margaret without issue surviving her, without any reference to the question whether she had ever been married. I am in favor of affirmance.

Judgment reversed.