Wright v. Denn Page

ERROR to the Circuit Court of New-Jersey. This was an action of ejectment brought in the Court below. The sole question arising upon the state of facts in the cause, was upon the construction of the will of James Page, made on the 15th of February, 1774. By that will, after the usual introductory clause, the testator proceeds as follows: 'Item, I give and bequeath unto my beloved sister, Rebecca, 100 pounds, proclamation money, to be paid in four years after my decease.

'Item, I give and bequeath unto my beloved sister Hannah, the sum of 50 pounds, proclamation money, to be paid when she is of age.

'Item, I give and bequeath unto my sister, Abigail, the like sum of 50 pounds, proclamation money, to be paid when she arrives at age.

'Item, I give and bequeath unto my loving wife Mary, all the rest of my lands and tenements whatsoever, whereof I shall die seised, in possession, reversion or remainder, provided she has no lawful issue.

'Item, I give and bequeath unto Mary, my beloved wife, whom I likewise constitute, make, and ordain, my sole executrix of this my last will and testament, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed; and I do hereby utterly disallow, revoke, and disannul, all and every other former testaments, wills, legacies, and bequests, by me in any ways before named, willed and bequeathed, ratifying and confirming this, and no other, to be my last will and testament. And I make my loving friend, Henry Jeans, of the county and province aforesaid mentioned, executor of this my will, to take care and see the same performed, according to my true intent and meaning; and for his pains,' (leaving the sentence incomplete.) 'In witness whereof,' &c. (in the common form of attestation.) The testator was seised of the land in controversy at the time of the will, and died seised, without issue, on the 10th day of October, 1774, leaving his wife Mary, the devisee, who, afterwards, married one George Williamson, by whom she had lawful issue still living, and died in the year 1811. The lessor of the plaintiff is the brother of the testator, and his only heir at law. The defendant claims title to the premises as a purchaser under Mary, the wife of the testator.

The title of the testator to the premises was derived from a devise in the will of his father, John Page, dated the 11th of November, 1773. That will, among other things, contained the following clause: 'Item, I give and devise unto my son James, one equal half part of my land, (comprising the land in controversy,) with all my plantation, utensils, &c. &c. to him, his heirs and assigns, for ever.' He then gives the other moiety of the land to his son John, to him, his heirs and assigns. He then bequeaths several legacies to his daughters, Sarah and Mary, and adds, 'Item, I give and bequeath to my three daughters, Rebecca, Hannah, and Abigail, Rebecca the sum of 50 pounds, Hannah and Abigail the sum of 50 pounds each of them. Likewise it is my will, that my son James to pay Hannah and Abigail the said sum of fifty pounds each, when they come of age.' He then concludes his will by appointing an executor, and revoking all former wills, &c.; and died soon afterwards. James (the son) left no other real estate than that devised to him by this will. What personal estate he or his father left, at the times of their decease, was not found in the case; and, therefore, it did not appear whether or not it was sufficient to pay the legacies in their wills.

The Court below gave judgment for the lessor of the plaintiff, who was the heir at law of the testator, and the cause was brought, by writ of error, to this Court. Feb. 21st.

Mr. Wood, for the plaintiff in error, contended, that Mary, the wife of the testator, took a fee simple under the devise.

It was admitted, that a devise of land, without any technical words of limitation, or explanatory words, gives only an estate for life. But the intention of the testator will supersede this rule, and is the polar star to guide in the construction of wills. The local legislature were so impressed with the good sense of this principle, that, in 1783, a few years after the making this will, they passed a statute, declaring that a devise of lands should pass a fee, unless it was expressed to be for life only. Courts ought, therefore, to be liberal, in considering the explanatory words and circumstances relied on, to show an intention to devise the fee; by so doing, they further the intention of the testator. Greater certainty is not attained by a rigid than by a liberal construction of devises. The only mode of arriving at certainty is, by admitting a general devise to pass a fee, or by requiring strict technical words of limitation. The notion that descent is the general rule, and devise the exception, is more specious than solid. They are both distinct, co-ordinate rules.

He would first examine the clauses of the devise in question separately, and then consider their combined operation.

The words, 'all the rest of my lands and tenements, whatsoever, whereof I shall die seised, in possession, reversion, or remainder,' &c. are sufficient to pass a fee. The words rest, and in reversion or remainder, ought not to be rejected, if a meaning can be discovered for them. The devise of all the rest of his lands to his wife, clearly imports, that the previous pecuniary legacies shall be a charge on the lands, and that his wife shall be entitled to whatever interest remains after the legacies are paid. A charge on lands may be implied in a will. An estate tail in lands may be created by implication from a proviso; a fortiori, a charge may be implied. These lands were already charged in the hands of the testator with the payment of other legacies, by the will of his father, John P., and which were not then due. The clause in question then is, as it purports to be, a general residuary clause, in which the testator means to devise all his remaining interest in his real property. He could not have meant the rest of his lands by way of local description, for he had devised none before; but he meant all the remaining interest in the lands after the legacies were deducted. Wherever it appears that the testator intended to devise all his interest in land, a fee simple passes. This rule applies with increased force to residuary clauses, in which a greater latitude of construction is allowed. Though the words lands and tenements are strictly descriptive of locality, yet, in connexion with other expressions, especially in a residuary clause, they may refer to the quantity of interest or estate. The words, in remainder or reversion, aid the construction. Though the testator might not have been acquainted with the precise technical distinction between them, yet he must have known they meant an estate in expectancy. The case of Norton v. Ladd is very analogous to the present, and shows that a fee was intended.

If it be established, that the testator referred to his interest or estate in the farm in question in this clause, it carries all his interest, i. e. a fee simple, because it is residuary, and the language is broad and comprehensive enough for the purpose.

Again; the proviso, 'provided she has no lawful issue,' shows an intention in the testator to give a fee to his wife. This is a condition precedent to take effect at the time of his death; (1.) Because the terms used ordinarily import a condition precedent. Where there is nothing in the nature of the proviso, or in respect to the time of its performance, to show that a condition subsequent was intended, it is always construed a condition precedent. (2.) All the circumstances of the case show, that the testator intended the condition to take effect at his death, and to be precedent; for then the issue the devisee might have, would be his own child and heir. If it be contended, that this proviso refers to children the devisee might have by a future husband, the testator is made guilty of the absurdity of intending, that if his wife should marry again, she might retain the land, but if she should have issue by such marriage, she should forfeit it. The devise to the wife in this case, was intended to be a substitute for the descent to the heir. Whenever a devise of land is intended as a substitute for a fee, the substituted devise is a fee. A Court may discover, in a condition, the effect of which is, in a certain event, to defeat the estate, an intent, when the estate actually vests, to enlarge the disposition to a fee. Thus, as before shown, a devise may be enlarged to an estate tail by the terms of a condition.

But, to leave no doubt of his intention, the testator, in the next sentence, gives the devisee his land, 'to be by her freely possessed and enjoyed.' He drops the peculiar phraseology of the former clause, and takes up new language, manifestly for the purpose of enlarging the subject of his bounty. A life estate is susceptible only of a partial and limited enjoyment. The words 'freely to be enjoyed,' have been held sufficient to carry a fee. The idea, that these words, as used in the present case, give a life estate dispunishable for waste, is wholly inadmissible. It would be creating a state of things which would make the interest of the tenant at variance with the permanent improvement of the soil, and, consequently, of the best interests of the country. It would be his interest to commit waste, and to destroy the property. The testator could not have meant that the devisee should hold the lands as tenant for life, dispunishable for waste merely; for that would only exempt the property devised from one kind of restriction, when he manifestly contemplates a free enjoyment generally, without any restriction whatever. The free enjoyment is not annexed to the estate devised, but to the land. It is the land which is to be freely enjoyed. The estate is only the technical medium through which that free enjoyment is secured, and the Court will see that the devisee takes such an estate as is compatible with a free enjoyment.

But, even supposing these different clauses, taken separately, should be deemed inadequate to pass a fee, yet, taken conjointly, they form a body of evidence, strong and conclusive, to show that the testator intended to devise his entire interest in the lands. It is impossible to suppose that a plain man would have used such phraseology merely to give his farm to his wife for her life. All the clauses may be taken together, and receive their full, combined effect. Juncta valent.

Mr. Webster and Mr. Cox, contra, contended, that under the will of James P., nothing more passed to the devisee than an estate for life. The plaintiff below claimed as heir at law. The title was, prima facie, in him. It was admitted on all hands, that the devise contains no wards of limitation sufficient to pass the inheritance. It is a general rule, that in order to create an estate in fee, words of inheritance, as 'heirs,' must be employed. Wherever an estate is granted, either specifically for the life of the grantee, or without any limitation, the legal presumption is, that the design was to create an estate for life only. In wills a greater latitude has been allowed. The intention of the testator, expressed in clear, unambiguous terms, will carry the fee. But the rules of conveyance at common law still operate, although not so rigorously, even in regard to wills; and, before the heir can be disinherited, there must be, not merely an intention, but an intention legally perceptible, in an instrument legally executed. The only difference between wills and deeds is, that in the latter, certain specific technical terms are essential; in the other, any words legally indicating the clear intention of the testator, are sufficient.

The intent must be clearly expressed, for it is a fundamental rule in the construction of wills, that the heir cannot be disinherited without express words, or necessary implication. This intention must also be expressed in language at least quasi technical; for it is perfectly immaterial how plain it may be, that the design of the testator was to pass a larger estate, unless that intention be manifest to the legal eye.

As the construction now contended for by the plaintiff in error would disinherit the heir at law, and vest the inheritance in a stranger, it is incumbent upon him to establish one or the other of these two propositions:

1. That there are express words creating an estate in fee in the devisee, (which is not pretended, and which, if actually existing, would preclude all argument,) or,

2. An intent, so clearly expressed as to require, by necessary implication, that such an estate should pass.

The circumstance, that no words exist in this will, which, by their intrinsic force, carry any larger estate than for life, raises a legal presumption, that no larger interest was intended to pass. If the testator had designed the heirs or issue of his wife as the objects of his bounty, some language indicating such an intention would have been used. If, in addition to this negative circumstance, we find that these persons in that capacity were present to the mind of the testator, and yet are not made objects of his bounty, it superadds a positive weight to the legal presumption that they were not designed to be so, and that their omission was not merely accidental.

There being, then, no express words carrying the fee, let us examine those particular expressions which are relied upon to show the actual intent that the fee should pass. These words are, (1.) 'All the rest of my lands and tenements;' (2.) The words 'reversion or remainder;' (3.) The words 'freely to be possessed and enjoyed.'

1. As to the words, 'all the rest of my lands and tenements.' One of the earliest cases in which the effect of similar words came under consideration, was that of Wilkinson v. Maryland. There, A. being seised of divers lands in A., B. and C., the lands in C. being in him by mortgage forfeited, devised the lands in A. and B. to several persons, and then devised 'all the rest of the goods, chattels, leases, estates, and mortgages, whereof he was possessed,' to his wife, after his debts and legacies paid, made his wife executrix, and died. The question was, whether the fee passed to the wife by this devise; and it was held, that an estate for life only passed. In that case, there were several circumstances rendering it stronger in favour of a fee than the present. (1.) There was a previous clause devising part of the property, and there was, therefore, an antecedent to which the word rest could relate. Here there is no such prior clause, and the word rest is senseless, or the testator attaches to it his own peculiar signification. (2.) The devise of the real property is there in the same clause which contains a bequest of the personalty; and, therefore, the inference as to the testator's intention was irresistible, that he designed to give the same interest, i. e. an absolute interest, in all the subjects of the devise. (3.) In the case cited, the word estate is employed as the descriptive term, which is a word frequently held sufficient of itself, proprio vigore, to carry a fee.

The case of Canning v. Canning, is very similar to the present. There the words of the will were, 'All the rest, residue, and remainder, of my messuages, lands, or hereditaments, &c. after my just debts, legacies, and funeral expenses first paid, I give to my executors in trust for my daughters.' It was adjudged, that the executors took only an estate for life; and, notwithstanding the general character of Mosely, as an inaccurate reporter, this case has been frequently recognised as law. This is evidently a much stronger case than the one now before the Court. (1.) It is properly a residuary devise; this is not. (2.) It contained the term hereditaments, emphatically embracing the inheritance, according to the opinion of many eminent lawyers. (3.) The estate was devised 'after debts, legacies, and funeral expenses first paid.' Yet, under all these circumstances, it was held, that the words 'rest, residue, and remainder of my messuages, lands, or hereditaments,' so much stronger and more comprehensive that those of the present testator, were merely descriptive. The ground of that determination was, that the words rest, residue, and remainder, being unaccompanied by any words of limitation, could not operate on the inheritance. This applies, with at least equal force, to the present case. In Peiton v. Banks, where one devised to his wife for life, and the reversion to A. and B., to be equally divided, &c. it was decreed, that they were tenants in common for life only. That case, and the one referred to by Sergeant Maynard, were stronger than the present, since the freehold having been already disposed of, it might have been plausibly argued, that the term reversion there used, ex vi termini, necessarily included the inheritance. In this case no such argument would apply, the word rest being without an antecedent, and being a term more appropriate, as descriptive of the subject than of the quantity of interest. In Doe v. Richards, where, after bequeathing a certain leasehold estate, the testator devised 'all the rest, residue, and remainder of my messuages, lands, tenements, hereditaments, goods, chattels, and personal estate whatsoever,' the Court held, that these words were not sufficient to carry the fee. The property thus devised being, however, made subject to a charge, this circumstance was held sufficient, although the propriety of that part of the decision seems to have been questioned. But the authority of the case, so far as it determines that these words were insufficient, of themselves, to pass the fee, has never been controverted. In that case, the clause was properly a reversionary clause, a previous devise having been made, leaving a reversionary interest to be disposed of. There also the word hereditament was used; neither of which circumstances exist here.

The next case is that of Den v. Moor, which deserves the more weight as an authority, because a second action was afterwards brought on the same title; the judgment rendered in the K. B. reversed in the Exchequer; and that judgment afterwards reversed in the House of Lords, and the original judgment in the K. B. affirmed. It may, therefore, be presumed to have been thoroughly examined and considered. In that case, the testator having first devised a life interest in a copyhold messuage, then uses these words: 'all the rest of my lands, tenements and hereditaments, either freehold or copyhold, whatsoever and wheresoever, my goods, chattels, and personal estate, of what nature or kind soever, after payment of my just debts and funeral expenses, I give, devise, and bequeath the same unto my wife S.C.., and I do hereby nominate and appoint her, my said wife, sole executrix of this my will.' In delivering the opinion of the twelve judges, Macdonald, C. B. states the question arising under that will to be, 'Whether the words are materially distinguishable from those used in other wills, and which have been held not to denote an intention so expressed by the testator, as to enlarge that which would, otherwise, be an estate for life only, into a fee?' He then states, that this would depend upon the effect of the word rest, of the word hereditaments, and of the provision 'after payment of my just debts and funeral expenses.' He considers Canning v. Canning, as decisive of the question on the two first words. These two cases must, therefore, be considered as decisive in settling the construction to be given to this part of the present will; in which the phraseology used is still less indicative of an intent to pass the inheritance. The word hereditaments, found there, is wanting here; a word which, in Lydcott v. Willows, Powell, J. considered as sufficient to carry the fee, and this opinion was unanimously confirmed in he Exchequer Chamber. So, also, Lord Holt considered it as sufficient to pass the fee, in Smith v. Tindal, and in Frogmorton v. Wright, Lord C. J. De Grey held it might have that operation.

Notwithstanding these decisions, however, the law, as recognised in Canning v. Canning, is considered as settled in Westminster Hall, and the word hereditaments is now held insufficient to pass the fee.

The case of Markant v. Twisden, is, in many respects, analogous to that now before the Court. A., having settled all his freeholds on his wife for life, as a jointure, bequeathed several legacies, and then says, 'all the rest and residue of my estate, real and personal, I give to my wife, whom I make sole executrix.' Held, that the reversion of the jointure lands did not pass, but the personal estate only. The reason assigned appears decisive of the present question, 'for, as the testator devised no real estate, there could be no residue.' So, in the present case, the whole effect of the words rest, remainder, and reversion, (if it should be thought that in themselves they have any to denote an estate larger than one for life,) is destroyed: (1.) By the circumstance that there was to previous disposition of any real estate in the will, and therefore this is not a residuary clause. (2.) By the circumstance that the testator was seized of no estate in reversion or remainder, which could pass under these words, and therefore they are wholly inoperative. (3.) It is perfectly manifest, that the words in question were used simply as descriptive of the subject matter, and not of the interest in that subject matter. In this view the case has a strong resemblance to Pettiward v. Prescott, where the testator devised as follows: 'I give to R. P. my copyhold estate at P., consisting of three tenements, and now under lease to A. B.' The Master of the Rolls, after showing, from a variety of adjudged cases, that the word estate is sufficient to carry the fee in general, yet decides that the devisee took only a life interest, on the ground that the testator, by the word in that case, did not mean to speak of the quantity of the legal interest, but merely of the corpus or subject in the disposition.

As corroborating the construction of the words reversion and remainder, now insisted on, it may be observed, in the Statute of Wills of the 32d Hen. VIII. c. 1. it was enacted, 'that all and every person and persons having manors, lands, tenements, or hereditaments, may give and dispose of them,' &c. Afterwards, the stat. 34 and 35 Hen. VIII. c. 5. entitled, 'An act for the explanation of wills,' was passed. This statute recites, that several doubts, questions, and ambiguities, had arisen upon the previous statute, and enacts, that 'all and singular persons having a sole estate, or interest in fee simple, &c. of or in any manors, lands, tenements, rents, or other hereditaments, in possession, reversion, remainder, &c. shall have full and free liberty to give, dispose, will,' &c. In the first statute, it seemed to be thought, that the language implied a present vested estate in the devisor, in order to give validity to this form of disposition. The ambiguity was removed by the second statute, which gave the right, whether the party was seised in possession or in expectancy. The statute, then, authorizes a testator to devise an estate in which he has no present, but only a reversionary interest; but the same language must be used to carry the fee, as if the estate were in possession. The subjects capable of being devised are enlarged, but the form of the instrument is not altered. A reversionary interest, like a possessory interest, may be for life, for years, in tail, or in fee; and it is equally important, that these different quantities of interest should be designated by the will, in the one case, as in the other. The case of Ager v. Poole, shows this construction to be correct; and Peiton v. Banks is to the same effect. Both of these cases are stronger than the present, for in each of them the testator had such a future interest as he described.

As to the words 'provided she has no lawful issue,' the argument on the other side is, that they imply a condition precedent. To this it is answered, (1.) That if a condition precedent to the vesting of any estate in the wife, the proviso would be entirely at variance with the whole design of the testator. He evidently intended an immediate interest to pass to the wife, which could not take place, if the fact that she should have no lawful issue is to be a condition precedent. That could only be ascertained by her dying without issue. (2.) If it be a condition precedent, she took no estate, because she, in point of fact, had lawful issue. To obviate these conclusions, an interpolation is made in the will, and the testator is presumed to have said, lawful issue by himself. The answer is, that such a presumption is not warranted by the language employed. The case of Norton v. Ladd, turns upon the extent to be given to the expression 'whole remainder,' after a disposition of a life estate in all the lands, and the interest of an heir at law was not involved. Lambert's lessee v. Paine, turns upon the meaning to be attached to the word ''estate. Wheeler v. Waldron is deprived of much of its authority by a remark made in a note to Chester v. Chester''.

As to the second clause of the will, which contains the words, 'to be by her freely possessed and enjoyed,' the legal signification of this phraseology has been frequently settled. In Loveacres v. Blight is a clause to this effect: 'Item, to my two sons, T. M. and R. M., whom I make and ordain my sole executors, all my lands and tenements freely to be possessed and enjoyed alike.' In this case there were, (1.) Introductory words, which Lord Mansfield always considered as entitled to much weight. (2.) There was a charge, and he thought it but reasonable to infer an intention to pass a fee, because that alone would enable the devisees to comply with the testator's directions fully and completely. (3.) Freely to be enjoyed, he considered, in that case, as meaning absolutely, because, having charged the estate, it could not mean free from encumbrances. None of these circumstances exist here, and, therefore, the case is not analogous, and cannot warrant the same construction. The case of Goodright v. Barron, more nearly resembles the case before the Court. There, after the introductory words 'as touching my worldly estate,' the testator devised to B., whom he made his executrix, 'all and singular his lands, messuages, and tenements, by her freely to be possessed and enjoyed.' These are the identical words here employed, and no other distinction exists between the cases, than that here are no introductory words, (sometimes so important,) yet the Court held that the fee did not pass.

The only other ground on which it can be presumed that the testator intended a fee, is the circumstance that this devise is after certain legacies; and it is said, that 'all the rest,' &c. means, that the devisee was to take the real estate subject to the payment of these legacies. Admitting, that wherever the testator employs language of an indefinite kind, prescribing no limits to the estate devised, and burthens the devisee with a gross, but certain charge, that the fee will pass, that rule of construction is inapplicable here, because, (1.) There is no disposition of the personal estate, the appropriate fund for the payment of legacies. (2.) There is, at most, only an implied charge upon the real estate; and it seems unreasonable to require the Court to imply a charge, for no other purpose than to furnish a ground for raising another implication still more serious.

Admitting the verbal construction of the opposite counsel to be correct, the case of Jackson v. Harris is decisive against the conclusion they would infer from it. If a charge at all, it is a contingent charge. The personal property is applicable in the first instance, and there is only a possibility that it will prove insufficient. A contingent charge is not sufficient to carry a fee. Besides, supposing the whole of these legacies to be payable out of the real estate, the conclusion contended for would not result. The rule of law is, that where the charge is upon the estate, and not upon the person of the devisee in respect of the estate, no fee passes by implication. So much of the estate as is sufficient to raise the sum required, is not given to the devisee at all. The residue is devised perfectly unfettered. Canning v. Canning, Den v. Moore, and Den v. Allen, were all cases in which the real estate was given after payment of debts, &c. and yet held not a fee. March 4th.

Mr. Justice STORY delivered the opinion of the Court, and, after stating the case, proceeded as follows: