Tanner vs. Livingston, 12 Wend. 83

By the Court, Nelson, J. The will of John Livingston, the father of the defendant, as to the devise of the tract of land of which the premises in question are a part, is in the form generally found in deeds of conveyance, and in searching for the intent of the testator in this case, the rules applicable to the construction of deeds are very material.

Having used the technical terms found in that species of conveyance, and which are well understood in the law, it is but reasonable to presume they were used in their well known sense, and this meaning should be given to them, unless clearly explained or overruled by other parts of the will. The granting clause or premises, as it is called, is “ to Robert Le Roy Livingston and Anna Maria, his wife,” without any words of inheritance, and upon well settled principles of construction, conveyed only a life estate.

The habendum clause, the office of which is to limit the certainty and extent of the estate granted, is as explicit as language can make it; it is in these words : “ To have and to hold the same unto my son Robert Le Roy and Maria his wife, and the survivors of them for and during their natural lives.” And the testator, to put his meaning beyond all possible doubt, (clearly evincing that he well understood the legal operation of the foregoing words,) adds immediately, a power to execute leases for the whole devised tract for the term of two lives, reserving an annual rent, and fixing the minimum amount; and also gives power to carry into effect any contracts for leases which he himself had made, or might thereafter make, of a part of the premises.

Had the will stopped here, it would have been impossible to have raised a question, either upon the apparent, or presumed intent of the testator ; both would have concurred, as is already seen, in limiting to the first takers an estate for life. It is the legal and technical effect of the words in the granting clause or premises, confirmed by the express and positive language of the habendum. 2 Black. Comm. 110, 122. 4 Cruise. 439. Id. 32, § 1, 4, 8, also page 431, § 43, 55. Shep. T. 75.

The habendum clause may enlarge, abridge or explain the premises : as where, in the premises, an estate is given to the grantee for life, habendum to him and his heirs, he will take an estate in fee — and where no estate is limited in the premises, and an express estate for years is given in the habendum. In the former case the estate is enlarged by the words of inheritance ; in the latter abridged, because no estate being fixed in the premises, the legal intendment gives an estate for life.

In this case the estate expressly limited in the habendum clause is of the same description as that to be derived by legal intendment from the premises; which concurrence affords a manifestation of the testator’s intent, too clear to be misunderstood. Let us now examine some other clauses of this will, and see if they can fairly modify the explicit language and meaning of those already referred to.

The form of the devise to the heirs is similar to that to the ancestors, and is equally explicit. “ From and immediately after the decease of my said son Robert Le Roy and Maria his wife, I give and bequeath unto their heirs male all, &e. describing the same premises specified in the devise to Robert Le Roy and wife; to have and to hold the same unto the said heirs male of my said son Robert Le Roy and Maria his wife, and to their heirs and assigns forever, share and; share alike.” Applying the same rules of construction to this as to the former devise, it is clear, the heirs male take the fee of the land : the habendum enlarging the grant¡ng c]ause, by adding words of inheritance, and the words “ share and share alike” expressly distributing the estate amon8 as tenants in common.

The only ground upon which the slightest doubt can be raised as to the intent of the testator is the rule of law familiarly known as the rule in Shelly's case, i. e., “ where the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either me-diately or immediately, to his heirs in fee or in tail, the word heirs is a word of limitation of the estate, and not of purchase.” 1 Co. 94. It has, however, been perfectly settled, at least since the celebrated case of Perrin v.

Blake, 4 Cruise, 381, tit. 38, that this rule must give way to the plain and manifest intent of the testator; Fearne, 186, 191, 3 Am. ed; 4 Cruise’s Dig. 394, tit. 38; 4 Kent’s Comm. 225; 3 Wendell, 511, 523; and when enforced, is done so only more completely to effectuate such intent. Applying the rule to this will, and giving full effect to it, the devise would vest in the first takers, (Robert Le Roy and wife) an estate in fee tail by implication. 1 Co. Litt. 632. 3 Salk. 336. 5 T. R. 337. The same words used in a deed would pass an estate in fee simple. 3 Salk. 336. 5 T. R. 338, per Buller, J.

If we could suppose this to be the intent of the testator, to wit, to give to the de-visees an estate in fee tail, and there is no escape from it under the rule in Shelly’s case, then (if our statute turning these estates into fee simples had not been interposed, and we are not to presume the testator took this into consideration in making his will) the heirs of Robert Le Roy and wife would inherit according to the law of primogeniture: the eldest son would take the whole, and after the extinction of his heirs general, the next son, if living, and so on.

This construction is adopted in many of the cases in England, for the avowed purpose of carrying into effect what is supposed to be the general intent of the testator, to wit, to include the whole line of the heirs of the body of the first taker; and this presumed general intent is allowed to prevail over the particular intent derived from the express limitation to him of an estate for life.

If this particular intent should prevail in this case, the persons designated as heirs, or heirs male, can only take under the will as purchasers, which necessarily cuts off a portion of the general heirs of the first taker, because those taking as purchasers are a new stock, from which the estate descends to their general heirs. The heirs of the father and son are not throughout identical; if they were, one of the principal reasons for the application of the rule in Shelly’s case to wills, would not exist.

If we allow the particular intent to prevail in this case, the sons of Robert Le Roy Livingston living at the time of the death of the testator took a vested remainder in fee, which opened to let in after-born children. 4 Johns. R. 61. Doe v. Provost, 5 T. R. 484. Doe v. Perrin, Fearne, 313, 314, 3d Am. ed. At the time of the death of the testator, the defendant and his wife had three sons, and after his decease three other sons were born. The grand-children of a deceased son will then take, according to well settled principles, which will carry into effect the manifest intent of the testator.

The presumed general intent would give the whole estate to the eldest son and his heirs, to the exclusion of all the rest. fí'The effect of our statute upon estates tail, as before observed, is to vest in the devisees the fee, which, on their decease, would then descend to the grand-children as well as children; but we cannot suppose the testator speculated upon the operation of this statute ; and besides, his plain intent would still be defeated, for the estate would descend to all the children, females as well as males, whilst the devise is to the heirs male of Robert Le Roy and Maria his wife.

Estates tail in England are common, perhaps more so than those in fee simple ; and when language is used there by draftsmen, which, according to the rules of construction, would create an estate tail, unless there are other clauses in the instrument clearly repelling such construction, the fair inference of the intent of the testator undoubtedly would be to devise such an estate.

But in this state, since 1786, when entails were abolished and known not to exist, it seems to me less explicit language, inconsistent with the creation of this estate, should be admitted by the courts to repel such a construction, because an intent which is unlawful should not be as readily implied or admitted as one that is both lawful and common.

It is difficult to believe that a testator, with or without legal advice, intended to devise to his children an estate, in the face of the statute; and I apprehend nothing short of language quite explicit, if not imperative, could justify the conclusion of such an intent.

Even in England, where this rule is rigidly applied in the construction of wills, where a devise is to a person and his heirs, or to the heirs of his body ; and there are words of explanation annexed to the word heirs by which the testator meant to qualify that term, and not use it in its technical sense; but as a descriptio personarían, to whom he intended to give the estate after the death of the first taker, the word heirs will operate as a word of purchase. 4 Cruise, 346, Fearne, 183, 7. The case of Doe, lessee of Strong, v. Goff, 11 East, 668, is a striking and apposite illustration of this position.

The testator had a wife, a son and a daughter, and he devised the premises to his wife for life, and after her decease, to his daughter, Mary Goff, and to the heirs of her body, as tenants in common. Mary entered upon the premises, and died leaving a son, the defendant, and four daughters, the lessors. It was contended for the lessors, that their mother took only an estate for life, and that each of the children took a fifth by purchase. The defendant contended that she took an estate tail, and that on her death the whole vested in him as heir in tail by descent.

It was admitted by the court that the words “ heirs of the body” were prima facie words of limitation, but that they might be construed to be words of purchase, where it was clearly so intended ; and the provision to take as tenants in common, and not as joint tenants, was considered as showing distinctly that the testator contemplated something very different from an estate tail, because an estate tail, if there were sons, would vest wholly in the eldest son, to the exclusion of all the rest, and of such an estate there could be no tenancy in common or joint tenancy.

Now, in the case under consideration, the explanation is still more explicit and distinct, for the testator not only provides that the heirs male shall take as tenants in common, but he has, in the most formal manner, given to them an estate in fee: all of which is wholly inconsistent and irreconcilable with the idea of a tenancy in tail. See also Low v. Dawes, 2 Ld. Raym. 1561. Doe v. Lamsing, 2 Burr. 1100. Goodtitle v. Herring, 1 East, 264.

Without pursuing this part of the inquiry further, it is sufficient to say that it is too much to ask the court to reject the explicit language of the will limiting the estate to Robert Le Roy and wife, “ for and during their natural lives,” and (after their decease) the equally distinct and explicit devise to their heirs male of the estate in fee, as tenants in common, aside from other explanatory clauses, in order to arrive at a conclusion that the testator intended to create an estate unknown to our law, since 1786, and which was abolished, at that time, as incompatible with the genius and spirit of our institutions.

I may add that the clause in the will, by which the testator devised all his residuary estate to his son Herman, distinctly shows that he knew how to use appropriate language to create an estate in fee when he so intended. It is said that the provision in the will, imposing the payment of the debts of the testator upon his son Robert Le Roy. is sufficient to give to him an estate in fee by implication, 10 Johns. Rep. 151. 18 Johns. R. 35. But beside the explicit limitation of an estate for life in the will, which of itself would probably be a sufficient answer to this position, Cowp. 841, per Mansfield J., 5 T.

R. 337, this clause assumes expressly that the previous advances of the testator to his son exceeded the debts which he is directed to pay, and he therefore bequeathed to him, in the same clause, the residue of such advances, after paying the debts. The testator thus acting under the belief that his son owed him a sum exceeding the debts directed to be paid, it would be unreasonable to imply from this clause, that he must have intended to devise to him the fee.

The reason of the rule does not apply, as the implication of a fee is founded upon the idea that the charge of the debts upon the person of the devisee, in respect to the estate in his hands, would subject him to loss unless he took the fee. Here the testator merely directed the application of his own funds to the payment of his debts, releasing the surplus' to his son. As to the mortgage to the insurance company, it is not a charge upon the person of Robert Le Roy Livingston, but upon the land, or rather a small part of the tract, and therefore, does not fall within any of the cases on this point. 10 Johns.

R. 151, and cases there cited. The court however erred in not admitting the evidence of the value of the life estates, as the plaintiff’s title to that extent is valid.