Frame against Stewart, 5 Watts 433

The opinion of the Court was delivered by Kennedy, J.

Mr Fearne, in his treatise on contingent.remainders and executory devises, page 167,says, “it sometimes happens, that a remainder is limited in words which seem to import a contingency, though in fact they mean no more, than would have been implied without them; or do not amount to a condition precedent, but only denote the time when the remainder is to vest in possession.” In support of this proposition, he refers to the case of Boraston, 3 Co, 19; followed by Holcroft’s case, Moore 486, and a series of others there mentioned; wherein it was held that the adverbs, “when” and “then” only expressed the time when the remainders should take effect in possession, and not when they should become vested.

In all the cases cited by him, for the purpose of maintaining his position, there was an intermediate devise or disposition of the estate or of the rents and profits of it, either to a stranger or for the devisee’s own benefit, till the time at which the devisee was to take the estate; and these cases appear to have been decided upon the ground, that the devise of the particular interest was to be considered as an exception only out of the devise of the absolute property, which was intended for the devisee.

The present case, however, is more favourable in this respect, to a vested interest, than those mentioned by Mr Fearne. For here it is perfectly manifest, that the testator intended that an estate should not only vest in Edward in interest, but likewise in possession immediately, upon his, the testator’s decease; because, from the will and the case stated, it appears that the testator had eleven children; some of w'hom were of full age and - the rest minors.

That he owned a large tract of land, containing upwards of five hundred and forty acres; a considerable portion of which was unimproved; and that he, in his lifetime, and before the making of his will, had given to some of his children, who were of full age and capable of performing the task, and to Edward, among the number, certain parts of the land to be cleared and improved by them; while he' continued to improve another part of it himself.

This latter part, whereon he lived, together with the crop growing thereon, all his household furniture, stock and farming utensils, he gave to his wife, for the purpose of maintaining herself and his minor children until the youngest thereof should attaiu full age; when his wife was to 'have the personal property of every kind, at her own disposal; and his real estate to be then equally divided amongst his living children; or their lawful heirs of any, who may die before that time, leaving such, according to the quantity and quality, allowing each child having the part they may have improved upon, they improving where I have ordered, so as to have the benefit of their mon labours.'’ This clause disposing of the real estate, may be fairly rendered thus; “ my real estate to be then equally divided amongst all my children, then living, and their lawful issue of those who shall have died leaving such, according to quantity and quality, allowing to each child, at least as a part of his allotment, that part .of the land, which he shall have improved according to my direction, so that he shall have the benefit of his own labour.” This may be considered a literal

interpretation of the sentence, when reduced into grammatical form, with the exception of the words “ lawful heirs,” for which I have substituted the words “lawful issue;” because from the context, they cannot well be made to mean any thing else, certainly not lawful heirs in the full extent of the technical and legal sense of the terms; because the surviving children would in this latter sense, be the legal heirs of those dying without issue.

But it is perfectly clear that the testator did not mean them, for they are embraced in the terms “ living children” immediately before; and, therefore, the testator must have meant the lineal heirs or the issue of them who should happen to die before the time fixed for dividing the estate among the children had come around. And indeed it is not improbable, but the issue alone of deceased persons, may be thought by some of the more illiterate to be their only lawful heirs, in contradistinction to their collateral relatives, whom they consider merely heirs of grace or favour, when lineal relatives are wanting.

It is only mistaking and substituting the term “ lawful” for that of “ lineal.” Edward, who mortgaged the land in question, was, as has been mentioned before, one of the children'who attained his full age in the lifetime of the testator, and who, under the direction of the latter, had commenced improving it, and continued to do so, not only till the death of the testator, but until his own death. According to the express terms of the will, he was therefore to have the full benefit of his labour by obtaining the part so improved by him.

It is clear that, if this part of the land was not given to Edward, by the will to be possessed and enjoyed by him from :he time of the death of the testator, that it was given to no one; for the particular devise to the widow certainly did not embrace it; that was restricted exclusively to the improvement made by the testator himselij nor is there any other devise that possibly can include it; and as it was clearly the intention of the testator to dispose of the whole of his estate, so as to take effect in possession immediately upon his death; there is then scarcely the shadow of a pretence for saying, that the estate or interest, given by the will to Edward, was contingent; because that would conflict with the particular, as well as the general intent of the testator.

The will is drawn up in terms, which, according to a literal

interpretation of them, would render it somewhat confused, if not almost contradic-i tory. The scrivener, from ignorance and incapacity, to express on paper the intention of the testator in an intelligible manner, and from a desire, as it would seem, at the same time, to be very ext plicit, has created the only difficulty presented in the construction of the will.

For had the word “ living” which is prefixed to the word “ children,” and the alternative clause, “ or their lawful heirs of any, who may die before that time, leaving such,” been omitted, the devise would have been perfectly intelligible and would have passed a vested fee-simple in the land to the children free of all doubt whatever.

The devise would then have read thus; “I give and bequeath unto my dear wife, Mary Frame, the use and occupation of my improvement whereon we now live, together with all my household furniture, &c., she maintaining and educating my minor children thereout, until my youngest child then living shall be of lawful age ; then to have the personal property of every kind at her own disposal; and my real estate to be then equally divided amongst all my children, according to the quantity and quality, allowing to each child, in his allotment, that part of the land, which he shall have improved according to my direction, so that he shall have the full benefit of his own labour.” The words “ real estate,” used here, must be considered as expressive of the whole quantum of interest or estate, which the testator had in the land, and of his intention also, to pass it, whatever it might be, to his children, so that being seised of an estate in fee-simple, it passed thereby to them, without words of limitation.

To attempt to give to the words .and clause thus rejected, any force or effect at all, would either reduce the interest taken by Edward, under the will to a mere life estate, with a remainder over to his children; or otherwise to an estate tail; because I consider a contingent remainder to Edward in fee altogether out of the question; the authorities cited by Mr Fearne show most clearly, that it cannot be held to be such upon any established principle or rule of construction.

And as to its being considered a life estate, or an estate tail, it is only by a strained implication, that it can be made out to be either; for there is not a word expressly limiting the devise to the children to an estate for life; nor yet to the heirs of their bodies.

Neither are there any terms which seem to indicate that such was the intention of the testator; and to raise a limitation for either purpose, by mere implication, would be wrong, as it might make Edward a loser rather than a gainer by the devise, and thus militate against the clear intention of the testator; for a life estate might not be sufficient to remunerate him for his labour and expenses in improving the land; yet it cannot be questioned, but the testator intended that he should be fully compensated for so doing, by an ownership of the land, which might require the fee-simple, in order to make it sufficient for such purpose.

The same argument exists against its being adjudged an estate tail; as also, the further argument, that it is apparent, from the whole tenor of the will, that the testator intended that, if Edward or any of the children should die seised of their respective portions of the land, leaving issue', that all such issue should inherit, as if their father had died seised of the fee-simple estate. We, therefore, think that Edward took a vested fee under the will and had a right to mortgage the land as he did. Judgment affirmed.