Amory Albee, Administrator, vs. Noah A. Carpenter & another, 12 Cush. 382

Shaw, C. J. [After stating the substance of the report.] The great question, therefore, is, whether the appellant is further liable to account for the $757.18, or whether the appellees are entitled to recover it or any part of it, and this depends on the will. The will, after certain specific legacies to Noah A. Carpenter, payable when he should come of age, and to his sister Ann Eliza Carpenter, proceeds as follows: “ Thirdly. I give and bequeath to Amey Albee, wife of Amory Albee, all the rest, residue, and remainder of my property, of whatever name or nature, to her and her hens.

And if said Amey Albee die, without issue or heirs, it is my will and pleasure that the above named Noah Carpenter and Ann Eliza Carpenter, should have the last mentioned property to them and their heirs forever, equally to be divided between them.” If this was an absolute gift to the wife, she being then a feme covert, it vested in the husband, and he is not liable further to account for it. . Even if it could be contended, that he did nothing to reduce it to possession, during the coverture, still, as husband, he would take by survivorship, as well as by force of the statute of distribution.

The court are of opinion, that this was a gift of a general residuum ; not a specific gift of the furniture, wearing apparel, or notes, included in the inventory; and it is to be construed as a gift of property generally, or money, and not of goods consumable or destructible. We also assume, that the gift to Amey Albee, although in form absolute, is to be construed in connection with the gift over, and the clause “ if she die without issue or hens; ” and that by a fair construction, the word “ heirs,” in connection with the word “issue,” must mean heirs of the body.

So construed, it would give an estate tail by implication. Then the question is, whether the gift over can take effect, according to the rules of law, or whether it is void. Upon the first clause, a bequest to one and his heirs, even in real estate, would give an absolute estate in fee, and any limitation- over after such absolute devise, would be utterly void; à fortiori in a gift of personal estate. We have no doubt that personal property may be given to one for life, with a remainder to another absolutely.

But it is a fixed rule of law, that personal property cannot be given to one in tail, with remainder over, nor can an executory bequest be made to take effect upon the termination of an estate tail, because it is too remote. Nightingale v. Burrell, 15 Pick. 104. It will be found, we believe, in all the cases, that where a gift over of personal estate has been maintained, it is where the gift to the first taker is by the terms of the bequest, not exceeding a gift for life. Ellis v. Merrimack Bridge, 2 Pick. 243; Homer v. Shelton, 2 Met. 194, and the cases there cited.

Courts will look into every part of the will, every clause and word, to ascertain the intent of the testator, and however absolute and positive may be the terms of the particular gift, if it appears from other clauses that it was a gift for life only, the court will so hold. Even in the case of Smith v. Bell, 6 Pet. 68, the court came to the conclusion that the will showed a clear intent in the testator to limit the interest of the first taker to her life.

The authority of this case seems to have been doubted; but it was whether the court came to the right conclusion in holding that the bequest was not an absolute gift to the first taker, but not upon the point, whether on the whole, it must not be a gift for life only, in order to sustain a gift over. Without going at large into the argument, we take it as settled, that a form of words, which would give an estate tail to the first taker, with or without a limitation over, in real estate, would give an absolute estate to the first taker, in personal property.

In applying these rules to this case, we are all of opinion that the provisions are such, that they would have given to Mrs. Albee an estate tail in real estate. The words, “ if she die without issue,” give an estate tail by implication. It means that if she have issue, they shall take, and take in succession, as long as there shall be issue in the descending line, subject always to be barred by a common recovery, or here in Massachusetts, by a deed executed conformably with the statute.

The words, it will be observed, are not if she shall die without heirs of her body living at the time of her decease, but look to a general and indefinite failure of issue. This is a quality of the estate, and this implication converts that, which would otherwise have been an estate in fee, into an estate tail. The reasons are fully stated in Nightingale v.

Burrell, 15 Pick. 104. “ If she has no issue, living at the time of her decease,” may be a contingency, the happening of which may give effect to a bequest over, as an executory devise, because it must vest at her decease, and, therefore, has no greater effect than a gift for life. But a gift over upon a general failure of issue, in legal effect, carries a different implication, qualifies the estate, and makes the estate to which it is annexed an estate tail in the first taker.

We are aware that the intent of the testator is the leading consideration in the construction of a will, and is to govern; but it is with this qualification that it can be carried into effect, consistently with the rules of law. If it was the intention of the testatrix to give an estate to Mrs.

Albee and her issue and descendants, if she should have any, then it was an estate tail in her as the first taker; and the further intention, that Carpenter and his sister, should have it, after her decease, was contrary to the rules of law, and could not take effect, because it was to limit a gift of personal property to the determination of an estate tail, which the law does not admit. We are, therefore, of opinion that the gift to Mrs.

Albee, the wife of the appellant, was an absolute gift, that the property vested in him, as husband, either at the first taking or at her decease, and that he is not liable further to account for it. The decree of the judge of probate, therefore, disallowing the charges in the account of the appellant, must be reversed, the account allowed in full, and the case remitted to the probate court.