Everts v. Chittendon, 2 Day 338

By the Court. The questions raised on this record are* whether a fee, immediately on the testator’s death, vested in his son, the plaintiff in error, subject to a personal confidence or trust reposed in the mother, which ceased at her death ; or, whether the devise to Mary Ann Everts was of a term for years, limited by the period in which her son should attain, or, if he should die before, might have attained, had he lived, twenty-one years of age. The former, in our opinion, is the true construction of the will.

There is no rule better established, than “ that the inten» 41 tion of the testator expressed in his will, if consistent with (t the rules of law, shall prevail.” In the expression of the intention, as Lord Hardwicks truly said in Bagshaw v. Spencer, there can be no magic or particular force in certain words, more than in others ; their operation must arise from the sense they carry ; and that sense can only be found, by considering the whole will together. What the intention of the testator was, it is not difficult to discover.

For his wife he had made provision, hy a bequest of all bis moveable estate, and a devise of the one third of all his real estate, during her natural life. This, according to the general practice of our country, and the law for the distribution of intestate estates, was, at least, a reasonable disposition of property for the support of his wife ; and it is no unfounded presumption, that it was so considered by the testator. At the making of the devise, Joel Everts, the testator’s only son. was about five years of age.

What more reasonable, than that the testator should commit him to the guardianship of his mother, and give to her the improvement of his estate, to maintain, protect, and educate him ? Accordingly. it appears, that the testator gave to his wife the use and improvement of all his real estate, until his son should arrive at twenty-one years of age, “ she bringing him up." The specific phraseology, “ she bringing him up,” limits the trust to the wife personally ¡ and an expression more exclusively appropriate to this object) could not have been selected.

The manifest intent of the testator collectable from his will, in our judgment, maybe thus expressed. The use and improvement of one third part of my real estate I give to my wife, for her personal benefit, so long as she shall livej and if my son should die without issue of his body, before he attains twenty-one years of age, she shall have the use of all my estate. But if my son shall live, during his minority, his mother shall be his guardian ; and to enable her to fulfil the duties of this relation, she shall receive, without account, the rents and profits of my estate not above disposed of.

Subject to this trust, it is my will, that all my property shall vest in my son Joel, and be his for ever. Conformably with this construction, the real estate devised was not a term in Mary Ann Everts, but a mere personal trust or confidence, which ceased at her death. In other words, a fee, immediately on the testator’s death» vested in his son, subject to a personal trust or confidence reposed in his mother. The intention of the testator is collectable, from the apparent purpose, for which the use of his estate, during his son’s minority, is given tb his mother.

It is collectable, from the reasonableness of it, the duty of M. A. Everts, and the means of performance, being designedly commensurate. And as the construction given is forced upon the mind by every consideration, arising from the relation of the parties, and suppo sable views of the testator ; so it is indispensably necessary, to avoid the most obvious absurditv. For, wlio can believe, that the testator intended to bequeath his son to an unknown guardian, and to grant to him the improvement of all his estate, as a compensation for his services ?

This, unreasonable as the supposition is, presents but a partial view of the subject. For, on the construction contended by for, the defendant, it might happen, that the mother and son having died, for fifteen years or more, the testator’s estate should be enjoyed, by aliens in blood. In the mean time, his brother’s son could take no benefit of it, although he is the declared object of the testator’s bounty.

The intention of the testator having been ascertain ed, there is an end to all further inquiry, as no rule of law will be violated by carrying it into effect. “ In the construction of wills, adjudged cases may very pro- <£ perly be argued from ; if they establish general rules of “ construction, to find out the intention of the testator.” But, « ’tis so plain upon the true intent and meaning of this will, « that it is quite unnecessary to cite cases upon it.” Of those which, on the argument, were adduced, some notice, however, shall be taken, as they most strikingly confirm the construction which has been given.

In the second and third volume of Leonard’s reports, there are two anonymous cases, of which the following is a statement : A. devised, that his land should descend to his son, but that his wife should take the profits until his full age, “ for “ his education and bringing up..” The wife married, and died. It was resolved, that the second husband should not have the profits. “ Nothing is devised but a confidence, and “ the wife is a guardian or bailiff to the infant.” The parallel between these cases and the principal one is so obvious, as to render all observation superfluous.

The next case cited was that of Lomax v. Holmeden. Mr.

Lomax, by will, devised all his lands and tenements to a trustee, and his heirs, to the use of his wife for life, she paying 2QQl.fier annum to the testator’s son, Caleb Lo-max, until his age of forty years ; and in case the wife should die before that period, tjien to his daughters, and their heirs, they paying the same sum unto Caleb Lomax, until his age aforesaid : “ The testator hoping, that his son Caleb ’mould, by that time, have lived to see his folly” After which, the testator devised the premises to Caleb for life, and from and after his death, to the use of his first son, and the heirs male of his body.

The testator died ; the wife also died. Caleb married, and had a son, (the plaintiff.) but died before Ms age of forty years. The bill was brought for an account of the profits of the premises, from the death of Caleb, the plaintiff’s father; and the question was, whether the estate devised to the testator’s daughters should subsist, now Caleb was dead, until such time as he should, had he lived, have attained to his age of forty ?

It was argued by the defendants, (the daughters) that the devise created an absolute title and interest in them, until their brother should have attained forty years of age, had he lived so long. But the Master of the Rolls, (Sir Joseph Jkkyl) after time taken to consider of it, and having mentioned and commented on the cases cited, decreed, that this estate, devised to the testator’s daughters, and their heirs, determined on the death of Caleb ; and that agreeably to all common sense and reason, the interest devised must cease, when it became impossible for him to arrive at the age of forty.

For, taking it literally, that the daughters should enjoy the land until Caleb should attain to bis age of forty, this would be to make them hold forever, because Caleb, having died before that age, could never afterwards attain to it.

If, however, the estate or interest were created for a particular purpose, as to constitute a fund for payment of debts ; (which was Boraston’s case) there, since the sons might die the next day, or soon after the testator, it would be very hard that such an event, occasioned purely by the act of God, should defeat the fund provided on purpose for the benefit of creditors : and therefore, in aid of the honest intention of the testator, who may be supposed to have computed the time wherein the profits of the estate would be sufficient for that end, the judges, by a liberal

interpretation, have concluded, that the devisor meant, that the devisee, or executor, should have the land, for so long time, as the son, if he had lived, should have arrived at the age mentioned ; but in all cases “ when no such intention appears, the estate or interest “ would absolutely determine by the death of the party un- “ der the age specified in the will.

That such construction “ seemed the more just in the present case, as the reason ap- “ peared why the testator created this interest by his will, “ until his son should attain to the age of forty years, name- “ ly, in order to guard the estate against the ill conduct and “ extravagancy of his son, the will saying, the testator “ hop- “ edy by that time, his son would have seen his folly” This determination of a case, in several respects very-similar to the principal one, is forcible to show, that Mary Ann Everts had no term for years in the estate devised ; and that the testator, intending merely to put his son under the guardianship of his mother, ii is fit that his last will should be construed, in subserviency to that object.

The case of Mansfield v. Dugard clearly evinces, that - the wife of the testator (M. A. Evens) had no term in the demanded premises. It was a devise to the wife of the testator, till his son and heir apparent should attain twenty-one years of age, and then to his son. The son died at thirteen years old, and the wife continued to possess the estate until her son, had he lived, would have been twenty-one years of age.

On a bill brought by the heir at law, against the wife, for an account of the profits after her son’s death, it was decreí d accordingly », although the wife was executrix, yet the estate not “ having been devised for payment of debts, “ nor any creditors or want of assets appearing, it was held “ by the Lord Chancellor, that the wife’s estate determined “ by the death of the son, and. that the remainder vested, fire- “ senlly in the son ufion the testator's death, and was not lo ex- \ “ feet, till the contingency of his attaining his age of twenty-one “ years should hafl/ien.” All the cases prove, that the estate of Joel Everts, in the property devised, did not remain in contingency, until his coming of age, but vested immediately in him. on the death of the testator.

To this purpose the judgment of the court in Hayward v. Whitby, is explicit. In that case, the testator devised his messuages and tenements to Thomas Hayward and John Bates, and the survivor of them, and the heirs of the survivor, in trust, to employ the rents and profits thereof, for the maintenance, education, and bringing up of Thomas and John Hayward, during their minorities ; and •when and as they should respectively attain their ages of twenty-one, then to the use and behoof of them the said John and Thomas and their heirs equally, Thomas died before the age of twenty-one.

The heir at law ( Whitby) entered into possession of his moiety ; and John, now of age, brings ejectment, claiming the moiety of his deceased brother, as well as his own proper moiety. The question was, whether the estate vested immediately in the two nephews, upon the death of the testator, or remained in contingency, till their coming of age respectively ¡ The Court were ofopinion, that ¡he estate immediately vested in the two nephews ; and that there was no limitation of their interest, but only a limitation, 6f the trust during their thinority.

In other words, that it was an immediate gift to the two nephews, with a trust to be executed for tlieiv benefit, during their minority. The same expression, with an alteration peculiarly adapted to the principal case, expresses our opinion oil the manner and effect of its application. The testator gave to his son Joel Everts his estate immediately on his death, with a trust in his mother Mary Attn Everts, to be executedJor the benefit of her son, during Ms minority, if she showkl So Mg live.

Cases have been cited for the defendant in error, under the impression, that they established a term in the mother, by virtue of the devise, limited by the time when Joel Everts should, or might, attain the age of twenty-one years. A little attention will show, that they do not support the purpose for which they were adduced.

Waiving all observation on the peculiar phraseology of some of them, which was one ingredient in their determination, it is sufficient to remark, that they differ from the principal case in these particulars : either they were devises of property until the principal devisee should attain a certain age, without any expression which would even imply a limitation of the period in any possible event ; or, superadded to the bequest, they evinced, that the testator designed, for the payment of his debts, or other reasonable cause, that the devisee should be vested with an interest in the devised premises, until the time mentioned should expire.

In other words, the eases effectuate the manifest intent of the testator. In the first class of the decisions referred to, may be comprised Dedicates case, and Taylor v. Biddall. The former was a devise to the testator’s wife, during the nonage of his heir ; and the latter, a devise to A, until B. should attain twenty-one, and after that to B. Nothing is there to shew, that the testator placed the estate in the hands of the devisee, for the purpose oi' maintaining and educating his son, or with any other intent, than for her sole and exclusive use and enjoyment.

In the other class, may be included Boraston’s case, Balder v. Blackburn, Courthope v. Heyman, Stile v. Thompson, and Smith v. Havens. In the case first mentioned, as was justly observed in Lo-max v, Holmedon, the devise created a fund for the payment of debts ; and to accomplish this object, it is clear the testator intended, that the devisee should hold this estate, until the expiration of the time limited. Balder v. Blackburn was a devise to the wife, until the daughter should attain eighteen years, without account, and she paying fines and quii-rents.

The latter expression unquestionably indicates the intention of the testator. In Courthope v. Heyman, the testator appointed M, Robinson his ''editor, to take the rents and profits of his land, for, and i, u’ds, the maintenance of Ms respective children, till tney became of full age respectively. The executor died before the trust was completed, and his executor was adjudged to have an interest in the land until the pu rpose of the testator was accomplished. Stile v. Thompson presents the case of a devise to executors, until the full . age of the heir, to pay debts and legacies, and to educate children.

And the ease of Smith v. Havens was a devise to the wife, until the testator’s son should attain twenty-one years of age, “ to bring up Ms children.” A particular comment on every case cited is obviously needless.

Sufficient it is to remark, that the devises, upon the face of them, bear incontrovertible marks of the testator’s intention, and that the construction given was requisite to effectuate it. . , Finally : The intention of the testator in the principal case warrants the claim of I.is son ; there is no rule of law violated by permitting it to prevail ; and the cases cited are in entire coincidence with our opinion. Of consequence, the judgment of the Superior Court, in this case, must be reversed. Cane. 12 Nov. 1748. Reported 1 Ves. 142, and 2 Atk. 246, 570, 577. Cited by Buller J. in Doug. 341, Hodgson v.

Ambrose. 1 Burr. 233, Hayward v. Whitby. 2 Leon. 221, and 3 Leon. 78, determined amis 1574 and 1579. 3 P.Wms. 175 before Sir Jostra Jiíkyí., Master of th* Rolls, anno 17.32. 1 Eq. Ca. Abr. 195, pl. 4, Hil. Term, 1713, S. C. Gilb, Eq. Rep. 36. 1 Burr, 228, Hil, Term, 1757. 3 Leon. 9, Mich. Term. 1567. 2 Mod. 369, Mil. 29 & 30. Car. 2. in C. B. 3 Rep 19, Hill. 29 Eliz. in B. R. Hob. 285, Trin. 17 Jac. 1. Cart. 25, Trin. 17 Car. 2 in C. B. Dyer 210, pl. 24, Hill 4 Eliz. Cro. Eliz. 252, Mich 33 & 34 Eliz. in B. R.