F. McLeod, Administrator of A. L. Dell, Appellant, vs. Philip Dell, Executor of B. M. Dell, Appellee, 9 Fla. 427

DuPONT, C. J., delivered the opinion of the Court. Preliminary to a consideration of the questions growing out of the law of this case, and uj)on which the rights of the parties are to be determined, it may not be out of place to call attention to a point of practice, which seems to have «scaped the observation of the counsel who prepared the “ petition of appeal” filed in this Court.

The petition sets forth, by way of exceptions, the grounds assumed by the chancellor in his opinion delivered in the Court below, and which it is presumed formed the basis of his decree sustaining the demurrer and ordering the bill to be dismissed. In the case of Smith & Armisted vs. Croom et al., (7 Fla. R., 180,) this Court ruled that the opinion of the chancellor forms no part of the record of the case, and cannot be read or referred to in this Court.

The language of the Court in that case is as follows : “We will not feign an ignorance of the source whence the counsel who framed the petition for this application” (are-hearmg) “derived the information that the question of the survivorship of the son had passed ml silentio before the chancellor. That information we presume was furnished by the printed opinion of the chancellor, which was politely handed to the members of the Court during the progress of the cause, and the perusal of which they did not debar themselves from any false notion of propriety.

But it will be distinctly recollected, that the Court refused to permit the same to be read, for the avowed reason that it constituted no part of the record upon which they were called to decide.

This Court will always gladly avail itself of the light which may be' furnished by the reasoning of the Court below ; but when it comes to decide, it has to do only with the conclusions as they are embodied in the judgment or decree — the logic of the Judge is beyond its control.” Under the rules-of practice, as now controlled by the statute, we are constrained to approve the ruling in the case •above referred to, but at the same time think that it would be a great improvement if the Legislature would require that every decree in chancery should be accompanied by the written opinion of the chancellor, setting forth the grounds of the decree, and also that when an appeal is taken, such, written opinion shall be embraced in and constitute a part of the record of the case.

In proceeding to this investigation, it must be kept in mind that the questions of law to be discussed arise exclusively upon such state of case as is presented by the face of the complainant’s bill. The decree appealed from being upon demurrer, the denials or affirmative allegations of the answer, do not affect the result of the investigation. It is proper also to note that the will of Bennett M. Dell, deceased, having been incorporated into the bill and made a part of the same, exercises a controlling influence in making out the case presented by the complainant.

The hypothesis upon which the claim of the complainant is based, finds its sanction in the doctrine of the law against the encouragement of perpetuities. That doctrine was correctly laid down and ably sustained by the counsel for the complainant, and the only point upon which there can arise a question is as to its application to the case as made in the bill.

The counsel for complainant were understood as insisting that by the “ peculiar phraseology” of the devises and bequests made to the complainant’s intestate, in the will of defendant’s testator, Bennett I/L Dell, if applied to real estate, they would have created an “ estate tail; ” and that position being assumed, the well recognized doctrine was invoked, to the effect, that whenever the words used to make a bequest of personality, would, if applied to realty, create an estate tail, then the first taker will take the absolute interest in the subject matter of the bequest.

Upon these two principles of law, the counsel for complainant insist that Amos L. Dell took under his father’s will, an absolute estate and interest in all the property devised and bequeathed to him, unrestricted by any of the limitations therein contained, and that the same are assets of his estate, to which his administrator is entitled. If the premis be eortect, then it is beyond question that the conclusion arrived at must legitimately follow. We have then to examine whether or not the words used in this will would, if applied to realty, create in the devisee an estate tail ?

An “estate tail” may be defined to be, substantially, “a fee conditional at common law, limited to certain heirs, to the exclusion of heirs general — to lineals to the exclusion of collaterals.” It was admitted in the argument that “ heirs of the body” are the aptest words to create an estate tail; that they are words of inheritance and pro-creation too, and are as necessary in a deed as is the word “heir.” But then it was contended that they are not needed (quoting the words of Blackstone) “in last wills cmd testaments, wherein greater indulgence is allowed.” 2 Black. Com., 115, margin.

Much stress was laid upon this induldulgence accorded to the

interpretation of the language of wills, in contradistinction to the rule to be observed with reference to that of a deed. But a little reflection, accompanied by a careful examination of the authorities, will suffice to show that such indulgence is allowed only in aid of the intention of the testator; and where that intention is in equipóse between two contrary constructions, the words used, if they have received a well settled technical meaning, must be interpreted in that technical sense, otherwise they are to be taken according to their common acceptation.

Least of all shall such indulgence ever be allowed to defeat the intention of the testator. With these preliminary observations we now proceed to ascertain the precise words used in this will, and the

interpretation of which has given rise to this controversy. And here, we may congratulate ourselves that the skilful draughtsman of this will has relieved us from tbe irksome task of threading the devious windings of that mazy labyrinth, which has bewildered so many of the brightest luminaries of the law. Throughout this entire will, embracing fourteen distinct items or clauses, as may be seen by reference to the copy incorporated in the statement of the case, those mystical and enigmatical words which have evolved so much of legal lore, and not a little of legal sophistry, “ heir, ” “ issue,” do not appear.

Indeed, it would seem that the careful draughtsman, admonished by the experience of the past, had purposely excluded them, lest their presence, even with the commonly recognized limitations and restrictions, might give rise to some question as to the intention of the testator. IIow illy he has accomplished his benevolent purpose, is abundantly attested by the present controversy.

The words occurring in this will, and which we are called upon to interpret, are, “my children ” and “their children.” It was insisted by the counsel for the complainant that the word “ children ” was sufficient to create an estate tail, and we were cited to the case of Wood vs. Barrow, reported in 1 East., 259.

By reference to that- ease, it will be sefen that the word “ children” did not stand by itself, but that it was coupled disjunctively with the more technical word “ issue.” The devise there was to “ my daughter Ann, &c., who shall hold and enjoy the same as a place of inheritance to her and her children, or her issue, forever. And if it should so happen that my daughter Ann should die, leaving no child or children, or if it so happen that my daughter Ann’s children should die without issue,” then over.

At the argument of that case, Manley, for the defendant, insisted “ that the case fell expnessly within the rule laid down in Wild's ease, that if a man devise land to A. and to his children and issue, and he have then issue, the issue shall take a joint estate for life with A.” Lord Kenyon observed that “there were other words here, namely: that Ann Wood should enjoy the estate as an mhm'itcmee, to her and her children or issue, forever .” The italicised words so occur in the report of the case, and would thus seem to have exercised a controlling influence in bringing about the decision that was ultimately made, giving to Ann an estate tail, The words of the will before us are not controlled or affected by any such influence.

The case of Doe dem. Gigg vs. Bradley, 16 East., 399, was cited to the same point. The devise in that case was, “tomy daughter Sarah Ivniglit’s children, to be equally divided between them, share and share alike, and to the survivor oí them and their children.” It was held in that case that the children of S. K.t took an absolute interest in the premises, share and share alike, subject to a survivorship between them for life.

By reference to the opinion delivered in that case, it will be observed that the conclusion of the Court was based upon no special stress to be given to the words “ their children,” but rather upon the evident ■mien-Mon of the testator to make “ a certain, equal and rational disposition of his property, instead of one which is uncertain, unequal, and to depend upon accident.” The references to 2 Jarman on Wills, 12, 318 and 326,, have been examined, and the result of that examination is but to confirm us in the position heretofore laid down, viz r that wherever the word “child” or “children” has received an

interpretation extending it beyond its more precise and obvious meaning, as denoting immediate offspring,, and been considered to have employed as nomen eolleoti/mm, or synonymous with issue or descendants, that

interpretation has been given in aid of and in deference to the manifest intention of the testator, to be gathered from the whole will. In confirmation of the correctness of this position, we cite 2 Jarm., on Wills, 13, where it is said,, in reference to-this' very point, “ where this construction has prevailed, however, it has generally been aided by the context.” To meet and obviate the effect of this position, it was very forcibly insisted by complainant’s counsel, that whatever may be the

interpretation to be given to the word “ child ” or “ children, ” when standing by itself, yet it may be used as a term of succession, and thereby import an indefinite fiml/wre of issue / and that it is in that sense the testator intended to use it in this will. It is undoubtedly true, that the words may be used in the sense indicated in the-argument, and that when so used, if the intended succession exceeds the limits of the prescribed rule, the result will unquestionably follow as contended for by counsel.

But the question reverts, did the testator intend to use these words to indicate an indefinite succession, or did he intend to use them substitutionall/y, that is, putting the children of any of his immediate offspring that had or should die in the place of their parents ? To'detennine that question, resort must be had to the peculiar phraseology of the items of the will which are involved in this investigation. It is perhaps unnecessary to set out m haec verba any other than the item numbered 12, as it is in that item that the limitations and restrictions occur.

The entire will is incorporated in the -statement of the case, and can be referred to. if desired» The twelfth item is in the following words, viz: “Item. I hereby declare my will in regard to all my property, whether personal, real or mixed, disposed of by this will, so far as my children, or their children are concerned.

Where my property is given, devised and bequeathed, or in any manner disposed of by this will, to any of my children, or their children, it is my express will that it shall be enjoyed by them, during their lifetime, and upon their deaths it shall go to and be vested in their children, if any; and upon failure of children of any of my childRen, or tlieir children, then the property to which my said children, or their children, might have been entitled under this will, shall be divided among my surviving children or their children.

And in no case where my property is devised, willed or bequeathed, or in any manner disposed of to any of my children, shall they sell or convey the same, nor shall it be subject to their debts ; but the property shall be held for life, and upon the death of any of my children, or grand children, where my property is directly willed to them, the same shall go to and vest in their children; and upon the failure of such children, then the property thus held by them, upon their deaths shall be equally divided among my surviving children or their children.” It will be noted that there are three distinct clauses in this item of the will.

The first merely indicates the subject-matter as referring to the property and the beneficiaries thereof, viz: “my children or their children.” The second declares the eoni/mgenoy, viz: “ upon failure of children of any of my children or their children,” and also the Urrdtation, viz: to “my surviving children or their children.” But as if to make assurance doubly sure, the third clause reiterates the contingency and limitation contained in the second, and gives an

interpretation to the words “ or their children,” by substituting the words “ or grand children,” and appending the very significant qualification indicated by the words “ where my property is dmecily willed to them.” And there was ample ground for this extreme particularity of phraseology to be found in the condition of the testator’s family at the date of the will, for by reference to the fifth item, it will be seen that the bequest was made immediately to the “ children ” of a deceased son, and not mediately through their father.

Upon mature consideration of this clause of the will, and with an anxious desire to arrive at the intention of the testator, we are fully satisfied that the words “ or their children,” were designed to be used as words of substitution and not of succession. But it is objected to this view of the case that such

interpretation is in conflict with the rule of construction commonly referred to as the doctrine of Wild’s case, which is, that “ where lands are devised to a person and his children, and he has no child at the time of the devise, the parent takes an estate tañí.” To show the inapplicability of that case, it is only necessary to advert to the reason of the rule, as it is given in the books, viz: “ that the intent of the devisor is manifest and certain that the children (or issues) should take; and as immediate devisees they cannot take, because they are not in, rerum natu/ra, and by way of remainder they cannot take, for that was not his (the devisor’

s) intent, for the gift is immediate, therefore such words shall be, taken as words of limitation.” Now, in the will under consideration, the gift is not immediate to the children, but mediately through the respective parents; and there is a clear and manifest mtent that they should take by way of remainder. These two particulars are sufficient to distinguish between the two cases and to reconcile any apparent conflict.

If we are correct in thj foregoing conclusion, it will only remain to enquire whethe; the limitation over is within the limits of the rule whiel has been established against the occurrence of “ perpetui ties.” That rule, as well established, is, that the limitatior, shall not extend (beyond “ a life or lives in being, and twenty-one years after.” In the will before us, the imme diate legatee takes (by express words,) only a Ufe estate, with remainder over to his child or children; and upon failure of such child or children, then over to the surviving children of the testator, or of such of his children as had taken as immediate legatees.

It will thus be seen that the term of limitation is only for one life, and that it does not even trench upon the “ twenty-one years after” allowed by the rule, for by the express words of the will, the remainders vest immediately upon the termination of the life of the first taker. We conclude then that the limitation in this will is not void for remoteness, but that it is good to pass the property given to Amos L. Dell to the child or children surviving him, by way of vested remainder.

It is objected, however, that by our recognition of the rule respecting perpetuities, we come in conflict, with the 24th item of our “ declaration of rights,” which declares u that perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed.” We are at a loss to comprehend the force of the objection, and do not appreciate its logic. It is a sufficient reply that the convention which ordained that declaration, are to be presumed to have understood the full import of the term used.

It was further, objected that “a proviso to an absolute bequest, such as that the first taker shall not alien, or that the estate shall not be subject to his debts, is void.” There is no doubt of the law, as thus stated, but its applicability to the bequest in this will is denied. Here, there was no absolute estate given, but only an estateHimited to the life of the first taker, and that, too, protected by a trust in a third party.

It was further insisted, that as by the terms of the will, the intestate, Amos L. was to be paid at the age of twenty-one, and as he had attained to that age before the death of the testator, the legal estate vested in-him.

This argument, we presume, is predicated upon the phraseology of the eighth item of the will, wherein the testator undertakes to dispose of the balance of his estate not otherwise disposed of, and which directs the Executor to “ give to each, his or her share at the age of twenty-one years respectively.” Undoubtedly, it this was the only item of the will affecting the interest of Amos L., he would have taken the legal estate ; but the 18th item is express and beyond cavil as to the interest which he was to have in the property bequeathed to him under the will. That item is in the following words, viz : “ Item.

It is further my will, that the property which may come to my son Amos L., under this will, shall be under the control and management of my executors, hereinafter nominated; and shall not, under any circumstances, be subject to his debts, but he shall only enjoy it during his natural life, and upon his death, it shall go to his children, subject to the restrictions as in the above last item specified.” If this be not such a clear declaration of a trust as will vest the legal title in the executors, and limit the interest to be enjoyed by Amos to the mere usufruct, then we are at a loss to conceive a collocation of words which would accomplish that purpose.

We have thus travelled over the entire argument of the counsel in support of the right of the complainant, as administrator on the estate of Amos L. Dell, to have the possession of the property which came to his intestate in his life-time, under the will of his father, Bennett M. Dell, and to administer the same as assets of his estate, and after mature consideration, we are constrained to decide that Amos L. took only a life estate in the usufruct of the property, and that the same constitutes no part of the estate to be administered by the complainant as his administrator.

In arriving at this conclusion, the Court has had necessarily to confine the investigation- to the case as made out by the bilí, un influenced by any of the admissions, denials or allegations of the answer. Of course, the will being made an exhibit by the complainant, formed a prominent feature in the statement of liis case. This brings us to the consideration of the second prominent objection to the decree of the chancellor, viz: that the bill ought to have been retained for the purpose of having the title to the five negroes properly adjudicated.

The position assumed under this head of the argument was, that “ the Court having taken jurisdiction of the case, should dispose of it as a whole, and not refer back the question as a legal one.” The general rule upon this subject, as announced by Mr. Fonblanque, is as follows: “ The Court having acguwed cognizance of the suit for the purpose of discovery, will entertain it for the purpose of relief in most cases of fraud, account, accident and mistake.” Fonb Eq., B. 1, ch. 1, § 3, note f.

The rule as laid down by the Courts of New York is, that “when the Court of Chancery has gan/ned jurisdiction of a cause for one purpose, it may retain it generally for relief.” Armstrong vs. Gilchrist, 2 John, cases, 424; Rathbone vs. Warren, 10 John R., 587; King vs. Baldwin, 17 John R., 384. According to the terms of the rule as laid down by Fonblanque, it is essential to the granting of the relief, that the Court should first have “ acquired cognizance of the suit, and as laid down in New York, that the Court should have “ gained jurisdiction of the cause.” Mr.

Story, in commenting upon this rule, says: “From what has been already stated, it is manifest, that the jurisdiction in cases of this sort, attaches in equity, solely on the ground of discovery. If, therefore, the discovery is not obtained, or it is used as a mere pretense to give jurisdiction, it would be a gross abuse to entertain the suit in equity, when the whole foundation on which it rests is either disproved, or it is shown to be a colorable disguise, for the purpose of changing the forum of litigation.

Hence, to maintain the jurisdiction for relief, as consequent on discovery, it is necessary, in the first place, to allege in the bill that the facts are material to the plaintiff1’s case, and that the discovery of them by the defendant is indispensable as proof; for if the facts lie within the knowledge of witnesses, who may be called in a Court of law, that furnishes a sufficient reason for a Court of equity to refuse its aid. The bill must therefore allege (and if required the fact must be established, ) that the plaintiff is unable to prove such facts by other testimony.

In the next place, if the answer wholly denies the matter of fact, of which discovery is sought by the bill, the latter must be dismissed; for the jurisdiction substantially fails by such a denial.” 1 Story Eq. Ju., § 74. Applying the rule as above stated, wdth the comments of the learned author just quoted, to the point under consideration, and there can be no question but that the Chancellor below did right in refusing to retain the bill for the purpose of having the title to the five slaves adjudicated in that forum.

The bill on its face expressly alleges the legal title to these slaves to have been in the complainant’s intestate, and as expressly negatives a trust in the defendant. Neither does it allege any ground which would entitle the complainant to ask for a discovery touching the title to the same. In fact, the Chancellor by sustaining the demurrer, (which it must be noted was to the whole bill,) expressly decided, that he had neither “ acquired cognizance,” nor “ gained jurisdiction” of the cause.

Here we might close this opinion, but for a very important question which has suggested itself, to the mind of the Court during the progress of this investigation. That question touches the right of the defendant to retain m his possession, and under his control, the property, the usufruct of which was given to Amos L. for life. After mature consideration, we are of opinion, 'that the trust created by the will of Bennett M.

Hell, in favor of the defendant, expired and became fully executed upon the death of Amos L., and that the interest of the infant child, the designated remainderman, requires that all of the property to which he may be entitled as such remainderman, should be turned over to a proper guardian, to be appointed by the competent authority. It is ordered, adjudged and decreed, that the decree of the Chancellor sustaining the demurrer to the bill, be affirmed with costs.