M'Graw v. Davenport , 6 Port. 319 ( 1838 )

ORMOND, J.

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The. father of Mrs. Davenport, made his last will, by which he bequeathed certain negroes to. his wife, during her life, and at her death, to his two daughters, Louisa and Cynthia, by a clause in the following words — “At the decease of my wife, I allow a part of the negroes, above named, and bequeathed, viz: Clary, Idol!, Maria, Silvey, Siller, Creecy and Nan, with their increase, should there be any, to be equally divided, by valuation, between my two daughters, Louisa and Cynthia; or should either of them die without issue, the other is to get the whole of the seven negroes, and their increase.” The wife of the testator died, and the negroes were equally divided between the two daughters, before their marriage. The plaintiff in error mar-sled Cynthia, and the defendant in error Louisa. Cynthia died, and her husband, the plaintiff in error, sold the negroes which were allotted to his wife. The action in the Court below, was brought to recover the price of the negroes. On the trial, the Court charged the jury, that if they believed, that the said Cynthia and Louisa survived the testator — that the said Cynthia af-terwards received into her possession her moiety of the .said slaves, named in the said bequest, and died without issue in being, leaving the .said slaves in the possession of the defendant, that then the said Louisa became entitled to said claves. Several other charges were given on other points raised in the cause, but the view we take of the case, renders it unnecessary to consider them. The charge above given was excepted to, and is now assigned for error.

The counsel for the plaintiff in error contends, that the limitation over, after the death of the first taker, being after an indefinite failure of issue, is void; and that the entire property vested in the first taker. The ■counsel for the defendant in error, maintained the converse of this proposition, and insisted, that the limitation over, was not too remote, hut was good by way of ex-ecutory devise.

All the cases on this subject, (and they are very numerous,) agree, that the words “ die without issue,” when used in a will, as a limitation over, of personal property, unexplained, or controlled by any other circumstance, or language in the will, indicating a different intention, do import an indefinite failure of issue. If this were allowed, the consequence would he, to tie up the property bequeathed, and render it unalienable for an indefinite period of time; thereby creating, what, in law, is called a perpetuity. This being against the policy of the law, is not permitted; and the effect of such a limitation, is, in law, to vest the entire property in the first taker.

But although the decisions on the effect of the words above cited, without any explanatory language, or circumstance, in the will, evincing a different intention on the part of the testator, have been uniform, yet an irreconcilable diversity is found to exist both in England and the United States, on the language, or circumstances, found in other parts of tliebequest, or of the will, which shall be sufficient to indicate the intention, to confine the limitation over, to a dying without issue, at the death of the first taker. Some of the earlier cases, have proceeded on the character of the property bequeathed ; and while they held the words in question, to import an indefinite failure of issue, when the subject matter of the devise was land, when the same words came to operate on personal property, they ruled, that from the transitory and fleeting nature of personal property, it was unfair to suppose, that an indefinite failure of issue was intended; and construed the words to mean, a dying without issue at the death of the first taker.

The case of Forth vs Chapman^* is one of the leading cases in which this distinction was taken; it has been since followed by many other cases, and again repudiated by names of equal authority, and greater in number. The argument in this aspect, has been strongly pressed by the defendants counsel, and although we are not prepared to say that the distinction is well founded, yet, if it were true in relation to personal property, in general, its application fails, when applied to a mixed bequest of male and female negroes; or as in this case, of females only. The laws impressed on the human, race, by the Creator, for its preservation, render it at least reasonably certain, that at any given future period of time, a number of female slaves, will be found to have increased.

It is a very general remark, and was made by counsel in this case, that in most cases where these lirnita-"ions of personal property have been construed, to he a limitation over, after an indefinite failure of issue, that •violence is done to the intention ©f the testator; and that that intention is sacrificed for the preservation of a ■technical rule of law. It is true that in cases similar to the one which produced the celebrated rule, called the rule in Shelly’s case, this may be true — as where an estate is given to one expressly for life, with remainder to his heirs, or to the heirs of his body, in fee or in tail. To make a construction, which gives to the first taker, an estate in fee or in tail, which by levying a fine, he can convert into an estate in fee, would serve to contradict the intention of the testator: but in truth, it is only sacrificing the particular, to the general intent of the kestator. And, in most cases, we believe, that the intention of the testator is correctly ascertained, by construing these words, “ dying without issue,” to mean, an indefinite failure of issue, where they stand alone, and. .are not controlled by any thing else in the will.

We do not therefore come to the examination of this t, question, as many judges seem to have done, straggling i'! 'to extricate ourselves from the trammels of a technical.; rule of law, which if established, would in all probability, contradict the intention of the testator; but, we ; consider this like all other cases, in which a will is to ! expounded. The only question is, what was the testator’s intention?

We are relieved from the necessity of threading the labyrinth of cases to be found on this subject, by the construction we put on the clause of the will now before us.

The testator, in the first place, gives to his wife a life estate in the negroes — he then proceeds to declare, that at her death, seven of the negroes, (naming them) shall be equally divided by valuation, between his two daughters, Louisa and Cynthia: then comes these words, “ox-should either of them die without issue, the other is to get the whole of the seven negroes, and their increase.” At what time did the testator contemplate the contingency of a dying without issue was to happen; and on the happening of which, the bequest over was to tafee effect, if at all? Was it at the death of his wife, or was it at any after period? To our minds, it is most clear, that the contingency was not postponed to a later period than the death of the wife. He first directs the property to be equally divided, by valuation, between his (laughters at his wife’s death; but considering it as probable that one of them might die, and without issue, before that event should happen, he provides Tor that alternative, and in the most natural manner possible: "or should either of them die,” &c. The grammatical construction of the sentence accords with our view. The disjunctive particle or, divides the sentence into two parts, and shows that the latter provision was only to take effect, in the event the first part of the clause could not be effectual, from the death of one of (ire daughters, before the death of the mother. The language in which it is couched fortifies the position. Had the testator intended to postpone the contingency of dying without issue, to any period subsequent to the death of his wife, and of course after the division of the negroes, it is most improbable he would have used the language, "the other is to get the whole of the seven negroes.” The use of these words shows that he contemplated the event to happen, if at all, before a division of the property, and of course before the death of the wife. Had lie been looking to some future period of time after the death of the wife, his language would have been, the other to get her share, or some equivalent language. The concluding part of the bequest, puls the matter beyond all controversy; it is in these words: “Should there remain on hand, at the death of my wife, any thing of the stock, household or kitchen, furniture, plantation utensils, &c. undisposed of by my wife, I allow whatever may remain, to be equally divided, by valuation, between my daughters, Louisa and < ’ynthia; or should either of them die without issue, the other is to get the whole of the stock, household and kitclien furniture, plantation utensils, &c. not disposed of by my wife" The structure of this part of the clause, is precisely the same, as the part before commented on; with the addition of the words, “not disposed of by my wife.” These words, in our opinion, must silence ai i doubt as to the true construction of the will. By saying that the “other is to get the whole of the stock, &c. no. disposed of by his wife, he discloses what was passing in his mind at tire tune; the language is conclusive to show, that he intended that the contingency should no' be postponed, to a later period than the death of his wife.

It has been previously stated, that there have been many decisions, which turned exclusively on the fact, that the subject matter of the bequest was personal property, if it could ever be allowed to construe the same words b > a will, differently, according as they related to real or per sonal property, it would certainly be in a case where th property, consisted of such things as perish in the usina —as in this case, “stock, plantation utensils, &c.” Tli argument, that a perpetuity could not be intended, in such a case, is difficult to be resisted, and has governe-the decision of a multitude of cases, which, as they ar ■ familiar to the bar, it is not necessary to cite. Yet w-find this last mentioned bequest, not only in the sam.-will, but a part of the same clause, relating to the sam - persons, and couched in the same language.

The result of the whole, is a full conviction, on ou r minds, that the limitation over was not too remote; th.' contingency being to happen within a life in being The two daughters, under this clause in the will, too. vested remainders in the negroes, and other property, sub ject only to the contingency of their not living to enjoy it. The daughters being both alive, at the death of thei - mother, the contingency never happened; and the pr< perty vested absolutely in them. A division, as the record shows, took place, and by the marriage of the plain tiff with Cynthia, he became the owner of the slaves.

It may not be improper to add, that effect could not hr given to the argument of the learned counsel for the defendant in error, without construing ‘or,’ in the bequest,, to mean and; so as to make the bequest read, “ and should either of them die without issue,” &c. Without determining what the true construction would be in that aspect, it is sufficient to say, that this is never done but in cases where it is absolutely necessary, to carry into effect, the manifest intention of the testator — and where, without such alteration, the plain intention of the testator would be defeated. It is never done, when the will, as it stands, admits of a sensible construction — as in the case of Richardson vs Spragg^* — The testatrix bequeathed a legacy, to such of her daughters, or daughter’s children, as should be living at her son’s death. Some of her daughters survived that period, who had also children, and others were dead, leaving children. The question, was, whether the children of the living daughters should be let in to a share of this bequest, or the children of the deceased daughters only, as substituted in the place of their mothers. And it was decreed at the Nolls, that all the children, as well of the living as of the deceased daughters, should participate in the legacy. Sir Joseph Jekyl, observing that or should he taken for and; otherwise the whole devise would be void for the uncertainty; and. that it was the same as if the bequest had been, "to such of my daughters, and their children, as shall be living at my son’s death. So if the devise had been, "to my children or grand children,” my children and grand children would have taken.^† The judgment of the court below mu,st be reversed.

* 1 P. Wms.

* 1 P Wms. 433.

† See also 2 Cox 213 ; 2 Atkins 643.