Allyn v. Mather , 9 Conn. 122 ( 1832 )

Hosmer, Ch. J.

I will, in the first place, attend to the construction of the will, and the application of it to the claims of the parties, respectively, in this case.

It is on both sides admitted, and requires no discussion, that the son and the grandsons of the testator took estates for life in the premises ; the former by close implication, and the two latter by the express words of the device.

I now come to the clause, on Inch the controversy between the parties depends. It is expressed in the following wo; “ And after their decease, (that is, the death of the testator’s grandsons,) to each of their eldest sons lawfully begotten, and. so from eldest son or sons forever ; and in case they should have none, to the eldest male, child of any of my three sons, and so from eldest to eldest to the end of time.”

The controversy between the parties is precisely this. The defendant insists, that by the expression in the will, “ after their decease to each of their eldest sons,” the testator limited the estate to the first horn, that is, to Eli B.; while the plaintiff contends, that the limitation was to the eldest son living at his fathers decease, that is, to himself.

It is an established principle, founded on the jus disponendi, one of the essential attributes of property, that a person may dispose of his estate, by his last will and testament, as he pleases, provided such disposition be not inconsistent with the rules of law. To go beyond this would permit every man to make a new law to himself, and thus to render vague and indeterminate, the metes and bounds of property.

Hence, the first and great object of enquiry, on the construction of last wills, is, what was the intention of the testator ? 6 Cruise's Dig. 11% When this is attained, it next becomes necessary to ascertain, how far the intention is compatible with the rules of law. And in relation to the construction of a devise, it is observable, that all the words of the will are to be taken into view, and not a part of them only ; as every word is employed to develope the intention of the testator, and all of them, taken in connection, exhibit a transcript of his mind. 7 Bac. Abr. 341. & seq. tit. Wills. F. (Gwil. ed.)

“ After the decease" of Samuel, the estate was to go to his eldest son or sons forever. Who was the eldest son of Samuel, after his decease ; the point of time in which the fact was to be determined 1 Was it Eli B., who was not living, and who, of consequence, was not at this period a son ? Or was it Richard, who, at the time* proposed, was the eldest son of the testator then living ?

It is perfectly obvious, if the expression alluded to is construed as being synonimous with the first born, that it defeats the testator’s general intent. For, on the death of Eli B., without issue, either the devises in the will terminated ; and thus the intended object of a succession of life estates forever would be defeated ; or the estate intended to pass on without limitation in the line of one of the children of Samuel, is taken from this direction, and conferred on the eldest male child of any of the testator’s three sons. This would be a very unreasonable construction, and in opposition to the well-founded presumption, that the testator intended to benefit the family of Samuel, and not to give, in exclusion of the eldest son of his, living at his decease, a new line of succession to those, who before were competently provided for.

The words of the testator, construed in reference to the subject matter, leave no reasonable doubt as to his intention. Lord Hardwicke, in Lenox v. Holmden, 1 Yes. 294, observes, he could not agree, that first son (an expression synonimous with eldest son,) is to be always taken strictly in the sense of primogenitus, but in the sense of an elder son, senior, or rnaximus natus. The propriety of the observation is unquestionable. The different object of a speaker, often gives a different meaning to the same word. Thus, the expression he will not hear you, may well be understood, in connection with the subject matter, either that the person addressed will not hear, by reason of extreme deafness, or that he will not be persuaded, by reason of the prejudice of his mind. The expression the eldest son, may be moulded, by the subject matter, and the will be construed to mean, not the primogénitas, but the eldest living at the death of his father. That such, in this case, was the intention of the testator,, admits of no reasonable doubt. When a testator creates a series of life estates, to the eldest son of the tenant for life in succession, it can scarcely be conceived, that the intended limitation was to a son, who should die before the life estate was to commence; but rather to one who was living, and capable of taking and enjoying the estate.

When we look at the whole will, and give effect to every part of it, the intention of the testator is not susceptible of a reasonable doubt. Throughout the entire will he uses expressions denoting his intent, that each life estate should commence, both as to the right and the enjoyment, on the termination of the former. He first gives a life estate to his son Samuel Wolcott Allyn. He then says, “ after my son’s death,” I give the same premises to my grandsons, during their natural lives. Pursuing the same phraseology, he next subjoins, that “ after their decease,” he devises ihe premises to each of their eldest sons. He gives nothing to either'devisee, either in right or ín enjoyment, until the termination of the preceding life estate; and what good reason can be assigned why he should? If an estate for life had been given to one of the testator’s children, with remainder to another, from the nature of case, as both these estates are only the parts of one estate, the right of the remainder-man would exist before his possession ; but estates for life, from their nature, are separate and independent of each other. Hence, it results from the entire disconnection of these estates, that it is sufficient that the right and enjoyment should- commence their existence at the same time. Of this opinion was the testator; and by the words “ after his decease,” that is, the death of the prior tenant for life, the right and possession of the subsequent tenant, was to exist.

From this, it follows, that Eli B-, who died before his father, by the testator’s intention, took nothing; and that the estate fell on Richard, who was the eldest son at his father’s death.

That an estate for life in the plaintiff, according to the particular intent of the testator, contravenes no rule of law, is indisputable. He is the immediate issue and descendant of a person in being, at the time the will was made; and hence is capable oftaking the estate as a purchaser. Stat. 301.

This construction, however, would defeat the testator’s general intent, which was, to create an interminable succession of estates in the premises; for the son of Richard, on the established principle of law, as well as by our statute, (p. 301.) being the issue of unborn issue, cannot take the estate otherwise than by descent. To effectuate, therefore, the general intent of the testator, it is necessary to vest in the plaintiff a fee tail. “ It has been the settled doctrine of Westminster-Hall,” said Lord Kenyon, in Doe d. Cook & al v. Cooper,, 1 East 229.234. “ that there may be a general and a particular intent in a will, and that the latter must give way, when the former cannot otherwise be carried into effect.” (Vid. 1 Burr. 38.) On this principle the case of Humberston v. Humberston, 1 P. Wms. 332. was decided.

That case was a devise of land to a corporation, in trust, for a number of successive lives, a part of the devisees being unborn at the making of the will. It was said, by Lord Chancellor Cowper: “ Though an attempt to make a perpetuity for successive lives be vain, yet so far as it is consistent with the rules of law, it ought to be complied with ; and therefore, let all the sons of these several Humberstons that are already born, take estates for their lives; but where the limitation is to the first son unborn, there the limitation to such unborn son shall be in tail male.” This was a construction of the will, according to the testator’s intention. The great object was, in that case, and so it is in the present, to create a succession of estates ; and the particular mode prescribed may well be disregarded, when it becomes necessary, to prevent the devise from being defeated. This point has often been discussed, and has been established, by numerous determinations. Nicholl v. Nicholl, 2 Bla. Rep. 1159. Pitt v. Jackson, 2 Bro. Ch. Ca. 51. Chapman d. Oliver & al. v. Brown & al. 3 Burr. 1026. Robinson v. Hardcastle & al. 2 Term Rep. 241.

The plaintiff, pursuant to the intention of the testator, and the settled principles of law, has an estate tail in the premises ; and of consequence, is entitled to a recovery, if there has been an ouster. Of this there is no room for controversy. The defendant was in possession, at the time of the action brought, and claimed he had right to possess as the tenant of Mary E. This is sufficient evidence of ouster. Doe d. Fisher & ux. v. Prosser, Cowp. 217. Doe d. Hellings & ux. v. Bird, 11 East 49.

I would therefore, advise that judgment be rendered for the plaintiff.

Peters and Bisseix, Js. were of the same opinion.

Daggett, J.

It appears to be admitted, that, under the will of Pelatiah Allyn, his grandsons, Samuel and Wolcott Allyn, took vested remainder’s for life only in the property in question. The rule on the subject is correctly laid down, by Chief Justice Wittes, in his opinion in the case of Ginger v. While, Wittes Rep. 348. In the course of that opinion, referring to Wilde’s case, he says: “ If a devise be to A. and his children, if there be no children then in being, it gives an estate tail, because the devise is in words de presentí; and there being no children in being, they must take by way of limitatian. But if a devise be to A., and after his decease, to his children, A. has only an estate for life, because then the words plainly shew, that the children were intended to take by way of remainder.” The case before the court clearlv comes within the last clause of the rule thus stated. The wifi expressly confines the interest of Samuel and Wolcott Allyn to “ during their natural lives,” and provides, that “ after their decease” the estate shall go “ to each of their eldest sons.” Without enlarging on this subject, I will only say, that I see no, reason to doubt, that Samuel Allyn and Wolcott Allyn took vested remainders for life ; and that the limitations over to their eldest sons, were to them as purchasers.

I am also of opinion, that the last clause of the provision in question of the will of Pelatiah Allyn can have no effect in the present case. That clause is predicated upon the contingency of his said grandson’s not having eldest sons. But as his grandson Samuel did have an eldest son Eli B., and also at the time of his death left a son Richard, who was then his eldest son living, it appears, very clear, that the contingency can never occur on which said last clause was to operate ; and, therefore, that clause may be placed wholly out of view. It is necessary here to remark, that no other property is now in question, except that which was devised to the grandson Samuel Allyn for his life, and that this opinion is to be considered as confined to that part of the property of the testator.

Having ascertained that the grandson Samuel Allyn took an estate for life only, and that whatever interest was devised to his eldest son, was intended to vest in him as a purchaser; and that the last clause of the provision in question of the will is to be laid out of view ; the ground of controversy is reduced within a very narrow compass. The only question which remains is — what is the correct and legal construction of the words — “ to each of the eldest sons” of the testator’s grandsons Samuel and Wolcott, “ lawfully begotten, and so from eldest son or sons forever.” The rules to be applied in construing wills, are too well settled to require being here stated. It will be sufficient to observe, — that the real intention of the testator is, if possible, to be ascertained ; — that in ascertaining that intention, every worcf ought to be considered ; — that when the intention is ascertained, it is to be carried into full effect, unless it contravenes some legal principle ; — and that if the intention cannot be carried into full effect, it is to be carried as nearly into effect as the law will permit. What the real intention of the present testator was, with respect to the property in question, appears to be clear. He wished his son to enjoy it during his life, and his grandson during his life, and so on forever. But this intention contravenes a legal principle, and cannot be carried into full effect. By out statute (which, however, is only in affirmance of our common law,) it is provided, that no estate shall be given by will to any persons, but -to such as are in being, or to the immediate issue of such as are in being, at the time of making such will. Stat. 301. This was the common law of Connecticut, when the will in question was made, and when the testator died; and it is obvious, therefore, that no persons can take as purchasers after the issue of the grandson Samuel Allyn- The issue of this grandson can take directly, and byway of purchase; because they are the immediate descendants of a person in being at the making of the will; but with them the capacity of taking by purchase terminates. If more remote descendants have rights under the will, it, must be as the representatives of the issue of the grandson Samuel. As, then, the intention of ihe'testafor cannot be completely effectuated, it becomes necessary to consider what estate allowed by law will be nearest to that which. he intended. And it is clear, that an estate tail will better correspond with his views than an estate in fee simple. If it is decided, that the eldest son of the grandson Samuel takes an estate tail, neither lie nor bis creditors can destroy the rights of his issue. It must, then, be the legal construction of the will, that an estate tail was given to the eldest son of the tes-tutor’s grandson Samuel Allyn. But at the death of the testator, there was no such eldest son; and therefore, this estate tail was a contingent remainder after the previous life estates. When Eli B. Allyn, the first son of Samuel Allyn, was born, did this contingent remainder vest in him as a vested remainder in tail, or did it continue a contingent remainder till the death of Samuel, and then vest in the eldest living son of Samuel ? I think there cannot be much doubt on this subject, “ The law favours vested estates, and no remainder will be construed to be contingent, which may, consistently with the intention, be deemed vested.” 4 Kent’s Comrn. 195. On the same principle, a contingent remainder will be construed to have become a vested remainder, as soon as such a state of facts exists under the will as fairly admits of that construction, In"the present case, Eli B. Allyn was the first son of Samuel Allyn; and, as soon as he was born, there was a person, fully answering the description of the will, in whom the contingent 'remainder could vest; and there was no reason why the remainder should not so vest. To consider the contingent remainder as continuing after the birth of Eli B. Allyn, we must disregard a well settled and most salutary rule of law, and bold, in direct opposition to all tiie authorities, that an estate shall be construed to be contingent, when it might clearly, be deemed vested. I am not prepared to act upon such a principle ; and, therefore, am of opinion, that, on the birth of Eli B- Allyn, the contingent remainder in tail ceased, and a vested remainder in tail vested in said Eli B. Allyn, to be enjoyed in possession after the determination of the previous life estates. And in coming to this result, I not only follow the settled rules of law, but also, as I think, give effect to the language of the testator, according to its natural and ordinary meaning.

I have thus come to the result, that Eli B. Allyn, on his birth, took a vested remainder in tail in the property in question ; and if the estate, which he thus took, was an estate in tail general, his daughter Mary E. Allyn is now the owner of the property, she being his only child and heir. But did Eli B, take an estate in tail general ? It has already appeared, in the course of this opinion, what was the intention of the testator, and also why the eldest son of the grandson Samuel should take an estate tail ral her than a fee simple. But an estate in tail male is clearly nearer to the intention of the testator than an estate in tail general. The testator designed that the property should go from eldest son to eldest son indefinitely, each eldest son having only a life estate. An estate in tail male excluding females, would be more in conformity to such design, than an estate in tail general, admitting females. An estate in tail male, limited to the eldest son of the tenant in tail, would be still nearer the testator’s design ; but, as there would be great doubt whether such a limitation would be lawful, and the tenant in tail Eli B. Allyn never had male issue, I think it unnecessary to claim any thing further than that Eli B. ought to be considered as taking an estate in tail male, rather than an estate in tail general, if by law he could take an estate in tail male.

The only question, then, is — does the law of Connecticut permit estates in tail male ? And here I may be confident in saying, that no reason fora doubt on ibis subject is furnished by our books. No decision, no dictum, no opinion of an elementary writer, is referred to, which is in opposition to such an estate with us. On the contrary, it was expressly decided, in the case of Dart v. Dart, 1 Conn, Rep. 250. that the estate of the plaintiff, Caleb Dart, was a tenancy in tail male, under the will of his grand-father Roger Dart. Trrt case would be con-elusive, unless the fact that the result would have been the same had the estate been a tenancy in tail general, may be considered as rendering the decision on the point in question unnecessary, and, therefore, not of binding authority. I am willing to give such effect to that fact; and shall proceed to enquire whether the principle, now first contended for in this state, is sound.

When our law adopted estates tail from the English law, it adopted them as they were known in 'England, wit!) certain qualifications rendered necessary by the genius of our institutions. One of those qualifications was, that no estate tail should be perpetual, but that all such estates should vest in fee in the issue of the first tenant in tail. But there never was any reason for our not recognizing special tenancies in tail. May not a devisor give property to his son and to his issue by a particular wife ? I see no objection to such an estate, and should have no hesitation in saying, that issue by another wife could not take. And I see as little reason for an objection to an estate in tail male. If a devisor prefers to give his property to his son and the male issue of the son, no disadvantage can result from allowing full effect to the devise. Certainly, we ought not to disregard one of the most important features of English estates tail, without substantial reason : — and, unless we do, we must hold, that special estates tail may exist with us, and, also, that our law recognizes the distinction of estates in tail male and tail female. — Our statute, which provides, that the issue of the first tenant in tail shall take a fee simple estate, has no bearing on the subject. What issue are to take is first to be decided, upon a fair construction of the deed or will ;— and then the statute operates and enlarges the estate into a fee simple, in the hands of such issue. The object of the statute was to prevent perpetuities. For that purpose, it converted estates tail into estates in fee ; — but it went no further. There was no reason for giving an estate to the issue generally, or the first tenant in tail, when the person creating the estate directed that it should go to some special issue ; — and it would require a strained construction to make the statute so operate. The word “ issue,” used in the statute, is a general term. It includes a man’s children of every character, male and female, by one wife or several ; — and may mean the whole or a part of them, according to circumstances. The intention of the legislature would not have been carried into complete effect, unless they had used such a general term. Their design was, to convert estates tail into in estates in lee, the hands of all issue, in tail, as well special as general issue, as well male as female issue. In whatever issue the estate tail vested, the statute operated upon the estate so vested, and enlarged it into a fee simple : but it did not intend to interfere at all with the question in what issue the estate tail should vest. This is left to be decided, by the principles of the English law, as applied to the facts of each particular case. When that question was decided, and the estate in tail vested in the proper issue, then, and not before, the statute operated. This, in my opinion, is the natural construction of the statute ; and I adopt it without any doubt of its correctness.

I thus come to the result, that estates in tail male are allowed by our law ; — and that Eli B. Allyn took an estate in tail male in the property in question.

The only remaining enquiry is, — wdrat became of the property, which Eli B. Allyn held in tail male, on his decease. It could not descend to his daughter ; as she did not come within the description of the issue to whom the estate was limited. It could not devolve on his brother Henry ; for the words in question were completely satisfied when they vested an estate tail in the first eldest son, and will not admit of the construction, that, at different periods, different sons might take the same estate, as respectively answering, at those different periods, the character of eldest son. For the same reason, (and several others which it is unnecessary to mention) it could not become loaded with another contingent remainder, to take effect, on the death of Samuel Allyn, in favour of the eldest son, who should survive his father. Nor could it be affected, by the last clause of the provision in question of the will ; since that clause, as has already been shown, became inoperative on the birth of Eli B, Allyn. No other provision of the will is produced, which can have any effect, as the facts appear ;-and, therefore, it follows, that, on Eli Ns death, the property, which he held as tenant in tail, became intestate estate of the original testator Pelatiah Allyn, and, as such, descended to all his heirs at law.

Reviewing the ground which I have been over, and collecting the several important results, I am of opinion ;

First, That Samuel Allyn, the grandson of the testator, took in the property in question an estate for life, with a contingent remainder in tail male to his eldest son.

Secondly, That, on the birth of Eli B. Allyn, the first soil of Samuel Allyn, the contingent remainder became a vested remainder, vesting in said Eli B. as an estate in tail male.

Thirdly, That, on the death of Eli B. Allyn without male issue, the property descended to the heirs generally of Pelatir ah Allyn, as intestate estate-

The plaintiff, then, is a tenant in common with the defendant and others ; but as there is no proof of an ouster by the defendant, he cannot recover, but the judgment must be for the defendant.

Williams, J,, having been of counsel in the cause, gave no opinion.

Judgment for plaintiff.