Lessee of Broom v. Thompson and Young ( 1834 )

Harrington, Judge—

“The question in this case is whether Abraham Broom became entitled under the will of his father to the possession of the lands, &c. devised to his children, and to receive the rents and profits, during the possibility of issue, i. e., during life; or only during the minority of the youngest child who should be in actual existence. It is not probable that in making the devise the contingency of Abraham Broom living until the majority of his youngest child occurred to the testator; the probabilities were all against such an event taking place; but we are to look into the will and see if the terms indicate any plain intent of the testator to give to his son in this indirect way what would be equivalent to a life estate in lands actually devised to other persons. We speak of intent because, if this construction is to prevail, we must go beyond the words of the will and adopt it as necessarily arising from some design of the testator manifestly appearing on the whole will. The words of the devise will not themselves effect this object. The lands are devised, not to Abraham Broom, but to his children; to those who were living by name, and to such others as should be born, generally; they, therefore, and not he, were the especial objects of the testator’s bounty; the possession of the land so devised was given to him for a specific purpose, to educate and maintain the children until the youngest should arrive at lawful age; a purpose which might be accomplished, and has been accomplished, during the lifetime of Abraham Broom. It is true that Abraham Broom was benefitted by this devise, as it furnished a fund for the maintenance and education of children he was otherwise bound to maintain; and this appears to have been the object of the testator, to relieve him of this burthen; or, at least, to give him the profits of his children’s property whilst he was at the charge of educating or maintaining any of them, and this was reasonable that the avails of the children’s property should be applied to their support. But beyond this no intention appears from the will, and no motive can be inferred, without going into loose conjecture, for giving the rents and profits of this property to Abraham Broom after the charge of his children had ceased, and diverting it from the primary and principal objects of the testator’s bounty. It may be that he designed in this indirect manner to give a life estate to his son in the land devised to his grand children, but he has not expressed that intention apart from the words of the devise, nor do these words effect it. By that devise he is authorized to keep the property “until the youngest child he now hath, and hereafter shall have, shall arrive and come to the age of twenty-one years.” It refers to the minority of a child or children in existence and not to the possibility of such children being born, as is evident from the expressed design of giving the custody of the property to the father, that “out of the rents and profits thereof” he should “maintain and educate his said children, (i. e, those then living named in the will,) and also any future children he may have.” So long as the charge lasted, the possession of the property ,was to continue with the father as a means of discharging it; and it ceased on the youngest child in existence arriving at twenty-one.”

Wales, for plaintiff. J. JL. Bayard, for defendants.

The other judges concurred.

Judgment for the defendants.