Choice v. Marshall , 1 Ga. 97 ( 1846 )

Lumpkin, Judge,

having stated the facts of the case, proceeded as follows :—

We have bestowed upon this case the fullest consideration — which the time would permit — allowed for that purpose by the legislature, and are of the opinion that the judgment of the circuit court is correct, and ought to be affirmed.

The question mainly argued by the counsel for the plaintiff in error is — what the testator did not intend, and not what he did. By showing that he did not intend that his daughter Mary should take a larger estate than one for life in the property left her, he insists that it will do violence to the will to put an interpretation upon it that will give her the fee. Suppose that Mary had been the only child of the decedent; that he had bequeathed to her the whole of his negroes, with their future increase, during her natural life, and at her death directed the slaves to be emancipated ? Is it not quite manifest that, in this case, the design of the testator would be to limit the legacy to life only ? And yet, would not the law prohibiting manumission supervene this purpose, and vest the remainder in fee in the daughter ? It is conceded that the cardinal rule in the construction of wills, is — that the intention of the .testator shall govern. To this admission there is an important qualification, namely : so far as that intention is consistent with the laws of the land, and no farther. To stop short of this would be an infringement of that liberty of disposing of a man’s own property, which is the most powerful incentive to honest industry, and is therefore essential to a free and commercial country; while, on the other hand, did indulgence to a testator’s intention go beyond this, every man would make a law for himself, and the metes and boundaries of property would be vague and indeterminate, which would end in total insecurity. — liar. Law Tracts, 489. One of the first and most prominent examples to be found in the decisions, illustrative of the principle that the intention of the testator cannot control the construction if repugnant to law, is : — Where the devise would create a perpetuity. ” — Vide Hovenden on frauds, 255, and the cases there cited in note 88. And notwithstanding President Pendleton in Kennon vs. McRoberts et eux, (1 Wash. Rep. 102,) claims extensive latitude in the construction of wills, and speaks rather jeeringly of the judges having laid down rules by which they have tied a gordian knot, which they have since struggled in vain to unloose, and which he asserts it would have been better if they had cut at once. Still he admits that the disposition intended to be made must not conflict with the rules of law — “ which he understands as applying to restraints upon perpetuities, devises in mortmain, and the liheV He declares, also, that “ the intention is not to prevail against settled and fixed rules of construction.”

Will it be said that when the testator’s intent is manifest, that the court will carry it into execution in despite of all the well-established rules of interpretation ? It would he to clothe the judicial tribunals with a discretion which would illy comport with the well-defined powers of the various departments of our government. A father desires to bestow upon his son real estate sufficient to qualify him to bo governor, and, to that intent, devises Mm a lease for a term of years of five hundred acres of land: could we convert, in. this instance, however plain and praiseworthy the intent of the testator, a lease into a freehold? Surely not. So, though an estate be devised for life only, or for life, and nob otherwise, or with any other restrictive expressions, yet, if there be afterwards added proper words to create an estate of inheritance in the heirs of the body, the latter language shall overbalance the former and make the first legatee tenant in feo. — Shelley’s Case, 1 Coke’s Rap. 96; Butterfield vs. Butterfield, 1 Ves. Sr. 133, 154; Gath vs. Baldwin,2 Ves. Sr. 646 ; Atkinson vs. Hutchinson, 3 Pr. Wins. 259 ; Daw vs. Chatham, 2 Fearne, (347,) 464; Robinson vs. Fitzherbert, 2 Bro. Ch. Rep. 127; Webb vs. Webb, 1 Pr. Wms. 132. In all of these cases, as well as many of those which .follow, there was an estate limited to one for life the remainder to the heirs of the body, and the courts uniformly held, that the whole interest vested in the first taker, and that too, as the Lord Chancellor declared in one of them, whether the testator intended it or not. — Hinson and wife vs. Pickett; Myers admr. vs. Pickett, 1 Hill Ch. Rep. 35; Horne et al. Lessee vs. Lyeth, 4 Harris and John. Rep. 431; Ward ads. Waller et al. 2 Speers’ Rep. 786 ; 9 Yerger, 209; 3 Batt. Rep. 455; 2 Wash. Rep. 9; 1 Dall. 47; Binney’s Rep. 139; McFeely vs. Moore, 5 Man. Ohio Rep. 465. These cases are selected almost at random from the thousand and one which crowd the books of reports upon this doctrine.

true inquiry, therefore, in the present ease is, not what estate Leonard Frctwellintended to give to Mary his daughter, but what disposition he designed making of the remainder ? No one, 1 apprehend, doubts that Mary Fretwell was intended to take alife estate only, and thi.it her heirs were intended to take after her, but how those heirs were intended to take, whether as descendants or purchasers, is the question, and the only question. If they take as purchasers, then Mary Fretwell and William Choice, her husband, are tenants for life only, andthocomplainantin the cause below was entitled, after the decease of his mother,to sue for and recover the property. If, however, Leonard Fretwell meant that the heirs of Ms daughter should take by descent, or had formed no intention about the matter, then by irresistible consequence of law, the inheritance vested in the mother and through her, in the husband, from whom the defendant in the Bill (Marshall) derives Ms title. And the burden is upon the plaintiff in error. It is incumbent on him to show that the devisee shall take a different estate from what the plain legal import of the words conveys. Has ho mot and removed the difficulty ? Has he shown that not only a mere life estate was given to the daughter, but that the testator has evinced that he did not intend to violate the policy of the law by creating a perpetuity ? We think not: not a single authority has been adduced to justify the position, that the testator intended to deviate from the general rule, and it has been truly said timt this is never supposed til] made out, not by conjecture,but by strong sad conclusive evidence ; or, in the nervous language of Lord Hobart, by “ declaration plain.”

The first ease cited at bar is that of Smith vs. Bell, (6 Peters’ Rep, 68,) in which Chief Justice Marshall reiterates only what had been asserted .in every testamentary disposition, previously, to wit: that the intention of the testator expressed in the will shall prevail, provided it be consistent with the rules of law. But how is this intention to be collected ? He furnishes the answer “ from the words.”

Lord Mansfield’s opinion in Doe, &c. vs. Laming, (2 Burrow, 1100,) is relied upon, and the Sticklers for the rule in Shelly’s case have animadverted on it, as we think, with unnecessary asperity. It grew out of a clause in the will of one Martin Long, to this effect: “ Also I give and devise one other equal, undivided fourth part, &c.,unto my niece Anne, now wife of William Cornish, and to the heirs of her body lawfully begotten, or to be begotten, as well females as male, and to their heirs and assigns forever, to be equally divided, share and share alike, as tenants in common, and not as joint tenants.” Had the testator stopped at the words, “ heirs of her body lawfully begotten, or to be begotten,” would the court have hesitated a moment ? On the contrary he heaps sentence upon sentence, circumstance upon circumstance, in order to tell every reader of his will how he would have it understood. The whole promises devised were gavelkind, and Lord Mansfield remarks — that it is obvious that the testator does not mean that the one fourth given to Anne Cornish should go in a course of descent in gavelkind ; for he gives it to the heirs of her body as well females as males ; and mentions females, not only expressly and particularly, but even prior to males; therefore they cannot take otherwise than as purchasers. It would be a void devise, if the words were to be construed as words of limitation, for he breaks the gavelkind descent, by giving it to females, as well as males. It cannot descend to females as well as males by the rules of gavelkind, and yet he seems to lay the chief stress upon the word “females.” He adds likewise-, “ and to their heirs and assigns forever, to be divided equally, share and share alike;” nay, he goes further, “ as tenants in common and not as joint tenants.” But this could not be, if they were to take in the course of gavelkind descent, for in such case they must take as coparceners. In expounding this clause of the will there were other portionswhieh reflected light upon it, and which n. ''Wially influenced the court in ascertaining its meaning.

The decision in Bradley vs. Mosby, and Walton vs. Mosby, (3 Call's Rep. 50,) rests expressly upon the ground, that the slaves were given to the only proper use and behoof of the daughter of the donor during her natural life, and to the heirs of her body, to the only proper use and be-hoof of such heirs, “their executors, administrators or assigns.” And Judge Roane, after noticing this distinction as settled by previous adjudications, states that if the use of the negro only had been given to the daughter for life, and a naked limitation engrafted thereon to the heirs, that he should have held that the whole property vested in her. The limitation over was supported in Warners vs. Mason and wife, (5 Munf. Rep. 242,) not because the testator devised the track of land, the subject matter of dispute, to the first taker during his natural Itfe, but because of the expression — “ and then to his heirs lawfully begotten of his body, that is born at the time of his death, or nine calendar months thereafter.” Here the words “ heirs of Ms body” were not considered words of limitaiion, but as designaiio persona, as was evident from the testator’s describing those heirs as persons “ born at the time of his death, or nine calendar months thereafter.’’ If the case of Keith vs. Perry, (1 Dessaussure, 353,) stood in opposition to the doctrine maintained by this court, (as it clearly does not,) it would be sufficient to say, that it has been overthrown by a series of subsequent adjudications in the same State. — See Guerry vs. Vernon, 1 Nott and McCord, 69; Henry and wife vs. Felder, 2 McCord’s Ch. Rep. 323. In Anderson vs. Jackson, (16 John. Rep. 398,) the word survivor was held sufficient to show that the legacy was intended ‘as a personal benefit to take place during the life of the person to whom the benefit was individually intended. In Bell and wife vs. Hogan, (1 Stewart’s Rep. 536,) the court, it is true, supported the remainder as good and not too remote. It took care, however, notwithstanding the eloquent strictures of Chief Justice Lipscomb upon the rigor of the rule, to show that this Case was withdrawn from its operation by the peculiar phraseology of Thomas B. Whitwell’s will. The testator “ lends to his daughter Elizabeth six negroes (naming them) and their increase during her natural life, and if she should leave an heir or heirs lawfully begotten of her body, then gives them to such heirs -forever ; and for want of such heirs, then to A. W. and others.” It requires no comment to distinguish this case from the naked limitation in Leonard Frotwell’s will. An argument has been drawn from Archer’s ease, (1 Coke, 66; Fearne, 150,) where the limitation was to A. for life ; and after his death to the next heir male, and to the heirs male of the body of such next heir male. It was held that the devise to the heir was considered as a remainder to him by purchase. Now it is urged, that as primogeniture does not exist with us, that the term “ heirs ” in the plural answers to the term “ heir ” in the singular in England, and that all the reasonings that are applicable to the word “ heir ” in the singular there, hold with equal strength and propriety, when applied to the plural termination “heirs ” here. We will not stop to examine at present the soundness of this logic. It will be time enough to do this when a parallel case occurs.

There is no difference, said the court in Virginia in Bradley vs. Mosby, (3 Call, 57,) between heir in the singular number, and heirs; since one and the same person takes in both instances, in case of land, in England. In Archer’s ease, the word “heir,” it is true, was in the singular number, but it was preceded by the word “ next,” and what is more important, words of limitation were engrafted on it, which made the next heir the root of a new inheritance, the terminus or stock of a new descent, by reference to whom the future succession was to bo regulated. It is contended, that inasmuch as the testator gave an estate in fee to his sons, and used proper language to that end, that therefore he understood the import of the terms introduced into his will, and that ho could not have intended his daughters to take the same estate with his sons — in the bequests to whom, different phraseology altogether is employed. This is, no doubt, true ; but the inference deduced from it would seem to operate the other way. In the legacies to his daughters, if professional ingenuity had been taxed to the utmost, more apt words could not have been selected, to create a limitation in indefinite succession. And there is no desire more deeply seated in the human breast, than the wish to preserve the property we have acquired in the family that shall descend from our loins; consequently the natural presumption would be, that such was the intention of Leonard Fretwell. Be that as it may, such, and such only, is the legal operation of the words used by him ; and although his purpose may be so far counteracted, as that his daughters will take a greater estate than he intended, still we are consoled by the reflection that this is but accomplishing the paramount policy of the supreme authority in this State, in providing, in 1821, that all bequests of property, expressed in such terms as would have passed an festate tail by the Statute of Westminster, commonly called the statute de donis conditionalibus, shall be construed to vest an absolute fee in the first taker. Mr. Justice Blackstone, in delivering judgment in the Exchequer Chamber, in the great ease of Perrin et al. vs. Blake, states, that all the cases that had occurred from the Statute of Wills to that time, (a period of about two centuries,) in which heirs of the body had been construed to be words of purchase, were reducible to these four heads: either where no estate of freehold is given to the ancestor ; or where no estate of inheritance is given to the heir ; or where other explanatory words are immediately subjoined to the former ; or, lastly, where a new inheritance is grafted on the heirs of the body: none of which, he adds, was the case then before the court; and none of which, we may add, is the present ease. We have thus glanced, hurriedly, at the arguments and leading cases presented with so much zeal and ability by counsel for the plaintiff. We feel the full force of the learned counsel’s general reasoning upon this question. We doubt not that the intentions of numerous testators have been defeated, by supposing, that they proposed doing an illegal act, which it was impossible for them to do. We have, with pleasure, discovered the tendency in the judicial mind, both in England and in this country, to relax the sternness and severity of the rule. We are prepared, although in our judicial infancy,.to advance to the front rank in this warfare of principle against precedent. Beyond this we dare not go. Judges cannot alter a law of property, established for centuries, to suit their notions. The exercise of such a power would be arbitrary and destructive of all law. Their business is to declare what the law is, and not what it ought to be. That the gift of slaves to A, for life, and to the heirs of her body forever, without an other word of explanation from the testator, must be considered words of limitation, and not of purchase, is an inflexible rule, too strong and thoroughly established by all that is venerable in authority, to be abolished by any power short of that which enacts the- law. To deny its binding efficacy in the present instance, would be to frame a will for the testator, and not to expound the one which he actually made.

“ To disregard rules of interpretation,” (says Chief Justice Dorsey, of Maryland,) “ sanctioned by a succession of ages, and by the decisions’ of the most enlightened judges, under pretence that the reason of the rule no longer exists, or that the rule itself is unreasonable, would not only frustrate the great landmarks of property, but would introduce alatitude of construction boundless in its range and pernicious in its consequences. ”— 4 Harris and Johns. 435. Says Judge Cheves, of South Carolina, “It is of the utmost importance that rules, when established, should not bo departed from, whether they are wise in themselves or not. In an enlarged view of the duties and functions of Judicial tribunals, the determination of the particular cases which they adjudicate, is altogether of minor importance. In the more remote influence of a case in keeping a thousand of the like kind out of court, and settling the rules of property, is discovered its greatest value. The community generally, and the bar especially, ought to be able to know beforehand what will be the decision of the court on any question which may occur, and which is not new or anomalous. If this is true, it is (at least it ought to be) in vain to argue to a judicial tribunal on a question like this, that any rule heretofore laid down for the government of the construction of wills, should be departed from because of particular hardships, or of new views of policy. Where nothing is established, they may have their influence, and not otherwise. But the leading rule on this subject, is one which under our institutions should be cherished — I mean that which declares that perpetuities in the limitation of estates should he prevented. It is a highly useful auxiliary to that great provision of our Constitution, the abolition of the rights of primogeniture. — 1 Nott and McCord, Rep. 71, 72. It is needless to add, that in the sound conservative sentiments so strenuously set forth by these eminent jurists, this court entirely concurs. Believing, therefore, that the law is with the defendant in error, we affirm with cost, the judgment of the Circuit Court.