Hoxton v. Archer , 3 G. & J. 199 ( 1831 )

Buchanan, Ch. J.,

delivered the opinion of the court.

It is a general rule in the construction of wills, that a limitation, which may operate as a remainder, shall not be construed an executory devise; and we can perceive nothing in the devise of Nathaniel Giles to his five daughters of the premises, for an undivided part of which this suit was brought, to take it out of the operation of that rule.

If the devisees took estates in fee simple, as has been contended, as in strictness, a remainder cannot be limited after a fee simple, the limitation over might be construed to take effect by way of executory devise, by which means, being a disposition by will, which is more favored in construction than a deed, a fee simple or other less estate, may be limited after a fee simple. But in Newton, et al. vs. Griffith, et al. 1 Harr. and Gill, 111, the whole doctrine applicable to this case was ably discussed at bar, and fully considered and examined by the court. There the devise was, by a father, of certain land to his son George and his heirs, and of certain other land to his son Joseph and his heirs; and in case either of them “should die, having no lawful issue or heirs of his body,” then the surviving son “to have his deceased brother’s part of the land,” to him and his heirs; and in case both sons “should die, leaving no lawful heirs,” then all the lands to go to the testator’s three daughters, Sophia, Sarah, and Nancy, to be equally divided between them; and it was held, that the two sons, George and Joseph, as the law stood before the act of 1786, ch. 45, (the act to direct descents,) took estates tail general in the lands respectively devised to them, with cross remainders in tail general, remainder to Sarah, Sophia, and Nancy, for life. Here the devise is, by a father, in these words: “I give and be ueath the whole of my estate, both real and personal, unto my five daughters, by the names of Hannah, Sarah, Elizabeth, Caroline, and Charlotte, to them and their heirs forever, to be equally divided amongst them; and it is my will, that if either of the said children die without issue, lawfully begotten of their body, in that case, the part of the said child, be equally divided among my surviving daughters.” And without travelling through the multitude of authorities relating to the subject, but relying upon the decision in the case of Newton, et. al. vs. Griffith, et. al., from which, in principle, we think this case cannot be distinguished, it is our opinion that the devisees did not take defeasible estates in fee simple, and that the limitation over cannot be construed to operate by way of executory devise; but being before the act to direct descents, that they took estates tail general, with cross remainders, under the limitation over to the survivors. If has been ingeniously attempted to distinguish this case from Newton and Griffith, by construing the limitation over to the survivors, to be for life ; and then contending that the limitation for life to the survivors, who were necessarily persons in esse, shows that the testator intended a definite failure of issue, that is, a failure of issue at the time of the death of the devisee; on whose decease, without issue, the land devised to her, was to go to the survivors, upon the ground that he must have intended the limitation to take effect during the life in being, and consequently, could not have meant an indefinite failure of issue. But the rule is, not that the limitation over must take effect, within a life in being, but that the contingency on which it is made to depend, must happen, if at all, within the compás of a life or lives in being, and twenty-one years, and a fraction afterwards. Upon that distinction, which, when examined, will be found to be a very clear one, and the argument drawn from the circufnstances of the limitation being for life to the survivors, though very specious, yet not to be sustained, one branch of Newton and Griffith was decided. The limitation over to the three daughters, on the contingency of the sons dying without issue or heirs of their bodies, was of an estate for life, to persons in being, just as strong as a limitation over to a survivor for life, which is but a limitation for life to one in being, and the limitation over to the daughters, was held to operate, not by way of executory devise, but by way of remainder, after estates tail vested in the sons, and not to restrict the words, “leaving no lawful heirs of their bodies,” to mean a failure of issue, at the death of the surviving brother; and cannot well be distinguished from the principle of the cases of Denn vs. Shenton, Cow. 410, and Barlow vs. Salter, 17th Ves. 479, there cited. Construing the limitation over to the survivors in this case, to be in fee simple by force of the words, “the whole of my estate,” in the beginning of the devise, and carrying the word estate on to the limitation over, or in fee tail by implication of law, and the question whether the devisees took estates tail, with cross remainders, is clear of difficulty. But treating it (as has been done by the counsel for the appellant in argument) as a limitation for life only, then Elizabeth, under the authority of Newton and Griffith, took the portion of the real estate devised to her in fee tail general, and if the devisees had not been the heirs at law of the testator, would, on the death of Charlotte, without any descendant then living, have become entitled to one-fourth of the portion devised to her, by way of remainder for life, with reversion in fee to the heirs at law of the testator. But the devisees, being also the heirs at law of the testator, the life estate in the fourth of Charlotte’s portion, which survived to Elizabeth, merged in the inheritance, and she became entitled to that fourth in tee simple absolute. There being, in this case, no survivor over, of a survived share, under the general rule, that where there are no particular and sufficient words used for that purpose, surviving shares, will not survive again, and particularly in relation to devises of real property. Woodward vs. Glassbrook, 2 Vernon, 388. Worlidge vs. Churchill and others, 3 Brown’s Ch. Rep. 465. Having thus a fee simple or a fee tail, in one-fourth of a portion devised to Charlotte, according as the limitation over in the devise is construed, and an estate in tail, in her own original portion, which under the partition made between her three sisters and herself, after the death of Charlotte, were assigned to her as her portion of the estate derived from her father, her deed made afterwards on the 16th of May, 1797, to John Stump, passed to him a good and sufficient title in fee simple, to the land therein mentioned, and so assigned to her upon the partition, and the plaintiffs are not entitled to recover.

JUDGMENT AFFIRMED.