Dashiell v. Dashiell , 2 H. & G. 127 ( 1828 )

Stephen, J.

delivered the opinion of the court. This case comes up on an appeal from a judgment rendered in Borchester county court, on a statement of facts agreed upon by the counsel, containing, among other things, the' following clause in the last will and testament of John Dashiell: “I give and bequeath unto my granddaughter, Elizabeth Sarah Ann, the following negroes, to wit. Bill, young Leah, Sally, Nancy, Levin, Stephen, Noah, to her and her heirs forever; and one bed and furniture; and in case it should please God to take my granddaughter, Elizabeth Sarah Ann, before she has an issue, then the said negroes devised, to be an equal division between the rest of my heirs. And it is my will and desire, that neither Ichabod Dashiell, nor Thomas Jones, of Thomas, should ever have any command or authority over the negroes devised to my granddaughter, Elizabeth Sarah Ann.” And this court is now called upon to determine the true construction of the above recited clause, and to decide whether the limitation over, after the bequest to Elizabeth Sarah Ann, the first legatee, is valid and operative as an executory bequest, according to, the established principles of law. The position is undeniable, that in the judicial interpretation of wills, the intention of the testator, to be gathered from the entire instrument, shall prevail, unless it violates some established principle of law. And the single question presented for our adjudication is, whether Elizabeth Sarah Ann, upon the true construction of the will of her grandfather, became entitled to the absolute property in the negroes bequeathed to her; or whether the limitation over to the heirs of John Dashiell, the testator, was good, as a valid executory bequest? Upon the rule then, that the mind of the testator, as expressed in his last will and testament, shall be carried into effect, unless it infringes some well settled legal principle, it is the duty of this court to ascertain what the intention of the testator was, and to execute that intention if warranted by law in so doing. The bequest is to Elizabeth Sarah Ann, to her and her heirs forever. So far it gives her, most unquestionably, the absolute interest in the subject of the bequest; but it proceeds, and states,' “and in case it should please God to take my granddaughter Elizabeth Sarah Ann, before she has an issue, then the said negroes devised, to be an equal division between the rest of my heirs.” The limitation over is only to take effect, in the event of the first legatee dying before she had an issue. If then, according to the express words of the will, the executory bequest was only to take effect upon the happening t)f a contingency, which if it happen at all, must happen within a life in being, it may be asked, upon what principle of law such a bequest can be invalidated? Can there be a doubt that so soon as Elizabeth Sarah Jinn had a child, (for such is the obvious meaning of the terms used,) the limitation over as an executory disposition of the property, was absolutely gone forever; and that if the contingent interest, bequeathed to the heirs, could ever become vested, it could only be upon the happening of the event of her dying without ever having had a child during her lifetime? If this is a correct construction of the words of the will, there is nothing in the principles or policy of the law, in relation to this branch of the science, which would inhibit the court from carrying into effect the limitation overas a valid testamentary disposition of that portion of his estate; the rule of law being, that all executory devises and bequests are good, where they must take effect, if at all, within a life or lives in being, and twenty-one years and the fraction of a year after-wards. We do not think that the counsel for the appellee were successful in (he position which they endeavoured to maintain, that this was nothing more than simply a case of dying without issue, and, therefore, an indefinite failure of issue, and consequently too remote a contingency, for the limitation over to be good; because, as has been already remarked, the failure of issue, if it occurred at all, must have occurred at the time of the death of the first taker, and not afterwards; because the legatees over were only to take, if they took at all, upon the first legatee dying, (in the language of -the will,) “before she had an issue.” Which certainly cannot mean a dying after she had issue, so that it might have been possible for the testator to have meant an indefinite failure of issue. On the contrary, it is conceived, that the meaning of the testator, defining and limiting the failure of issue to occur in a life or lives in being,, could not have been couched in language more strongly expressive and unequivocal. It is also worthy of recollection, that this is the case of a bequest of personal property, where the court are always studiously anxious to effectuate the intention of the testator, and will lay hold of the smallest circumstance to limit the failure of issue to the death of the first taker, so as to make the limitation over good as an executory bequest. Wherever it is manifestly the intention of the testator, as we think it was his intention in this instance, to limit personal property over, upon a failure of issue at the death of the first taker, that intention must be carried into effect. The case of Elton v Eason, 19 Ves. 73, which was relied upon by the counsel for the appellee, does not appear in any degree to militate against the construction given to the words of this will. That was a devise to trustees of real and personal property, upon trust, to apply the rents and profits, for the son of the testatrix, during his life, and afterwards for the heirs of his body, if any; and in default of such issue, then upon a further trust. The Master of the Rolls determined, that the words, if any, could not vary the construction, because, if not expressed, they would necessarily have been implied; because, to use his own language — “To be sure if there were no heirs of his body, none could take.” In the case of Crooke v De Vandes, 9 Ves. 197, referred to in this case of the Master of the Rolls, the limitation was to one, and to the heirs of his body lawfully issuing; and if he has no such heirs, then over. The Lord Chancellor held, that the leasehold property vested absolutely in the first taker. The Lord Chancellor must have considered the superadded words, “and if he has no such heirs,” as meaning only, that upon the failure of such heirs as had been mentioned, the limitation over was to take effect; but the language of that case is very different from that of the case before this court, which is, that if the first taker dies before she has an issue, (or child as we suppose the meaning to be,) then the limitation is to take effect.

This court are, therefore, of opinion, in this case, that the limitation over was a good executory bequest to the heirs of the testator, who were such at the time of his death; and that they hold the property bequeathed to them, as tenants in common.

The judgment of the court below must be reversed, and judgment entered upon the case stated for the appellants, the plaintiffs in the court below.

JUDGMENT REVERSED, &C»