Drury & Bennett v. Grace , 2 H. & J. 356 ( 1806 )

Chase, Ch J.

delivered the opinion of (he court. Th$ question to be decided by the court in this case, arises under the will of Zebedee Wood; what estate did Ann Wood, the widow of Zebedee FFood, take under the will?

It is a principle generally recognized by the courts of law and equity, and the court think well established, that where the limitation over is in fee, after an indefinite failure of issue, it is not good asan executory devise, because of its tendency to creates perpetuity by rendering-property unalienable. In this case the limitation over is to Ann Wood, during her widowhood, and at her death or marriage, to be sold, &c. It is stated that Ann, the widow, married during the life of Mary Ann Wood, the first devisee, and is now living.

In expounding wills, the first and great principle to be observed is, that the intention of the testator is to prevail unless such intention is opposed by some rule of law. The only rule of law which is supposed to stand in the way in this case, is that which restrains the testator from limiting Vis estate in such manner as to create a perpetuity; and if that is no obstacle in this case, there is nothing to prevent 'the testator’s intention from being effectuated.

The limitation over to Ann, during her widowhood, plainly evinces an intention in the testator that she should be benefited by the devise to her, which could not be the case if her interest could not ve'st until the unrestricted failure of issue of Mary Ann, during the widowhood of Ann — a mere possibility, and too remote to be in the contemplation of the testator.

The limitation over to Ann, during her widowhood, constitutes a good executory devise, because it was'to take effect on the contingency of Mary Ann dying without leaving issue at the time of her death.

The only consequence which can result from Ann’s marrying in the life-time of Mary Ann, is (hat the remainder over, after the death or marriage of Ann, did take effect immediately on the death of Mary Ann, and such event did not change or alter the quality or nature of the estate created by the first limitation over to Ann, nor did it defeat the remainder over.

The court are of opinion, that the judgment of the county court be reversed.

judgment reversed.