Pratt's Lessee v. Flamer , 5 H. & J. 10 ( 1820 )

Johnson, J.

at this term, delivered the opinion of the' ■Court.

This was an action of ejectment brought to recover three tracts of land, to wit, Piccadilly, Vickars’ Venture, and Dunn’s Range; the cause was tried on a case stated, and judgment given in favour of the defendant.

The case stated in substance is, that PHlliam Vickars being seized in fee of two of the' tracts, Piccadilly and Vickars’ Venture, on the 27th of August 1774, in due form of law made his last will and testament, in which are the-following clauses:

1st. “I give and bequeath to my loving wife Sarah Vickars, my home plantation called Piccadilly, duringher life.”’ 2d. And by the next clause he gave her five negroes by name, also during life, and after her death the negroes and land to go “to my daughter Elizabeth Vickars.”

3d. “Item. I give and bequeath unto my daughter Elizabeth Vickars, my plantation called Vickars’ Venture, to her and her heirs, (lawfully begotten,) for ever; and in case she dies without heirs, to return to my wife Sarah Vickars.”

4th. And by the next clause he gave to his said daughter four negroes by name, to her and her heirs for ever, “ire case she dies without heirs to return to my wife Sarah.” 5th. “Item. In case there should be any issue in nine months from this date, I give and bequeath my home plantation aforesaid called Piccadilly,” (and the five negroes first given to his wife,) “after the decease of my loving wife Sarah Vickars, to the said issue.”

6th. Item. In case my children die without heirs, I give and bequeath my aforesaid lands and negroes, unto my brother Jacob Carrón, (after the decease of my loving wife Sarah Vickars,) to him and his heirs for ever.”

That shortly after the execution of the will, the testator died; Elizabeth Vickars intermarried with Charles Price, and died in 1789, without issue. Sarah, the mother, died in 1801 without having another child born after the date of the will,

Jacob Qari'on, the brother of VVm. Vickars, survived him, and died on the 2d of April i/83, llaviiig first in due form made and executed his last will and testament, the material parts of which are—>'“I give and bequeath unto my daughter Henrietta Palmer, daughter of Rebecca Palmer, the one half of my estate of whatever it may consist in, after my just debts are paid.”

“Item. I give and bequeath the other half of my estate unto the child Rebecca Palmer is now big loith, if it lives,1 and if it should die without heir, then I give and bequeath it unto the said Henrietta, her and her heirs for ever; if either of the children die without heir, then I give and bequeath their part to the other. ” Henrietta survived the testator, and died about the year 1801, a minor, and without issue. Rebecca Palmer, at the time the will of Garrón wás made, was pregnant with a daughter, who was born soon after the decease of Jacob Garrón, and her name was Ann, who Intermarried with Philemon Pratt, by whom, in conjunction with his wife, the present ejectment was brought.

Several questions are made Under these wills: The first is, that Jacob Garrón took no interest under the will of Vickars. . .

Second. If any Interest passed to him, it was confined to Vickars’ Venture, and did not extend to Piccadilly.

And supposing that an estate was vested in the whole real property of W. Vickars in Jacob Garrón; yet first, that the after born child of Rebecca Palmer being illegitimate took nothing by the first devise to her—and secondly, if she was entitled to the one half of the estate, yet that the remainder over to her of Henrietta’s part was void.

From Hie state of the case, and from the will of William Vickars, it is most evident what was the testator’s design. He had a wife, one child, and the probability of hav- • ing a child born after his decease, these were the persons lie intended to provide for, and that accomplished, his brother was the next person that engaged his attention. He appears from the will to have understood the nature of the1different estates he designed to carve out: a life estate, aft estate tail, and a fee simple; and such his intention will be carried into effect, if it can be done consistent with the rules of law, if not it must yield to them.

By the first and second clauses of the will, the real and personal property devised to his wife for life, on her death is to go to her daughter Elizabeth, without expressing the extent of the interest given -to Elizabeth.

By the third clause the real property, that is Vichar s' Venture, is. given to Elizabeth and her heirs, (lawfully begotten,) for ever. And by the fourth clause the negroes are given to her and her heirs for ever.’

It will he observed, that the only clause in the will, in which the words “lawfully begotten” are inserted, is the one that gives Vickars'' Venture to Elizabeth; these words are not to be rejected in the construction of the will, if they are calculated to elucidate the intention, and to make that intention consistent with the principles of law; and if the effect of those words is to turn the estate that was given into a fee tail, which would he a fee simple withouttheir aid, and thereby give effect to the ulterior clauses that otherwise would be void, certainly that interpretation must be given to them that will make all the parts of the will effectual ut res magis valeat quarn per eat.

From the • elaborate argument this case underwent, all the light that could have been, has been cast on the subject, and after the most industrious 'researches, no case has been found, where the words in a will “lawfully begotten, ” with a limitation over, has been construed a fee simple. Few cases exist on die -subject, and although in the case reported in Moore's Reports, cited in the argument, there were other words that -were calculated' to create an estate tail, yet the words lawfully begotten, were relied on as forming a part of the foundation on which it was determined the estate in question was entail.

In Comyn’s Eigest, and -by Hargrave in his notes on Cohe Littleton,, those words, laiofully begotten, in a will, are sufficient to -pass an estate -tail. No case from the English -authorities has been produced, where those words in a will, where no remainder over was given, have been adjudged to pass a fee simple; and it may be sufficient to say, that in the case .cited from 1 Harrisiand MíHenry 336, there was no limitation over, and therefore that case is not like the one tinder -consideration. The limitation over is of important consideration, for every part of the will must be taken together, and the construction formed from all its-parts, so as to give etfect -to the whole, -unless -some principle of law is thereby -violated; hut if Elizabeth Vickars fakes an estate taü in Vichar s! Venture, then, thelhniiation in fee to Jacob Garrón, is valid, and such, in the opinion of the court, is the true interpretation of the will.

By the will, Piccadilly is devised to the wife tor hie, and on her death to Elizabeth, but in case the contemplated child had been born, Piccadilly, on the death of the mother, was to go to such child. As then no estate ofinheritan.ee was given in Piccadilly, the devisees, as such, took only estates for life, unless that interest was enlarged by the subsequent parts of the will. No matter in whom the inheritance existed, they, as devisees, were not entitled to it, unless the estates for lives were enlarged into a fee simple, and if so, as the remainder to Garrón was to take effect., after the failure of the heirs, it is too remote, and therefore .void. We have seen that all the devisees, as such, took' only estates for life, in Piccadilly, under those clauses of the will purporting to dispose of that tract. Do the words in the will, describing the event on which Garrón was to take, so enlarge their estates as to defeat' the interest intended to be ¿riven to him?

“In case my children die without heirs, then I give and bequeath my aforesaid lands and negroes to Jacob Garrón, to him and his heirs for ever.”

Are those words necessarily to be understood as meaning heirs general, or may they not be confined to heirs, proceeding from the persons of the devisees, and be construed issue? That the word heirs will not always apply to heirs generally is most certain, frequent are the instances of that word being confined to mean issue; and it is impossible to read carefully the will in question to doubt, but by that word, in the clause restricting the land from passing from his children, he meant issue; for in the preceding clauses of the will, whenever he points out the event on which he designed the property to go from his children, in whom an estate of inheritance was intended to be given, he uses the same expression.

Thus in the clause in which Vichar s’ Venture is given to Elizabeth, and to her heirs, (lawfully begotten,) if she die without heirs; what heirs? heirs lawfully begotten, that is issue; and an estate tail is created by those words.

As then the words (lawfully begotten,) confine the meaning of the word heirs in a will to issue, especially when there is a limitation over, and as the words die without heirs, must, in that clause of the will by which VickarJ Venture is given to Elizabeth, mean issue, so may the same words without heirs, in that clause of the will, on which Garrón’s remainder depends-, bear the same construction, thereby give full force and efficacy to every part of the will, and carry into full operation the manifest intention of the testator.

If then, on the death of William Vichars, the testator, Garrón ha.d an interest in this property, and if he had any, •although in remainder, he was perfectly competent to dispose of it by his last will—Has he by that will, given that interest to one of the lessors of the plaintiff, so as to enable them to recover in the present action?

By the will of Garrón, before set forth, he gave one half of all his estate to his illegitimate daughter Henrietta Palmer, of which there is no question, so far as her interest was concerned, she took a clear fee simple. The other half he devised to “the child Rebecca Palmer is now with,” and the question is, whether an unborn illegitimate child, of which the mother is pregnant at the time of the will, is. capable of taking by devise?

It is not questioned but that a legitimate child could thke; not so, it is contended, the illegitimate.

No express decision, pro or con, has been cited on this subject, and from Hargrave’s Notes it was a doubtful point when he wrote. In Moore’s Reports the limitation to an unborn illegitimate is said to be valid. Roll’s Abridgment to the same effect. In Croke Eliz. it is doubted whether, on principles of policy, such dispositions should be favoured. The judges differed—one favourable to the illegitimate, one opposed, and the other inclined to the second opinion, saying he had consulted most of the judges, and a majority was against the illegitimate’s claim.

In the case before the court, there is the utmost certainty as to the intended devisee; she is described as the child of which Rebecca Palmer was then with. Ann Pratt, one of the lessors of the plaintiff, is admitted to be that child, and she is competent to take,’ except excluded from political considerations, there being no uncertainty as to the person.

Where can be the justice or policy in punishing the innocent offspring for the criminal illegitimate intercourse between their parents? their situation is deplorable enough without being deprived of the pecuniary aid of those who brought them disgracefully into existence. It is difficult to discover what principle of policy it is, that will enable the father of illegitimate born children, to provide for those that have lived long enough to acquire a reputed name, that will exclude him. from making provisioiv for the child, that is unborn, and who, when it comes into existence, will stand more in need of assistance. Yet it is clear that provision can be made for the one, and doubtful as to the other.

Let the policy of the English courts in the reign of Elizabeth have been what it might, it has long ceased to be the policy of Maryland to have those, children unprovided for; on the contrary, the subsequent marriage of the parents, legitimates the prior born children, and if the father is so unnatural, as to leave the child unprovided for, he can be forced, to his duty, and compelled to take care of his Offspring, although illegitimate. The devise then to the unborn child is, in the opinion of the court, valid. The remaining question is, whether on the death of her sister Henrietta without issue the whole went to the posthumous child?

On that subject the court have not the slightest doubt— The will is, “that if either of the children die without heir, then I give their part to the other.” We have seen that a remainder over to a collateral heir, will convert the meaning of the word heir, to issue; because the first devisee could not die. without heiy living¿ a collateral heir. The converse is equally true, that where the limitation or remainder over is to take effect on the first devisee’s dying without heirs, if that devisee, on whose-estate the remainder depends, is of that description as to be. incapable of having heirs other than, issue, (which is the predicament of an illegitimate,) then it must follow, that by the word heir, issue or heir of the body only is intended; and therefore the court are of opinion, that on the death of Henrietta, without issue, her sister was entitled to the whoffi estate.

The judgment then of the court below is reversed, and judgment must be entered here for the appellant, the plaintiff below.

Chase, Ch. J.

^(a). In considering the will of William Vichars, the apparent intention of the testator is to give the lands in question, (Piccadilly and part of Dunn’s Range?/ to Sarah Vichars, his wife, during her life, with cross re.mainders in tail to his daughter Elizabeth, and the child with which his wife was supposed to be enseint—Remainder in fee to his brother Jacob Garrón. -This intentionnot being repugnant to any rule or principle of law, must prevail. The words “in case my children” (.Elizabeth, and the child with which his wife was supposed to be ensient,) “die without heirs, I give and bequeath my aforesaid lands and negroes unto my brother Jacob Garrón, to him and his heirs, for ever,” coupled with the words in the preceding clause, by which he devised the lands in question to the child en ventre sa mere, create, by necessary implication, cross remainders in tail in Elizabeth and the child en ventre sa mere. This will must be construed in the same manner as if the child had been born; and dying without heirs, means heirs of the body, because Elizabeth could not die without heirs, living the child, nor the child die without heirs, living Elizabeth. The interest acquired by Jacob Garrón, under the will of William Vickars, in the lands in question, was transmissible by the will of Jacob Garrón, which brings me to the consideration of. his will, and to decide what interest in the said lands passed thereby, to whom, and to what extent.

■ The true construction of this will, according to the manifest intention of the testator* is to give the lands in question to his two illegitimate children, Henrietta Palmer and Jinn Palmer, (Jinn being the child with which Rebecca Palmer was enseint at the time of making the will,) as tenants in common, in tail, with cross remainders over in fee. Can this intention be effectuated without infringing any rule or principle of law? If it can be, such exposition ought to be given to it.

It is established law, that a child, en ventre sa mere, is capable of talcing by devise, and that by operation of law the interest in the land so devised will vest in the child when born, and in the meantime descend to the heir at law. It is equally well established, that an illegitimate child, or bastard, can have no heir but children or issue of the body.

The first clause of the will standing alone, and without the limitation over, w6uld have given Henrietta Palmer an estate in fee in an undivided half of the lands in question; but taken together, and considered with the’second clause, that estate is qualified and converted into a tenancy in common in tail, with cross remainders over in fee.

As a bastard can have no heir but issue of the body, I consider the words “if either of the children” (both being illegitimate,) “should die without heir,” of the same import and meaning, in legal signification, as saying if either jef the children should die without issue.

JUDGMENT REVERSED, &C.

(a) This opinion of the Ch. J* was formed by him at the argument at a former term, and owing to indisposition he did nat attend when the opinion of the cours was delivered.