Russell v. Elden ( 1838 )

After a continuance for advisement, the opinion of the Court was drawn up by

WestoN C. J.

We are satisfied, that Henry Fossett Russell, grandson of the testator, took a fee in the two lots of land, devised to him. Upon any other construction, it being wild and uncultivated, he could derive little or no benefit from the devise ; and the beneficial interest would go to swell the estate of the residuary legatee, who had otherwise participated largely in the bounty of the testator. A devise of uncultivated land, without words of inheritance, was held to carry a fee in Sargent & als. v. Towne, 10 Mass. R. 303, and it is an authority exactly in point.

The decision of the cause will depend upon the question, whether this estate has been given over, by way of executory devise, upon a contingency, which has happened, the death of the first de-visee, before he attained the age of twenty-one years. In addition to the two lots of land, there was given to him, in the same clause in the will, a note of one hundred dollars, and certain other specific bequests of personal property, of no great value, to which is subjoined this provision ; “ and in case the aforesaid Henry Fossett Russell should not live to arrive to the age of twenty-one years, then the several legacies therein bequeathed to the said Henry F. Russell, I will and direct shall be paid or given to Henry Fossett, 2d, son of Henry Fossett of Union” The former was the grandson, and the latter the son of the testator.

The leading rule of construction in regard to wills, is, that effect is to be given to the lawful intentions therein expressed. The several legacies are equivalent to all the legacies; and these were given over, upon the contingency limited. Without giving to the language used a technical construction, in which the testator was manifestly unskilful, the obvious meaning is, that the second grandson named was to succeed to all, which had been before given to the first. Strictly, a legacy refers to personal property; but it may be, and it is believed often is, used in a more extended sense, by persons unacquainted with the precise meaning of legal terms. And in the connection, in which it stands, it seems to us, that the word legacies, was intended to embrace the real, as well as the personal estate. The several legacies bequeathed, were given over. In that clause, the testator had used the term, bequeath, only in reference to the land.

The bounty of the testator was bestowed upon his own blood, his children and grandchildren. He took into consideration the contingency of the decease of his grandchild, Russell, before he attained to full age, in which case another grandchild is substituted. The construction contended for, by the counsel for the demandant, would leave die second grandchild the recipient of the personal bequests, comparatively of inconsiderable value, while the more important, the fee of the land, would go to an heir, not of the blood of the testator.

It is insisted, that it is apparent, from other parts of the will, that in the mind of the testator, the term, legacies, was understood to refer only to personal property. It occurs in the first clause in the will, and in that, which immediately precedes the residuary clause. In the first, he speaks of the payment of debts, and the discharge of legacies, as soon as circumstances will permit, in which he seems to have contemplated such as were pecuniary. And in the last, he speaks specially of those, which were appointed to be paid by his son Alexander. The argument does not appear to us sufficiently strong to show, that the term, legacies, in the clause under consideration, was not used in a more extended sense.

The devise over was to be paid and given, upon the happening of the contingency. This, it is urged, indicates something to be done by the executor, to give it effect, which could not apply to real estate, passing by way of executory devise. The testator, having reference to a future contingent event, appoints in that case, that the estate “ shall bo paid or given” over. He might have said, upon that contingency, “ I give,” but although he uses the future tense, the force and effect of the devise depends upon the appointment, then made by the testator.

Upon the whole, we are of opinion, that upon a just construction of the will, Henry F. Russell took a fee, in the land in controversy, subject to the contingency of his dying, before he attained the age of tw'enty-one years, in which case, it was limited over to the other grandson, Henry Fossett, by an executory devise.

Demandant nonsuit.