Sims v. Conger , 39 Miss. 231 ( 1860 )

Handy, J.,

delivered the opinion of the court:

This bill was filed by the appellees, seeking to recover from the possession of the appellant certain slaves claimed by them as legatees in the will of Phebe A. Kenley, deceased.

The material clauses of the will necessary to be taken into view in the present case are the following:

“ Item 3. I direct that my executor will carry on the plantation, making cotton, corn, &c., until my son Allison Wade Sims shall arrive at the age of twenty-one years.”

“ Item 4. When my son Allison Wade Sims arrives at the age of twenty-one years, I give and bequeath to him all my estate, both real and personal.”

“Item 5. It is my desire that my son Allison Wade Sims will select as his guardian the same person who I appoint as my executor, and that the plantation be carried on by him, as my executor and as his guardian, until my said son arrives at the age of twenty-one years.”

“ Item 6. It is my will and desire that in case I survive my said son Allison Wade Sims that, in such event, one-half of all my estate be and is hereby bequeathed to my esteemed cousin, Isaac B. Conger, and the remaining half be and is hereby bequeathed to the children (seven in number) of my beloved brother, Jonathan L. Conger,” (naming them).

“ Item 7. It is my will and desire, should my said son Allison Wade Sims die without lawful issue, that all such property and its increase which it is hereby intended he shall inherit from me shall descend in like manner and proportions as set forth in item sixth.”

" Item 8. It is my will and desire, should my estate descend, as contemplated in items sixth and seventh, to Isaac B. Conger and the children of my brother, Jonathan L. Conger, that, in such event, the said Isaac B. Conger shall deliver and make a valid title of a negro woman not over twenty years of age to my beloved sister, Jane Cummings, of De Soto county, out of the lot of negroes intended to be bequeathed to him.”

Item 9 directs, in the same contingencies stated in item eighth, that Isaac B. Conger shall pay to her “ esteemed friend, James T. Marye, the sum of five hundred dollars.”

Item 12 appoints James T. Marye her executor.

The bill states that the testatrix died in 1847, and that the will was duly admitted to probate as to her personalty, there being but two witnesses to it; that Allison W. Sims became of age in 1851, and received from the executor the property bequeathed to him, and died in 1858 unmarried and without issue; since which time the slaves mentioned in the will have come to the possession of the appellant; and the appellees claim title to the same under the seventh item of the will.

To this bill a demurrer was filed, which was overruled, and thereupon this appeal was taken.

The bill is based on the construction of the will, that the limitation over, contained in the seventh clause, took effect on the death of Allison Wade Sims, without issue, whether he died before or after reaching the age of twenty-one years. On the contrary, it is contended, in behalf of the appellant, that the limitation' over in favor of the appellees was intended to take effect only on his dying under twenty-one years of age and without issue, and that his estate became absolute on his surviving the testatrix and attaining to that age. These respective claims depend upon the construction to be given to the words, " die without lawful issue,” and the limitation over thereupon, contained in the seventh item of the will.

The rule is well settled, by numerous cases, that in a bequest to A, and, “ in case he dies,” or “ in the event of his death,” simply, without further words of contingency, over to B, the contingency intended is tbe death of A before the testator; and hence, if A survived the testator, that he takes absolutely. The reason of this rule is, that death, being a certain and inevitable event at some time, cannot be supposed to be the contingency really intended by the testator, and, therefore, that construction must be resorted to to ascertain the contingency contemplated; and as no reasonable contingency can be suggested to the mind from the words used, but that of the legatee dying before the testator, that is adopted as the contingency intended in such cases. Hinkley v. Simmons, 4 Ves. Jr. 160; King v. Taylor, 5 Id. 806; Cambridge v. Rouse, 8 Id. 12; Webster v. Hale, 8 Id. 410; Ommaney v. Beavan, 18 Id. 291; Wright v. Stephens, 4 Barr. & Ald. 674. These are cases where the terms of contingency are simply the death of the first taker and a limitation over in that event.

In some cases, the death of the first taker has been held to mean, his death at any time, notwithstanding the terms of limitation were simply “ upon his death.” But this has been by reason of other expressions or dispositions in the will, indicating that such was the intention or justifying such interpretation. Such are Billings v. Sandom, 1 Bro. C. C. 393; Nowlan v. Nelligan, Id. 489; Lord Douglas v. Chalmer, 2 Ves. Jr. 501; Chalmers v. Storil, 2 Ves. & Bea. 222.

Another class of cases is, where, by the terms of the will, the gift to the legatee is not immediate, but in remainder, or preceded by a life or other partial interest, with an executory limitation over “in case of the death of the legatee,” or like words. In such eases, the words of contingency will be applied to the period when the remainder takes effect in possession, viz., the determination of the preceding interest, and not to the death of the testator. Thus, if such legatee die before the determination of the preceding interest, the estate would go over to the ulterior legatee; but if he survive the party holding the preceding life-interest, he will hold absolutely. 1 Roper, Legacies, 409; 2 Jarm. on Wills, 693, 665. Of this class are the cases of Galland v. Leonard, 1 Swans. 161; Harvey v. McLaughlin, 1 Price, 264; and Da Costa v. Keir, 3 Russ. 360.

But the rule first stated was established on the reason of necessity, from the absence of any other period to which the contingency of death can be referred in the cases to which it is applied; and, therefore, when there are other terms or expressions employed, properly applicable to a contingency which might take place after the testator’s death, such terms will be construed according to their established legal import. When the words furnish, according to legal rules, a plain reference to the contingency upon which the ulterior limitation is to take effect, there is no occasion for seeking another reference by construction, and the terms of limitation must have their appropriate legal force, unless controlled by other parts of the will. Eor, otherwise, violence would be done to the cardinal rule, that where technical words are used in a will, the testator is presumed to employ them in their established legal sense, unless a contrary intention clearly appears from the context.

This case does not come within either of the three classes of cases above mentioned.

Upon the face of the fourth and seventh items of this will, a plain case is presented of an estate in fee in A. W. Sims, on his 'reaching majority, determinable on his dying without issue; and upon that contingency, of an executory devise over to the parties named in the sixth item. 1 Jarm. on Wills, 237; Jordan v. Roach, 32 Miss. R. 481-604. The will contains no clause showing that the words of limitation were not used by the téstatrix in their established legal sense, and therefore they must be understood in that sense. By force of our statute, the words, “ dying without issue,” mean “ a limitation to take effect when such person shall die, not having such heir, issue, &c., living at the time of his death, or born to him within ten months thereafter,” &c. In the absence of all expressions showing a different intention, the words of limitation must be taken to refer to the time of the death of the testatrix. Such was the decision of this court upon the provision of a will similar to the present — Jordan v. Roach, 608 ; which is inconsistent with the construction here contended for, in behalf of the appellants, that the dying without issue must be referred to the death of the legatee before his majority. And this view is conclusive against the construction insisted upon by the appellant.

But various authorities are relied on in support of this construction, wbicb it is proper to examine. Galland v. Leonard, 1 Swanston, was a case in which the testator bequeathed the residue of his personal estate in trust for his wife for life, and after her death to be divided between his two daughters; and “ in case of the death of his daughters or either of them, leaving a child or children living,” to apply a sufficient part of the interest to their maintenance during minority, and upon their reaching twenty-one to distribute the capital among them, the children to receive the same share their mothers would have been entitled to if then living; remainder over if the daughters left no issue attaining twenty-one years. The daughters survived the testator and his widow, and it was held that the interest of the daughters was defeasible in the event of their dying during the life of the widow, and if they survived her that their interests became absolute. This was held upon the general context of the will, which was considered as showing that the testator intended the death of the widow as the period of distribution to his daughters, and that the provision in favor of their children in case of their death had reference to the daughters dying during the life of the widow, in which event the children were to receive the shares to which their mothers would have been entitled if living.

The case is not applicable to the present will, but belongs to the third class of cases above mentioned, where the gift is not immediate, but is preceded by a life-estate in another, with a limitation over in case of the death of the legatee; in which case, as we have above seen, the executory limitation over will be referred to the period of determination of the preceding interest, and not to the death of the testator. Harvey v. McLaughlin is of the same character.

Thackeray v. Hampson, 2 Sim. & Stew. 214, was a bequest to two granddaughters, “ in trust, until they came of age or marry, the interest in the mean time to be paid to them; but if one of them die before marriage or (coming) of age, then to go to the survivor, or her child or children ; but if they should both die leaving no issue, giving them the power to leave it by will as they think fit.” One of them married and the other attained twenty-one years. There could be no room for controversy in this case. An absolute estate was plainly given upon the legatees coming of age or marrying; wbicb events had taken place; and the decision is, that they thereupon each took an absolute vested interest. It was therefore wholly unnecessary to determine what was meant by the clause giving them power to leave it by will, “ should they both die leaving no issuefor there was nothing else in the will qualifying this absolute interest, and it is beyond doubt that this clause could not have such an effect under the circumstances of the case. But if it had been necessary to determine the meaning of the contingency of “ dying leaving no issue,” it is clear that it was properly referable to their death before their shares became absolutely vested, because it is immediately connected with the preceding clause — “if one of them die before marriage or of age, then to go to the survivor or her child or children“but if they both die leaving no issue,” then giving them power to leave it by will. The latter provision manifestly has reference to the contingency of their dying before marriage or coming of age, which immediately precedes it and which is connected with it by the word “ but;” thereby showing that the same contingency was meant in both clauses. In any view, the case is clearly not an authority for the construction here contended for in behalf of the appellant.

Home v. Pillans, 2 Myl. & Keene, 15, 7 Eng. Ch. R. 238, was a bequest to nieces “ when and if they should attain their ages of twenty-one years, to their sole and separate use; and in case of their death or of either of them, leaving children or a child, I give and bequeath the share or shares of such nieces or niece so dying unto their or her respective children ox child.” In support of the view of the ease taken by the Lord Chancellor, that the gift to the nieces was absolute unless they died under the age of twenty-one, and that that was the contingency contemplated upon which their children should take, he relies on the authority of the first and third classes of cases above referred to, p. 242, Eng. Ch. R.; and refers to the particular provisions of the will — that the bequest was to be for “ their sole and separate use, free from the debts or control of their husbands” — as evincing an intention that they should vest in the nieces absolutely at a particular time, p. 243. As to the cases relied on by him, it appears to be clear that they are not applicable to the case being, 1st, cases of bequests over “ in case of death” simply of the first legatee, in which the reference is held to be to the death of the first legatee before the testator ; and, second, .cases where the gift was not immediate, but preceded by a partial estate in another, with limitation over in case of the legatee’s death; in which cases the limitation over is applied to the period of determination of the preceding interest, and not to the death of the testator. The case seems to be unsupported by other English authority, and the correctness of the decision is doubted by the learned author of Jarman on Wills, 2 Jarm. 696, not without much reason; for it appears to be in opposition to the 'settled principle, that a reference will never be indulged against the plain force of technical words. It is not easy to perceive upon what principle it can be maintained, unless it be on the ground of the particular provisions of the will showing an intention that the legacies should vest absolutely in the nieces on their coming of age. But in this respect it is not analogous to the present case, which contains no such provisions which can control the force of the technical language employed. It extends the rule of reference beyond any case decided in England; and, if followed, would lead to the establishment of the dangerous rule of disregarding dispositions of property clearly resulting from the use of well-defined technical words, and of letting in any arbitrary rule of disposition which might appear to the court, in any particular case, to be most consonant with justice and the supposed probable intentions of the testator, deduced from the circumstances of the case. But if the decision be correct upon the case presented, it is not applicable to this case. The will contained no limitation over on the nieces “ dying without issue,” which by force of our statute must be referred to the time of the death of the first taker. What was matter of doubt in that case as to the meaning of the words, “in case of the death of the nieces leaving children,” is free from doubt under our law fixing the import of the words, “ dying without issue,” and the time at which a limitation over thereupon is to take effect.

Barker v. Lea, 1 Turn. & Russ. 413, 11 Eng. Ch. R. 224, was a bequest to nephews and nieces on their respectively attaining twenty-five years, with a direction to trustees to apply the profits to tbeir maintenance; and, in case of the death of any or either of them unmarried and without issue, then giving the shares of those so dying to the survivors. A nephew and a niece died under twenty-five, unmarried, and without issue. ' The question was, whether the deceased nephew and niece took a vested interest, or whether their shares went to the survivors; and it was held that they went to the survivors, because the language of the will plainly showed that the fund was to be kept together until the parties respectively attained the age of twenty-five, and, in the mean time, that they took no vested interest. Under the peculiar phraseology of the will it is very clear that the contingency of the parties dying without issue and unmarried had reference to their death before reaching the age of twenty-five, and the decision is manifestly correct. But the case did not involve the question here presented, and really turned upon the point whether the legacies to the deceased parties were vested or contingent. The case is, therefore, not an authority in support of the construction of the will in this case contended for in behalf of the appellant.

The decision of the case of Van Houten v. Pennington, 4 Halsted Ch. 745, turned upon the grammatical construction put upon the clause of ulterior .limitation in the will; and it was held that the devise over was connected primarily with the time of its enjoyment by the devisee, and that the period of its taking effect applied to the event of the devisee dying before coming into possession, which was referred to in the clause immediately preceding that containing the limitation over. The case was decided upon the peculiar phraseology of the will, which, first, gave* an absolute estate unconditionally to the devisee; secondly, directing that the property should be rented out for the benefit of the devisee until he reached the age of twenty-one years, who in the mean time was to receive, out of it, an education and support; and, thirdly, “ hut if he should die leaving no children," then over. It was considered that the limitation over was not intended as a qualification of the absolute estate first given, but had reference to the period when this estate was to come into possession, and the contingency that the devisee might die before attaining his majority and coming into possession. It appears to be a case somewhat analogous to that of Thackeray v. Hampson, and it is one resting upon its peculiar circumstances.

The case of Mary Biddle's estate, 28 Penna. R. 62, is relied on by the appellant; but the decision is plainly not in accordance with established doctrine, and is inconsistent with many decisions in that State. Eichelberger v. Barnitz, 9 Watts, 450; Rancel v. Cresswell, 30 Penna. R. 158; Criley v. Chamberlain, Id. 163.

Other qases are cited in behalf of the appellant; but they fall within one of the three classes of cases above referred to, and need not be particularly examined.

After a careful reconsideration of the case, we are satisfied that the view we took of it on the first argument is not correct ; and that the decree overruling the demurrer should stand.

The decree is, therefore, affirmed, and the cause remanded, and the appellant required to answer the bill within sixty days.