Moreland v. . Majors , 5 N.C. 48 ( 1805 )

From Hillsborough. "Francis Moreland, of the county of Dinwiddie and State of Virginia, departed this life in 1765, having previously published in writing his last will and testament, in which is contained the following clause, to wit: "I lend to my son Thomas, during his natural life, one negro girl named Phebe, and after his decease I give the said negro and her increase to my grandson Francis Moreland, son of the said Thomas, to him and his heirs forever; and in default of such issue, the said negro and her increase to be equally divided amongst his brothers and sisters thenliving." Francis Moreland died in 1802, without having had any issue, and his brothers and sisters living at the time of his death brought this suit to recover the negro woman Phebe and her increase; and it was referred to this Court to decide "whether the limitation to the plaintiffs was valid."

This case was argued by Brown and R. Williams for the plaintiffs and Haywood for the defendant. The (49) authorities relied upon are noticed in the opinion of the Court. The decision of this case depends upon the construction of the third clause of the will of Francis Moreland. On the part of the plaintiffs it is contended that the limitation to the brothers and sisters is so expressed that it must take effect, if at all, at the death of Francis Moreland, and that, consequently, it is within the limits prescribed by law for the vesting of an executory devise. On behalf of the defendants, it has been argued that the limitation to the brothers and sisters is void, as being to take effect after an indefinite failure of issue of Francis Moreland, to whom, likewise, the negroes are given by such words as, if applied to real estate, would amount to an estate tail, which therefore transfers an absolute interest in chattels. Upon the first argument of this case, the Court inclined to the latter opinion; but upon maturely considering the cases cited, a majority of our brethren have been led to think differently. I will state the grounds upon which their present opinion is formed, in doing which it will not be necessary to notice particularly every case that has been read, because, however proper and apposite they might be, according to the manner in which the argument has been conducted by the counsel, they are not necessary to be resorted to in the views which we have taken of the subject.

Executory devises of chattels are a departure from the ancient common law, according to which the gift of a chattel for any period of time amounted to an absolute disposition of it, and any limitation over was void. The distinction between the use of a thing and the thing itself, continued, as applied to chattels personal, even after it was overruled as to chattels real; and whether an executory devise could be created of the former was questioned after the decision of the Duke of Norfolk's case had finally established its competency with respect to (50) the latter. This appears from 1 P. Williams, 1, and 2 Vern., 331. Since the period of these decisions it has not been doubted that future interests in the nature of remainders may be created in chattels personal by the means of trusts and executory devises.

The convenient and beneficial manner in which provision could thus be made for families and children's portions induced the courts to countenance executory devises; but on the other hand, it was foreseen that an unlimited indulgence of them might introduce all the mischief which it was the policy of the statutede bonis to sanction, since there was no way of destroying entails created in this form. It was settled at a very early period of their adoption that entails by executory devise could not be barred by fine or recovery. If they consisted of real estate the devise could not be barred by fine, because the title of the devisee was independent of the immediate taker; nor could the estate of the devisee be destroyed by recovery, because the recompense, which, in this fictitious mode of proceeding, is the ground of barring the issue in tail and those in remainder and reversion, doth not extend to an executory devise. Cro. Jac., 590. If they were of personal estate, they could not, from the nature of the property, be the subject of either fine or recovery. Hence, it became necessary to limit and confine this mode of settlement, that entails so made should not last longer than the law permits where they commence by creating estates for life and estates tail with remainders over. It is therefore in analogy to the rule which prevails at law in relation to strict entails which cannot be protected from fine and recovery longer than the life of tenant for life and the coming of age of his first issue, that a principle is applied to executory devises, with regard to the time of their vesting. This must be a life or lives in being and twenty-one years after, to which are added a few months for the case of a posthumous child. Every contingency, therefore, which must happen, if at all, within that period of time, is sufficient to support a limitation over. But an (51) executory devise cannot be limited on a failure of issue of the person named, whenever it happens. It is, however, to be remarked, that although a fine or recovery will not bar the entail of a chattel on account of the nature of the property, the danger of perpetuity is nevertheless avoided by the operation of the principle which declares the vesting of an interest, which would be an estate tail, bars the issue and all subsequent limitations.

The rule, therefore, fixing the time within which an executory devise must take effect is equally clear and well settled; but from the language in which wills are sometimes penned, a difficulty has arisen in most of the cases to ascertain whether the rule is observed or transgressed. Rules of construction have therefore been resorted to, and have been employed in a great variety of cases for the purpose of effectuating the intention of the testator. A few of these which may be considered as undoubted law, I shall cite and adopt as the ground of our opinion.

1. That such a construction ought to be put upon the words of a will as, upon a fair consideration of the whole context, it is evident the testator intended they should receive, unless some rule of law is thereby violated.

2. That where personal estate is limited after a dying without issue, those words do not necessarily import a general failure of issue, although the first devise may be of an express estate tail. Nor in the case of an estate tail by implication, do they necessarily signify a dying without issue living at the death of the first devisee. If, however, the construction entirely depend on those words, the limitation in both cases is too remote; but, in one case as well as in the other, the words may be confined to a dying without issue then living, if there be anything in the will from which such an intention can be inferred.

3. The inclination of the court should be in favor of such a construction as will support the limitation over, if it can be done; and they should lay hold of any opportunity of (52) referring such words to the want of issue at the time of death.

It may be inferred from the phraseology of several clauses in this will, that the testator was apprised of the rule of law which renders limitations void after an indefinite failure of issue, since he has by apt and significant terms confined the failure to the death of the first taker. This he has done in every instance where the first devise is to one son and the limitation over is to another. Upon the first, second and fourth clauses of the will the limitations over must vest, if at all, at the end of a life in being. The words are, "if my son should die without issue living at the time of his death." In every instance where the limitation over is to one person, and that person is a son, the failure of issue is most carefully tied up to the death of the first taker. In the third and fifth clauses, where sons are the first takers and the limitations over are to grandchildren, a diversity of phraseology is introduced. The testator, however, manifestly intended to make a substantial provision for his grandchildren in the event of his sons dying without leaving issue. The supposition that the clauses in their favor are inserted in the will, with a knowledge and belief that they are nugatory and could have no legal operation, is wholly inadmissible.^* But it may be asked, as the testator knew the necessity of restraining the failure of issue to the death of the first taker, and has in other instances used adequate terms for that purpose, why has (53) he not been equally cautious in the clause under consideration? To my mind, the answer is clear and satisfactory. When he gives property to one son and his issue and afterwards to another, the chance was equal that the last might die before the first taker, and if he died leaving issue in the lifetime of the first taker, the testator was desirous that the bequest should be so expressed as to be transmissible to that issue, in the event of the subsequent death of the first taker without issue. Hence, to the limitation over he has annexed words of perpetuity, and to the first disposition words of proper restrictive import. When, however, the limitation over is made in (54) comprehensive terms, to several grandchildren, who were all alive at the making of the will, it was to be expected, according to the ordinary chances of human life, that some of them would survive their brother; that consequently it would be determined during the lifetime of some of them whether the first taker died with or without issue; and as all the lives were in being, it seemed less necessary to use the words "without issue living at his death," because the intention was, if he died without issue in the lifetime of any of his brothers and sisters. And it was of no importance that the failure of issue was made to depend on several heirs, for the case seems to show that any number of lives may be taken, provided they are all in being when the will is made. From these observations I deduce the conclusion that the testator believed when he wrote this clause that he had adopted language sufficiently expressive and of force equivalent to that which he had used in making the bequests to his sons, but varied in order to correspond with the relative situation of his grandchildren. To those who should be alive when his grandson Francis might die without issue, he intended a personal benefit; and that some of them would survive him, he contemplated as a probable event. The case ofHughes v. Sayer, 1 P. Williams, 534, though not a direct authority in this case, resembles it with respect to the principle I now advert to. There, one having nephews A and B, devises his personal estate to A and B, and if either die without children, then to the survivor. The master of the rolls decided that the words, "dying without children," must be construed living at the death of the party. That they could not signify when there should be a failure of issue, because the limitation over was to the surviving devisee; and it was not probable that if either of the devisees should die leaving issue, the survivor should live so long as to see a failure of issue, which in notion of law was such a limitation as might endure forever; and, therefore, by reason of the limitation over in case of either of the devisees dying without children, then to the survivor, (55) the testator must have intended to mean a dying without children living at the death of the parent; consequently the devise was good. To the same effect is Nicholsv. Skinner, Prec. in Chan., 528. Where a legacy was given "to A, B, etc., and if any of them die without issue, his or her share to go over to the survivors or survivor," the limitation over was supported on the ground that the testator intended a personal benefit to the legatee over, and therefore meant to confine the failure of issue to their lives. The sixth clause in the will is the only one where, before a limitation to grandchildren, he confines the failure of issue to the death of the first taker. That, however, seems to have arisen from the peculiar nature of the disposition he was desirous of making to his son-in-law, Francis Oliver; the legacy is confined to the children he might leave by the testator's daughter, and therefore he particularly confines it to such children of that description as he might leave at the time of his death. Had he designed that any issue of Francis Oliver should enjoy the bequest, it is probable he would have contented himself with using the words "and in default of such issue," as he uniformly does in the other clauses relative to grandchildren.

It is generally true that a limitation of personalty after adying without issue is void, and if there are no other expressions to resort to for the construction of those words, the devise over cannot be supported. The intention of the testator must be regarded where there is no express legal limitation, and although the words import an estate tail, yet, if there be any circumstances from which it can be fairly inferred that such was not the intent of the testator, the devise over is sustainable. The language of this clause of the will would, if applied to real property, create an estate tail; not because it is a formal legal limitation of such an estate, but because there could not be a default of the heirs of Francis Moreland while his brothers and sisters were living; and the testator must, therefore, have meant lineal heirs. Cro. Jac., 475; Cowp., 234. But there are other words in this clause which are to be brought into view in (56) order to form a just construction, and from them it will probably appear that the testator meant to restrain the failure of issue to the lives then in being. These words are, "to be equally divided amongst his brothers and sisters then living." The inquiry therefore is, What did the testator mean by those expressions? If he meant to devise the negroes over to the brothers and sisters that might be living when the default of lineal heirs might happen, whenever that might be, it is clearly too remote. But if he meant the brothers and sisters living at the death of Francis Moreland without lineal heirs, then it is properly restrained, and the plaintiffs are entitled. That he designed the latter, I infer, first, from the manner in which he has used the same expressions in the last clause of his will; secondly, from the meaning which has been put upon these words in several authorities.

1. In the last clause of the will the testator gives "all the rest and residue of his estate to be divided among his children then living." It is evident that in this instance the testator has used the words as referring to the time of his own death. They will not admit of any other possible construction, nor is it necessary to seek for any other, for the operation of the will is precisely the same with or without these words. They were probably inserted from abundant caution, but being used in an unambiguous sense and in reference to the event of death, in this clause, the conclusion is entirely fair, obvious and natural that he meant to use them in reference to the same event in the third clause of his will. Such a meaning is the more strongly forced upon us when we consider that it is rendering the construction subservient to the intention.

2. The construction which the expressions in this will or similar ones have received seems to have arisen from a principle which has now become a fixed axiom in a court of chancery, and is thus stated in 2 Fearne, 186: "That with respect to executory devises of terms for years or other personal estates, that court has very much inclined to lay hold of (57) any words in the will, to tie up the generality of the expression of ``dying without issue,' and confine it to dying without issue living at the time of the person's decease." Targetv. Gaunt, 1 P. Wms., 432, is an instance of this mode of construction; and, indeed, the cases are so numerous that I shall barely refer to Fletcher's case, 1 Eq. Abr., 193, where there was another event besides that of death to which the words "then living" might have related, and to which they referred in strict grammatical construction; yet, for the sake of supporting the limitation over, they were interpreted a dying without issue living at the time. Without taking up more time upon this part of the case, I will only add that it appears to the majority of our brethren, the intention of the testator, to be collected from the whole will, was that the brothers and sisters of Francis, who should be alive at the time of his death without actually leaving issue, should be entitled, and that consequently the plaintiffs are entitled, in the judgment of the Court.

^* The clauses of the will referred to by the court were in the following words:

1. I give and bequeath to my son Thomas, and the heirs of his body lawfully begotten, the following negro slaves, to wit: Jenny, Sue, etc., and their increase; but if my said son Thomas should die without issue living at the time of his death, then I give the said negroes and their increase to my son Francis Moreland and his heirs forever.

2. I give to my son Thomas Moreland, and the heirs of his body lawfully begotten, my plantation where I now live, containing by estimation 200 acres, and in default of such heirs living at the time of his death, I give and devise the same to my son Francis and his heirs forever.

3. I lend to my son Thomas during his natural life one negro girl named Phebe, and after his decease I give the said negro and her increase to my grandson Francis Moreland, son of the said Thomas, to him and his heirs forever; and in default of such issue the said negro and her increase to be equally divided amongst his brothers and sisters then living.

4. I give and bequeath to my son Francis Moreland and his heirs the following slaves, to wit: Jude, Patt, etc., and their increase; but if my said son Francis should die without issue living at the time of his death, then I give the said negroes to my son Thomas Moreland and his heirs forever.

5. I lend to my son Francis during his natural life one yellow girl named Patt, and after his decease I give the said negro and her increase to my grandson John, son of the said Francis, to him and his heirs forever, and in default of such issue the said negro to be equally divided among his brothers and sisters.

6. I give and bequeath to my son-in-law, James Oliver, and his heirs, the following negroes, to wit: Patt, Hannah, etc., and their increase; but if my said son-in-law, James Oliver, should die without issue by my daughter, Anne Oliver, living at the time of his death, then I give the said negroes to the children of my two sons, Thomas and Francis Moreland, to be equally divided.

7. I lend to my daughter, Anne Oliver, during her natural life, one negro girl named Dinah, and after her decease I give the said negro girl and her increase to my granddaughter, Mary House, to her and her heirs forever.

8. I lend to my daughter, Anne Oliver, during her natural life, one negro boy named Dick, and after her decease I give the said negro boy to her son, Francis Oliver, and the heirs of his body lawfully begotten, and in default of such issue the said negro to be appraised and the money equally divided amongst his brothers and sisters.

9. I give all the rest and residue of my estate to be equally divided among my children then living.