Den ex dem. Doremus v. Zabriskie , 15 N.J.L. 404 ( 1836 )

The opinion of the court, was delivered, by

Hornblower, C. J.

This cause comes before the court upon a case made at the Circuit. The whole matter turns upon the construction of so much of the will of Benjamin Van De Linde, as is contained in the words hereafter quoted. The testator made his will on the 24th day of January, 1789, and after giving to his wife all his personal estate, together with the premises in question, for and during her natural life, devises as follows: “ Item: I give, devise and bequeath unto my only child and loving daughter, Adriantye, now the wife of Adrian Brinkerhoff, and to her heirs, lawfully from her body begotten, and assigns forever, after the decease of my said wife, all my whole estate both real and personal — which said estate, both real and personal as aforesaid, I do hereby devise and bequeath, unto my said daughter Adriantye, and to her heirs and assigns, as aforesaid, after the decease of said my wife as aforesaid, exclusive of her said husband, Adrian Brinkerhoff, whom, for certain reasons, I do hereby exclude and forever debar,' to all intents and purposes whatsoever, of inheriting any part, parcel, or share of my said estate, either real or personal.” It is sufficient, Avithout stating the subsequent history of the family, to say, that both parties claim under the Avill of Benjamin Van Delinde, and that it is admitted, that if Adriantye Brinkerhoff did not take a fee simple in the lands in question; then the plaintiff cannot prevail.

The testator died in August 1789, and consequently before the statute de donis was repealed; but it was thrown out in argument, by one at least of the plaintiff’s counsel, that by virtue of the act of 26th August, 1784, Rev. Laws, 60, and the act explanatory of that, passed the 23d March, 1786, Pat. Laws, 78, the estate became a fee simple in the daughter, notwithstanding the words of limitation annexed to the devise to her. This however, was not much insisted on, nor could it be, with any prospect of success. If any doubt could exist, since the exposition of those statutes, in the case of Den v. Robinson, 2 South. 689, it must arise upon the last clause of the act of August, 1784, by which it is enacted “that no entailment of lands, shall continue to entail the same, in any case whatever, longer than the life of the person to whom the same hath been or shall be first devised, by such entailment.” But there is no room for such doubt in this case; for the testator did not give the land, to his wife, in tail, it was not entailed in the devise to her; but after her death, it was given to his daughter Adriantye, in tail. If then, during the life of Adriantye, it continued in tail, it did not cease to be so, until she died; and eo instantur, it vested in the heir of her body, and at the same instant, by force of the statute, the entailment ceased, and it became a fee simple in him. It cannot be seriously contended, that during the lifetime of Adriantye, it continued an entailment, and yet that she died seized in fee, and so that upon her death it descended to her heirs general.

More reliance however, was placed by counsel, on the general intention of the testator to give his daughter a fee simple, and they supposed such intention was apparent on the face of the will. In the first place, because he had made no provision for the other children of his daughter. 2ndly, because he used the words “assigns;” and Bdly, because he was desirous of excluding his son-in-law, who, he evidently thought, might inherit the land from her, if he did not limit it to the heirs of her body, and that therefore the testator must be understood to mean, by the words heirs of her body, nothing more than an intention to exclude her husband. But we cannot ride over a plain and express limitation, upon such slender grounds as these. As to the word “ assigns," in the manner and connection in which it is used by the testator in this will, it has never been considered sufficient to control the previous words of limitation. In Measure v. Gee, 5 Barn. and Ald. 910, the gift was to A for life, remainder to the heirs of the body of A, his, her and their heirs and assigns forever, and it was held to be an estate tail. In a recent treatise by William Hayes, Esq. barrister at law, 7th vol. of Law. Lib. he has given analytical tables, in ■which may be found a number of cases, showing that super-added words, such as those in the case just cited, and other forms of expression, such as “ and his heirs forever ” or “ and their heirs;” and also, that words of modification of the gift, such as, “ as tenants in common, and not as joint tenants,” or “ share and share alike as tenants in common, &c.” have not been permitted to control the express limitation to the heirs of the body. In Wright v. Scott, 4 Wash. Cir. C. R. 16, the testator had given his estate real and personal to his daughter and her husband, and to their heirs begotten of their bodies, or assigns forever; or for want of such heirs or assigns, then to the heirs begotten by or of either of them, and to their assigns ■ forever.” And Justices Washington and Pennington were clearly of opinion, that the daughter and her husband took an estate tail; and in the event of their death without issue, then it was given to the heirs of the body of the survivor. If I am asked, what then did the testator mean by the words, “ and assigns forever,” I can only reply in the language of Justice Washington, in the case just cited, “ it is not easy to say, possibly he might have meant to apply them exclusively, to the personal estate, reddendo singula singulis; or he may have used them, as they are used in deeds, when superadded to heirs, without any meaning whatever,” or as mere words of form; and I will add in the language of the same learned Judge, “ Be this as it may, they (the words in question) cannot admit of the construction contended for, without defeating the manifest intention of the testator, which is a sufficient reason for rejecting it.” Vid. Goodright v. Pullin, 2 Ld. Raym. 1437, S. C. 2 Str. 729, and cases cited in note 1. There is no doubt, that the words “ heirs of the body 'will yield to the intent of the testator, where that intent is plain and manifest on the face of the will, as in the cases cited by the defendant’s counsel. For instance, in the ease of Doe v. Laming, 2 Burr. 1100, the devise was, “ to my niece A. C. and to the heirs of her hody lawfully begotten, or to be begotten, as well females as males, and to their heirs and assigns forever; to be divided equally, share and share alike, as tenants in common, and not as joint tenants.”- Now it is as clear, as Mr. Justice Wilmot remarked, that the testator in this case, did not use the words “ heirs of the body” as words of limitation, as if he had expressly said, “ I do not intend these words in that sense.” But in the case before us, there is literally nothing on the face of the will to raise or justify even a suspicion that the testator did not mean what he said. The superadded words “ and assigns forever,” have really no meaning in the connection in which they stand, unless as before suggested, they were used in reference to the personal estate, And as to the intention of the testator to exclude his son-in-law from the inheritance, the argument to my mind, is against the plaintiffs’ construction. Had he given his daughter a fee simple, her husband might in more ways than one, have got the whole estate in his hands; whereas by giving her an estate tail, he effectually excluded him from getting the title and control of the estate. I did not understand the counsel, as taking the bold and broad ground that the devise was to the daughter for life only, with remainder to her children as purchasers, in fee, and if such a suggestion was made, it was certainly without foundation. This is not a case, in which we must, (as was done in the case of Doe v. Laming, 2 Burr. 1100,) consider the words “ heirs of her body,” as words of purchase, and descriptive only, of her children, in order to effectuate the intent of the testator, for no such intent is apparent on the will.

The ground taken by the plaintiffs’ counsel was, that the testator's daughter Adriantye, took a fee simple, and this construction was attempted to be sustained and fortified, by a critical examination of the latter clause, or rather the repetition of the devise, to which is annexed the exclusion of the husband. The testator after giving the estate to his daughter, “ and to her heirs lawfully from her body begotten,” adds, “which said estate, I do hereby devise and bequeath unto my said daughter Adriantye, and to her heirs and assigns, As aeobesaid, exclusive of her said husband, &e.” First: it is said the words as aforesaid in this latter clause, refer to and are substituted for the word forever, in the first clause; and then it will be read, “ which said estate I devise and bequeath to my said daughter Adriantye her heirs and assigns forever.” So making by this latter clause, which must prevail over the former, a complete gift in fee, in express terms. This argument is ingenious, but not sound. Instead of introducing a new devise in the will, the testator only recited the one already made, for the simple purpose of coupling it with an exclusion of the husband, and for the sake of brevity, omits the formal words of limitation, substituting for them, the words as aforesaid. So that those words refer to and stand for, the particular description of heirs before mentioned, and not exclusively to the word forever. This I think is the plain and true reading of the will, and therefore that the criticism of the plaintiffs’ counsel, will not help him. In my opinion, the defendant is entitled to judgment.

Judgment for defendant.

Affirmed by Court of Errors, Hal. Dig. 375.