Rapp v. Rapp ( 1847 )

Burnside, J.

I am not aware that any case, ancient or modern, can be found, where the limitation over was held to be too remote when the person was in being at the timó of the death of the testator. See Powel on Dev. 406.

1. The first question presented in this case, was, whether under the devise over of Frederick Rapp, in case any of his children should die unmarried and without lawful issue, the share or portion of him or her so dying, should revert back to the survivors, share and share alike. This question is decided in Diehl et al. v. King et al., 6 Serg. & Rawle, 29, where it was held, that the devise to Henry King, a grandson, “ and to his heirs and assigns ; nevertheless, if the said Henry King should die unmarried and without issue, that then, in such case, the bequest was to be equally divided to and among all his children,” that the limitation over of the legacy, being to take effect on the failure of issue at the death of the first taker, was good, and vested the legacy in the children of the testator. “Money,” says Duncan, J., “ may be the subject of an executory devise; but, such an executory devise after an indefinite failure of issue would be void, the contingency being more remote than the law allows; but restricted to the time of the death of the first taker, it is good.” 6 Serg. & Rawle, 31; Scott v. Price, 2 Serg. & Rawle, 59.

In Forsdell v. Cornell, 1 Johns. Rep. 439, it was held, that where a testator by his last will and testament, after charging his estate (as in this case) with the payment of his debts, providing for his wife, &c., devises his real estate to his four sons and a daughter, and then added: “ my mind and will is, that if either of my sons, William, Jacob, Thomas, or John, or my daughter Mary, shall happen to die without heirs male of their own bodies, that these lands shall return to .the survivors, to be equally divided between them,” that these words did not create an estate-tail, but a limitation over in foe to the survivors, on the failure of male heirs.

In Roe v. Jeffery, 7 Term Rep. 589, the devise was to T. F. and his heirs for ever; but in case he should depart this life and have no issue, then to E. A. and P., or the survivor or survivors of them, “to be equally divided betwixt them, share and share alike.” This was held good as an executory devise; for the testator must. have meant the devise over on failure of issue living at the death of the first taker. I deem it unnecessary to pursue this subject further. The case is fully settled. At Frederick Rapp’s death, he had eight children. He made ample provision for his widow. Then, his real estate to be put to rent until his youngest child attained to lawful age, when it should be appraised, accepted, or sold; the whole to be equally divided. Then came the clause, “that in case any of the children should die unmarried, and without lawful issue, the share or portion of him or her so dying should revert back to the survivors, share and share alike.” This is good as an executory devise, and is not too remote.

2. Another question is presented, which embraces the second error assigned: “that the court erred in the construction of the releases given in evidence, and in referring their construction to the jury.” The heirs being of age in 1813, they made provision for their mother, and made a division of the estate. John Ilaberacker had intermarried with Elizabeth, a daughter and legatee of Frederick Rapp. The releases are executed by Ilaberacker and wife, to John Rapp, the executor, reciting in substance the will, and that John Rapp was about to account for the estate, real and personal, of the deceased ; that their part was paid, ¿£228, 3s. 1 which was all the estate, except their proportionable part of ¿£1000, set apart for the widow.

The second release recited the widow’s death, and that John Rapp, the surviving executor, had paid them $321 26J-, their proportion of the ¿£1000. Both the releases were formally drawn, releasing John Rapp, in the fullest manner, from all bequests in the will, and the latter one releasing from the beginning of the world to that day, from all claims and demands touching their legacies in the will of the deceased.

The plaintiff in error insists that these releases discharged John Rapp from this claim, although when the releases were executed, John Rapp was in full life, and this claim did not exist, nor did it arise until after his death. .

The law is, that the words used in a release ought never to be extended beyond the consideration; otherwise it would make a release to the parties, what they never intended or contemplated. This is illustrated with Massachusetts acuteness in Lyman v. Clark, 9 Mass. Rep. 238, where the court held, that A. having a demand on an executor for a legacy for ¿£50, and also another demand for $25, being her distribution share of a legacy given to her deceased sister, executed a release with the others entitled to a like distribution share, in which, after reciting that they had received of the executor $25 each, “ as our proportion,” they acquit and discharge the executor from all demands on him, in virtue of the will; that the release had no other operation than to discharge the executor of the particular demand mentioned, and that A. was still entitled to the legacy of ¿£50.

These releases had no reference or application to this demand. It was not then in existence. Haberacker and wife released, specifically, all claim they then 'had on the executor. This claim arose after the executor’s death, under, the will of the wife’s father. I agree, the judge ought not to have left the construction of these releases to the jury; but ought to have instructed the jury that they had no application to the case then before the court, and were no bar to the plaintiff’s right to recover. But the case did not turn on these releases, and the plaintiffs in error have no right to complain of a charge that was more favourable to their case, than it deserved.

Judgment affirmed.