Grant v. Carpenter and Others ( 1864 )

Ames, C. J.

The testator evidently intended, that his only child and sole devisee should take a fee simple in his real estate; and for that purpose limits it to him, by the technical words, “ to him and his heirs forever,” and with no limitation over. He supposed, however, that the jDower to aliene such an estate did not result from its nature thus declared, but from the addition of the word “assigns” to the word “heirs;” and, accordingly, immediately after, in case, from sickness or other casualty the income of the estate should prove insufficient for his son’s support, he gives the estate “to him, his heirs and assigns forever, that he may sell so much of my said estates as my executors herein named may think necessary for his support during his natural life; ” and then goes on to appoint “ attorneys to superintend ” his estates after his decease, and to see that his son has all the necessaries that his situation might require, and to determine whether any or all of his estates should be sold to supply them. It is almost unnecessary to say, that in these respects the testator was mistaken; that the word “ assigns ” in the limitation of a fee, is not requisite to give it the quality of alienability, and that when such an estate is given by tbe technical words, this quality cannot be restricted, for tbe reason that such a restriction is inconsistent with tbe nature of tbe estate. We are asked to correct tbe testator’s mistake by giving tbe son an estate for life only; but this we cannot do against bis plain intention technically expressed. In other words, we cannot make a will for him, although we see that be was ignorant of tbe nature of tbe estate which be designed that bis son should take. Tbe main intent was to give a fee, and this must prevail over tbe restriction and tbe machinery by which it was to be adjusted to circumstances. Tbe mistake of tbe testator is utterly harmless as events have turned; because, as tbe son is under guardianship, no sale of bis real estate can take place, except by tbe direction of tbe court of probate and under its superintendence.

It will be noticed, too, that if we should construe tbe estate of tbe complainant under tbe will to be for life only, tbe remainder in fee, being wholly undisposed of, would, upon tbe death of bis father, have descended to him as sole heir at law. In that event, bis life estate under tbe will would have united with and merged in tbe remainder in fee which be bad inherited, and be would in that way have become a tenant in fee simple of tbe property, with all tbe rights of such a tenant.

Tbe whole purpose of tbe bill will be answered, by a decree declaring that William G. Grant took, under tbe will of bis father, tbe late Cyrus Grant, an estate in fee simple in all tbe real estate devised to him, and without restriction as to alienation.