Village of Brattleboro v. Mead , 43 Vt. 556 ( 1871 )

The opinion of the court was delivered by

Peck, J.

The question upon the merits argued by counsel is as to the validity of the devise over for the establishment and support of an industrial school. It arises upon the part of the will in which the testator, as to the property now in dispute, says: “ I give, devise and bequeail the same to my son, Frederick Zelotes Dickinson, to have and to hold the same to him the said Fredeiick Zelotes, his lineal heirs and assignees forever ; provided, however, if the said Frederick Zelotes shall die without lineal heirs, or upon the failure of his and my lineal heirs,” that it be appropriated for the establishment and support of an industrial school, &c. The counsel on both sides agree that, by force of our statute on the subject of entails, (Gen. Sts., ch. 64, § 1,) the testator’s son Frederick, as to the real property, takes by the will an estate for his natural life only ; and that as to the property, both real and personal, the devise over in trust for the establishment and support of an industrial school is contingent, and cannot vest, if ever, till the happening of the contingency upon which, by the terms of the will, it is made to depend ; a contingency which may or may not ever happen.

It is insisted on the part of the defense, that the limitation upon which the devise over to the purposes of the school is by the will made to depend, is the indefinite, unlimited failure of lineal descendants, whenever that contingency may happen, whether at the deail of Frederick, or at any indefinite, unlimited time thereafter in the course of future generations, however remote; and that as the contingency may happen after the legally required period, that is, after the termination of a life or lives of a person or persons in being at the deail of the testator, and twenty-one years, and a sufficient fraction of a year more to cover the period of gestation, the limitation is too remote, and for that reason the devise over to the school void. The orators’ counsel, without denying this legal proposition if the devise is construed as depending on an indefinite failure of lineal descendants, contends that such is not the meaning of the will; but that the limitation has reference only to a definite failure of lineal descendants at the time -of the deail of Frederick; and that if at his deail he has no lineal descendants living or in being, the devise over to the school takes effect; and that if at his deail he has such lineal descendant or descendants, the devise over fails and can never take effect, however soon thereafter such lineal descendants may become extinct. If this latter construction is the true one, the limitation is not claimed by defendant’s counsel to be too remote. Upon this question of construction it is not necessary to enter into an exam-' ination of the multitude of cases on the subject, in which the question has arisen whether the words die having no issue, die without issue, die leaving no issue, die without heirs of his body, dying without issue, and similai’ words, import a definite failure of issue of the person at the time of his deail, or import an indefinite, unlimited failure of issue or lineal descendants, and upon which there has been so much discussion and contrariety of opinion among eminent jurists. If the question in this case depended solely upon the words “ shall die without lineal heirs f an examination of the authorities above alluded to might be deemed necessary. Looking . at these words alone, without reference to authorities on the subject, there would seem to be some reason for saying that Frederick would not die without lineal heirs, if he had lineal heirs living at the time of his deail that survived him, even if the line became extinct afterwards ; yet there are many decisions upon similar words to the contrary. But the testator did not leave his meaning to be gailered from these words alone, but has furnished his own interpretation by the subsequent words, “ or upon the failure of his and my lineal heirs.” If the words “ shall die loithout lineal heirs ” had not been inserted, and the limitation had been expressed simply by the words “ upon the failure of his and my lineal heirs,” there could have been no ground to claim that it had reference solely to the failure at the time of the deail of Frederick. If the words “ shall die without lineal heirs,” standing alone, unexplained, would be confined to a want of lineal heirs at the time of the deail of Frederick, and were so understood by the testator, it is evident that the subsequent and more general and comprehensive words were added to enlarge the meaning and extend the contingency to any subsequent failure, as well as to a failure at the time of such deail. But if the former words should be construed as comprehending an indefinite failure of lineal heirs, then it is obvious that the subsequent explanatory words were inserted to make that meaning more clear, and to remove any doubt that might otherwise be raised upon the preceding words. It is not necessary to this construction to say whether the testator in these latter words intended by the expression “ my ” lineal heirs to have reference to any lineal heirs of his own except such as he might have through Frederick; for even if he did not, the contingency in a legal sense would be equally remote. If he did so intend, it argues in favor of this construction. Nor is it material to this construction to convert, as the defendant’s counsel do, the word “ or ” into and, preceding the words “ upon the failure of his and my legal heirs.” It answers the purpose of showing the devise over to depend on an indefinite failure of lineal heirs or descendants, whether it is read in the disjunctive or conjunctive. Words in a will, under the English law, which would create an estate tail if used in reference to real estate, give an absolute title to the first taker when applied to personal property, although a contingent interest in personalty may be created by limitation over after a preceding estate, to operate by way of executory devise. The objection that the limitation over is too remote is applicable to the devise of the personal property as well as the real estate, and renders it void as to both alike.

Whether the state’s attorney would have been a proper party to have joined in the prosecution or not, we consider the interest of the charity sufficiently represented to warrant us in deciding the case as we do, on the merits.

The decree of the court of chancery is reversed, and cause remanded, with directions to that court to make decree dismissing the bill without costs except costs in this court.