Homet v. Bacon

Opinion,

Mr. Justice Gbeen :

We are quite unable to discover any difficulty as to the character of Lydia Hornet’s estate in the land in question, under the will of her father. The operative words of the will are: “ It is my will also and I do order and direct that my dear Cynthia shall have during her natural life the use and occupancy and profits of such parts of the farm whereon I am now living as is hereafter described,” (then follows a full description). “But after my dear wife Cynthia Hornet’s death it is my will and desire that the real estate afore described should descend to the children issued from my marriage with said Cynthia.” It is beyond all question that these words gave a life estate to the wife Cynthia, with remainder in fee to the children of the testator and his wife Cynthia. It would be a waste of time to discuss so simple a question.

But it is argued for plaintiffs in»error that the further words of the will, in connection with the facts as they transpired, reduced this remainder in fee to a life estate with an ultimate remainder in fee to the testator’s male children by his first marriage. These further words follow in immediate connection: “And if she should survive them or any of them it is further my intention and purpose that the same should after her death and after the death of my children by her without any heirs revert to the male children issued from my first marriage or from the first bed and to their heirs.” It is claimed that under these words the children of the testator and Cynthia took only a life estate with remainder in fee to the male children of the testator by his first wife. This would certainly be so if the conditions upon which this disposition was based had transpired, but they never did. In point of fact the testator and Cynthia had but one child, Lydia, and she survived both her father and her mother. Cynthia died before the testator. Charles Hornet, the testator, died about 1839, and Lydia did not die until 1886. In this state of facts Lydia fulfilled to the letter the conditions upon which the land in question was given to her in fee. She was a child, the only child of the testator and his wife Cynthia. Her mother died and after her father’s death the land became hers literally and absolutely, unless it was divested by the remaining clause, or some other clause, or part of the will or codicils. The remaining clause above quoted is principally relied upon to convert Lydia’s fee into a life estate. Now the first and most important condition necessary to work this change was that the wife, Cynthia, should survive her child or children. The words are, “and if she should survive them or any of them it is my further intention and purpose,” etc. But she did not survive them. She died about fifty years before Lydia died and Lydia was her only child. How then is it possible to take from Lydia the clear estate in fee simple which the will gave her, upon the theory that an event happened which never did happen ?

But again; another insuperable obstacle in the way of the male children of the first wife is, that before any interest in them could arise it was essential that Lydia should die “without any heirs.” In point of fact she did not die without any heirs. She left an abundance of them, not children it is true, but heirs nevertheless. It is idle to discuss the situation in which the word “heirs ” may be construed to mean “children ” or “issue” or even “devisees” or “distributees.” Those are cases where it is necessary, in order to give interpretation to doubtful wills, where the meaning is obscure, where the will cannot take effect without attributing another than a technical meaning to the word. But here there is no such difficulty; there is absolutely not the least ambiguity, any more than there would be in case of a devise to one “ and his heirs.” Most certainly the law will not be astute to take away from a child a clear fee simple estate and reduce it to a life estate, by a forced and ingenious and strained process of reasoning, the foundation of which is that where a will can only become operative, according to the testator’s intent, by giving to the word heirs a limited or special meaning such as “children” or “issue,” such a construction will be given.

Again in one of the codicils an expression occurs which is invoked in favor of the male heirs by the first wife. The words are, “confirming in favor of my daughter Lydia such parts of my real estate as I have by said will of March 16,1831, disposed of in favor of my wife Cynthia Hornet to revert after her death to her children if any.” It is argued that the words “to revert after her death to her children if any,” refer to Lydia and her children, and as she had none her estate was a lrfe estate only. It is perhaps enough to say that it is impossible to read these words in that way without doing violence not only to the grammatical structure of the sentence but to the plainest and most obvious meaning of the words. The whole of the clause is at best a mere reference to the previous disposition of the will, and does not pretend to be the substitution of new testamentary language creating a new or different estate. But just as it is, the express language and the plain meaning are, to simply confirm the estate of Lydia previously granted by the will, and when in describing that estate, that is Lydia’s estate, he says, “disposed of in favor of my wife Cynthia Hornet to revert after her death to her children if any,” he unquestionably refers to Cynthia Hornet’s children and Cynthia Hornet’s death. The antecedent of “her” is Cynthia Hornet and in no possible sense Lydia. Again if there were any doubt as to the meaning of the expression “ without any heirs ” in the will, there is just as much reason for reading it “issue” as “children,” and read in that way the estate of Lydia would be at the least an estate tail, which was duly barred by the deed of 1852 to the Gilberts.

We are of opinion that Lydia took an estate in fee simple which has duly passed to the defendant, and therefore

The judgment is affirmed.