Mariano F. Medrano.

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In all the reported cases in which there appears to have
been an intention to give an estate for life to the ancestor,
with a provision for the issue as purchasers, but with the
intention that they should take an estate with the quahties
of a descendible estate, the substantial design of the testator
has been diligently sought after, and the courts have been
aided in their inquiries by the rules of the common law.
If those rules had not been established, they must have
been acted upon substantially to support the intentions.
Among the cases of this character, may be cited Pierson v.
Vickers,* and Candler v. Smith.* In the former case a de-
vise was to Ann Yickers, and to the heirs of her body, law-
fully to be begotten, whether sons or daughters, as tenants
in common, and not as joint tenants, with a limitation over
in default of such issue, and it was decided that the rule in
Shelley's case applied, and that Ann Tickers took an estate
tail. The general intention influenced the decision, and in
order to carry that into effect, the court were compelled to
disregard the limitation to the heirs as tenants in common.
In this case the limitation, in default of issue, manifested a
puVpose inconsistent with an estate for life to Ann Yickers,
or an estate in fee to her children, and if a statutory provi-
sion had controled the effect and meaning of the terms used,
the will must have been disappointed. The words them-
selves, in the legal sense in which they are understood fur-
nished a key to the intention of the testator, and controled

» 5 Ewt's R. 548. • 7 T. R, 631.

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1840.] Codification and Reform of the Late. 47

the limitations which might otherwise have given an estate
«itirely different.

In the case of Candler v. Smith, ^ the devise was to
A, and the heirs of her body forever as tenants in com-
mon and not as joint tenants, and in case A die before
twenty-one, or without leaving issue of her body, then
to B ; and it was held, that A took an estate tail. In thid
case also the limitation to the heirs of the body as tenants
in common, by which standing alone an estate in fee would
be given, was controled by the intention to confine the estate
to the issue of the body of A.

Of this class of cases, Grattan v. Hay ward," may be cited
as a case in which upon the intention the issue were
decided to take a fee as tenants in common. In the case
of Southby v. Stonehouse,' feme covert devised to her hus-
band all the profits and revenues of certain "estates"
for his natural life, and after the death of her husband
devised her "estates" to her children, if she should have
any to survive her, but in case she should have no such
child or children, nor the issue of such child or children,
and after the decease of her husband^ then she devised
the same estates to J. Hutton, making him sole heir in
default of issue left by her. It was held that the child-
ren took an estate tail, and not a fee simple, as they would
have done under the New York statute,. confining the fail-
ure of issue to the time of her death, and that J. H. took
a contingent remainder and not a contingent executory
interest, on her dying without children living at the time of
her death. If the statutory provision had been applied to
such a case it would have been opposed to the declared
intention which contemplated a failure of issue after her
own death, on the decease of her husband, and would also
have violated the intention as manifested by the limita-

' 7 Term R. 531. « 6 Taunt R. 94.

'2Ve«. Jr. R.6n.

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48 Codification and Reform of the Law. [Oct

tioQS, and yet the statute would seem to be imperative,
requiring that the contingency should be understood as
referring to the time of the death of the ancestors (who in
this case were the children), so that if she had left a child
who had died without issue before the decease of her hus-
band, that is, before the limitation over was to take effect,
the contingent limitation must have failed, because there
were issue living at the time of the death. The cases are
numerous where the general intention to give an estate of
inheritance to the person to whom an express estate for life
had been limited, and after his death to his heirs with a
limitation over on failure of issue, has been carried into
effect, notwithstanding- particular provisions to the con-
trary. It is unnecessary to cite them, as they are not dis-
tinguished by any remarkable features from those already
noticed. But there is another class of cases where the
intention is conformable to the rule of the statute, as when
the limitation is to one and then to issue or children, &c.,
and in default of issue then to another line of succession.

All these cases, however, were determined by their pecu-
liar circumstances, *and no rule could be devised which
should draw a line between such cases as admitted the
limitation to be construed a concurrent contingent remain-
der after an estate for life, and those cases where the estate
tail is executed in the tenant for life.

In Davy v, Barnsall,* there was a devise of all the tes-
tator's estate to A, and the issue of her body as tenants
in common, but in default of such issue, or being such,
if they should all die under twenty-one, and without hav-
ing issue, then over, and it was decided that A had an
estate for life with a contingent remainder over, or a con-
tingency with a doublfe aspect Now in this case the court
were not guided by the words merely, which might import

> 6 D. ds £. 30.

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1840.J CodificoHm and Rtform of the Law. 49

either an estate for life or an estate tail in A, but were not
adapted to either estate, but had regard to the intention,
vhich was, that A should have an estate for her hfe, and
that her children should take if she had issue, and that
their estate should determine if they all died under twenty-
one. The devise over was to take effect as a remainder if
there were no children, as an executory devise if there were
issue. In this case, if the remainder over had been limited
on the mero default and failure of issue, the estate of A
would probably have been construed an estate tail.* In
the case of Doe v. Perryn,' the estate was devised to
B, the wife of A, for life, remainder to children of A and
B and their heirs forever, to be divided among (hem
equally, and for default of such issue remainder over, and
at the death of the devisor A and B had no children ; and it
was decided that the estate limited to the children was a
coDtingoat remainder, and that the remainder over was well
limited on the default of children.

la the case of Loddington t;. Keine,' a devise of a manor
was to E. A. without impeachment of waste, and in
ease be should have any issue male, then to such issue
male, and his heirs forever, and if he should die with-
out issue male, then to sir J. B. and his heirs forever,
and it was held to be an estate for life with a contingent
remainder to the issue, and a concurrent remainder to sir J.
B. Now this case, and other cases of the same class, were
decided upon their peculiar circumstances, and upon the
supposed intention to make two concurrent remainders de-
pendent upon the first estate, when it would of course be
only an estate for life. Even in cases of this character, a
statutory rule determining the construction to be given to
a limitation in default of issue would be impracticable, be-

* See also WeUiAgton v. WeUington, Burr. 2165.

* 3 D. A. E. 484. ' 1 Ld. Raym. 203.

VOL. xxnr. — ^no. xlvh. 4

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60 CodificeUion and Reform of the Law. [Oct.

cause notwithstanding the particular intention, there might
have been subsequent limitations showing a paramount
intention diflferent from what would otherwise seem to be
a plain and obvious purpose.

There is a class of cases in which it would at first sight
appear, that the rule of the statute might be introduced
without apparent inconvenience, namely, where the lim-
itation over is on the failure of the issue of persons who
have not any previous estate determinable by the failure
of issue; as in the case of Lanesborough v. Fox.' In
that case an estate had been limited by a deed of settle-
ment (after several previous limitations) to the heirs male
of the body of the testator's son James, with reversion to
the testator. The devise was on failure of issue of the
body of James, and for want of the heirs male of his own
body, to his daughter Frances in tail, with remainder over;
and it was determined that the future devise, after the
indefinite failure of the issue male of the testator, was void
as being limited on too remote a contingency. In this case
there was no estate extending to the issue of the body of
James Lane generally, it being confined to his first and
other sons in tail male, &c., nor by any estate tail in the
testator to extend to the heirs male of his own body, there-
fore the limitation on the failure of issue was construed not
to be a remainder after an estate tail, but an executory lim-
itation, unsupported by any preceding estate. The estate
of the testator was a reversionary interest, and if the ordi-
nary legal meaning were given to the words of limitation,
the construction would be that the limitation over should
take eflect on his dying without issue living at the time of
his death. It was not necessary to adopt such a construc-
tion as should sustain the intentions of the testator, because
the limitation over was independent of any other estates ia

« Caa. Temp. T&l. 262.

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1840.] Codification and Reform of the Law. 61

the devise, but as a limitation by immediate devise of the
reversion would have been in substance a devise after an
indefinite failure of issue, there would seem to be great
absurdity in construing a limitation by a future devise of
the reversion as less remote than a present devise of the
same interest But however inconsistent such a construc-
tion may be with the limitations, it is the rule prescribed
by the statute of the state of New York. If in a case con-
taining the same limitations as Badger v. Loyd,* a rever-
sion is devised as such to a person in being, it would
vest as an estate subject to the precedent limitations ; but
if, as in that case, the testator being seized of a rever-
sion after an estate in tail, devised the lands after a failure
of issue male, the limitation would be contingent, and as
such must vest within a life or two lives in being.

At common law the construction would be the same in
the latter as in the former case. This strange result is pro-
duced by an arbitrary rule which must be applied without
regard to the intention. The provisions of the statute are
subversive of the principles of the law on the subject of
limitations, and establish a rule entirely different from that
which was contended for by those who argued in certain
cases that the words ought to be understood in their common
and vulgar sense.

In the case of Anderson v. Jackson,* it was decided, that
when a part of an estate was given to one and his heirs,
and a part to another and his heirs, and that if either should
depart this life without lawful issue the survivor should
have his share or part, that it was an executory devise to
the survivor. In this case it was argued that the devise
to the survivor showed that a contingent substitution of
estate was intended at the time of the death, but it was
never claimed that such a construction could be given, unless
there were some words thus confining the meaning of the

* 1 Ld. JUym. 253. • 16 John's R. 400.


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62 CodifioaHon and Reform of the Law, [Oct

terms, but the statutory rule applies to all cases, and adopts
a rule of construction which must defeat the limitations in a
great variety of instances.

The case of Anderson v. Jackson went further than any
previous case, (except the case of Fosdick v, Cornell, infra),
but neither that case, nor the cases of Roe v, Jeffrey,* and
Poulen V, Bradley,* furnish any support to the sweeping rule
of the statute.

In the case of Roe v. Jeffrey, a devise was to J. F. and
his heirs forever, and in case he should depart this life and
leave no issue, then to R M. and S. or the survivor or sur-
vivors of them, share and share alike, and it was decided
that the devise to E. M. and S. was a good executory devise.
Here it is to be observed, that the devise to E M. and S.
was only of estates for life, and lord Kenyon rested his deci*
sion entirely upon that ground. If the estates limited to
E. M. and S. had been estates in fee, or in tail, it would
have been decided that the devise was too remote, and cer-
tainly when the limitation over is for life only to persons in
being, after an express estate to one and his heirs, there is a
strong presumption that it was not the intention to give the
first taker an estate tail.

In the case of Porter v. Bradley,' a devise of an estate
was to P. D. his heirs and assigns forever, and in case P. D.
should happen to die leaving no issue behind him, then his
wife should receive and take the rents and profits thereof, and
dispose of the same, at her will and pleasure, as long as she
should continue a widow, but no longer; and after her decease
or marriage as aforesaid, then the lands so devised to P. D. as
aforesaid, were devised for want of issue by him as aforesaid
to his son J. D. his heirs and assigns forever. Here it is to
be observed, that the devise to P. D. was an express devise
in fee, and that the devise over was an estate for life, which,
as in the subsequent case of Roe t;. Jeffrey, might have been

» 7 Term R. T89. « 3 Tenn R. 143. » 3 Term R. 143.

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1840.] Codification and Reform of the Law. 63

limited as an executory devise by way of substitution for
the estate in fee. Then it might be argued that if such was
the design of the testator, it was also his intention to limit
the next estate in like manner, so that the limitation to J. D.
would either be a remainder after the substituted estate, or
an executory devise after the first estate in fee. These cases
do by no means support the case of Anderson v. Jackson,
and fall far behind other cases which have been decided in
the state of New York, and yet none of the cases which
have been decided in that state justify the construction re-
quired by the Revised Statutes. But the reasoning at least
in the cases of Poulen v. Bradley and Roe v. Jefirey is unsat-
isfactory and fallacious, and they are admitted by Mr. Chan-
cellor Kent,' to have been the "blind guides" which led
him and his brethren on the bench astray in the very re-
markable case of Fosdick v. Cornell.*

On the whole, we think it apparent that the undistin-
guishing rule of the New York Revised Statutes, will operate
not unfrequently to sacrifice the intention in devises, without
accomplishing any beneficial object. Such will always be
the case : 1. when the first estate is devised in fee simple,
and there is a devise over on failure of issue, and the chil-
dren of the first devisee survive, but die without issue;
2. when the first estate is devised for life, with a devise
over, if the first taker dies without leaving issue, and the
intention is to give an estate which shall descend to the
issue of the first taker.

In the reasons assigned by the revisers of the New York
statutes, for the changes made on this subject, it appears
that they proceed upon the ground, that all estates tail are
by the effect of a former statute converted into estates in
fee simple. If such was the effect of that statute, it would
famish a reason for abolishing a regulation which enlarged

* See Andenon v. Jackioo, 16 Johns. R. 400, Op. of Ch. Kent.

• 1 John. R. 440.

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64 Codification and Reform of the Law. [Oct

and perverted the operation of conveyances, and which made
a grant of a part of the interest equivalent to a conveyance
of the entire estate. But it certainly was not the design of the
framers of the act of 1787 to prevent estates tail from arising
by implication, or from being expressly granted. It does not
appear, that the object of the statute was to clothe estates
tail with all the properties of estates in fee, nor to deny the
validity of remainders on such estates, or grants out of the
reversionary interest. The design of its framers was proba-
bly to place estates tail upon the footing of conditional fees
before the statute de donis.

The statute applies as well to chattels real and things
personal as to limitations of the freehold, and in many cases
its operation in regard to property of this description is to
defeat the intention of the testator and of parties to con-

At the common law, when personal property which was
not ''consumed in the use" was given to a man and his
heirs, or to the heirs of his body, it might be limited over by
way of executory devise on his dying without leaving issue,
and the terms of limitation from the nature of the subject
were always construed in their ordinary sense. These limi-
tations depended upon the intention, and if it was the design
to give the first taker the absolute property, and to limit over
what remained at the time of his death, they were ineffectual.
If the intention is that the estate shall go over whenever the
issue fails, it cannot be sustained although such a limitation
of real estate would be valid.

In the case of Attorney General v. Hall,' a devise was to
F. S. and the heirs of his body lawfully begotten, of all my
real and personal estate; but in case my son F. S. shall
depart this life, leaving no heirs of his body lawfully begot-
ten, living, then all the estate he should be actually possessed
of at the time of his death over, &c. Held, by King, lord

* Kelyng's R. 13.

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1840.] CodificcUian and Reform of the Law. 55

chancellor, Jekyll, M. R., and Rejrnolds, lord chief baron,
that " in regard the ownership and property of the per-
sonal estate was vested in ^. S. and not the use only, that
the limitation over was void. It is giving a nian a sum
of money to spend, and limiting over to another what does
not happen to be spent."

In Beauclerk v. Dormer,' K. devised property real and
personal to D. making her his sole heir and executrix, and
if she dies without issue, then to go to G. B. ; and lord Hard-
wicke held the limitation over was void, on the ground, as
he observed also in the case of the earl of Stafford v. Buck-
ley,* that the meaning was, that the estate should go over
whenever the issue failed.'

In Grey v, Montague,^ E. R. by will appointed the sum
of £3,000 to several persons upon the death of her son with-
out issue, or without making any disposition by will or deed.
Held, too remote. Here an absolute interest was given.

In Donn v. Perry,* testator gave all his real and personal
estate '^ to A and his male issue, and for want of male
issue after him to B and his male issue; " these words give
to A the absolute interest in the personal estate.

In these and similar cases, the intention was apparent to
give the absolute estate to the first taker, though the inten-
tion appeared to be, in many of the cases, to limit the prop-
erty by way of remainder, if it was not disposed of by him.

This intention was incompatible with the absolute power
of disposition, which was directly or impliedly granted. If
the intention was manifested to restrain the exercise of this
right of property, by words showing a design to limit it over
on his dying without leaving issue, that purpose might be
carried into efiect, and the words used have always been
understood in their ordinary sense, because as the i^sue do

« 2 Atk. 308. « 2 Ves. Senr. 181.

' See also Saltern v. Saltern, 2 Atk. 376, and Cooke v. De Vandes, 9 Ves.
R 197. < 3 Bro. C. C. 314. » I Mer. R. 20.

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56 Codifieatum and Reform of the Law, [Oct.

not take at all from the nature of personal property, an in*
definite failure of issue to whom the estate is limited cannot
be imderstood as referred to. In the case of Cooke v.
De Yandes, above cited, lord Eldon said, that the limitation
over would have been good if the words had been '' if be
leaves no such heirs."

In the case of Lampley v. Blower,* a devise to two and
to their issue, each one half of the produce of bank stock,
and if either shall happen to die before the legacy become
due, and leave no issue, the share of her so dying to go to
the survivor, was held to be good, the words " leave no
issue" showing that the whole did not rest in the first taker.

In Shepard v. Lessingham,' the same construction was
given to a devise of bank stock to a daughter for life, re-
mainder to such child or children as should be living at her
death, and if she should not leave any child, or if such child
should die without issue, then to J. S.

In Keily v. Fowler,' testator bequeathed his substance to
his daughter, and if she dies without issue, that it return to
his issue to be distributed ; and it was held that the testator
did not intend to give an absolute estate to his daughter,
but contemplated a return of the property to the executor to
be distributed by him on the failure of issue, at the time of
the death.^

These and other cases which might be cited show that
when words of limitation are used, which prove an intention
to qualify the absolute disposition to the first taker, and to
give personal estate over on a failure of issue, they shall be
construed to relate to the time of his death.

There is a distinction between personal and real estate,
which is important in the consideration of this subject
Originally, all property of a personal nature was regarded
as vesting absolutely in the person to whom it was granted

* 3 Atk. R. 396. * Arob. 122. * 3 Bro. P. C. 299.

« See dto Goodtitle o. Pftdger, 2 Term R. 790.

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1840.] Codification and Reform of the Law. 67

or bequeathed, and as incapable of any limitation in re-
mainder. Afterwards, executory limitations were admitted,
but if personal estate was limited to a man and his heirs or
to him and the heirs of his body, he took an absolute estate
in the property, which on his death would not descend to
his heirs, but vest in the executor ; when personal property
therefore is given to a man, and if he dies without issue, to
another, in which case a limitation of the realty would be
ralarged by implication into an estate tail, the estate vests
in the first taker, and if he has heirs of the body, does not
descend to them but goes to the executor. If he has no
issne or heirs of the body, then it may, as in the cases cited
above, go over according to its limitation.

This view of the subject explains the distinction made by
lord Macclesfield, in the case of Forth v. Chapman,' where
one possessed of a term devised it to A & B, and if either
of them die and leave no issue of their respective bodies,
then to C. This was held a good limitation to C, if A or
B left no issne at their deaths, when the same limitation of
a freehold to one for life, and if he die without issue, then
to another, was held to refer to an indefinite failure of issue.

The limitation is in each case to the first taker, and con-
structively to the issues, and whenever those who are ca-
pable of taking under that description fail, then over. As
the issue cannot take at all under such a limitation of per-
sonal property, the efiect of this is to make the remainder
take efiect in the one case on the indefinite failure of issue,
in the other, on their failure at the death, that is, at the time
in each case when the limitation to the issue fails of efiect
Then, as when the estate given for the first taker is for Hfe,
and is only enlarged by construction to an estate tail, that
construction ceases to be given, when the consequence would
be by creating an absolute estate in fee to destroy the re-
mainder over.

» 1 p. Wms. R 663.

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68 Codification and Reform of the Law. [Oct

In this there is no inconsistency whatever, though a dif-
ferent construction is given to limitations of the different
kinds of property by the same language. Full effect is
given to the limitations as applicable to personal as well as
to real estate. When personal estate is given to a man and
to his heirs, or to the heirs of his body, in reference to that
estate, the issue capable of taking fails at his death. When

Online LibraryMariano F. MedranoThe American jurist and law magazine, Volume 21 → online text (page 5 of 45)