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mit; as, for instance, to create an estate tail, to establish a perpetuity, to endow a corporation with real estate, to limit chattels as inheritances, to alter the character of real estate, by directing that it shall be considered as personal, or to annex a condition that the devisee in fee shall not alien. To allow the testator to interfere with the established rules of law, would be to permit every man to make a law for himself, and disturb the metes and bounds of property.a
• Lord Hardwicke, in Bagshaw v. Spencer, 2 Atk. Rep. 580. M'Kean, Ch. J., in Ruston v. Ruston, 2 Dallas, 244. State v. Nicols, 10 Gill & Johns. Rep. 27. In the case of Inglis v. The Trustees of the Sailor's Snug Harbor, 3 Peters' U. S. Rep. 117, 118, the English rules of construction of wills are declared and enforced, to the extent that the intention of the testator is to be sustained, if it can be done lawfully and consistently; and that a general intent in a will is to be carried into effect at the expense of any particular intent, provided such general intent be consistent with the rules of law; for when there are conflicting intents, that which is the most important must prevail. Chase v. Lockerman, 11 Gill & Johns. 185. S. P. The testator, if he does not infringe the rules of law, has a right to say with Staberius, when he imposed an unpalatable condition in his will, Sive ego prave, seu recte, hoc volui.
In the case of Ommanuey v. Bingham, decided in the House of Lords, in 1796, on appeal from Scotland, Sir Charles Douglass, by a codocil to his will, directed that if his daughter L. should marry B., to whom he had a strong dislike, neither she, nor her husband, or their representatives, should take any part of his estate, and he made in that event another disposition of the same. His daughter married B. notwithstanding, in her father's lifetime. One question was, whether the codicil was not void as being contra libertatem matrimonii ? The codicil was sustained in the House of Lords, and it was considered that the condition was not void by the law of England. Robertson's Law of Personal Succession, p. 153-160. Whether a condition annexed to a legacy that the child do not marry without the consent of the mother or guardian, is or is not valid, depends upon intention of the testator. It is not considered only in terrorem, if there be a bequest over, on breach of the condition. Stratton v. Grymes, 1 Vern. 357. In Scott v. Tyler, 2 Bro. 343, Am. ed., Boston, S. C. 2 Dickens, 712. It was decided after a great examination, that when a condition is annexed to a legacy that the legatee should marry with the consent of her mother, and she marries without it, the gift goes over to the residuary disposition, for it is a valid condition. See supra, p. 125, n.
Mr. Wigram, now Sir James Wigram, Vice-Chancellor, has written an able treatise on the "Examination of the rules of Law respecting the ad
It does not require the word heirs to convey a fee; but other words denoting an intention to pass the whole interest of the testator, as a devise of all my estate, all my interest, all my property, my whole remainder, all I am worth or own, all my right, all my title, or all I shall die possessed of, and many other expressions of the like import, will carry an estate of inheritance, if there be nothing in the other parts of the will to limit or control the operation of the words. So, if an estate be given to a person
mission of Extrinsic Evidence in aid of the Interpretation of Wills,” and he holds such evidence admissible, if the aid can be made auxiliary to the right interpretation of the testator's words. The rules he lays down are, that if there be nothing in the will to destroy the presumption that the testator expressed himself in words according to their strict and primary acceptation, and they are sensible with reference to extrinsic circumstances, they are to be construed in the strict and primary sense. But if they be insensible under such a reference, then the expounder may travel out of the will, to search for a popular or secondary sense which will make them sensible. If, however, the words, aided by the guidance of the material facts in the case, are insufficient to determine the meaning, the will is so far void for uncertainty. Still courts of law, in certain cases, admit extrinsic evidence of intention, to make certain the person or thing intended. These rules are supported by a critical and full examination of a series of adjudged cases. Mr. Ram, in his treatise on the " Exposition of Wills of Landed Property," contains, also, in a small compass and practical form, an extensive and general collection of the authorities and principles of construction applicable to wills; and he illustrates the positions that the intention of the testator is to be collected from the whole will, and we are to look at the introductory words-the context-to other devises in the will:-practical effect is to be given to all the words in the will;-of two intentions, the chief one is to be carried into effect, if both cannot ;-the intention to be followed is the one existing at the time the will was made, and the technical effect of words is presumed to be intended, if a different intention does not appear in the will.
With respect to the words requisite to comprise the personal estate in a testament of chattels, see a digest of the cases in Jarman on Wills, vol. i. ch. 23, Boston, 1845, edited by J. C. Perkins, Esq.
Comyn's Dig. tit. Devise, n. 4. Doe v. Morgan, 6 Barnw. & Cress. 512. Shepherd's Touchstone, by Preston, 439. Preston on Estates, vol. ii. 68— 173. Mr. Preston has given a view and discussion of authorities on the construction of wills, as to the quantity of interest devised, and as to the operation of the word estate. His conclusion is, (p. 146,) that the word estate, used in application to real property, will be construed to express either the quantity of interest, or describe the subject of property, as the sense in which
generally, or indefinitely, with a power of disposition, it carries a fee; unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case, the express limitation for life will control the operation of the power, and prevent it from enlarging the estate to a fee. If it distinctly appears to be the intention to give a greater estate than one for life, as a devise to B. for ever, or to him and his assigns for ever, or to him and his blood, or to him and his successors, or to him and his children, such expressions may create a fee in the devisee. So, a devise of the rents and profits of land is a devise of the land itself.c
it is intended to be used shall appear from the context of the will. See to the same point the decision of the Q. B., in Doe v. Lean, 1 Adolph. & Ellis, N. S. 238. It will carry a fee, though it point at a particular house or farm, unless restrained by other expressions; for it will be intended to designate as well the quantity of interest as the locality of the land. Ibid. p. 130. The sixth chapter, in the second volume of Preston on Estates, 68-288, is a collection and analysis of cases on the construction of wills, and more especially as to the efficacy of the term estate. If to this we add Cruise's Digest, tit. Devise, chapters 9, 10, 11, 13, and Jarman on Wills, vol. i. ch. 22 and 24, Boston, 1845, edited by J. C. Perkins, Esq., we have a full view of the immense accumulation of English cases on the subject. In the latter work they are clearly classified and arranged. In the note to Mr. Williams' American edition of Hobart's Reports, p. 3-7, the learned editor has also given a digest of numerous cases, as well American as English, respecting the words in a devise, which, without the word heirs, will convey a fee. And with respect not only to the construction of devises, but to the English and American law of devises at large, we may safely refer to the third volume of the Digest of the Laws of Real Property, by Judge Lomax, of Virginia, which contains a learned and valuable digest of the subject.
⚫ Jackson v. Coleman, 2 Johns. Rep. 391. 389. Jackson v. Robins, 16 ibid. 587, 588. Rawle, 16. Supra, p. 319. S. P.
Herrick v. Babcock, 12 ibid. Case of Flintham, 11 Serg. &
Devise, n. 4. Preston, supra,
b Wild's case, 6 Co. 16. Com. Dig. tit. Beall v. Holmes, 6 Harr. & Johns. 205. Davis v. Stephens, Doug. 321. Johnson v. Johnson, 1 McMullen's S. C. Rep. 346.
• Co. Litt. 4, b. 8 Co. 95, b. 2 Ves. & Beames, 68. Shadwell, V. C., in Stewart v. Garnett, 3 Sim. 398. 1 Johns. Ch. Rep. 499. 9 Mass. Rep. 372 Andrews v. Boyd, 5 Greenleaf's Rep. 199. So as to personal property, a gift of the produce of a fund is a gift of the fund itself, unless there be words
*In the construction of devises, the intention of the testator is admitted to be the pole star by which the courts must steer; yet that intention is liable to be very much controlled by the application of technical rules, and the superior force of technical expressions.
of qualification restraining the extent and duration of the interest. Adamson v. Armitage, 19 Vesey, 416. By the English statute of 1 Victoria, ch. 26, a devise without any words of limitation is to be construed to pass the fee, or the testator's whole estate, unless a contrary intention shall appear by the will. No devise to a trustee or executor shall pass less than the testator's whole estate, unless a definite term of years, absolute or determinable, or an estate of freehold, be given expressly or by implication. And under an unlimited devise, where the trust may endure beyond the life of a person beneficially entitled for life, the trustee takes the fee, and not an estate determinable when the purposes of the trust are satisfied.
The rule is understood to be settled, that if a devise be made to the heir, right heir, heir at law, or lawful heir of the testator, and there be a person, when the disposition of the will takes effect, who answers that description, no other person can take, unless, by a plain declaration in other parts of the will, the testator intends that some other person shall take, and has sufficiently identified him; and when that intention is proved, it controls the legal operation of the words of limitation used in the will. Sir Thomas Plumer, in Marquis Cholmondelly v. Lord Clinton, in 2 Jacob & Walker, 65–189. The opinion is a distinguished specimen of judicial argument and illustration. See, also, the elaborate opinion of Mr. Justice Baldwin, to the same point, in the Circuit Court of the United States for the Pennsylvania district, in the case of Packer v. Nixon, decided December, 1833. But see ante, p. 412. In England, under a devise to the heir of the testator, he takes as devisee, and not by descent.
In a will of a personal estate to A. for life, remainder to the heirs at law, the better opinion is, that though the word heirs at law has a definite sense as to real estate, yet, when applied to personal property, it means the legal representatives or next of kin. Holloway v. Holloway, 5 Vesey, 399. Vaux v. Henderson, cited in the note in 1 Jacob & Walker, 388. Ricks v. Williams, Equity Cases in N. C. by Badger & Dev. vol. i. 1. M'Cabe v. Spruil, ibid. 189. Wright v. Trustees of Methodist Episcopal Church, 1 Hoffman's Ch. Rep. 212, 213. But if real and personal estate be devised after a life estate, to the heirs at law, both the next of kin and the heir at law cannot take, if it appears both descriptions of property were to go together, and then the heir will take the whole. If, however, the construction will admit of singula singulis, the next of kin would probably be admitted to take the personal and the heir the real estate. Gwyne v. Muddock, 14 Vesey, 488. If a will contains a limitation over of personal property to the testator's next of kin, in the event of the failure of a previous gift of the same, it has
If the testator devises land to another generally, as a devise of lot No. 1, to B., without using words of limi
been a vexatious question in the English books whether the limitation is to be confined to the nearest in blood, or to the next of kin within the statute of distributions; for, upon the first construction, a surviving brother would take in exclusion of the children of a deceased brother or sister. Upon the other construction, the nephews and nieces would come in by right of representation, per stirpes, and take one moiety of the property. The cases of Carr v. Bedford, 2 Ch. Rep. 146. Phillips v. Garth, 3 Bro. C. C. 64. Lord Kenyon, in Stamp v. Cooke, 1 Cox's Cases, 234. Sir John Leach, in Hinckley v. MacLarens, 1 Mylne & Keene, 27, are in favor of the last construction. The cases of Roach v. Hammond, Prec. in Ch. 401, of Thomas v. Hale, Forr. 251, and of Rayner v. Mowbray, 3 Bro. C. C. 234, where the word relations received the same construction, may also be referred to as authorities in favor of the same rule. In Wright v. Atkyns, (1 Turner & Russell, 143,) the word relations was declared to mean persons entitled according to the statute of distributions. When gifts by will to relations are made to them simpliciter, the persons to take and the proportions are determined by the statute of distributions. Roach v. Hammond, ubi sup.; but if the bequest be to relations "to be equally divided between them," the distribution must be per capita among the persons included in the statute. Thomas v. Hall, ubi sup. So, in a will to the children of A., B., and C., equally to be divided, they take per capita. Blacklee v. Webb, 2 P. Wms. 383. Butler v. Stratton, 3 Bro. C. C. 367. On the other hand, in Elmsley v. Young, 2 Mylne & Keene, 82. 780, Sir John Leach, adhered to his former opinion, but, on appeal, the Lords' commissioners, Shadwell & Bosanquet, overthrew this established construction, and held that the limitation over to the next of kin, was confined to the nearest of blood; and Lord Thurlow, Lord Eldon, Sir William Grant, and Sir Thomas Plumer, were all understood to have spoken in disapprobation of the original construction. Brandon v. Brandon, 3 Swanston, 312. It appears that the last construction is the best sustained, and that the words next of kin have acquired a technical meaning, and ought to be taken as meaning the next of kin according to the statute of distribution, unless it appears by the explanatory context that the testator intended by the words his nearest of blood, and to exclude the representatives of a deceased brother and sister, and to give all to the surviving brother or sister, and which I think would be a very unreasonable and forced construction, when the words next of kin are used simpliciter, without any explanation. Wright v. Trustees of Methodist Episcopal Church, 1 Hoffman's Ch. Rep. 213. See the Law Magazine, for August, 1835, art. 5, where this question is fully and skilfully examined. In M'Cullough v. Lee, 7 Ohio Rep. 15, it was adjudged, that as between the mother and the aunt, the words in the statute of descent, "shall pass to the next of kin to and of the blood of the intestate," would give the estate to the mother.