Groves v. Cox

The opinion of the court was delivered by Depue, J.

The will of the testator was made on the 11th of January, 1811, and was proved April 27th, 1811.

The premises in controversy are those mentioned in the second and fifth articles of the will.

James Perrine, Jr., survived the testator, and entered into possession of the premises immediately after his father’s death, and paid to the testator’s daughters the sum of $300 each, as required by the fifth clause of the will, and fulfilled all the charges upon him contained in said will.

The plaintiff makes a title derived from the heirs-at-law of the testator. The defendant claims under a devise to her by the will of James.

The Circuit Court certified unto this court, for its advisory opinion, the two questions—First. Whether James Perrine, Jr., under the will of his father, took an estate in fee in the premises; and, Second. Whether his estate therein ended at his death without issue.

*43 ' The quantity or duration of the estate of James is not expressly defined in the fifth clause. At common law, such a devise, standing by itself, would only give an estate for life. But a devise indeterminate in its terms, and without words of limitation, which, standing alone, would create only an estate for life, will be enlarged to a fee by the imposition of a charge upon the person of the devisee, or on the quantum of the interest devised to him; but not if the premises are merely devised subject to a charge. Hawkins on Wills 134; Spicer v. Spicer, Cro. Jac. 527; Pickwell v. Spencer, L. R., 6 Exch. 189; S. C., L. R., 7 Exch. 105. Where the charge is on the estate, and there are no words of limitation, the devisee takes an estate for life only, but where the charge is on the person of the devisee in respect of the estate in his hands, he takes a fee by implication. Jackson v. Bull, 10 Johns. 148 . If the charge be on the person of the devisee, the amount is unimportant, if the sum is to be paid absolutely. Thus, in Collier’s case, 6 Rep. 16, a devise to testator’s brother, paying to one twenty shillings, and to others small sums, amounting to forty-five shillings in all, the land being of the value of £3 per annum, was held to give a fee to the brother, for “ after payment he may die before satisfaction,, and therefore it is a fee simple; for the law doth intend that the devise was for his benefit and not for his prejudice.”' “It has,” says Mr. Jarman, “been long settled that where a devisee whose estate is undefined is directed to pay the testator’s debts or legacies, or a specific sum in gross, he takes an estate in fee, on the ground that if he took an estate for life only, he might be damnified by the determination of his interest before reimbursement of his expenditure; and the fact that actual loss is rendered highly improbable by the disparity in the amount of the sum charged relatively to the value of the land, does not prevent the enlargement of the estate.” 2 Jarman on Wills 171; Wellock v. Hammond, Cro. Eliz. 204; Jackson v. Merrill, 6 Johns. 186 . The payment of $300 to each of the testator’s five daughters, by the fifth *44 clause, is a charge of a sum in gross upon the devisee, within the meaning of this rule.

But the rule above mentioned is a rule of construction, founded on the presumption that the testator, in imposing the charge, intended to give a fee where the quantity of the estate is not defined. It applies only to indefinite devises. Where the estate is given for life in express terms, or an estate tail, or some other determinate estate is expressly given or arises by necessary implication from the language of the devise over, this rule is inoperative to enlarge such estate to a fee. The charge upon the devisee is a circumstance affording a rule of construction, but cannot enlarge the estate given, as ascertained by a construction upon the language of the whole will. Doe v. Fyldes, Cowp. 834; Doe v. Owens, 1 B. & Ad. 318; Den v. Cook, 2 Halst. 41; Den v. Small, Spencer 151; Jackson v. Merrill, 6 Johns. 185 ; Jackson v. Staats, 11 Johns. 337 -348; 2 Jarman on Wills 173.

The implication of an absolute estate in fee in James, arising from the personal charge imposed, is overcome by the eighth clause of the will. The words “ die without issue,” in that clause, which, standing alone, import an indefinite failure of issue, and would create a fee tail, are qualified by the succeeding words, “ such share or shares to be equally divided amongst the surviving heirs.” The superadded words of survivorship make the limitation over depend on a definite event—the failure of issue at the death of James—and the estate of James became thereby a fee simple conditional, witli a limitation over by way of an executory devise to “ the surviving heirs.” Den v. Schenck, 3 Halst. 29; Den v. Snitcher, 2 Green 53; Den v. Allaire, Spencer 6; Seddel v. Wills, Spencer 223; Kennedy v. Kennedy, 5 Dutcher 185; Fairchild, v. Crane, 2 Beas. 105. These cases, though perhaps not in accord with the weight of authority in England, have settled the law in this state.

The estate thus created was determinate and defeasible on the happening of two events: first, the death of James, without issue at his death ; and second, the survivorship, at his death, *45 of some one or more individuals entitled, under the designation of “the surviving heirs,” to take the estate under theexecutory devise, per formam doni. The period of time-to which the survivorship related is the death of James. Seddel v. Wells, supra; Holcomb v. Lake, 4 Zab. 686; S. C., 1 Dutcher 605.

In order to determine the estate of James, both the events-mentioned must happen. On a devise of a fee simple conditional, with an executory devise over to another, the whole estate goes out of the devisor, in the first instance, to the complete disinherison of the heir. 2 Washb. on Real Prop., p. 344, § 8, p. 345, § 10; 2 Powell on Devises 241. And if there be no one to take under the executory devise, the estate will not revert to the right heirs of the testator. Jackson v. Staats, 11 Johns. 339 .

In the event of there being no one surviving, at the death of James, competent to take under the designation of “the surviving heirs,” his estate was a fee simple absolute, and passed to the devisee under his will. Den v. Schenck, supra; Drummond v. Drummond, 11 C. E. Green 234. On the other hand, if there was, at the death of James, some one surviving who might take under the designation of “the surviving heirs,” his estate ended at his death without issue. The state of the case is somewhat obscure on this subject, and the second of the inquiries of the Circuit Court, therefore, is not answered categorically.