Opinion
(Spring Term, 1801.)
1. A devise by a testator to his two sons, A. and B., in fee, and that if either of them should die without lawful issue begotten of their bodies, his son C. should have the lands of the one so first dying, is too remote, and the limitation to C. is therefore void.
2. Where a testator, after several bequests of specific chattels to his wife, proceeded thus: "Also all the remainder of my estate, whether within doors or out, that was not before given away — all the residue of my estate and every part thereof. I give to my wife S.W., she paying all my just debts and funeral charges, etc., to her and her heirs forever;" it was held that his real estate passed to his wife in fee.
This was an action of ejectment, brought in Halifax Superior Court, to recover possession of a certain tract or parcel of land lying in Northampton County, and the following special verdict found: That Jones Wood, father of the defendant, being seized in fee of the lands in question, on the 17th day of August, 1790, duly made and published his last will and testament in writing, and, among other things, devised: "Item. I give and bequeath to my son, Cullen Wood, my plantation and lands, by the name of Mall's Ridge, bounded as follows: Beginning at the head of the Hog pen Branches, in Joseph Wood's line, at a blazed tree; thence along a line of blazed trees to the Great Pocoson to a pine; thence along a line of blazed trees to the head of Robertson's Branch; then (400) down the run of the said branch to Lemuel Burkett's line to Godwyn Cotton's line; thence along said Cotton's line to Joseph Wood's line; thence along the said Joseph Wood's line to the first station, containing four hundred acres, be the same more or less, etc. Item. My will and desire is, that if either of my two sons, Cullen Wood or Lawrence Wood, should die without lawful issue begotten of their bodies, that my son, Jonas Wood, shall have the lands of the one so first dying; and in that case, as aforesaid, do give and bequeath the aforesaid lands of the one so first dying, unto my son, Jonas Wood, to him, his heirs and assigns forever." And afterwards departed this life, and the said will was duly proved and recorded. That Cullen Wood, the devisee under said will, entered upon and was seized of the lands in question, agreeable to the devise thereof to him in the said will; and being thus seized, on the 7th day of May, 1792, duly made and published his last will and testament in writing, in the words and figures the following: "Item. I give and bequeath to my wife, Sarah, all my horses, cattle and sheep, that was not before given away, and the remainder half of my growing crop. Also all the remainder of my estate, whether within doors or out, that was not before given away; all the residue of my estate, and every part thereof, I give to my wife, Sarah Wood, she paying all my just debts and funeral expenses, etc., to her and her heirs forever." And afterwards departed this life without issue, leaving his brother, Lawrence Wood, upon which the said will was also duly proved. That the said Thomas Sutton intermarried with the said Sarah Wood, widow and devisee under the will of the said Cullen — the defendant having entered upon the premises, by virtue of the devise in the will of the said Jonas, deceased, as aforesaid. After the death of the said Cullen this suit is brought; and if the Court shall be of opinion that the law is for the plaintiff, they find the defendant guilty of the trespass and ejectment set forth in the plaintiff's declaration, and assess 6d. damages and 6d. costs. If not, they find the defendant not guilty.
The first question that arises in this case is what (401) estate was created in Cullen Wood by the following clause contained in Jonas Wood's will: "My will and desire is, that if either of my two sons, Cullen Wood and Lawrence Wood, should die without lawful issue begotten of their bodies, that, " etc. It is a general dying without issue, which may happen 500 years hence, and not an event that must necessarily take place in any reasonable time. I therefore think, by this clause in the will, an estate tail was created in Cullen. Although the fact may have been that Cullen died without issue at the time of his death, that will not after the case. The same construction must be now made upon the will as would have been made upon it at the testator's death. 2 Bur., 878.
If the limitation to Jonas Wood is to be considered in the light of an executory devise, not being to take place till after an indefinite failure of issue, etc., it is too remote; and if it was too remote in its creation, no event will warrant a different construction afterwards in support of it. If, then, an estate tail was created in Cullen, the Act of 1784 converted it into a fee simple, and Cullen had a right to devise it. But whether he exercised that right or not is the next question. The clause in Cullen's will is very general and expressive: "Also all the remainder of my estate, whether within doors or out, that was not before given away. All the residue of my estate, and every part thereof, I give to my wife, Sarah Wood, she paying all my just debts, funeral charges, etc., to her and her heirs forever." The word "estate" has a very general meaning; it includes both real and personal estate. The direction that the devisee shall pay his debts is also circumstance deserving of notice. 3 Modern, 45. I think the land in dispute passed to Sarah Wood by that clause in her husband's will, and that judgment should be entered for the plaintiffs.
The devise over in the will of Jonas Wood before the Act of 1784 would have been held a contingent remainder, and not an executory devise; for though the contingency of one of the (402) brothers, Cullen or Lawrence, dying without issue, might possibly take place in the lifetime of the other, yet such contingency was not necessary to vest the remainder in the defendant, for it might also take place many years after they were both dead, on a failure of issue in tail — the limitation over on the death of either of the brothers is not confined to his dying without issue in the life of the survivor, but would take place on a failure of issue at any future period, however distant; and the death of Cullen in the lifetime of Lawrence, though there were no failure of his issue till after the death of Lawrence, yet Jonas would be entitled to the remainder, so that it is evident the interest of Jonas did not depend on Cullen's dying in the lifetime of Lawrence — the devise over to Lawrence can therefore be considered no other than a remainder, contingent on the failure of the issue in tail, of course void under the laws of this country.
The devise in the will of Cullen, after giving several specific legacies to his wife of negroes, stock, etc., he adds in the same clause: "Also all the remainder of my estate, both within or out, that was not before given away." This gives his wife all the residue of his personal estate; and had he gone no further, there might have been some reason to conclude that he meant to give no more than personal estate. He then goes on as follows: "All the residue of my estate, and every part thereof, I give to my wife, Sarah Wood, she paying all my just debts, funeral charges, etc., to her and her heirs forever." This last appears to me a distinct devise, independent of anything that went before; and if it did not operate as a devise of his lands, it would be altogether nugatory, his whole personal estate having been before disposed of in the most unequivocal terms.
It is observable that where the testator gives the remainder of his personal estate, he uses no words of inheritance, whereas in the last devise he expressly gives to her and her heirs forever.
Wherefore, it is my opinion that, under the will of Jonas Wood, Cullen took an estate in fee, and that the devise over to Jonas is void, the contingency upon which it was to take effect being too remote.
I am also clearly of opinion that the plaintiff, Sarah, took an (403) estate in fee in all the lands whereof her former husband, Cullen Wood, died seized; therefore, that judgment should be entered for the plaintiffs.
The testator, by separate clauses in his will, devises to his two sons, Cullen and Lawrence Wood, two several tracts of land, to them respectively in fee simple. In a third clause he desires that if either of his two sons should die without lawful issue begotten of their bodies, that his son, Joseph, should have the land of the one so first dying; and in that event he devises the land of the one so first dying to his son, Jonas, in fee simple. In the succeeding clause he desires that, in case both his sons, Cullen and Lawrence, should die without lawful issue begotten of their bodies, James Wood should have the lands of the one so dying last in fee simple.
After the death of the testator, Cullen Wood entered upon the land devised to him, and died seized, leaving no issue; living, his brother, Lawrence Wood. The lessor of the plaintiff intermarried with the widow and devisee of Jonas.
The first question in this case is whether the limitation in the will of Jonas Wood to his son, Jonas, is effectual as an executory devise. The intention of the testator ought to be collected from the whole of the will taken together, and, therefore, though a fee simple is given to Cullen by one clause, yet it is qualified and narrowed down by such words as would, before the Act of 1784, have made it into an estate tail general. In consequence of that act, the estate devised to Cullen was a fee simple; and therefore the ulterior limitations to Jonas and James would have been clearly void, as common law conveyances. It is not necessary to show that they cannot be supported as contingent remainders; for it is an axiom that one fee cannot be in remainder after another. The limitation to James also is entirely unsupported by any of the principles which govern executory devises. It is limited to take effect after an indefinite failure of the brother who died last; and there is not in the will the slightest ground upon which a restriction can even (404) be argued.
With respect to the devise over to Jonas, it seems to me that the arguments offered in support of it are founded on a misconstruction of the will, which supposes that the limitation to Jonas is upon a contingency which must happen, if ever, within a life in being, and that consequently there is no tendency to a perpetuity. If the words of the will would fairly warrant the construction that the testator meant the limitation to Jonas to take effect only in the event of one brother dying without issue, in the lifetime of the other, nothing more would be necessary to support it as a good executory devise, according to the case of Pells v. Brown, Cro. Fac., 590. But the words "so first dying" must not be separated from the antecedent words, "without lawful issue begotten of their bodies"; for that were to make a supposition, contrary to the express words of the will, that the testator did not mean to provide for the issue of his two sons; and would lead to this consequence, that Jonas should take the land of him who died first, though he might have left issue. But the intention clearly was that Jonas should not take as long as there was any issue of the son who should die first. It follows, that if one of the sons had died leaving issue, which should afterwards fail in any indefinite period of time, living the issue of the other son, the limitation to Jonas would take effect, if the intention of the testator consisted with the rules of law. It is a limitation upon an unrestricted failure of issue, and would, if sanctioned, produce all the mischief which the law is so solicitous to avoid; and the cases to be found in the books relative to perpetuities apply a fortiori to the circumstances of this country, where restraints upon alienation are equally adverse to the spirit of the Constitution and the form of government. It does not appear to me that this case is to be distinguished in its material circumstances from that of Forth v. Chapman, 1 P. Williams', 667. There the testator gave the residue of his real and personal estate to his nephews, W. and G., and if either of them should die and leave no issue of their respective bodies, then he gave the premises to D. It was decided that the construction (405) as to the freehold was, that if W. or G. died without issue generally, and of course that the limitation over to D. was too remote. And were this the case of personalty, there are no expressions or circumstances in the will that would afford a ground for construing the words "first dying without heirs of his body lawfully begotten," a dying in the lifetime of the survivor, notwithstanding the inclination of courts to support such devises over.
The next inquiry is whether the words of Cullen Wood's will are sufficiently comprehensive to convey these lands to his widow? After sundry bequests of chattels, the residuary clause gives to his wife all the remainder of his estate, whether within doors or without, not before given away — all the residue of his estate, and every part thereof, she paying all his just debts, etc., to her and her heirs forever. The word estate comprehends everything a man owns, real and personal, and ought not to be limited in its construction, unless connected with some other word which must necessarily have that effect; or unless it is so used by the testator as to indicate his intent that it should not be received in its ordinary acceptation. But here he adds the words, "and every part thereof"; and the devise is accompanied with a condition, that his wife shall pay his debts out of it. It is also expressed in such language as is applicable to the devise of real property; and the impression made upon the mind by the whole tenor of this will is, that he did not mean to die intestate as to any part of his property. The case of Tanner v. Morse, in cases temp. Talbot, and other cases therein referred to, seem to be decisive on this question.
Agreed in omnibus, and judgment for the plaintiffs.
Cited: Brown v. Brown, 25 N.C. 136; Buchanan v. Buchanan, 99 N.C. 311.
NOTE. — On the first point, see Bryant v. Deberry, 3 N.C. 356, and the cases and Acts of Assembly referred to in the note. See, also, Brown v. Brown, 25 N.C. 134.
On the second point, see Mably v. Stainback, ante, 33, and the cases referred to in the note.
(406)