Chrystie v. Phyfe

The plaintiff, Mrs. Chrystie, who was the granddaughter of Thomas Mackaness, deceased, claims under a devise or gift, in her grandfather’s will, to be the owner of the house and lot known as No. 192 Fulton street, lately occupied by Duncan Phyfe, deceased. Phyfe died in possession of the premises in the year 1854, holding under a deed "in fee, containing

Thus situated in his family, Mackaness about fifty years ago made his will, dividing his estate into three allotments. To Mrs. Harvey, one of his married daughters, he gave his house in Front street “ during the term of her natural life,” with remainder in fee to her children, if any, and if none, to her sisters or their children; subject to the husband’s use, if surviving, “ during his natural life.” To Mrs. Prowitt, the other married daughter, in whose husband’s affairs he seems to have had a little less confidence, although he made him a trustee, he gave the income of his dwelling, brewhouse and malthouse in Barley street, “ for her own sole and separate use,” “ during the natural life of his said daughter,” with remainder in fee to her children or her sisters, as the case might be ; but with no reserved benefit in favor of her husband. These provisions, thus briefly stated, in respect of his two married daughters, are carried out with perfect clearness and with great particularity and minuteness of detail, in the first and second articles of the will. In the next he gives his homestead in Orange county, with all the horses, cattle, &c. to his wife and unmarried daughter during their joint natural lives and the life of the survivor; and if his said daughter should be the survivor, then (on her mother’s

In the 4th article, still carrying out the distinction between Margaret and the other daughters, he gives her the house now in controversy in Partition street, to her and to “ her heirs and. assigns forever,” with this qualification, however,' that' if she died “ unmarried and without leaving a child her surviving,” (as she left a child, Mrs. Chrystie, born in wedlock, this condition is of no direct importance,) then all her share of his estate, both real and personal, was to go to her sisters or their children, as the case might be. Here then again was a conditional fee, depending upon Margaret’s first having, (which could only be if she married,) and then leaving, a lawful child. Unlike her sisters, whose interest in their allotments was in every event merely for life, and could in no event be raised to a fee, her estate was in perpetuity, with full power to “ assign,” that is (for such is the legal meaning of the word “ assigns,”) to convey, either by will or deed, to whom she pleased, in fee simple, with no possibility of being reduced to a mere life estate, except in the one event of her leaving .no child. Her sisters’ children were to take in remainder as direct devisees or legatees of their grandfather; her children, if at all, as “heirs” of their mother, and of course (like heirs in any other case of ownership in fee) subject to their mother’s acts in her lifetime. All persons, whether lawyers or laymen, at all conversant with real property, understand that where a piece of land is given or conveyed to a man and his heirs, or his heirs and assigns, he may dispose of it in his lifetime or at his death, to the exclusion of his heirs, whether descendants or collaterals. The use of the term assigns by the testator in the present instance shows that he so understood the law, and that he so intended. While withholding expressly the power to sell, as to the fee, from the two married daughters, he gave it as expressly to his unmarried daughter Margaret. When therefore, as Mrs. Ludlow, she conveyed in fee to Mr. Phyfe, she did nothing but what her father contemplated and permitted; and Mr. Phyfe, on his part, incurred

The 4th article, however, does not stop here. The draftsman wras a lawyer, and although not perfectly artistic in his work, he knew that thus far he had assumed that Margaret, the devisee, would live to take her father’s bounty, and that as the law then stood, if the assumption failed and she died before him, her children, even if she left any, would not take in her stead, but be excluded on the ground of its being a lapsed devise. True, the testator in such case might make a codicil; but testators are apt to forget. It was safest therefore, or was supposed to be, to anticipate such a possibility and provide for it in the will. . He had already, as we have seen, made all the provision he desired for the case of her taking the property, after him, and then dying herself, (the usual course of nature,) giving it in that case to her children, if any, through her, and as her heirs at law. He now simply adds, that if she died before him and left children living at his decease, they should take in fee that which had been intended for their mother. But the draftsman, unfortunately, in expressing this idea, tempted no. doubt by the love of more sonorous periods, used the expressions “ if my said daughter Margaret Thornton Mackaness shall die, either before or after my decease, leaving lawful issue, then I do give, devise and bequeath the part and parts, share and shares, of my real and personal asíate by this my-will given, devised and bequeathed to her, unto such child or children, &c. their heirs and assigns forever,” &c. Literally, this language, it

In the interpretation of legal instruments, as of other writings, it is our duty to reconcile them if practicable. An author, whether it be of a book or a will, is not to be presumed to intend, especially in the very same sentence, to contradict himself. This rule is well established both upon authority and common sense. If any thing in this will be clear, it seems to me, it is clear that the testator did not intend that his daughter Margaret, as the plaintiffs argue, should take a mere estate for life and nothing more. She was in some event certainly to take a fee. How then, it may be asked, are the expressions, “ either before or after my decease,” just quoted, to be reconciled 1 They are, I conceive, to a great extent surplusage; they are as much as to say, I have already, in case of my daughter Margaret’s death after -me leaving issue, given her portion to them as her “heirs and I now, in case of her death before m,e leaving issue, give it to them in like manner, as far as may be, as her substitutes, so that “ if she shall die either before or after me leaving issue,” such issue, as heirs or as substituted devisees, will take her portion ; if in the character of heirs, then subject, like other heirs, to their parent’s disposition; if as substitutes, then subject, like other immediate devisees in fee, to no disposition but their own. The primary, and as it seems to me the only, object the testator had in view in the words just quoted, was to meet the possible event of his daughter’s death before him, to prevent the lapse which in that event, as the law then stood, would otherwise have followed, and to give effect to a dictate of nature, so strong and universal, as to induce the legislature to interpose and to make a general provision in favor of issue, in all cases where the immediate object of a testator’s

The will in question, although somewhat inartificial, was obviously drawn by a lawyer. He knew this rule of the old law, in full force when the instrument was framed. He knew that Miss Mackaness, whether she died before her father or after him, must either die childless or leave issue. .He had provided for both contingencies, whichever of them should happen after the testator’s death; giving his daughter not a life estate but an estate in fee simple, defeasible if she left no issue, and indefeasible if .she did. Why then should he provide for one of the same two contingencies again 1 Why, when he had just declared that in that precise contingency she should take an estate “ to her and her heirs and assigns forever,” why, I say, is he to be presumed to have intended that in that precise contingency, and every other, she should take, as the plaintiffs contend, an .estate 11 substantially similar” to that of her sisters; namely, for life only 1 If the provisons for all the three daughters were to be substantially similar, why were such great pains taken to distinguish them ? It is palpable that the descendants of Margaret, in some event, were to take as “ her heirswhereas, by the plaintiffs’ construction, they could take as heirs in no event. It is equally palpable that she was in some event to have the power of “ assigning” the fee; whereas, if only a life tenant, her conveyance would pass only a life estate, and that, in the language of the law, merely pour autre vie. The whole argument of the plaintiffs’ counsel proceeds upon the assumption, as stated by himself, that for each of the other daughters and their children he (the testator) made provisions substantially similar to those in regard to his daughter Margaret and her children; whereas the whole will proceeds upon the idea that the provisions in the two cases were to be substantially different. It is only necessary to read the will—the whole will, and not the mere detached parts relied on by the plaintiffs—to sustain the position that all the sisters •were not to be placed on the same footing. “ This construction (I adopt the words of the plaintiffs’ third point) agrees with

I have not gone into the technical matters which have been discussed by counsel, for the reason that assuming the views of the plaintiifs in regard to them to be correct, they do not affect the conclusion at which I have arrived, as to the intention of the testator; the guide which both parties very properly profess to follow in determining the construction to be given to his will.

In the recent case of O'Reilly v. Sempill, decided on appeal in 1855 by the court of last resort in England, the testatrix, in one codicil, gave the whole residue of her property to her cousin, “ Lady Sempill and her heirs and assigneesand by a subsequent codicil, reciting that there was no prospect of her cousin having a child, “deponed and bequeathed as her successor,” a niece named O’Reilly, “ to succeed the said Right Honorable Lady Sempill in all her (the testatrix’s) landed property, &c.” The question was, says the reporter, whether the fee given to Lady Sempill by the first codicil was cut down to a life rent by the second. Held by both courts that it was not. The lord chancellor said the case “ admitted of no reasonable doubt;” that Miss O’Reilly was merely substituted in the place of Lady Sempill’s “ heirs,” and like them would take on her death, if Lady Sempill should “ do no act to defeat the destination of the property that the devise over was “ a mere spes successionis in Miss O’Reilly, which might or might not be of much value; that it was no doubt always of some value, but did not prevent Lady Sempill from exercising all the rights of ownership with regard to the property.” Lord Brougham said he had “ no doubt as to the case, any more than his noble and learned friend.” Lord St. Leonards added that he agreed with the lord chancellor and Lord Brougham, “ and had. no doubt that the court below came to a correct conclusion.” “ The estate (by the 2d codicil) was not removed out of Lady Sempill; the fee was not cut down in that way.” What a child, had there been one, would have taken as heir, was to go to Miss O’Reilly “as the successor in the place of the child,” and “subject to

Judgment should therefore be entered for the defendants.

Whiting, J. concurred.

I. The rule that, in the construction of wills, they are to be expounded so as to pursue "as far as possible the intention of the testator, is, in our law, universally recognized. In the language of Coke, the intention is the pole-star to guide the judges; but, it is also conceded, with equal unanimity, that this intention must be collected from the language of the instrument—not from any extraneous reports and evidence concerning it, except in the instance of a latent ambiguity; and, where it does not clearly and with reasonable certainty disclose the intention, the court must "have recourse to the rules of strict legal interpretation, and must be exclusively guided by them. The construction must not depend upon probabilities, upon the private belief, the conjectures, or the speculations of the judges, however plausible or. ingenious, or however conducive to a benignant result; but it must be derived from the instrument itself—not from a fragment, but the whole of it j so that the words may stand together, without repugnance or contrariety. Hoes the will now before us, taken as a whole, clearly and satisfactorily disclose the intention of the testator in relation to the interest devised to his daughter Margaret Thornton Mackaness, afterwards Mrs. Ludlow, so as to dispense with the necessity of conjecture or speculation ?

If it is affirmed that the employment of the technical words of inheritance, in the first clause of the article, is conclusive proof of his intention, may it not be affirmed with equal if not greater force, that the three limitations over, in language

It is again affirmed that he distributes other real estate among his daughters, who were married, in express terms during their natural lives, while he makes use of words of inheritance only in the devise to his daughter Margaret. But, if by giving to the limitations over, in the fourth article, their full force, the same interest would be given substantially to his daughter Margaret, that he has confessedly given in other articles to his other daughters—that is a life interest—may it not be affirmed, with quite as much plausibility, that this discloses an intention to place his three daughters, and their respective children, on the same ground, and that it was nothing but the technical verbosity or the obtuseness of his lawyer, which caused any variation in the language of the will.

I confess that I cannot discover any thing in the diction or tenor of this instrument to afford me any unquestionable assurance of the intention of the testator, respecting the devise to his daughter Margaret. I may form a belief; I may surmise ; I may indulge in conjecture approximating to the truth ; but this the law, for the wisest reason, does not permit—for the same reason, indeed, that it leaves as little as possible in the administration of justice, to depend upon the caprice or mere speculation of its dispensers and interpreters. Abandoning, therefore, any attempt to ascertain the intention of the testator, independently of the strict rules of legal interpretation, we must confine ourselves, exclusively, to the light which those rules afford.

What, then, according to established rules of construction, and to the principles of the common law existing at the time of the death of the testator, was Mrs. Ludlow’s interest in the property in question ?

II. I differ from the plaintiffs’ counsel with regard to the precise nature of the limitations over. I do not think they create an executory devise. An executory devise, limited on any intervening freehold estate, must be limited on a fee, vested in a person, and to be vested in another by contingency. If the future estate is limited on a life estate, it is not an executory

How, if any effect is to be given at all to the limitations over, in the will before us, (and of course, on the theory of the plaintiffs’ counsel, effect must be given to them, else his whole argument falls,) the fee could never become absolute, under any circumstances, in the first taker or his heirs, (as heirs.) These limitations provide, in substance, that if Miss Mackaness should die unmarried, without leaving lawful issue, the estate shall go to her sisters, their heirs and assigns forever; if she should die leaving lawful issue, then to such child or children, his, her or their heirs and assigns forever ; and in case Miss Mackaness should die without lawful issue, and if at her death her sisters should not ,be living, the will provides that the estate shall go to the children of the said sisters, their heirs and assigns forever. By no possibility, therefore, by virtue of this

III. But does it necessarily follow that these limitations over are to be held as ineffectual, and as belonging to no description of future estates ? Are there no legal principles which can determine the character of this devise, in the absence of any light, which the will itself satisfactorily affords in relation to the testator’s intention 1 It is maintained by the counsel for the defendants, that by the first sentence of the fourth article of the will, Miss Mackaness was invested with an absolute and indefeasible title in fee. It gives the estate to her, “ her heirs and assigns forever.” These are clearly and undoubtedly words of absolute inheritance; and if no words of limitation over, no words of qualification or restriction followed, her title would have been indisputable, and her power of alienation would have been complete. But I think the entire fallacy of the defendants’ argument rests upon the assumption that these words are to be taken in their unqualified sense, unaffected by the subsequent provisions of the article. It is a rule of construction, that it be made upon the entire instrument, and not upon disjointed parts of it. In a deed, doubtless, if there are two clauses so totally repugnant to each other that they cannot stand together, the first shall be received and the latter rejected; but with regard to a will the rule is different; for if there are two such repugnant clauses, the’ latter shall stand. Every word of a will, not inconsistent with the general intent, ought to have effect given to it; but if two passages are totally inconsistent, the last must prevail. Indeed, ambiguous words in one passage cannot control another passage which is unequivocal. But is the lan?

[New York General Term,

September 8, 1856.

While, therefore, I deny that the limitations over, in this will, create an executory devise, yet I am of opinion that Miss Mackaness, afterwards Mrs. Ludlow, took no absolute fee in the estate, notwithstanding the words of inheritance in the first clause of the article: that those words are divested, by the subsequent clauses, of their usual efficacy, and that the limitations over reduced her interest to an estate for life; and, at her death, an absolute fee vested in her daughter, Mrs Ohrystie.

With regard to the point urged by the defendants’ counsel, that the words, “ shall die leaving lawful issue,” import necessarily an indefinite continuance of issue, thus Creating an estate tail, it is clear that the gift over was not to the issue of Miss Mackaness, merely in their capacity as her inheritors, but as devisees of the testator—not as her representatives or successors, but as his beneficiaries—not as heirs, but as original devisees; for the gift was to take effect, whether his daughter should die before or after his decease, and therefore, if there wrere no other objection, the rule in £beliefs case could not apply, nor could the estate have been considered an estate tail.

I am of opinion that the judgment of the court below should be affirmed, with costs.

Judgment reversed.

Roosevelt, Clerke and Whiting, Justices.]