Majority
p. 365Doe d. William P. Cooper v. Brickus Townsend and Saulsbury Dean, Tenants in possession, and Ignatius T. Cooper, real Defendant.
Headnote
The testator hy his will devised to each of his five children by name, portions of his real estate in severalty for life, remainder to the children of each in tail, in the parts so devised to his children, subject to the proviso, that if any one or more of his said children should die without leaving lawfully begotten child or children, then he gave and devised the lands and premises so devised to such child or children as should happen to die as aforesaid, unto the survivor or survivors of his said children, during their natural life, and after their decease, he gave and devised the lands and premises as aforesaid to the child or children of such survivor or survivors lawfully begotten of their bodies forever of any of his children who might be dead leaving such child or children, such child or children claiming such part or share as the parent or. parents of such child or children would have claimed if living, to be equally divided between his surviving child or children as aforesaid, and the child or children of any that may be dead, claiming the right of their parent or parents as if living, share and share alike, as tenants in common, and not as joint tenants, and to the respective heirs as aforesaid forever; and he further provided that it was his will, desire, and intention, that if the whole of his children should die without leaving lawful child or children, or legal descendants of such child or children, so that the whole of the lawful issue of his owp body should become extinct, then and in such a case he devised the remainders and reversions of his whole estate over to other persons. The lessor of the plaintiff was the son and only child of Richard, a deceased son of the testator. William H., another son of the testator, died without leaving
p. 366
lawful issue, leaving his brother Ignatius T. to survive him, and who was now the sole survivor of the testator's five children and original devisees; and this action was brought by William T., the son of Richard, against Ignatius T., to recover his share of the lands and premises devised by the testator to his son William H. Held, that the lands and premises devised to William H. by the testator, on his death without leaving children lawfully begotten of his body, under the limitations of the will, survived to Ignatius T., the sole surviving child of the testator, for the term of his life, and that the plaintiff could not recover.
The words “survivor or survivors,” do.not mean other or others; and were not to he so construed in a devise of this nature.
This was an action of ejectment, which came up from the Superior Court for Kent County, upon a case stated, by consent of counsel, and on questions of law reserved for hearing before the Court in bank, which were as follows :
Richard Cooper, late of Kent County, deceased, was, at the time of making his last will and testament hereinafter mentioned, and at the time of his decease, seized of an estate in fee simple, in possession, in the lands and premises in his said last will and testament mentioned and devised, and possessed of the personal estate therein and _ thereby bequeathed.
The said Richard Cooper, on the 23d day of .January, A. D. 1816, duly made and executed his said will, and on the 22d day of July, 1816, duly made and executed the first codicil, and on the 27th day of October, 1817,- duly made and executed the second codicil thereto, as by the said will and the several codicils thereto respectively appears. The said Richard Cooper died on or about the 1st day of September, 1818, without having revoked or altered his said will, or either of the said codicils, and leaving to survive him his widow, Clarissa Cooper, and the five children, Ezekiel, Sarah, Richard J., Ignatius T., and William H., named in the said will, as his. only children and heirs-at-law; of whom Ezekiel and Sarah were the children by a former marriage, and were each married, and had issue then living. Richard J., Ignatius T., and William H., the children of the testator by Clarissa, the
p. 367
widow, were minors, then about the ages of nine, eleven, and thirteen years, respectively. After the death of the testator, the said original will and codicils were duly proven and allowed by the Register of Wills in and for Kent County; which said will and codicils are made a part of this case stated, front the same. EzeMel Cooper, one of the children of the testator, died on the 21st day of September, A.D. 1828, leaving issue Richard A., Ezekiel, Henrietta, and Andrew B., of whom Henrietta and Ezekiel are since dead without issue. Sarah, another of the testator’s children, who, at the time of the testator’s death, was intermarried with Charles Buckmaster, died in the year 1830, leaving to survive her three children, to wit, Sarah Ann, Ezekiel, and Charles, her only heirs-at-law, who as far as is known are all still living. Richard J., another of the testator’s children above named, died in the year 1835, leaving to survive him William P. Cooper, the plaintiff, his only child and heir-at-law. William H., another of the testator’s children above named, died in August, 1847, without issue. Ignatius T., the only remaining child of the testator, the real defendant in this case, is still living, having issue.
The lands devised to the said William H. Cooper, in and by the sixth item of the said original will, and in which the plaintiff in this case claims an undivided interest in possession, were held by the said William H. during his life, and are now held by the tenants in possession under the said Ignatius T., the real defendant in this case.
Whereupon, on the application of both parties by their counsel, the said Superior Court direct the following question of law to be heard by the Court of Errors and Appeals, viz., whether the said William P. Cooper, the plaintiff, has any, and if any, what estate in possession in the lands and premises devised as above by the testator in the sixth item of the said original will, to his son William H., and held under said will by the said William H. during his life?
If the Court of Errors and Appeals shall be of opinion,
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on the above facts and the whole of said will and codicils, that the said William P. Cooper, the plaintiff, has any estate in possession in the lands and premises so as above devised to the said William H. Cooper, and by him, the said William H., held during his life, as above stated, then judgment shall he rendered by the said Superior Court in favor of the plaintiff, for such part thereof as the Court of Errors and Appeals shall be of opinion that the said plaintiff is entitled to in possession. But if the said Court of Errors and Appeals shall he of opinion that the said William P. Cooper is not entitled to any estate in possession in the said lands and premises, so as aforesaid devised to the said William H. Cooper, that then the said Superior Court shall render judgment for the defendant.
The following clauses of the will were submitted as .a part of the case stated:
First. The testator devises, in the 6th item of his will, to each of his five children, by name, certain portions of his real estate, in severalty, for life only, remainder to the children of each, in tail, in the parts so devised.
“Item 7th. Provided, nevertheless, in case any one or more of my said children should happen to die' without leaving child or children, lawfully begotten of their bodies, that can take and hold my real estate, as my immediate devisees, agreeable to the true intent and meaning of this my will, then, in such case, I give and devise the lands and premises above devised to such child or children which may or shall happen to die as aforesaid, unto the survivor or survivors of my said children, during their natural life; and after their decease, I give and devise the lands and premises, as aforesaid, to the child or children, both males and females respectively, of such survivor or survivors, lawfully begotten of their bodies, forever, of any of my children, which may be dead, leaving such child or children, such child or children claiming such part or share as the parent or parents of such child or children would have claimed, if living, to be equally divided between my surviving child or children as aforesaid, and the child or chil
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.dren, lawfully begotten, of any that may be dead, claiming the right of their parent or parents, as if living, share and share alike, as tenants in common, and not as joint tenants, and to the respective heirs, as aforesaid, forever. And it is further provided, and it is my will, and desire, and intention, that if the whole of my children should die without leaving lawful child or children, or legal descendants of such child or children, so that the whole of the lawful issue of my own body should become extinct, then and in such case, I give and devise the remainder and remainders, reversion and reversions, of my whole estate, in the manner and form following,” &c.
The testator then devises over; and after the above devises over, the testator declares as follows:
“ Item 8th. Be it known, that it is my express intention', in this my will, to create and establish cross-remainders, on and in the aforesaid estates, lands, and" premises, among my several and respective children, and their children lawfully begotten, so that my children ánd their, children, as aforesaid, shall inherit so long as any of them remain.”
The testator then bequeaths certain personal estate specifically, as follows:
“ Item. I give and bequeath to my five children aforesaid, Ezekiel, Sarah, Bichard, Ignatius, and William, all. my bank stock in the Farmers’ Bank of Delaware; that is to say, twenty shares to each and every one of them. Also, my bank stock in'the Bank of Caroline, in Caroline County and State of Maryland, from and after the marriage or death of my wife Clarissa; that is to. say, to each and to every one of them, severally, the number of ten shares, together with all the proceeds, dividends, and profits thereof. I also give and bequeath to each and every one of my aforesaid five children, severally and respectively, the sum of twelve hundred and fifty dollars as a legacy, on the following terms and conditions; that is to say: That each of them, for him and herself, severally, shall marry, and have child, or children, lawfully begotten, at the time of their death; but in casé any one or more of
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my said children should die, leaving no child or children, or lawful descendants, at the time of their decease, that then and in ■ such case, the bank stock and legacy bequeathed, as aforesaid, to such child or children so dying as aforesaid, shall go over and be equally divided to and amongst the survivor or survivors of my said children.”
Then follows the residuary clause:
“ Item. I hereby give, devise, and bequeath all the rest and residue of my real and personal estate whatsoever, to be equally divided to and among my five children, Ezekiel, Sarah, Richard, Ignatius, and William, share and share alike; or if any one or more of my said children should happen to die without leaving children of their own bodies lawfully begotten, then in such case the share or shares of such child or children deceased, together with the aforesaid legacies to such child or children- deceased, shall go to the survivor or survivors of my said children; to be equally divided, share and share alike; and if all my said children should happen to die, without leaving of their own bodies, .as aforesaid, heirs, and in such case, I give and bequeath unto my beloved wife, Clarissa, five thousand dollars of the aforesaid residue,” &c., &c., &c.
Dated ¿3d January, 1816.
Then occurs the following clause, contained in a codicil dated July 22d, 1816.
“ I do also declare, that it is my intention and will, that the whole of my estate, both real and personal, shall go to and be divided to and amongst my children and the lawful issue of their respective bodies, so long as any of them shall remain; and that no other person, in remainder, shall take or inherit any part thereof, so long as any of my children or their lawful issue shall survive.” And the following, contained in codicil ¡No. 2, dated October 27th, 1817:
“ I give and bequeath to my five children, one hundred and two shares of stock, in the Bank of Caroline, which I purchased since the making of my original will, to be divided in the following manner, viz.: To Ezekiel, twenty shares; to Sarah, twenty shares; to Richard Jenifer, twenty-
p. 371read the sixth, seventh and eighth items of the will, and the clause extracted from the codicil of the 22d of July, 1816, and asked for the construction of the same. Of the five children and original devisees of the testator, severally named in the sixth item of his will, Ignatius T. Cooper, the real defendant, is now the sole survivor, and is by his tenants in possession of the premises in controversy, and asserts a claim to the whole of them under the limitations of the will, for the term of his life at least, as such survivor. These lands and premises were that portion of the testator’s real estate which were devised by the testator, in the sixth item of the will, to his son William H. Cooper, in severalty for life, remainder to his children in tail, subject to the proviso contained in the seventh item of the will. William H. Cooper died without leaving children lawfully begotten, and the question which we are to consider is, what is the meaning of the words,<£ survivor or survivors” occurring in the proviso, contained in the seventh item of the will, and who, by reasonable intendment and construction, are to be considered as properly embraced and included in them; whether they embrace the child or children of a deceased child of the testator, or include only the surviving children of .'the testator, named in the sixth item of the will. We shall1 contend that they include both, and that issue'of deceased children must take, with the surviving children of the testator,' the share or portion of any one of the
two shares; to Ignatius Taylor Cooper, twenty shares; to William Hughlitt Cooper, twenty shares; and also to each and every of them, severally, an additional cash legacy, over and above the cash legacy left to each of them in my original will, the sum of seven hundred and fifty dollars, each, to be paid to them in good bonds, subject nevertheless to the like limitations, restrictions, conditions, as are mentioned in my original will, in case of either of my said children dying and leaving no children, relative to bank stock and cash legacies, therein mentioned.
Ridgely, for the plaintiff,
p. 372children named, who died without leaving lawful issue. By a liberal construction, and in order to accomplish the apparent general intention of the testator, in limitations over,of this nature, among children and the issue of deceased children, the courts have frequently construed the words “ survivor or survivors,” as synonymous with the words “ other or others,” and have given them that sense. Thus giving, what we have no doubt the testator designed to do in this instance, the land devised to any one of the children, on his death without lawful issue, to the surviving children of deceased children, the share which their parent would have taken if then living, as well as to his own surviving children; meaning, of course, to include them among the survivor or survivors of them, though that can not be done by a strict construction of the words, hut only by regarding them as equivalent to the words other or others, which has often been done, as I have before remarked. 2 Pow. on Devises, 723; 2 Fearne on Rem., secs. 264, 534, 536; 1 Pr. Wms. 332; 2 Bro. Ch. Rep. 51. And according to these decisions, whilst we must let in the issue of deceased children to take the share which their parent or parents would have taken if living, equally with the surviving children of the testator the portion of a deceased child without issue, the former would take estates tail, while the latter would take only estates for life. But this cpnstruetion .for which we contend does not depend simply on the words “ survivor or survivors,” employed in the proviso in the seventh item of the will, but it derives additional strength and support from the succeeding or eighth item of the will, wherein the testator says “ that it is my express intention, in this my will, to create and establish cross-remainders in the aforesaid estates, lands, and premises, among my several and respective children, and their children lawfully begotten, so that my children and their, children, as aforesaid, shall inherit so long as any of them shall remain.” Here then are cross-remainders expressly limited between the several children of the testator, and their children lawfully begotten, in the estates
p. 373devised, and by referring to the case of Doe v. Wainwright, which was a case similar to this, though the limitation was by deed instead of by devise, the Coúrt will find that Lord Kenyon lays hold of, and lays particular stress on the fact, that there were cross-remainders limited in the deed among the issue of deceased children, to show that the intention of the grantor could only be effectuated by giving to the word “ survivor” the same signification as the word other, and so construed it, holding that the lessor of the plaintiff was thereby entitled-to recover. 5 T. R. 427. Taking all the provisions of the will, therefore, and construing them together, so as to ascertain the intention of the testator, and applying to them the principles adduced from the authorities cited, I think there can be no doubt as to the right of the plaintiff in this case to the decision of this Court in his favor. There is no doubt that the rule of construction contended for on the other side at one time very generally prevailed in England ; but later and better considered decisions have long since reversed it, even in that country, and restored the construction of the words “ survivor or survivors,” in devises of this character, to their natural and legitimate signification, repudiating altogether the idea- at one time entertained, that they were in this connection synonymous with the words other or others, and were to be so construed. 2 Jarm. on Wills, 609; 6 Cow. 178 ; 3 Johns. Rep. 291 . But this is not the first time the limitations of this will have been under consideration and adjudication in our courts. The counsel has referred to other provisions of it to support the construction for which he contends ; but in the case of Cooper v. Buckmaster, it was before the Court of Chancery, several years ago, and the decree of the Chancellor, as to the legacies under it, was in accordance with the rule of construction as I have stated it with regard to these words. There are no terms of technical import employed in
Fisher, Attorney-General, for the defendant:
p. 374this devise, and the only rule of construction applicable to it is the meaning and intention of the testator, to be collected from the language in its plain and literal sense, employed in the various provisions of the will; and reading it in this light, it is difficult to understand how the issue of any deceased child can succeed to any part of these lands and premises, so long as'there is a remaining child of the testator surviving, to take it for the term of his life at least. The devise is not to the “ survivor or survivors” merely, which might possibly mean other or others, so as to let in the issue of deceased children, as contended for on the other side; hut the devise goes further, for it is in express terms, to the “ survivor or survivors of my said children,” before severally and individually named in his will, which clearly ascertains the intention of the testator, and as clearly excludes the issue of deceased children from taking, so long as any of his said children survive to enjoy the said estates, lands, and premises. In no devise as clear and explicit as this is, on this particular point, can it be found that any question was ever raised as to who were comprehended within the true meaning and natural import of such words. It has only been in cases where some doubt was suggested from the context, or the careless use of the terms, whether the testator might not have, employed them in a broader and more general sense, that the rule of construction referred to ever obtained; although it has since been renounced even in that class of cases. But in no case where the words survivor or survivors have -been as carefully, and cautiously, and deliberately adopted and used by the testator, as they manifestly were in this instance, have they ever received any other' than their strict and natural signification and construction. 1 Exch. Rep. 674. Is it not therefore evident, after carefully considering all the clauses and limitations of this will, that it was the intention of the testator to give to his immediate children, life estates, and
N. P. Smithers, on the same side:
p. 375after the death of the last survivor of them, who was to have the whole for life, then, and not until then, that the estate was to pass to his grandchildren in tail? We accordingly find throughout the provisions of the will, that wherever a child of the testator takes, he takes an estate for life, and whenever a grandchild takes, he takes an estate in tail; and this clearly shows that he did not intend that the latter should take as survivors, on the death of any one of his said children without lawful issue, the share devised to him, so long as there was one of his immediate children surviving to take it for life, but that they should only take, and by a different estate, when all his children were no more; for it is not to be supposed that it could have been his design that they should take equally in point of time with his immediate children, but unequally or differently in point of estates or as to the interest which they were to enjoy in- the same property by virtue of the same devise. Cross-remainders are never implied in a deed, but must be express; in a will, however, the rule is otherwise, and they may -be and often are implied. But in this case they aré expressly limited, and that, too, by a testator who well knew and perfectly,understood what he was about when he penned this will. For he says that it is his express intention to create cross-remainders in the aforesaid estates, lands, and premises, among his several and respective children and their children lawfully begotten, so that his children and their children, as aforesaid, should inherit so long as any of them shall remain; and although he has done this in the usual method of limiting such interests, yet as he has expressly and emphatically declared his intention to do this, the limitations must be so construed as to give effect to that intention. Now, how can this be done, if his grandchildren are not to take any interest in the share of a deceased child without lawful issue until all his children are dead ? How are cross-remainders established and carried out into prac
Comegys, for the plaintiff:
p. 376tieal effect among his several and respective children and their children lawfully begotten, if the latter are to be entirely excluded from taking at the' same time with the former, the share or interest which their parent or parents, if living, would have taken in the portion of any one of his children, on his death, without leaving lawful issue ? This is the provision of the will which I think imperatively requires the construction contended for by my colleague, and the case which he cited from 5 T. R., Doe v. Wainwright, is directly in point. There the Court, inasmuch as cross-remainders were expressly established in a limitation like this, in order to effectuate the evident intention of the grantor, although embarrassed by the literal meaning of the word survivor, in the connection in which it stood in the grant, gave to it the sense of other, and so construed it as to accomplish the object of the grantor. The testator, although he has employed a multiplicity of words, and has endeavored, with much and careful labor apparently, to express what he intended, after all, has not been very successful in defining with accuracy his precise meaning; but it is in just such cases that this rule of construction applies to aid the Court in ascertaining and effecting his intention. He does not seem to have foreseen and contemplated the contingency which has really happened, but to have framed his will as if he considered that if one or more of his children should die without leaving issue, it would probably be before they attained a marriageable age, and without leaving issue by any previously deceased child to survive them, in which ca'se there could have been no question or difficulty as to the rights of the devisees by survivorship, and it was in consequence of overlooking, apparently, what has actually occurred by death among them, that his will is now involved in all this uncertainty and doubt as to his meaning. But, as I before remarked, it is to relieve just such difficulties and obscurities as these, in the construction of devises, that the rule referred to has been adopted in order to carry out the intention of the testator. If, then, the Court is to preserve this express and positive intention
p. 377declared by Mm, to create cross-remainders in these lands and premises, and in all Ms real estate, among his children and their children lawfully begotten, it can only be done by treating the latter class, whenever in any instance they shouM survive any one of the former class dying without leaving lawful issue, in the light of his survivors; and it would certainly be doing no violence to the language of the will, and would be in entire accordance with the obvious intention of the testator, to so consider and construe it. As to their taking different estates by cross-remainders, the children for life and the grandchildren.in tail, it presents no objection to such a construction; since by the will they are to take as tenants in common, and no unity of estate or title is necessary among tenants in common.
delivered his opinion, in writing, as follows:
This is an action of ejectment,-brought by William P. Cooper—who is the only child and heir-at-law of Richard J. Cooper, deceased, who was one of the five children and devisees for life of the testator—to recover from Ignatius T. Cooper, the real defendant, who is the only surviving child of the testator, the one undivided fourth part of the lands and premises devised by Richard Cooper, in the sixth ■ and seventh items of his last will and testament, to his son, William H. Cooper, who afterwards died without issue; and as both parties claim title under- the same devise and limitations contained in the will of the testator, the single question presented for the consideration of the Court is, whether the lands and premises devised, in the first instance, to his son, William H. Cooper, in severalty, on his death without children, survived to the children of the deceased children of the testator, as tenants in common with their uncle, Ignatius T. Cooper, the only remaining child of the testator (all the other children of the testator having died before William H.), or to Ignatius T. Cooper alone as such sole survivor ? And this depends entirely upon the construction to be given to the portions of the
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will which relate to the matter, and the intention of the testator, as well as it can be ascertained from language which, when it comes to be applied to the case before us, involves milch uncertainty and obscurity of meaning.
In the sixth item of his will, the testator devises to each of his five children by name, Ezekiel, Sarah, Richard J., Ignatius T., and William H., certain portions of his real estate' in severalty for life, remainder to the children of each in tail, in the portions so devised, subject to the following proviso, contained in the seventh item of it:
“ Provided, nevertheless, in case any one or more of my said children should happen to die without leaving child, or children, lawfully begotten of their 'bodies, that can take and hold my real estate, as my immediate devisees, agreeable to the true intent and meaning of this my will; then in such case I give and devise the lands and premises, above devised, to such child or children which may, or shall happen to die as aforesaid, unto the survivor, or survivors, of my said children, during their natural life; and after their decease, I give and devise the lands and premises, as aforesaid, to the child and children, both males and females, respectively, of such survivor or survivors, lawfully begotten of their bodies forever, of any of my children which may be dead, leaving such child or children, such child or children claiming such part or share as the parent or parents of such child or children would have claimed, if living, to be equally divided between my surviving child or children, as aforesaid, and the child or children, lawfully begotten, of any that may be dead, claiming the right of their parent or parents as if living, share and share alike as tenants in common, and not as joint tenants, and to the respective heirs, as aforesaid, forever; and it is further provided, and it is my will, and desire, and intention, that if the whole of my children should die without leaving lawful child, or children, or legal descendants of such child or children, so that the whole of the lawful issue of my own body should become extinct, then and in such case I give and devise the re
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mainder and remainders, reversion and reversions, of my whole estate, in the manner and form following,” &c.
The testator then devises over the estate to others; and, after these devises over, the testator then adds as follows in the eighth item of the will:
“ Be it known, that it is my express intention, in this., my will, to create and establish cross-remainders, on and in the aforesaid estates, lands, and premises, among my several and respective children, and their children lawfully begotten, so that my children and their children, as aforesaid, shall inherit so long as any of them shall remain.” And he afterwards reiterates the same desire substantially in the codicil to his will of the 22d of July, 1816, in which he subjoins the following provision:
“ I do also declare, that it is my intention and will that the whole of my estate, both real and personal, shall go to and be divided to and amongst my children and the lawful issue of their respective bodies, so long as any of them shall remain; and that no other person, in remainder, shall take or inherit any part thereof, so long as any of my' children, or their lawful issue, shall survive.”
The present case, however, turns upon the construction to be given to the proviso contained in the seventh item of the will, and the intention of the testator, as the same is to be deduced from all the provisions above quoted. And I must say, after a careful consideration of the subject, that my mind has been conducted to the conclusion, that the premises devised to William H., on his death without children, survive for the present to Ignatius T., the sole surviving child of the testator, for the term of his life. What the testator would have written, or what precise language he would have employed in addition to that which he has used, had he foreseen what has actually occurred, and which he may not at the time of drawing his will at all anticipated., I cannot pretend to say; but of one thing I am convinced, that if there is any certain and unquestionable meaning to be extracted from the multiplicity of words introduced into the seventh item of the
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will, it is the intention, that if any one of his children should die without leaving a lawful child, his primary share, devised to him for life, should pass to the survivor or survivors of his said children for life; and although it is what follows after that which chiefly embarrasses the construction of the item in question, and notwithstanding he after-wards speaks of the children of deceased children taking as tenants in common with his surviving child or children, the share which his or their parent or parents would take if living, yet I do not understand that to refer to a share when it first survives by the death of a child without children; but I take it to mean, that when a share has thus once survived, by the death of a child without children, to the surviving children of the testator for life, and then one or more of those survivors afterwards dies leaving children, those children shall take the share or shares of their parent or parents, or which their parents would take if then living; that is to say, would take per stirpes, and not per capita, as tenants in common with a surviving child or children of the testator, the lands and premises which had thus, in the first instance, survived to the children alone of the testator, for the term of their lives. For it will be observed, that while the testator expressly and unequivocally provides, that if any of his said children shall die without leaving lawful child or children, the lands devised to him in severalty, in the first instance, for life, shall go to the survivor or survivors of his said children for life (by which we are to understand the “survivor or survivors” then living), he does not add, as we often find to be the case in limitations over of this nature, and to the longest liver of them for life, and which would have carried it over by accruer to the last survivor of them for life, if all the other children had been living on the death of William H. On the. contrary, he gives it to the survivor or survivors of them (which means, then living), and on the deaths of those survivors, as they shall afterwards occur, with or without issue, their 'children, if they leave any, shall take the share of his or their parents, or which their parents would take,
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if then living, in the lands and premises which had originally accrued to those survivors, at the time, hy the death of one or more of the primary devisees without children, to hold the shares of their parents which they would then take as tenants in common with the surviving child or children of the testator who might be still living. Stripping the clause in question of its redundant phraseology, without impairing its sense, as I understand it, I read it as if it were expressed in the following language: And in case any of my said children should die without leaving a lawful child, 1 give the lands and premises above devised to any such child of mine, to the survivor or survivors of my said children then living during his or their natural lives; and after the decease of such survivor or survivors, and as the same shall occur, Igive and devise the said lands and premises so accruing to them as aforesaid (that is, by the death, of any one of his children without children, as aforesaid), to the child or children of such survivor or survivors as may have left any, the child or children of such survivor or survivors, to take the part or share which his, her, or their parent would hold or take if living, to be equally divided between them and my surviving child or children as tenants in common, fc. By this construction and interpretation of the testator’s meaning, I reconcile the several parts and provisions of this clause of the will with each other, and also with what is added in the eighth item, and in the codicil of the 22d of July, 1816, and that, too, without the necessity of rejecting, substituting, or adding a word in any part of it, as we are bound to do, if possible—although I have simplified the language of it, the better to illustrate and convey my understanding of the meaning of it as penned.by the testator.
I do not deem it necessary to say anything more on the subject, except to add, that in no aspect in which I have contemplated the devise in question, and by no reasonable construction which I have been able to give to the terms in which it is expressed, can I come to any other conclusion, than that the lands and premises devised to William H. Cooper have passed, by his death without issue, to his
p. 382
brother, Ignatius T., the sole surviving child of the testator, for the term of his life, and that judgment should accordingly be entered for the defendants.
The other members of the Court, without expressing any opinion as to the proper exposition of the subsequent limitations and provisions contained in the will, concurred in the conclusion, that the lands and premises in question, devised to William H. Cooper, the son of the testatof, for life, on his death without lawful issue, survived and passed to his ¡brother, Ignatius T. Cooper, the sole surviving child of the testator, for life, which was the only question involved in the case; and directed their opinion to be certified accordingly to the Court below.
Cases cited
- Jackson ex dem. Henry v. Thompson 6 Cow. 178 p. 373