Jackson ex dem. Burhans v. Blanshan — 6 Johns. 54

Majority

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Jackson, ex dem. Burhans and wife, against Blanshan.

NEW-YORK,

May, 1810.

Headnote

A. devised es- and “ aU llls es" tate, real personal, to his sis children, by name, to be equaliy divided among them, share and share alike; but if any shouid’^die^'before amvmg at <mt lawful issue, that then Ins, her, or their part should devoive upon, and dedCmnongdthe 'dren™n<i theí heirs and assigns the children smvivcd the testator; four of dice™ ieavinga'isfifth, after arrb died ^intestate* and without lawful issue, haring previously conveyed his share of the es-that’ 'the^word “onstrued810 as “ ancf”50 that the devise over dff tn0t takd the surviving entitled" to the dying °f without lawfulissueJSee iieji.292. contra.

THIS was an action of ejectment. The lessors of the plaintiff claimed title to the premises in question, by virtue of the last will and testament of Mathys Blanshan, . dated, 21st April, 1770; by which the testator, after giv- . - ... • „ mg some legacies, disposes or his real and personal estate r n 3-S lOllOWS :

“ -*■ S^ve and bequeath to my six shildren, Johannis, Jacob, Matthew, Anna, Cathariene, and Brachie, and to their heirs and assigns, for ever, all the remainder of my ° J real and personal estate, which I hold by patent, deed, , . . . , bond, or any other instrument whatsoever, to be divided. equally among them all, share and share alike, viz. each m7 above-named six children, to have the one-sixth part 0£ my estate, moveable and immoveable, which shall be in my possession when I depart this life : but if any in,., one or more ot my above-named children should die be- fire they arrive to full age, or without lawful issue, that tiien his, her, or their part or share of my estate shall devolve upon and be equally divided among the rest of mlj surviving children, and to their heirs and assigns for J ° evert”

. , , 1 he testator died seised or the premises m question, m 1184, and his six children, named in the will, all survived anc1- ^ad arrived to full age in his life-time." Shortly after his death they came to a division of his estate» */ J ' an<^ eac^ ckhd became separately possessed of one-sixth part thereof.

John, Jacob, Anne, and Cathariene, all died,, in the lifetime of Matthew and Brachie, each leaving, at full age5 issuej whG are stiH living.

Matthew, never married, and died intestate, in 1804, 'without lawful issue. Brachie, the wife of Burhans, one

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of the lessors, is the only surviving child of the testator.

Some years previous to his death, Matthew mortgaged his part of the estate devised to him, by his father’s will, to ■the new loan officers of Ulster county. The mortgage had become forfeited, and the premises were sold and conveyed, by virtue of the mortgage. The defendants are in possession of the premises, under a conveyance from the mortgagees.

A verdict was taken for the plaintiff, by consent, subject to the opinion of the court, on the above case. The - question was, whether the lessors have any, and and what interest in the premises which were devised to Matthew by the said will. It was agreeed, that if the lessors of the plaintiff are not entitled to recover, that a nonsuit should be entered.

L. Elmendorf and Hawkins, for the plaintiff,

cited 3 Johns. Rep. 292 . 7 Term Rep. 595. 3 Term Rep. 143. €ro. Jac. 590. 6 Term Rep. 30. 2 P. Wms. 347. 1 Atk. 457. 4 Term Rep* 300. 1 P. Wms. 434. 2 Vernon 388.

Sudani, contra,

cited Plots d* Comm. 289. Moore, 422. Pollexfetfs Rep. 645. 3 Atk. 193. 1 P. Wms. 434. 6 Term Rep. 30. 2 Vesey, 249. 5 Bos. and Pull. 38. 9 East, 366.

delivered the opinion of the court. This case was formerly before the court upon a question of evidence, as well as upon the construction of the will. ( 3 Johns. Rep. 292 .) The court then directed a nonsuit, on the ground that the will had been admitted in evidence without due proof; and they also examined into the construction which the will ought to receive. This was not indeed requisite, considering the course which the cause

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then took; and the question did not, perhaps, receive all the investigation which would have been given to it, had it been more fully argued, or been made a turning point in the cause.

The question on the construction of the will, is again, and singly, presented to the consideration of the court. The opinion before given was confuted to the effect of the devise over, as an executory devise, assuming that the contingency, on which it depended, had happened. Our attention was not before directed to the question on the contingency itself, as the point was never distinctly raised upon the argument, nor the authorities cited. We have now been enabled to take a more full and entire view of the subject, and we are satisfied, that what was before inadvertently assumed, viz. that the contingency creating the executory devise had happened, was not warranted. This is the literal and grammatical, but not the established construction of the like words in a will; and though the very point has long been a vexata qucestio in the English courts, it has at length been definitively settled by the highest authority in Westminster- ¿Tall.

The question is on the construction of these words . “ But if any one or more of my above-named children should die before they arrive to full age, or -without lawful issue, that then, his, her, or their part or share of my estate shall devolve upon and be equally divided among the rest of my surviving children.”

Matthew, one of the sons, died without lawful issue after he was of full age, and after he had parted with the estate by a title, under which the defendants now hold, leaving Brachie, one of the lessors, as the only surviving child of the testator. It is settled that the devise to Matthew became absolute, as soon as he arrived at the age of 21, though he had no lawful issue, and that the devise over did not take effect.

The history of the long-continued litigation on the construction of the above words in a will, shows the difficult

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ty of giving any exposition which shall be equally sound and acceptable.

The earliest case is that of Soulle v. Gerrard, in the 3 7 and 38 of Eliz. (Moore, 422. Cro. Eliz. 525.) which arose in the C. B. upon a special verdict. The devise was to the son and his heirs, but if he died without issue or within the age of 21 years, then to the other sons. The devisee died under age, leaving issue, and after solemn argument, it was held that the issue took the land and not the remainder-man; and the word or was construed to be a copulative, and to mean and. The next case was that of Price v. Hunt, 36 Car. II. in the exchequer. (Pollexfen, 645.) The devise there was to the son, in fee, with a remainder over, depending on the same contingency, of his dying before the age of 21, or without lawful issue. The son arrived to full age, but died without issue. The remainder-man claimed the estate, and brought an ejectment against the heir at law of the son. Lord Ch. J. Pollexfen has preserved a very able argument in favour of the defendant, and which he delivered himself, and the judgment was given for the defendant. It was admitted that the word or, if taken in its proper grammatical sense, as a disjunctive, might support the plaintiff’s title ; but it was contended for, as an established rule, (and in this lies the strength of the argument,) that the words or and and are not, in deeds and wills, to be always held to a strict grammatical sense, but or is to be taken for and, and and is to be taken for or, as may best comport with the intent and mteaning of the grant or devise.

In Woodward v. Glasbrook, (2 Vern. 388.) Lord Ch. J. Holt departed from these decisions, and restored the word or to its grammatical sense. In that case the testator devised lands to his two sons, and adds “ but if any of my said children shall die before 21, or unmarried, his part shall go to the survivor.” In an ejectment, before Holt, he held the word or to its proper disjunctive

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sense, and that one of the sons dying after 21, but unmarried, his moiety went to the survivor. In Barker v. Suretees, (2 Str. 1175.) the same point arose again in the K. B. on a writ of error, and Sir John Strange says, that after several arguments, the court decided, on the authority of Price v. Hunt, just cited, that the word or was to be read conjunctively. The same construction was adopted, after argument, in the cases of Walsh v. Peterson, (3 Atk. 193.) Frammingham v. Brand, (1 Wils. 140.) and Wright v. Kemp, (3 Term Rep. 470.) And the point seemed to have been definitively settled, when the case of Fairfield v. Morgan, (5 Bos. and Pull. 38.) so late as the year 1805, was brought from the K. B. in Ireland, before the house of lords. That was precisely on the same point which arose in the case of Moore, and which had never ceased, for two centuries and a half, to be a subject of contention. A. devised lands to B. but “ if he should die before he attained the age of 21, or without issue living at his death,” then a devise over to C. B. attained the age of 21, and died without issue. It was held first in the C. B. and then in the K. B. in Ireland, and finally in the house of lords, in England, that or must be construed as and, and that the devise over to C. did not take effect. The case received great consideration and discussion, and notwithstanding the very able argument of Mr. Plumer and Mr. Hargrave, in favour of the grammatical sense of the word, the lords, upon the opinion of the judges, affirmed the judgment below. The question was again agitated, about three years afterwards, in the K. B. (9 East, 386.) and the disjunctive sense of the word or feebly endeavoured to be supported, but the decision of Fairfield v. Morgan was considered as closing the controversy for ever.

It is now to be hoped that the question on the construction of those words in a will, will never hereafter be revived. It is important that when a question of this kind has become once settled, (and it is almost immaterial

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which way,) that it should not be disturbed, for it grows into a landmark of property.

We are, accordingly, of opinion, that judgment must be rendered for the defendants.

Judgment for defendants.