Johnson v. Valentine

Headnote

The law will not construe a limitation in a will into an executory devise, when it can take effect as a remainder; nor a remainder to he contingent, when it can be taken to be vested.

The law also leans against construing provisions in a will as conditions, unless the intention of the testator requires it.

Adverbs of time, as when, then, after, from, <£c., <fc., in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not to the time of the vesting in interest.

Where there is a devise to a class of persons, to take effect in enjoyment at a future period, the estate vests in the persons as they come in esse, subject to open and let in others, as they are born afterwards.

A testator made his will in 1816, by the fourth clause of which he devised certain real estate to the two sons of his deceased daughter, viz., T. T. J. and J. J. By

a codicil made in 1819, he provided as follows: “ I do hereby give, devise, and bequeath all the estate devised by the fourth clause of my wEl to the two sons of my daughter Mary, deceased, to wit: T. T. J. and J. J., to their stepfather, T. P., in trust; first, to pay the just claims which he now has against them or either of them respectively; second, in trust, to apply the rents and income to the support of the children and family of the said T. T. J. and J. J. respectively, until the youngest child of each shall respectively attain the age of 21 years, at which time the estate so left by my will to the father shall vest in the children of such father, or their heirs, in fee and for ever; such children or their issue to take as their father would have taken under my aforesaid will, if this codicil had not been made, my intention being that the children of my said grandsons, T. T. J. and J. J., shall take the share their father would have taken under the will, subject only to the debts of such father to the said T. P.

Held, that the estate thus devised vested in interest in the children upon the death of the testator, and that the vesting in possession was alone postponed until the youngest child attained the age of 21 years.

Held also, that the estate vested in interest in the children as a class, subject to open to let in others coming in esse in the intermediate time.

Held further, that the interest in the estate in question having vested in the infants, it was competent for the court of chancery to order a sale of their interest, and upon such a sale their interest would be extinguished.

(Before Oakley, Oh. J., and Paine, J.)

This was an action to obtain, a partition and sale of certain premises, situate in Eront-street, in tbe city of New York, in which the plaintiff claimed an interest under the will of Teunis Tiebout, deceased.

The complaint averred, that in April, 1823, Teunis Tiebout died, seized of certain real estate situated in the city of New York, and that by his last will and testament, which bore date June 12, 1816, he devised unto the five children of his daughter Mary, viz., Teunis Tiebout Johnson, John Johnson, Theodore Polhemus, Garritie Polhemus, and Cornelia Van Wyck, “ all those two certain lots of ground in the city of New York, near the old Ferry stairs, granted to me by the corporation of the said city, with the buildings thereon erected, one of the said lots is situated in Front-street, and now in the occupation of Caleb Coggershall, and the other of said lots is situated on South-street, and now in the occupation of Samuel Jackson, and also all my right, title, and interest of, in and to the dock

fronting the last-mentioned lot, to have and to hold the same, with- the hereditaments and appurtenances to the same belonging, unto them, their heirs and assigns for ever, share and share alike, and in case any of my said grandchildren, the children of my said daughter Mary, deceased, shall die before me, leaving lawful issue, then I give, devise and bequeath to such issue, share and share alike, the portion of my estate which would have belonged to the parent of such issue if such parent had survived me, and if there be no lawful issue, such portion shall vest in the surviving brothers and sisters, share and share alike.”

That by a codicil annexed to the will, bearing date the 19th of July, 1819, the testator devised as follows:

“I do hereby give, devise and bequeath all the estate devised by the fourth clause of my will, to the two sons of my daughter Mary, deceased, to wit: Teunis Tiebout Johnson, and John Johnson, to their stepfather, Theodoras Polhemus, for the following uses and trusts, that is to say: First To pay the just claims which he now has against them or either of them, such payments to be made out of the share which would have fallen to them respectively under my will if this codicil had not been made. Second.. In trust, to apply the rents and income to the support of the children and family of the said Teunis Tiebout Johnson and John Johnson, respectively, until the youngest child of each shall respectively attain twenty-one years of age, at which time the estate so left by my will to the father shall vest in the children of such father or their heirs in fee and for ever; such children or their issue to take as their father would have taken under my aforesaid will if this codicil had not been made, my intention being that the children of iny said grandsons, Teunis Tiebout Johnson and John Johnson, shall take the share their father would have taken under the will, subject only to the debt of such father to the said Theodoras Polhemus.”

In a further codicil, bearing date the 2d day of June, 1820, the testator directed as follows: “ Whereas, Theodorus Polhemus is now dead, in consequence of which, the trusts contained

in the former codicil might not be executed; I, therefore, do constitute and appoint the son, Theodoras Polhemus, his sister, Grarritie Polhemus, .and their brother-in-law, Jacob Yan Wyck, trustees, and the survivor and survivors of them, enjoining .it upon them to execute the trusts contained in my former codicil, giving and granting to them all the estate, right, title, interest, power and authority necessary for the purpose, and before given to Theodorus Polhemus, the father.”

The will was proved before Jeremiah Lott, Esq., surrogate of the county of Kings, on the 18th day of April, 1823, and duly recorded, &c., and letters testamentary thereon granted to Grarritie Cowenhoven, executrix named in the said will.

That John Johnson died, leaving ■ seven children him surviving, that Teunis Tiebout Johnson died leaving nine children him surviving, and that the plaintiff was one of the children of the latter. That the youngest child of John and Teunis respectively, attained twenty-one years of age on the 17th day of March, 1838, and not before: at which time the plaintiff claimed that the shares originally given to John and Teunis Tieboui Johnson vested in their descendants by the terms of the will.

The complaint further ■ alleged that Whitehead, one of the children of T. T. Johnson, died in 1847, leaving no will and without issue, and claimed, that by reason thereof, the plaintiff became entitled to a proportion of his brother’s share; that the defendant, Yalentine, had been in the possession of the premises on Front-street since 1825, and had been in the receipt of the rents and profits thereof; that in 1825, he deeded to the defendant Munn, the one-half of the rear part of the lot in question, and that the same was still occupied by Munn. The plaintiff claimed to be entitled to one forty-fifth part of the premises in question, besides the one ninth part of the share of which Whitehead C. Johnson died seized, and to a like share of the. rents and profits of the premises during the time of their occupancy by the defendants, Yalentine and Munn.

The other surviving descendants of T. T. Johnson were made parties defendant.

The defendants, Yalentine and wife, put in an answer to the.

complaint, in which, after admitting the allegations of the complaint as to the will of Teunis Tiebout, its provisions, &c., they set up that on or about the' 30th of August, 1824, the trustees, named in the second codicil of the will of Teunis Tiebout, presented a petition to the late court of chancery, setting forth the will, and the decease of John and Tiebout Johnson, the number and age of their respective children, and that the adult-owners of the premises devised by the will, whereof the premises in question were a part, were desirous of selling their respective interests therein, and that it would be for the interest of the infants that the same should be so sold. The petition further set forth the fact, that there was existing against the. estate of Teunis T. Johnson, a judgment in favor of Theodoras Polhemus, amounting to $952.94, obtained in August, 1819, which was a charge upon the share of the estate devised to the trustees by Teunis Tiebout, for the children- of the judgment debtor. That such proceedings were had upon- this petition, that subsequently, by a decree of the court, Theodore Polhemus was appointed guardian of the infant children of Teunis Tie-bout Johnson, of whom the plaintiff was one, with power to sell and convey the right and interest of those children in the premises in question, and to invest the proceeds for their benefit, after the payment of the lien of Theodoras Polhemus. That the premises were accordingly sold on the 18th of October, 1824, at public auction, to the defendant Yalentine, for $5050. A report of the sale was afterwards made to the chancellor by the special guardian, and the report was confirmed by an order of the court. Under the order of the chancellor, the special guardian executed a conveyance of the interest of the children of John and Teunis Tiebout Johnson, in connection with the adult owners of the premises in question, to the defendant Yalentine, on the 18th of November, 1824, and Yalentine thereupon entered into possession under such conveyance. The defendants claimed by their answer, that by virtue of the proceedings before the chancellor, and the conveyance made by the special guardian, the defendants Yalentine and wife, had an indefeasible title to the premises.

The plaintiff demurred to all that part of the answer which had reference to the proceedings' in the court of chancery, on these grounds: 1st. That they were not sufficient to bar the plaintiff’s action. 2d. That by the will of 1816, the quantity of interest given to the children of Mary was a fee simple; for it was expressly limited to them, their heirs and assigns for ever. The limitations over to the issue of the children of Mary, and in default of such issue, to their brothers and sisters, carry the same estate, and are intended to prevent a lapse, if either devisee should die before the testator. By the codicil of 1819, the trust conferred on Theodoras Polhemus the elder, together with the limitation over to the children of the two Johnsons on the expiration of the trust, amount to an entire revocation of the devise to them. Teunis T. and John cease to be objects of the testator’s bounty,' except so far as they are benefited by the payment of the debt specified in the codicil. They are in no event to have any interest in the land, but the whole is given in fee simple to their children. 3d. That the title of the children had not vested when the chancery proceedings were had. The codicil itself expressly declares and settles this. The two-fifths were given to Theodorus Polhemus, in trust, to apply the rents and profits, &c., until the youngest child of each should respectively attain twenty-one years of age, “ at which time the estate so left by the will to the father shall vest in the children of such father, or their heirs, in fee simple and for ever.” 4th. That the children took under the codicil as a class; and the rale in such cases is, that all persons answering the description at the time the future estate is to take effect in possession will be entitled. It was uncertain who would take, until the youngest child became twenty-one. It was uncertain who' among them would then be alive, and who among them dying in the mean time would have issue take in their place. The estate was then contingent, and, therefore, any conveyance of it void. 5th. That the sale of the interest of the then infant plaintiff was wholly inoperative, because he had none. The chancellor had no power to order a sale of what the infant himself could not sell if-he were of full age; nor can

any estoppel be created by the covenant of the guardian which shall operate as a bar to the infants of future acquisition. The right of all the children at the time of sale, was a mere possibility that an estate might vest on the attainment of twenty-one by the youngest child of the respective families in such of them as should then be living. 6th. The plaintiff has never received the consideration paid to the guardian, nor since of age done any act to evince his approbation of or confirmation of such sale.

The cause was heard upon the demurrer, before his Honor Mr. Justice Yanderpoel, at special term in December, 1849, when an order was granted overruling the demurrer, and dismissing the complaint.

The following opinion was given by Justice Yanderpoel.

Yanderpoel, J. — If, as the defendant contends, the plaintiff in this suit, as one of the nine children of Teunis Tiebout Johnson, took under the first codicil a legal estate in fee simple, in his share of the premises in question, (being one-ninth of a fifth,) then his claim is most successfully resisted.

The testator, by his will, devises to his five grandchildren, Teunis Tiebout Johnson and others, the children of his daughter Mary, the premises in question. By a codicil, bearing date the 19th day of July, 1819, he provides as follows: (The judge repeated the codicil.)

If the plaintiff took a vested remainder under this codicil, then the chancellor had most indubitably a right to order a sale of his interest in the premises, under the act of the 9th of April, 1814, (Laws of 1814, p. 128, Ch. 108,) and the act in addition to the same, (Laws of 1815, p. 103.) This is suggested, without here intending to question the validity.of the defendant’s proposition, that in any view of the plaintiffs interest in the premises, it was such an interest as the chancellor could order to be sold. The repugnance of courts to consider a remainder as contingent in -any case where it may be construed to be vested, consistently with the intention of the testator, is now a well-es

tablished principle in the law, as is well remarked by the president of the court of errors, in Moore v. Lyons, 25th Wend. 119. Courts will never construe a limitation into an executory devise when it can take effect as a remainder; nor a remainder to be contingent when it can be taken to be vested. From the time of Boraston’s case, 3d Coke’s R. 19, it has been held that the adverbs of time, as when, then, after and from, in a devise of a remainder are construed to relate merely to the time of the enjoyment of the estate, and not to the time of its vesting in interest. In Boraston’s - case, the testator devised the upper part of his close, called Redding, to A. and his wife, for eight years, and then to testator’s executors, until such time as Hugh Boraston (his grandson) shall accomplish his full age of twenty-one years, and the mean profits to be employed by my executors towards the performance of my last will and testament, and when the said Hugh shall come to his age of twenty-one years, then I will, he shall'enjoy the said upper part to him and to his heirs for ever, and it was held that the remainder vested in Hugh, though he never attained twenty-one.

In Goodtitle v. Whitby, 1 Burr. 228, Lord Mansfield approves of the principle laid down in Boraston’s case, and lays down the rule that when an absolute property is given, and a particular interest given in the mean time, as until the devisee shall come of age, &c., and when he shall come of age, &c., then to him, &c., the rule is, that that shall not operate as a condition precedent, but as a description of the time when the remainder man is to take in possession. There the question was, whether under the will the estate vested immediately in the testator’s two nephews, upon the death of the testator, or remained in contingency until they respectively became of age, and it was held that the estate vested in interest immediately, in the nephews, on the death of the testator. I concur fully in the sentiment of Parke Baron, in Wrightson v. Macauley, 14 M. & W. 230, that it is a rule of law, that we should .construe estates to vest at the earliest possible period. This rule should always prevail in the absence of a clear intention of the testator to control it. If, as the books abundantly show, it has been the policy of courts in England,

ever since the days of Lord Coke, to sustain this rule, we surely find more abundant motives for adhering to it here. It is in accordance with the spirit of our institutions that estates should not be kept in suspense. With us the utmost alienability and partibility of estates are looked upon with even more favor than in England; our courts should with alacrity reciprocate the sentiment so long and repeatedly promulgated in Westminster Hall, that in construing devises, the party to take should be determined, if possible, at the death of the testator, and that the estate should then vest in interest.

Edwards v. Symons, 6 Taunt. 214, was a case directed by the court of chancery, for the opinion of the judges of the court of common pleas. That case was somewhat analogous to the present. It was a devise of a fee simple estate, expectant on the decease of B., to trustees and their executors, to receive and apply the rents to the maintenance and advancement of six of the testator’s children, till the youngest was twenty-one, and then to his said six children and the survivors and survivor of them, their heirs and assigns for ever, as tenants in common. It was held by all the judges that all such devisees as survived the testator, took on his decease a-vested estate in fee in common, insomuch that the share of one of the six children dying before he was twenty-one, was held to descend to his heir at law. On the argument of the present case, the question was propounded to whom the share of the plaintiff would have gone under the will, if he had died before the youngest child of Teunis Tiebout and John Johnson attained the age of 21 years. The answer is a very obvious one. If the estate vested on the death of the testator, as I hold it to have done, the share of him or her so dying before all reached twenty-one, would have descended to his or her heirs at law, and not to the survivors.

If the plaintiff had a vested interest at the death of the testator, there is an end to his claim. It was disposed of by the order of sale of the chancellor. It was a devise to the children of Teunis Tiebout Johnson and John Johnson. What children ? According to well-settled authority, such children as survived at the death of the testator. In Moore v. Lyons, 25 Wend. 119 ,

all the cases in England and in this country are ably reviewed, and the court of last resort held that in a devise of real estate to one for life and from and after his death to three others, or to the survivors or survivor of them, their or his heirs and assigns for ever, the remaindermen took a vested interest at the death of the testator, and if either of the remaindermen died before attaining twenty-one, his share would go to his heirs and not to the remainderman who might survive at the death of the tenant for life. It is also well established, that when there is a devise to a class of persons, to take effect in enjoyment at a future period, the estate vests in the persons as they come in esse, subject to open and let in others, as they are born afterwards. {Williamson v. Field, 2 Sand. Ch. E. 588, and cases there cited; Doe v. Provost, 4 J. E. 60; Dolley v. Ward, 9 Adol. and Ellis, 607.)

That in such a devise, the estate vests at once in those who are in being, and opens for the benefit of after-born children, is now a well established doctrine of the law. In Doe v. Provost, the testator devised lands to his daughter C. during the term of her life, and immediately after her death, unto and among all and every such child and children as the said C. shall have lawfully begotten at the time of her death, in fee simple, equally to be divided between them, share and share alike; it was held, that the four children of the tenant for life, who were living at the time of the death of the testator, took a vested remainder in fee, and that in case there had been any children born afterwards, the estate would have opened for their benefit. There was quite as good ground for the argument in that case, as in the one under consideration, that the estate did not vest in the children of C. until after her death. In the one case, the estate is devised to the remaindermen “immediately after the death” of the tenant for life. Here “ the estate so left ly the father is to vest in the children when the youngest child attains the age of 21.” The interest by both provisions is equally fixed, but the possession is postponed until the happening of the event which is to determine the prior interest. The vesting of interest does not depend upon the condition of surviving, until the youngest child shall attain the age of twenty-one years. Had the devise been

to such of the children as should be living when the youngest of the class attained, the age of twenty-one years, their survivor-ship at that period would have been a condition., and the estate would have been limited to those only who survived at that period.

Courts always lean against construing provisions as conditions, when the intention of the testator does not require them to do so. If violence is not done to the meaning of the testator, they prefer that the estate should vest at once. ' An estate to A. for life, and from and after his death to the children of B., vests in interest, though not in possession, immediately, according to the law as now well established. Then what is there in the language employed in this will, or the codicil, to postpone the interest as well as the possession, until the> youngest child attains the age of twenty-one years ? Surely not in the will, itself, taken as a whole. The intention of the testator, to my mind, favors the construction contended for by the defendants. The whole scope and spirit of the will and first codicil, taken together, go to show that it was the vesting in possession, and not the vesting in interest, which the testator intended to postpone until the youngest child attained the age of twenty-one years. (Moore v. Lyons, 25 Wend. 144 , per Chancellor.) Under the will as drawn, without the codicil, the. father of the plaintiff .would have taken a vested estate, both in interest and possession, at the death of the testator. In his codicil he says, “ such children,” (the children of the father,) “ or their issue to take as their father would have talcen under my aforesaid will, if this codicil had not heen made, my intention being that the children of my said grandsons Teunis Tiebout Johnson and John Johnson, shall take the share their father would have taken under the will, subject only to the debt of such father to the said Theodorus Polhemus.” If the devise were otherwise ambiguous, here is certainly a key to the intention of the testator; to give the children the same interest their fathers would have taken under the will, you must give them vested interests. The issue too of the children are provided for, to prevent a lapsé by the death of .any of the children in the lifetime of the testator. To carry out the intention of the tes

tator, the estate must vest in interest immediately in the children. The rents and income.of the estate are to be .applied to the support of the children, and they are in common sense and plain' English, to take such an estate as their respective fathers would have taken, subject only to the debt of such fathers to Theodoras Polhemus. The supreme cqurt in the case'of Wimple v. Fonda, 2 John. Rep. 268 , say, it is unnatural to suppose the testator meant to disinherit the posterity of those dying first. Such an unnatural supposition is not warranted in this case, either by the devise standing by itself, or by the intention of the testator, as derivable from the whole will and codicil. My opinion is, that the estate vested in interest in the children as a class, (including the plaintiff,) on the death of the testator, subject to open, to let in others, coming in esse in the intermediate time. If so, the chancellor had clearly the right to order a sale of plaintiff’s interest, and his title was extinguished by such sale.

. This view renders it unnecessary to consider the points, whether, in any other aspect of the case, the chancellor had a right to order a sale of the premises, and whether the judgment of that court could then be controverted in this suit, against a purchaser who took his title under that judgment. If, as appeared from the manuscript opinion of Jones, Oh. J., he has' decided this question agreeably to the view now contended'for by the defendants, I would from my high and long-cherished respect for the learning and ability of that able jurist, feel predisposed to defer to his.judgment; but I do- not deem it necessary to consider the defendant’s ninth point, which involves the question said to have been decided by the supreme court of this district."

Judgment for the defendants.

The plaintiff appealed to the general term.