Hudson v. Wadsworth , 8 Conn. 348 ( 1831 )

Hosmer, Ch. J.

The case before us presents two general questions. The first is, whether Mrs. Wadsworth and Harriet Trumbull, now Mrs. Silliman, will have a right, in any event, to the property in question. And the second is, if they have such right, whether the security demanded ought to be given, and the action at law enjoined.

1. I will first consider the title of Mrs. Wadsworth and Mrs. Silliman to the real estate in question, or what, in my judgment, is the same thing, to the note for the land sold, given by Watkinson and Champion.

It was no part of the intention of the petitioners to the General Assembly, or of the resolve of that body in consequence, to disturb the last will and testament of the deceased Gov. Trumbull. So far from this, the expression of the resolve, that the avails of the sale, whether in land or money, shall be subject to all the directions, restrictions and limitations of the will, relative to the estate therein devised to the said Hudson, decisively shows, that the disposition of the testator was, in every particular, to be observed. The note now in question is a mere substitution for the real estate sold; and so far as the rights of the devisees are concerned, it is the same thing. Neither party has lost or acquired any right, by the change of the real estate into personalty; but their title remains identically the same in statu quo.

Considering the note in question as subject to the law regarding real estate, so far as the question of title is concerned, I shall proceed to a construction of the will.

By the first recited clause, that all the testator’s estate should be divided equally between the devisees, an estate m fee simple passes, if the force of the expression is not restrained, by something subsequent. The word estate is not merely descriptive of the property devised, but is expressive of the quantity of interest. 4 Cruise’s Dig. 266. 276.

By the clause of the devise immediately succeeding the one commented on, that is, “in case of the decease of the said Hudson, without lawful heirs of his body,” &c. the estate given to him shall be equally divided between the two daughters of the testator, the former clause of the devise is limited, and Hudson took an estate tail by implication. The estate was not explicitly to him and the heirs of his body; but as the limitation over to Mrs. Wadsworth and Mrs. Silliman was on the event of his dying without such heirs, it is the established construction of such a devise, that the heirs general were not intended to succeed to the inheritance. Although the term heirs is generally nomen collectivurn, and a word oí limitation; yet if there appears any clause or circumstance in a will, showing an intention to use it as a word of purchase, it shall receive this construction. 2 Fearne on Exec. Dev. 300. Hence, the estate devised was in tail, that is, to Hudson and the heirs of his body only. Sonday’s case, 9 Co. 127. Brown v. Jervas, Cro. Jac. 290. 6 Cruise’s Dig. 290. The point that Hudson took an estate tail, is firmly settled; and of the numerous cases on the subject, I shall cite only a few. Dutton v. Engram, Cro. Jac. 427. Chadock v. Cowley, Cro. Jac. 695. Brice v. Smith, Willes, 1. Fitzgerald & al. v. Leslie & al. 3 Bro. Parl. Ca. 154. (Toml. ed.) Preston d. Eagle v. Funnell, Wittes 164. Denn d. Geering v. Shenton, Cowp. 410. Roe d. James v. Aves & al., 4 Term Rep. 605. Doe d. Neville v. Rivers & al. 7 Term Rep. 276. Doe d. Gregory & al. v. Whichelo, 8 Term Rep. 211. Pierson v. Vickers & al. 5 East 548. Goodright d. Docking & al. v. Dunham & al. Doug. 264.

I now come to a question, that has been a prominent subject of controversy between the parties. Admitting the interest in Hudson to be an estate tail only, what is the legal effect of the limitation over, so far as respects Mrs. Wadsworth and Mrs. Silliman?

In behalf of Hudson, it is said, that it is a vested remainder; and of Mrs. Wadsworth and Mrs. Silliman, that it is a remainder contingent.

The term remainder is a relative expression ; and implies, that some part of the thing is previously disposed of. Tested remainders, (or remainders executed, whereby a present interest passes to the party) are where the estate is invariably fixed to remain to a determinate person, after the particular estate is spent. And contingent or executory remainders (whereby no present interest passes) are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event. 2 Bla. Comm. 168, 9. I take the definitions of Sir William Blackstone, in substance like many others given by various authors, but in perfect completeness, in my judgment, surpassed by none, Vid. 4 Kent’s Comm. 194. An estate is vested, as was correctly said, by the late Chancellor Kent, where there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. 4 Kent’s Comm. 194. “For where it is doubtful and uncertain whether the use or estate limited in futuro will ever vest in interest or not, there the use or estate is said to be in contingency, because upon a future contingency it may vest or never vest, as the contingent shall happen.” 10 Co. 85. Hence, there must be a present capacity of taking an estate in possession, if the possession were to becorhe vacant, that always pertains to a vested remainder. Willes 337. And on the contrary, if there be no present right of possession, in the event supposed, but the point depends on a contingency, it is a contingent remainder.

What, then, was intended, by the expression “in case of the decease of my said grandson J. T. Hudson without lawful heirs of his body?” Did it refer to an indefinite failure of issue, at any time thereafter; or to J. T. Hudson’s having issue at or before his death?

It is not a little surprising, that any person should entertain the opinion, that an indefinite failure of issue was intended. The idea is technical, requiring an extent of thought pertaining only to those, whose minds have been exercised on such subjects; whereas mankind in general, who are not professional men, when they speak of a person's dying without issue, couple together in thought the event of dying and the deficiency of issue, as simultaneous occurrences. That such is the intention of those, who, on making a provision for their children, use this expression, in prevention of their estates passing to others, who are not of their kin, or who are remote, not existing and not the objects of personal affection, it is impossible for me to doubt.

I am well aware, that in Westminster-Hall, the intention of a testator, by the use of the preceding expression, has been made to yield to an artificial and technical sense of the words; but even there the most trifling circumstance is sufficient to induce the construction of them in favour of their popular meaning.

This point, however, requires no extended discussion; for here it has been settled, deliberately and repeatedly, and ought to be considered as at rest. In Holmes v. Williams and Crary, 1 Root 332, which was a case on the will of William Wheeler, who devised to his grandson, and provided that “in case of his death without issue lawfully begotten of his body,” the same should be given to his six sons-in-law; it was adjudged, by the court, that by the above expression was intended a dying without issue existing at his death. And in Morgan v. Morgan, 5 Day 517. the same point was, by this Court, determined in the same manner. One John Morgan, by his last will, devised his estate to his four sons, and subjoined this provision; that if his sons should either of them die without children, his brothers should have his part in equal proportion. One of his sons died without leaving children ; and it was decided, that his estate, by force of the will, vested in. his surviving brethren. It was held, by the Court, that the expression dying without children, was of the same import as dying without issue; and that the words of the devise did not mean an indefinite failure of issue, but'the dying without issue living at the brother's death.

It follows, very clearly, that the remainder in question was not vested. There was and is in Mrs. Wadsworth and Mrs. Silliman no immediate right of present enjoyment, and no present fixed right of future enjoyment. On the contrary, it is utterly uncertain, whether the estate limited over on the decease of Hudson without issue, will ever vest in interest. This depends on the contingencies whether Hudson will marry and have lawful issue. The case falls precisely within the definition of a contingent remainder. The persons (Mrs. Wadsworth and Mrs. Silliman) are certain, but the event on which the remainder depends, is wholly uncertain. The contingency on which the remainder is suspended, is lawful. It must happen, if it ever does, within a reasonable time, that is, within a life in being. 2 Bla. Comm. 174, There exists no doubt, therefore, that in the fund secured by the note of Watkinson and Champion, Mrs. Wadsworthand Mrs, Silliman have an interest or expectancy, by way of contingent remainder.

With respect to the bank shares, it is extremely clear, that the same persons, Mrs. Wadsworth and Mrs. Silliman, on the happening of the contingency before mentioned, will have right, by executory devise.

It was early established law, that chattels might, in a last will, be limited over by way of remainder, after an estate in them for life; (Manning’s case, 6 Co. 95. Lampet's case, 10 Co. 46. Child v. Baylie, Cro. Jac. 459.) and if necessary, it might be satisfactorily shown, that the estate may equally be created by deed.

This limitation by way of remainder, is applicable as well to money as to other chattels. This appears from the cases of Griggs, v. Dodge, 2 Day 28. and Taber v. Packwood, 2 Day 52. And the same point is firmly established, by numerous decisions in courts of equity. Tissen v. Tissen, 1 P. Wms. 500. Pleydell v. Pleydell, 1 P. Wms. 748. Porter v. Tournay, 3 Ves. jun. 311. Randall v. Russell, 3 190. Moffat’s exrs. v. Strong, 10 Johns. Rep. 12. Westcott & al. v. Cady & al. 5 Johns. Chan, Rep. 334. Scott v. Price, 2 Serg. & Ravde 59. Deihl & al. v. King & al. 6 Serg. & Rawle 29. Logan v. Ladson's exr. 1 Desaus. 271.

It is, however, an established rule, that the same expressions, which, in a freehold, create an estate tail, in chattels create an absolute interest; otherwise, it would tend to a perpetuity, as the devisee or grantee in tail has no method of barring the entail. Seale v. Seale, P. Wms. 290. Brouncker v. Bagot, 1 Meriv. 271. 1 Madd. Chan. 488. 10 Co. 87. 2 Fearne on Cont. Rem 161, 167. Hence a remainder over cannot be permitted on such a limitation; for the whole fee is absorbed in the previous disposition of the estate, and there cannot be a remainder. Dyer 7. pl. 8.

But as in a last will a fee simple in land, or other less estate, may be limited after a fee simple, on a future contingency, if it is to happen within one or more life or lives in being, and twenty-one years and a fraction afterwards; so after an estate-tail in chattels, although such estate cannot be limited to take effect posterior to an indefinite failure of issue, yet it may be done on a contingency that may happen within the before mentioned period. The principle is clearly established in Lamb v. Archer, 1 Salk. 228, Lord Beauclerk v. Dormer, 2 Atk. 308. and Hugesv. Sayer, 1 P. Wms. 534. Vid. 2 Fearne an Cont. Rem. 79. 279. 281. 473. 490. To the same effect are numerous other determinations. Target & al. v. Gaunt & al. 1 P. Wms. 432. Forth v. Chapman, 1 P. Wms. 664. Pletp dell v. Pleydell, 1 P. Wms. 748. Pinbury v. Elkin, 1 P. ms. 564. Sheffield v. Lord Orrery & al. 3 Atk. 282. Atkinson v. Hutchinson, 3 P. Wms. 258. Sabbarton v. Sabbarton &. al Talbot’s Ca. 245, Read v. Snell, 2 Atk. 646. A number of the cases are precisely like the one before the Court, that is, a limitation over after an estate in iee, on the happening of the specified contingency of a dying without issue, I will particularly refer, at some length, to one case only, that is, The executors of Moffat v. Strong, 10 Johns. Rep. 12. in which a very learned opinion is given, by the late Ch. J. Kent. Moffat, by his last will and testament, gave to his sons the residue of his personal estate, after making certain specific devises and bequests, and then provided, if any of them should die without lawful issue, his part should go to the survivors. Tó one of them a sealed, note was distributed; and on his death leaving no issue, a question as to the property in the above note arose between the executors of the testator and the assignee of the deceased son. It was adjudged, by the court, that as the limitation over was to the survivors, it could not be intended to be on the dying without issue generally, and that the limitation, by way of executory devise, was valid. A case more in point to the one under discussion, it would be difficult to imagine.

There exists no doubt that Mrs. Wadsworth and Mrs. Silliman have an interest, in the property in question, by wav of contingent remainder in the real estate and the substituted avails of it, and by way of executory devise in the bank stock.

2. Whether the security demanded ought, to be given, and the suit at law enjoined, are the only remaining enquiries. It was a role antiently established, that the person entitled to a remainder in personal estate might call for security from the tenant for life, that the property should be forthcoming at his decease. 2 Freem. 206. (case 280.) But in Foley v. Burnell, 1 Bro. Chan, Rep. 279. this practice was overruled, by Lord Thurlow, unless there were danger of loss. Security may still be required in a case of real danger that the property may be wasted, secreted or removed. 2 Fearne on Exec. Dev. 35. Mortimer v. Moffat & ux. 4 Hon. & Munf. 503. That in this case the requested security ought to be given, is perfectly unquestionable. The irresponsible condition of Hudson and his contemplated removal to a great distance, render the peril of utter loss extremely imminent.

In respect of the action on the administration bond, an injunction against it ought to be decreed. The defendant, Wadsworth, has ever been willing to deliver over the property, on a compliance with the reasonable and equitable condition of security against loss. The action is an effort, virtually, to obtain, without security, that property, which, in my opinion, ought not to be required, unless on security given.

Daggett and Peters, Js. were of the same opinion. Williams, J. gave no opinion, having been consulted on the construction of the will. Bissell, J. was absent.

Original bill dismissed.

Decree for plaintiff in cross-bill.