■4V 034. Cornell University Law Libr^^y The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDIVIAN and ELLEN D. WILLIAMS Cornell University Library KF 7S5.036 A treatise on the Interpretation of will 3 1924 018 798 862 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924018798862 A. TREATISE INTERPRETATION OF WILLS SHOWING THE POmXS OF RESEMBLANCE AND CONTRAST BETWEEN THE AMERICAN' AND ENGLISH Rules of Testamentary Construction, re;ferences to all the leading authorities IN POINT, BY JOHN F. O'H ARA, OOUNSELLOK AT LA W. ~ — NEW YOEK: baker, VOORHIS & CO., LAW PUBLISHERS, 66 Nabsau Stkbet. 1872. Entered, according to Act of (TtJngress, 'm the year eighteen hundred and aeventy-two, by BAKER, VOORHIS & CO., In the Oflfice of the Librarian of Congress, at Washington, & Godwin, Printers, Printing House Square. PREFACE TO PART n. It has been doubted by Sir Edward Ooke^ and others whether the latitude of interpretation allowable in the case of wills has at all operated favorably to the material interests of the community. However, when once a testament came to be regarded as of a different nature from a deed, it was inconsistent to halt in the career of liberality and refuse to any term in a will a common- place meaning. A marriage settlement is often copied from a preceding settlement, and a will in like manner is sometimes copied from a preceding will or partly from a deed. To give to the phrase " heirs of the body " in a will, therefore, a stricter signification than if the term used were "issue," " sons," or " children " frequently defeats a testator's intention. The technical phrase, in fact, when misapplied, indicates gross ignorance rather than a knowledge of law on the part of the testator. Every regard to technicality, as such, in a will is a negation of its primary nature, viz., as an instrument made by a person in articulo Tnortis, inops consilii, and without the necessary time to prepare a technical document. Many persons are as unwilling to make their wills as to insure their lives. They do not wish to give any of their friends an inter- est in their timely decease. This disposition is natural and wholesome. A forced registration or open publication of wills is, therefore, but of the question. But, to construe a will by the light of technical rules is virtually to disregard a testator's desire of secresy ; inasmuch as the frequent consultation of a professional adviser is apt to lead to a discovery both of the fact that a will is in contemplation, and also of the provisions it is likely to contain. It is thus necessary, for the peace of ' a Bulat. 130. iv PBBFAOE TO PABT II. families that wills should always be construed at least as liberally as hitherto. So far as precedents apply, they ought, no doubt, to be followed, especially if they are not isolated, but continuous for many years and pronounced or approved of by judges of eminence. Yet so far as the American law of wills is still unsettled — adhuc suh Judice — a liberal interpretation seems to be much more expedient than an adhesion to techni- cality. Our courts have hitherto construed wills in a less technical spirit than the English cases warranted. Besides the leading points of contrast between English* and American law men- tioned in tlic introduction to Part I the reader will find in the index to this treatise, under the title " American law," all the points in respect to which^ the testamentary codes of the two nations differ. It will be apparent from this survey that our coutts have still a wide margin for discretion upon many ques- tions. Although this treatise professes to comprise only rules of construction, yet, the reader may find a sufficient sketch of the law relating to the execution and revocation of wills in general, to enable him to dispense with further light on these points, except so far as the special requirements of State statutes ren- der necessary. In order to define with exactness the scope and bounds of rules of construction, occasional reference has been made in this work to rules of law and rules of administration. Of the nature of rules of law enough has been said in the Introduction to Part I. Rules of administration relate to the variable incidents of property. Some of the elements of estates in land and of other legal interests are invariable. Such are the incidents of alienation by tenant in fee, liability to debts, &c. But, other elements of property may be moulded by any testator as he pleases. All rules of construction, for instance, as described in the introduc- tion, are at his mercy. So are all rules of administration. They are only so far like rules of law that they are incidents of property and not inferences of construction. But, they also so far resemble rules of construction that they are variable at the ' Page 12. PRBrACB TO PART II. V choice of each testator. He can make his realty, or a particular part thereof, or of his personalty, to be the primary fund for payment of his debts, though he cannot wholly defeat by will the claims of his creditors. For a liability to debts is an incident of property that springs from a rule of law, and is not variable like a rule of construction or of administration. So with respect to the other immutable incidents of estates and property. These are few. But they are unalterable, and are, so to speak, the constitution round which legal construction gyrates, but which it cannot control. They are the same in wills as in deeds, although certain rules of construction for deeds are also rules of law. But, in wills all rules of construction, or of ad- nainistration, under which are comprised the doctrines of exon- . eration and marshalling, are subject to the testator's directions. Rules of law or of public policy are the only doctrines which he cannot successfully invade. They can only be altered or deprived of their universal force by a statute. Besides the whole law of testamentary conveyancing, the nature of charges on land, the charging powers of tenants in •tail, and the incidents of powers in general, both under the statute of uses and in equity, are treated of in the following pages, so that the work, besides compassing its own proper ground, enters largely upon conveyancing by deed. This per- haps was not strictly necessary for the elucidation of testa- mentary rules, yet, few will consider that the lateral sup- port .which many doctrines of testamentary construction find in rules of construction generally can be too extensively sur- veyed. Much difficulty is likely to be experienced in future in America, in construing statutes that alter some old rule of the common law. The author, therefore, bestowed more atten- tion upon the case of Mellish v. Vallins^ than its importance at the present day seemed to require. He has also with a similar view dwelt upon the question whether remainders can be too remote, as this enquiry is, in the present turning point of the old rule, apt to give rise to some further argument not only here but" also in England. The law relating to precatory trusts, the meaning of the word " survivor," and the other points re- ferred to in the inde? under'the title " American Law," is also ' 3 Jo. & H. 194 ; infra, 336. ii • . • Aa PEEFACB TO PART U. perhaps in a' state of transition. Upon these and similar doubtful points the author has endeavoured to discuss the rules in question with somewhat of detail. Much more room, it is obvious, Js open to litigation under wills here than in England, where the whole ground is nearly covered by- authority. There is reason, however, to hope that our courts will adopt the principles acted hitherto- by them with respect to the rule in Shelley's case, and will discard all mere rules of conveyancing, except as helps to understanding the particular wishes of the testator. The statements in this work are very condensed; else, indeed, it would have been impossible to comprise such a quantity of legal matter in so small a compass. If any passage appears obscure, it is to be hoped that the difficulty is owing to this source, and that a patient examination will repay the practitioner for the labor of his research. TABLE OF CONTENTS. CHAPTEE I. NATUEE AND INCIDENf S OF WILLS. § 1. Relations of American to English Testamentary Law 1 § 2. A will defined and explained 4 § 3. Revocation 6 § 4. Conflict of Testamentary Laws. What law prevaUs 8 § 5. Domicile 10 § 6. Capacity to will 13 § 7. Period by reference to which a will is construed 16 § 8. Interests disposable by will ; . 19 CHAPTEE II. GENERAL PRINCIPLES OF TESTAMENTARY CONSTRUCTION. § ' 1. Principles of American adjudication 23 § 3. Precedents 23 § 3. Rules of law .__. 34 § 4. Rules of construction 34 § 5. Intention 39 § 6. Distiuct gifts : 33 § 7. Equitable interpretation 34 § 8. Repugnancy .\. .. 35 § 9. .Transposition of words 37 § 10. Alteration of words , 38 § 11. Rejecting words 39 § 13. Supplying words 40 § 13. Misdescription— False Demonstration 43 § 14. Uncertainty of subject of gift 43 . § 15. Uncertainty of object of gift 45 § 16. General observations , 53 Viii CONTENTS. CHAPTEE III. FRAUD, ACCIDENT AND MISTAKE, §1. Fraud j 54 § 8. Accident and Mistake 56 CHAPTEE IV. MEANING OF CERTAIN WORDS AND PHRASES. § 1. Terms of devise. Real terms '. 59 §2. Terms of bequest. Personal terms 67 CHAPTEE V. DEVISES OF REALTY. Devises of realty 75 CHAPTEE VI. RULE IN SHELLEY'S CASE. Rule in Shelley's case '. 92 CHAPTEE VII. ESTATES TAIL. § 1. Their nature and incidents 108 § 2. No merger of estates tail 113 § 8. American modifications of the law of entails 116 CHAPTEE VIII. DYING- WITHOJJT ISSUE. Dying without issue 118 CHAPTEE IX. JOINT TENANCY. Joint tenancy 131 CONTENTS. IX CHAPTEE X. FUTURE ESTATES. § 1. Remainder ; 138 § 3. Executory devises 141 § 3. Cross-remainders 144 • CHAPTEE XI. SETTLEMENTS OF PERSONALTY. Settlements of personalty 151 CHAPTEE XH. EQUITABLE CONVERSION. Its nature . . ~. 155 CHAPTEE Xm. RESULTING TRUSTS. Resulting trusts ; 160 CHAPTEE XIY. IMPLIED GIFTS. Implied gifts 167 CHAPTEE XV. LIMITATIONS TO TRUSTEES. Limitations to trustees 173 CHAPTEE XVL SURVIVORSHIP. § 1. Rule in Ferguson v. Dunbar. '. 189 § 3. Survivorship. Accrued interests 195 § 8. Period for ascertaining survivorship 197 § 4. Gifts contingent upon decease 304 X CONTENTS. CHAPTER XVII. POWERS. § 1. Nature and incidents of powers 306 § 3. Precatory trusts : .' . 311 § 3. Terms of request 831 § ^. Definiteness of subject 333 § 5. Definiteness of object... 335 CHAPTEE XVIII. INCUMBRANCBS. § 1. Mortgages '. 331 § 3. Charges 237 § 3. A sole fund 343 § 4. Dower 344 . CHAPTER XIX. ELECTION. Election 349 CHAPTER XX. VESTING. § 1. Interests in land ;; 354 §3. Future vested gifts of land 357 § 3. Vesting of legacies charged on land 359- § 4. Vesting personal legacies 361 CHAPTER XXI. CONDITIONS. i 1. Their nature and incidents ; 266 ) 3. Classification of conditions 270 ( 3. Conditions in restraint of alienation 374 i 4. Other void conditions 278 i 5. Conditions in restraiat of marriage 280 ) 6. Equitable relief 385 CONTENTS. XI CHAPTEE XXII. TRUSTS FOR SEPARATE USE. Trusts for separate use '. . 286 CHAPTER XXIII. GIFTS TO CERTAIN PERSONS AND CLASSES. § 1. Gifts to a class 388 § 2. Heirs 297 § 3. Executors 305 § 4. Son, issue. . . ; 307 § 5. Illegitimate children 314 §6. Family 317 § 7. Next of Mn 319 § 8. Relations 320 § 9. Stocks and individuals 324 CHAPTER XXIV. LEGACIES. § 1. Nature of legacies 328 § 2. Legacies classified 330 § 3. Payment of legacies — Interest 343 § 4. Specific devises 345 § 5. Residue— Realty 346 § 6. Residue— Personalty 349 § 7. Cumulative legacies 350 CHAPTER XXV. ADMINISTRATION OF ASSETS. § 1. General principles ; 353 § 2. Marshalling of assets 356 5 3. Ademption of legacies 360 I 4. Ademption of specific legacies 361 5 5. Satisfaction of debts by legacies 363 j 6. Satisfaction of portions by legacies 365 i -7. Legacies to debtors , 867 XU CONTENTS. CHAPTER XXYI. VOID TESTAMENTARY GIFTS. § 1. Uncertain gifts 869 § 2. Rule against perpetuities 374 § 3. Accumulation... 386 § 4. . Restraints upon alienation 389 § 5. Mortmain f 392 § 6. Various void gifts 399 § '7. Charitable uses 401 § 8. Religious uses 410 § 9. Immoral gifts 414 § 10. Relations of certain primary to ulterior gifts 415 § 11. Lapse 416 CHAPTER XXVII. SUaGESTIONS, &c. Suggestions to testamentary draftsmen 436 AMERICAN CASES CITED. A. Abbott V. Bradstreet 140, 397 «. Browning ^ . . 397 v. Essex Co 84, 134 Abercrombie v. Abercrombie . . 55 Ackerman v. Emott 310 Adams v. Beekman. '. 364 «. Brackett 338, 354 V. Logan 313 V. Wilbur 8 Albec V. Carpenter 95, 110 Alder v. BeaU 334 Aldrich V. Gaskill 66 Allen®. Allen 16 V. Hoyt '. 36, 103 V. Richards 65 ■». Scott 64 V. White 138 AUyn V. Mather. 117 Am. Asylum v. Phenix Bank. . . 403, 403 Am. Bible Soc. v. Marshall 397 Anderson v. Greble 89 Andress v. Parsons 418 «!. Weller • 57 Andrew v. N. T. Bible & Prayer BookSoc '. 393, 409 Annable v. Patch 38, 343 Annin's Ex'ors v. Vandoren's Adm 373 Archer «. Deneale 343 Arcularius v. Geisenheimer. . .39, 30 Armstrong ». Armstrong. 134 ». Moran 399, 430 Arnold v. Bufifum 88 «. Gilbert 159, 349 Aspden's Estate 397 Awdry v. Lord 386 Ayres v. Meth. Ep. Ch 394 B. Babb V, Harrison 37 V. Reed 413 Bacon's App 78 Bailey v. Duncan 348 Baker v. Baker 307 v. Bridge 77 Baker's App 238 Baldwin «. Baldwin 47 Ballard v. Carter 183 Bangs v. Smith , 71, 350 Bank v. Phelan 349 B&ptist As'n ®. Hart...403, 408", 409 Barber v. Barber 343 V. Cary. 311 Barheydt v. Barheydt 81 Barker v. Cobb. 390 «. Woods 364 Barnes v. Allen 311 V. Greenzeback 311 Bamitz «. Casey 398 Bartlett®. King 40, 45, 374, 411 D.Nye 395,407,413 Baskin's App 399 Bassett «, Granger 836 « XIV TABLE OF OASES. Bates V. Hillman. 63 D.Webb 355 Baylor v. Dejamette 238 BeaUa.Fox 401 V. Holmes 31, 75, 77 Bean v. Hockman 416 Beard «. Rowan 269 Beatty «. Kinty 401 Beck«. McGiUis 70, 72 Beekman v. People 394, 409 V. Schermerhom 357 Beime & Wiggenton, He 68 BeU County v. Alexander 83 Bennet v. Bettle 64 Bennett •!. Cave 415 Berger «. Berger 208 Bernard ®. MinshuU 231, 227 Binnerman v. Weaver 281 Birdsall v. Applegate 60 V. Hewett 360 Bishop V. Bishop 420 Bishop's Fund Trustees v. Eagle Bank 411 Blackstone Banks. Davis 376 Blagge 11. Miles 308 Blake v. Stone 93 Blaney v. Blaney. 345, 355 Bleeker v. Lynch 55 Bloomer v. Bloomer 11 Bogert V. Hertell 160, 210 Boiling V. Boiling . . .'. 223, 897 Bond's App 298, 434 Bone V. Cook 305 Boone ». Dyke's Legatees 265 Bowers ». Brower 311 V. Smith 347 Bowker v. Bowker 260, 261 Bowman's App 264 Bradford v. White 167 Bradhurst 1). Bradhurst 24, 211 Bradish «. Gibbs 287 Bradley «. Amidon 40 344 V. Cartwright 83 Bradstreet v. Clarke 40 Brailsford v. Heyward 38 347 Bramble v. Phillips Hg ^v. Billups 117 Bramhall «. Ferris 379 Bramhill v. Ferris 274 Brant v. Gelston 102 «. Wilson . . 6 Brewers v. Forman 411 Brewster v. Hill 67 V. McCaU 47 Briggs V. Hosford 28 Brigham ». Winchester . , 182 Brown v. Brown 41, 326 V. Dysinger 61 V. Kelsey 411 «. Lyon 24 Browne v. Cogswell 69 ». Lawrence 140 Brownall v. DeWolf 137 Brownson v. Gifford 264 Bryants. Hunter 366 Bugbee v. Sargent 241 Bull e. Bull 214, 217, 372 BuUards. Goffe.... 59,60 Bunce v. Vander Grift 158 Bundy v. Bundy 307 Bunner v. Storm 835, 344 Burbank «. Whitney 401 Burke v. Chamberlain 78 ®. Valentine 125, 184 Burr V. Smith 411 Burrill v. Shell 257 Butler V. Butler 385 Butterfield «. Haskins 89 Button a. Am. Tract Soc..47, 53, 411 Buzby's App 358 Byrd v. Byrd 30 C. Caldwell v. Kinkead 360 Calhoun «. Ferguson 47 Calkins v. Calkins 341 Campbell «. Rawdon 396, 304 Carle «. ITnderhill 5 Carmichael v. Carmichael. . .858, 297 Carr v. Bstell 314 "•Porter 24, 102 Carroll e. Carroll ". 8 AMEBICAIJ CASES CITED. XV Carroll v. Hancock 289 Carter v. Balfour 47, 409 D. Bloodgood 41,204 ©.Hunt .- 53 V. Tyler 127 Carver v. Oakley 388 Caw V. Robertson 364 Chandler v. Ferris . . ; 54 Chase v. Lockerman 355 Chelton v. Henderson 94 Chestnut v. Strong 153 Chew's App 104 Childs «. Russell 260 Chrystie v. Phyfe 53, 310 Church in Brattle Square v.. Grant 141 City Bank v. Smith 285 Clark V. Bogard 364 C.Clark 142,151,304 v. Hyman 83 V. Lynch 326 Clayton v, Aiken 366 Cleveland ■». Spilman 78 Clure V. Latimer 848 Glutei). Pool 279 Coates ■». Hughes 7 Oogdell V. Cogdell 187, 361 Cogglestall o. Pelton 403 Collins D. CoUins 296, 330 «. CarUsle 314,217 V. Hoxie 835 Commonwealth «). Leach 1 V. Staufier 381 Comstock V. Hadlyme 65 Condict V. King 372 Conklin v. Oonklin * . 265 9. Moore 259 Conley v. Kincaid 297 ' Converse v. Converse 14 «. Kellogg 257 Cook «. Cook 341 V. Holmes 77 Cooke V, Catlin .' .312, 326 ®. Husbands 75 Cooper V- Remsen 288 B. Scott 345 Corbettc.Nutt 16 Corbin o.Mills 336 Cordey v. Adams 103 Cornell v. WooUey 16 Cornish o. Wilson 23 Comwell V. Isham 15 Corrigan v. Kieman 344 Oott V. Cook 385 Couch V. Gorham 142 Covenhoven v. Shuler . . .37, 340, 363 Cowdin «. Perry 358 Craig V. Craig 83, 344, 388 V. Scobie 183 Crane v. Crane ^ . 345 e. Cowell 88 Cresson's App 403 Crockett «. Crockett 333, 227 V, Robinson 876 Cromer v. Pinckney .28, 39, 310, 311 Croom V. Keering 303 Crosby v. Wendell 264 Ouflfeeo. Milk Ill Culbertson «. Daly 103 Cumberland ®. Codrington, 333, 234 Cunningham ». Speckles 353 Curtis ». Potter 343 Gushing v, Aylwin 17 o. Henry 204 Cutter V. Dough^ 139 D. Dabney «. Cottrell 71 Dallam «. Dallam 137 Daly V. James 105 Dartmouth College ii. Wood- ward 407 DashweU v. Att'y-Gen 395, 396 Davis V. Cain 338 0. Calvert 15 V. Rainsford 43 5. Taul 4,43 Day, em-p 5 Deakins v. Hollis 18 Dean D. NunaUy 88 DeKay v. Irving 33 Delamater's Estate 69 De Nottebeck v. Astor. 53 XVI TABLE 01" CASES. Deni). Manners '. . 19 ■ ■». McMurtrie 369 V. Messenger 273 V. Sayre 199 v. Small 116 De Peyster v. Clending 143 «. Micliael.. 390 Dermet v. Dermet. 102 Devlin's Estate 345 De Witt V. Yates 351. ijey V. Dey 238 Dickenson v. Jordan 202 V. Purvis 424 Dickinson e; Lee 297 Dietrich v. Dietrick 54 Dingley v. Dingley 38, 354, 255 Dodge «. Manning 238 ■B. Moore 241 Dodson V. Green 43, 371 Doe V. Craiger 117 «. Dm 78 d. Goldin v. Lakeman 89 D.Howland 80, 83 V. Prevoost 139 V. Townsend 198 ®. Watson. 125 Domestic & For. Soc. App ... 53, 405 Dominick v. Michael 158 v. Moore 204 V. Sayre 314 Donahue v. Lea 361 Dorland v. Dorland 210 Dorsley v. Hammond 43 Dott ®. Cunninghton 94, 107 Doubleday » . Newton. 391 Douglass. Blackford 46 Downing v. Bain 34 i>. Marshall 421 ». Wh^rrin 119, 140 Drake v. Pell 41, 155, 257, 298 Drayton's App 363 Drayton c. Drayton ^ 311 Drewr. Drew 43, 371, 372 Dubois V. Ray 130 Dulse B. Fuller 408 Dumondi). Stringham 83,85, 130 Dunlap^.Pyle 210 Dunn 0. Bray 153 V. Bryan 140 Dunnage v. White 85 Dunshee v'. Goldbacher 241 Dumey «, Schaeffler 283 Dyck V, Van Beuren 397 E. . Eagle V. Emmet. , 828 Earl «. Grim '. 30 V. Roine. ; 90 Easton, Matter of 5 Fatherly v. Fatherly 57 Eaton V. Benton 363 Fdelen v. Middleton 138 Edwards v. Bishop 83 Fldridgej!. Eldridge 254, 262 Elliott's will 54 Ellis V. Essex M. Bridge...7'6, 94, 151 Emerson v. Oul'ter 140, 365 Engliss 1;. Sailors Snug Harbor 85 Enlaws v. Enlaws 78 Ennis v. Pentz 321, 333 ». Plenty 363, V. Smith 328 Enohin «. Wylie 10 Erickson v. Willard 317 Errington v. Evans 864 Evangelical As'n App 403 Evarts v. Chittenden 94 Everett v. Lane 838 e. Everett 386 Evers v. ChaUis 141 F. Fagan v. Jones 333 Farwell v. Jacobs 338, 397 Fay«. Cheney 71,73 ®. Fay, 76,89 Felton V. Sawyer 141 Fenwick v. Chapman 33, 343 «. Macey 183 Ferguson v. Zepp. 59, 79 Ferril «. Talbot 308 Ferris «. Smith 78 Ferson i. Dodge 355, 257, 260 AMEBIOAN OASES CITED. XVU Fetrom'a Estate 140 Field V. Mostyn 366 Pinch V. Houghton 367 Findlay v. Riddle 96, 104 Finlay v. King. ... .80, 31, 35, 272 Fisher v. Hill 205 v. Taylor. 391 Fish's Estate 345 Fisk V. Cushman 70 «. Keene, I43 Fitch c. Peckham 364 Flandears v. Lamphear 285 Florey «. Plorey 55 Fogg V. Clark 61, 78 Foote App 28, 237, 244 Exp 340 Ford V. Ford 361 Fosdlck V. Posdiok. 888 Foster v. Kerr 286 Fountain v. Ravenel 431 Fowler®. Depau... 110, 193, 204 377, 386 Pox «. Phelps .79, 81, 83, 89, 270 Frazier v. Prazier 348 Freeborn d. Wagner 103 Preedley's App 183 Freeman «. Flood 286 Fuller®. Winthrop 258 V. Tates 76 Fumess v. Fox 262 Q. Gage V. Gage 7 Gaines v. Rolt . . ; 3 Gallego V. Att'y-Gen 396, 408 V. Gallego 356 Gamble v. Dabney 214, 217 Gardner v. Gardner. 241, 242 V. Wagner 31, 65 Garnet v. Macon 238 Garrison v. Ebom 70 Gass V. Ross 49 ®. Wilhite 403, 410, 413 Gates V. Jacob 183 Gerard Will Case 403 Gerken's Estate 338 Germond v. Jones '. 310 Gemet v. Lynn 104, 105 Gibbons v. HiU 332 Gibson v. Horton 80 V. M'Call 418 Giddings v. Smith II7 Gifford 9. Dyer 57 ®. Thorn 260 Gilbert ». Chapin, 215, 317, 330, 221 Gilbreath v. Winter 332 Gillian v. Underwood 304 Gilman ®. Hamilton 405, 410 Gihner v. Gilmer, 236, 331, 863, 408 Gleason ®. Payerweather 276 Godfrey ». Humphry 60, 77 Goisg V. Emery 409, 411 Gold ®. Judson 17 Gopdall V. McLean 304 Goode ®. Goode 43 Goodrich V. Lambert 94 Gore V. Stevens 74 Gray ®. Blanchard 277 V. McDowell, 238, 239 Grayhead ®. Given 422 Greenenough v. Wells 210 Greer v. Dennis 432 Greere v. Davis 403 Gridley v. Gridley 242, 270 Griffin V. Graham 395, 401 Grim V. Dyar 41 Griswold ». Greer 124 Guthries App 102, 104 H. Hacker v. Newborn 54 Hall V. Dickinson 78 V. Tnfta 274 ». Wooller 297 Hallett V. Pope 119 Hallowell «. Phipps 310, 333 Hamilton v. Bishop 387 V. Boyles 41 V. Henstead 117 Hamlin v. Osgood 307 xvm TABLB OP CASES. Hammersley v. Smith 391 Haimnond «. Eidgley 43, 372 Hand v. Hoffinan 49 Hansel! v. Hubbell Ill Hapgood V. Houghton 250 Hardy v. Redman 88 Harper v. Blean 68 e. Phelps 372 Harrington v. Bradford 4 t). Hughes 231 Harris v. Clark .' 156 v. Finch 348 «. Ply 238,241, 259 «. Heame 270 Harrison v. Morton • 55 «. Nixon 10,4 31 Hart V. Hart 233, 397 V. Marks 74 Haskins v. Tate 289 Hawea v. Humphrey 15 v. Sa'ckett 249, 253 Hawes Place Soc. v. Hawes Fund 186, 217 Hawkins v. Everett 365, 295 Hawley v. James 155, 156, 338,243,246, 886 ■B. Northampton.28,111, 141, 379 Ha-wn V. Banks '. . ^97 Hasten v. Corse 158, 386, 389 Hayden «. Stoughton 38, 423 Heard v. Horton 81, 801 !J. Bill 186 Heath v. ^tnapp 337 Hedges v. Riker 210 Henry v. Gorterman 81 Hester v. Hester 186 Hildyard v. Miller 389 Hill V. Bowman 46 Hodgson V. Gemmil 358 Hoke V. Herman 361, 362 Holland B. Peck 409 HolUns V. Coonan 39 Holman v. Perry ig Holme «. Low , 141 Holmes v. Field 282 Homer v. Shelton 151 Hone V. Kent 73 V. Van Schaik . . 129, 296, 311 Hood V. Archer 14 HoopeS v. Dundas 283 Horwitz V. Norris 245 Howland v. Union Theo. Sem. 6, 53 Hoyland v. Schenck's Estate . . . 343 Hubbell V. Hubbell 354 Hughes V. Boyd 283, 288 V. Knowlton 815 V. Dehon 283, 234 Hull r. Hull ; 416 Hume B. Wood 238, 854 Hunnier «. Rogers 241 Hunt ®. Hunt . 60 Humter v. Bryant 251 ®. Hunter 29, 83, 234 Hurdle v. Outlaw 61 Hyatt «. Pugsley 30, 421 I. Ide V. Ide 34, 141, 143 Ingersoll v. Knowlton 103 Inglis V. Trustees of the Sailors' Snug Harbour 23 Irving V. De Kay 886 Isham «. Gibbons 11 I J. Jackman «. Yates 71 Jackson v. Babcock 5, 81 u Bull 79, 83 D. Burr 78, 310 B. Chew 87 «, Coleman 89 e. Delany 60, 187 V, Hammond 413 V. Hansel 61 «. Harris 81 V. Housel 83 s..Martin 79, 81 «. MerriU 79 V. Merger 65, 66 V. Roberts 421 v. Robins 89 AMEEIOAH OASES CITED. XIX Jackson v. Schurtz 270 D. Sm 42 ■B. Staats : . 323 V. Varick 30 v. Waldron 20 0. Winnie 264 James r>. James 74, 349 Janey v. Latane 47 Jarvis v. Prentice • 386 V. Quigley 104 Jenkins v. Fryer 389 Johnson v. Farrell 368 «. Johnson. 75, 117 Jones V. Creveling. 352 «. Jones 286 L. Kane v. Astor 6, 30, 254 V. Gott 155 Keiths. Perry 38 Kelley ®. Kelley 49, 369 Kellogg V. Blair 60 Kempton App. . , 245 Kennedy's App 194 Kerr d. Bosler 358 Kihler v. Whitman , 361 Killam v. Allen 184, 386 KUpatrick v. Johnson 295 King 9. Ackerman 88 0. Merchants' Exchange Co 184 V. Rundell 386 ®. Woodhull. 155, 344 Kingsjand v. Betts 311 V. Rapelye 34, 307 Kinne v. Kinne . •. 14 Kinter ®. Jenks 84, 227 Kip®. Kip ...30,31, 32 v. Van Cortland 347 KJaight V. Knight 296 V. Weatherwise 6 Knollys v. Shepherd 64 Knott V. Cotete 221 Kom V. Cutler ! 60 Ladd V. Harvey 138 Lambert «. Paine 24, 88 Lane v. Lane 259 «. Vick : 23, 30 Lang 9. Rofke , 184 Langdon ®. Astor 4, 5 Larke «>. Mann 240 Lasher «. Lasher 29 Lawrence ». Hebbard 295, 311 «. Lawrence 328 Learned «. Tallmadge 208 Leary's Estate 406 Leaver '"• Lewis 243 Leddel o. Starr 345 Leith, ex p 324 Leland v. Adams 325 Leonard v. White 64 Lewis V. Smith 78, 246 ». Thornton 238 Lide V. Lide 54 Liffen ». Eldred 83 Lillard ». Reynolds 369 Lilliebridge ». Addie. . . 88, 113 , Lilly V. Curry 363 Lindsay ». McCormack 77 Lippett V. Hopkins 84 Lithgow V. Havenagh 79 Livingston v. Livingston 356 Livingstone v. Newkirk 235 Lone V. Williamson 15 Lorillard v. Coster 37, 155, 311 Loring v. Blake 377 V. Loring 345 Levering «.TMinot 152 Lovett V. Gillender 258 V. Kingsland 53 Lucas V. Lockhart 217 Ludlam's Estate 831, 387 Lupton V. Lupton 333, 340 Lush V. Druse 43 Lydnor b. Lydnor 323 Lyles V. Digge 102 Lyman v. Parsons 263 V. Vanderspiegel . . . 419 XX TABLE OF CASES. Lynch v. Hill .' 41 Lyon v. Acker 24, 297, 325 M. Maddox e. Maddox 273, 283 Mahar «. O'Hara 238 Malcolm v. Malcolm 40 Malone v. Mooring 331 Manderson v. Lukeos 140 Manice ». Manice 331, 885 Mann i>. Mann 53, 70, 157 Mapes V. Tyler 210 Marsh v. Hague 261 e. Wheeler 30 Marshall v. Downing 395 Martha May's App 424 Martindale «. Martindale 29 Mason v. Jones 37 D.White 312 Maxwell v. Means 384 Mayrant v. Davis 338 Mayzcker «. Mayzcker 119 McAfee v. Gilmore 78 McAidey v. Wilson.. .'.402, 409, 410 McBride v. Elmer 47 McCormick ex p 11 McCampbell «. McCampbeU 355 McCuUock ». McLain. 242 McDermott v. United States Ins. Co 45 McDonough v. Murdock. 32, 403 McDowell V. Lauless 355 McFeely «. Moore 103 McGHll'sApp 258 McGinn v. Aaron • 411 Mcllvain v. (Jithin 281 McKay v. Green 233 McKee v. McKinlay 78, 104 McKenzie v. Jones 78 McLaughlin, Matter of. 210 McLellan «. Kennedy 13 McMahon v. Ryan ; . 54 McNaughton v. McNaughton. . . 362 Mc Williams v. Msley 276, 391 Meakings i). Cromwell 155 Meek v. Holtom 27 Merritt v. Brantley 81 Merrymans v. Merrymans. . . 313, 316 Meyers v. Eddie 34 D. Meyers 293 Miles V. Boyden 312, 313 MiUer v. Chittenden 140 Miller's App 238 Minor v. Dabney 339 Minot V. Boston Asylum 47 D. Prescott 211 Moakly v. Riggs 273 MoflFat B. Strong 94, 151, 385 Moggridge v. Thackwell 413 Monroe v. Douglas ... 105 Moody «. Walker 137, 151 Mooltrie v. Hunt ^ .... 11 Moon V. Stone 358 Moore v. Budd 13 II. Howe 119 D.Lyons 193, 198 B.Moore 369, 377 Morancy v. Quarles. 243 Morrell v. Dickey 39 «. Emery ,5 D. Sutton 271 Morris, Estate of. 20 V. Henderson 348 Morrison v. Semple 61 V. Temple 60 Morse v. Mason 296 Morton «. Barrett. 320 V. Morton 344 9. Perry i 70 Mountain D. Bennett. 54 Mowatt V. Carow 296 MuUer, Estate of. 29 Murdock v. Shackleford 113 Murphy v. Harvey 298, 325 Musselman's Estate 78 N. Nagle's App '. . .78, 104 Nelson v. Moore 205 Newkirk ». Newkirk . .274, 277, 279 Newton v. Griffith 75, 117 AMERICAN CASES CITED. XXI ^ ^ Nichols V. Romaine 41 Nightingale v. Biirrell Ill v. Sheldon 420 Norris V. Boyes 384 «. Byea 130,204,269 ■0. Thompson 384 Nussea v. Arnold 54 O. Oddie ®. Woodford 33 O'Hara v. Sullivan 346 Okeson's App 338 Olmstead v. Olmstead 78, 252 Olney «. HuU 140 O'Neil V. Murray 55 O'Riley v. Nicholson 253 Orphan Asylum v. McOarter ... 896 Osborne i>. Shrieve 106 Osgood D. Franklin. . . . ; 159 V. Livering 247 Otis V. Smith 64 Owens V. Miss. Soc. of M. E. Church 395, 407, 408 Oxley V. Lane 33 Page «. "Wright ^. . 86 Painter v. Painter 249 Parish o. Parish 78 Parker v. Parker 77, 145 Parkman », Bowdoin 313 Parks®. Parks 40 Parsons v. Lynam '. 11 V. Snook 253 V. Wiaslow 281, 400 Passmore's App 197 Patterson v. Doe , 103 e. Devlin 142 «.Elli8..83, 190,151, 262, 384 It. McMasters 304 Pattison v. Pattison 361 Payne v. Sale 103 Payton «. Smith 76 iii Peay ». Barber 349 Peck v. Henderson 310 Penniman is. French 69 Pennock's Estate, He 873* Pennoyer v. Sheridan . '. '31 People B. Contlin 400 Peppin «. Ellison 69 Perkins v. Jewett 64 Pemie i). Purdy 204 Peter v. Beverley 210 Phelps 1). Phelps 257 Philadelphia, City of, v. Davis. . 304 V. Elliott 412 Phyfe V. Phyfe 314 Physick's App 78 Pickering ®. Pickering 338 Pierce «. Hakes i 140 v. Win 376 Pike «. Stephenson 358 Pinckney v. Pinckney 251 Pinney v. Fancher 364, 344 Pippin ». Ellison 83 Plemptor v. Plemptor 140 Polk «. Faris 103 Pollard ». Dwight 23 V. Pollard 343 Pond«.Bergh 37,41 Porter's App .• 398 Portsmouth «. Shackford 207 Post V. Hover 58, 416 V. Post 34 Potter V. Gardner 243 ®. Titcomb 11 Pratt «. Flamen 315 B.Rice 39 Pray v. Belt 52, 268 Prescott «.,Prescott 17, 104, 432 Prewett «. Land 186, 314, 217 Price V, Brown 8 V. Maxwell. .401, 403, 408, 412 Prowett V. Rodman 323 Pryor a. Dunkle 137 Putuam V. Gleeson 140 Q. Quillman v. Custer 78 Quincy «. Rogers 6 SXll TABLE OF CASES. R, Rapelye v. Rapelye 342 Rathbone v. Dyckman 30, 81 ^a,y V. Enslin 38 Reed v. Reed 89, 315, 223 «. Underbill 159 Renwize v. Cooper 71 Reynolds v. Reynolds 241 V. Swan 2 Rhoads «. Rhoads 387 Richardson «. Wheatland 303 Richmond v. Vanhoof 70, 71 Ricks V. "Williams 303, 304 Ridgeley v. Bond 348 Roberts' App 358 Roberts v. Kuffln 70 r>. Ogboume 78 Robertson v. Johnson 29 Robinson v. Schley 27 Rogers v. Smith -. . 64 Roman Catholic German Church of Albany v. Wachter 238 Roman Cath. Orph. As. v. Em- mons , 43 Roome «. Phillips 258 Roosevelt v. Heirs of Pulton 78 ■». Thurman 38 Ross V. Toms. . . .' 117 ■». Tremaine 273 Rothmaler v. Myers 43, 307, 370 Routh v. Ammerman 71 Roy V. Garnet 103 Ruffert's Estate 345 Runnels v. Runnels 370 Russell 11. Elden 77 Ruston V. Ruston 33 S. Sackett ■». Mallory 137 St. Armour «. Rivard 385 St. Louis Hosp. As 47 Salmon v. Stuyvesant 9 Sands v. Champlin 81 ■V. Chaplin 34I Sargeant v. Towne 76 77 Saunders 1;. Hyatt 1: Savage v. Bumham 155, 3- Schermerhom v. Barhydt ! V. Schermerhom, ! Schettler v. Smith 345, 3i Schoonmaker v. Stockton .... 79, 1( Schryer's Estate 34 Scott B.Morell 31 Seabury v. Brewer 32 Seaver v. Lewis 2 Shackleford v. Hall 38 Sharon v. Simons 186, 21 Sharpsteen v. Tillon 26 Shearman v. Angel 315, 41 Sheridan House 10 Sherman v. Sherman '. Sherry v. Lozier 3 ShoU 0. ShoU 33 Shotwell V. Mott 40 Shriver v. Lynn 8 Shutt «. Rainbow 7; Simmonds v. Simmonds 6, 27i Simmons v. Garrot 29i Simpson v. Moore -341 Simson v. Staith 311 Sisson ». Seabury lOi Slocum V. Slocum 15( Small V. Small 5' Smiley ». Bailey 181 Smith V. Ashurst 39' V. Bell 30,31,107, 321 V. Clerk 39( V. Dunwoody 6' V. Edrington 1' V. Hastings 95 ®. Jewett 7( V. Jones 30, 361 V. Kearney. . .' 15f V. Lampton 83! V. Post 8S V. Poyas 71 V. Smith 42,47, 374 D. Wyckoflf 42, 245 Trustees of 26E Smith's App 124, 151, 311 Case 311 Smithwick v. Jordan 1£ AMBRIOAN OASES OITBB. XXIU Sorelle v. Sorelle 864 Sparks «. Weedon 337 Stanley v. Colt 81 Stark V. Smiley 268 State «. Hallett 12 V. NicoUs 28 V. Walter ■ 403 V. Wiltbank 403 Steel V. Cook 61, 102 Steiner v. KoU 78 Stephens v. Evans 141 Stevens ». Ely 160 V. SneUing 42 Stevenson v. Schriver 386 Stewart, Matter of 14 V. Brady 276 V. Chambers 41, 844 V. Gamett 82,' 89 «. Lispenard 14 Stickle's App 39 Stires v. Van Rensselaer 295, 296 Stockes V. Tilly 39 Stockton V. Turner 274 Storer v. Bemdt 297, 298 V. Wheatly 320 Storing v, Borren 253 Stowe V. Ward 301 Stower V. Stower 103 Stubbs V. Sargon 397 Stultz D. Keser 71 Sullivan v. Mara 268 Sutton®. Cole 46 Swain v. Roscoe 96, 107 Swett e. City of Boston ..'... 71, 73 Sweet V. Chase 39, 259, 263 V. Geisenheimer. . . .29, 30, 8fe8 S woope's App 356 T. Taft V. Morse 243, 244 Tanner v. Livingston 81 Taylor v. Benham 210 V. Kelley ^. . . 27 11. Lanier. 365 C.Mason 271,274, 384 V. Morris 311 Taylor v. Kichardson 400 Telfair ®. Home 47 Temple «. Nilson 369 Terpenning «. Skinner 53 Theo. Sem. v. Childs 394 Trustees of, d. Kellogg 89 Thomason s. Andersons 116 Thompson v. Oarmichael 370 ». Macdonald 414 «. McKisiok 3, 72 «. Thompson 233, 254 Thomson «. Livingston 8, 385 Tift «. Porter 338 Tillinghast v. Cook 336 Timothy v. Camp 276 Tinsley v. Jones 116 Tissel's App 824 Tobias ®. Ketchum 253 Tomlinson v. Tomlinson 6 Tongue v. Nutwell 348, 423 Townsend v. Downer 27, 369 Tracy r. Kilbom -. . . 77 V. Tracy 244 Trippe v. Frazier 44, 370 Trotter v. Trotter 10 Trustees ». Peasley 46, 47, 374 Tucker B. Bishop 296 TurkeB^ .• 262, 364 Turner «. Kittrell 78 Twining i>. Powell 362 U. United States «. Arredondo. 274 V. Vail V. Vail 7. 156, 188, 374 Van Alstyne v. Van Alstyne .... 330 Van Bulhard v. Nace 61 Vandemark «. Vandemark 6 Van der Volgen ®. Tates. . . .398, 413 Vandervooit, Matter of 311 Van Derzee v. Van Derzee . . 31, 83 Van Dyke's App 352 V. Edmonds 83 XXIV TABLE OF CASES. Van Gieson v. Howard 397 Van Hook v. Rogers 289 Van Home 11. Dorrance , 371 Van Kleeck «. Reformed Dutch Ch 346,348,349, 433 Van Ness v. Hyatt 358 Vanordall v. Vanderwenter 434 Van Riper v. Van Riper 364 Van Vechten v. Van Vechten, 330, 344 V. Pearson '38 Van Winkle 41. Van Houten 333 Van Wyck v. Bloodgood. 363 Varrell «. Wendell 331 Vamum v. Abbott 131 Verdier v. Verdier 363 ». Watts.... '. 313 Vidal «. Gerard 403 V. Mayor of Philadelphia. 403 W. Wade «. Colonization Soc 16 Wadhams v. Am. Home Mission ' Soc 13 Wadsworth e. Ruggles 71 Walker v. Griffin 335 V. Parker 346 V. Vincent 390 V. Williamson 395 Walls V. Garrison 358 9). Stewart 331, 833 Walton 0. Walton 334, 361, 362 Ward V. Amory 83, 181 Ware v. Rowland 333 Warfield v. Crane 103 Waring v. Jackson 20, 87 Warner v. Beach 363 Warren v. Bates 315, 333 ». Wigfall 338 Washburn v. Sewall 413 Waterman «. Whitney 16 Waters ■». CoUen 13 Webster v. Cooper 181, 371 Welch's App 861 Wells V. Doane 227, 411 B.Smith 271 Wessenger v. Hunt 265 West V. Moore 373 1). Williams 432, 424 Westcott«. Cady 5, 6 Whaley v. Jenkins 75 Wheatland ■». Dodge 314 Wheaton v. Andrews 59, 68, 75, 83 c. Donaldson 2 Wheeler v. Smith 372, 396 White V. risk 410 V. Howard 155, 158 V. Winchester 361 Whitehead v. Lassiter 434 Whitemore v. Bean 17 Whitenach v. Stryker 15 Whitman v. Norton 244 Wiggins v. Blount 268 Wight ». Thayer 116 Wilde V. Holtzmeyer 18 Wilderman «. Baltimore . . 395, 403 Wnent V. Calnan , 76 Wilkinson v. Joughin 56 Willett «. Carroll 37o Williams «. Crary 364 V. Leech 104 V. Williams 406 Williamson v. Williamson I53 Willis v. Bucher 123 Wills V. Cooper 103, 304 «. Palmer. 299, 300 Wilson V. Terry 18 V. Wilson 130, 400 Wioder v. Smith 369 Windham v. Chetwynd 15 Winkley v. Kaime 46, 68 Winslow ». Cummings . .'. .409, 410 B. Goodwin 255 Wisner 0. Bamet 417 Witman v. Lex 413 V. Norton 856 Wifeoey ». Olney 66 Wood®. Cone 160, 344 ®! George 69 V. Wood 243 Woodham v. Maverick 88 ENGLISH CASES CITED. A. Abney v. Miller 361 Abrey ■». Newman 334 Acberley v. Vernon 68 Ackland «. Lutley 177 Ackroyd •». Smithson 157 Adamson v. Armitage 61 Adlington v. Cann 186 Adman d. Cole 409 Alton «. Brooks 193 Aldricli V. Cooper 357 Allan V. Backhouse 90, 239 Allen r>. Callow 418 Ancaater (Duke of) «. Mayer. . . 339 Andrews v. Emmott 309 v. FullhanL Il5 D. Partington 389; 394 AndresB r. Waller 57 Anison v. Simpson 349 ■ Appleton a. Kowley 110, 123 Archer's Case 106, 111, 301 Armitage v. Williams 383 Arnold v. Chapman 419 ■n.'Congreve ,. . . 383 Arrow v. Mellish 334 Ashley ». Ashley .^. 147 Ashton V. Ashton 335 Aston V. Wood 372 Atkins 1). Hiccocks 363 Attorney-Gen. v. Clarke 408 V. Davies 398,406 V. Eaxl of Lons- dale -. . 403 «. Goulding 406 «. Henchman 163 Attomey-Gten. v. Pearson 411 V. Price 156,333 V. Ramsay's Trus- . tees 156 «. Sibthorp 46 Audsley v. Horn 101 Auther v. Anther 333 Arelyn «. Ward 335, 415 Averall v. Wade 360 B. Bailey v. Mollard 316 Barker v. Giles .195, 300 «. Greenwood 175 Barlow v. Grant 234 Bamardiston v. Carter 356 Barnes v. Patch 317 Bayne v. Crowther 317 Beaumont i). Fell 35 Beevor v. Partridge 234 Benson v. Whittam 223 Berkeley «. Swinburne 254 Bernal v. Bemal 300 Berry «. Briant 203 Bickham v. Cruttwell 232, 236 Biddle «. Perkins 382 Birch v. Wade 335 Bird «. Wood ' 22« Blackburn v. Staples 98, 100, 101 Blackwell v. Bull 167 Blague V. Gold 42, 43 Bland v. Bland 371 Blandford «. Thackerell 406 Blayne 1). Gold 871 xxvin TABLE OP CASES. Blewitt V. Staufiers 199 Blinston v. Warburton 131 Blundell, In re 413 Booth 9. Vicars 306 «). Blundell...... 90, 311, 343 Boraston's Case 357, 258 Boughton V. Boughton 353 Bowman v. Milbanke 43, 370 Boyce v. Banning 383 Boys V. Bradley 330 Bradshaw v. Taster 413 Brandon v. Robinson 379 Brederman v. Seymour 856 Bridge V. Abbot 305 Bridgman v. Dove 339 Briggs V. Penny . . 317, 331, 333, 327 Bristol (Countess of) ■». Hunger- ford 163 Bristowe V. Ward 383 Brograve i>. Winder 204 Brown v. Bigg 157 ©. Higgs ..313,216,217, 220, 235 Browne v. Paull 333 Bryan «. Twigg 194 Bryant's Trusts 333 Buckle V. Fawcet .199, 380, 313 Bullock V. Bennett 380 ®. Downes 138 Bunting ®. Marriott 397 Burchett v. Durdaunt 399 Burke v. Annis 133 Bumaby v. G-riffin 146 Burr V. Smith 411 Butler ®. Stratton 307 Byrne ■». Blackburn 323 a Cadell ®. Palmer 375 Cadogan «. Bwart 178 Calthor^e v. Gough 415 Calvin's Case 1^ Cambridge v. Rous 383 Camfleld v. Gilbert 63 Campbell «. Campbell 366 Carter v. BentaU 319, 324 Cary v. Abbot 411, 412 V. Cary 221 Chalmers ». Storril 346 Chamberlaine «. Turner 871 Chamberlayne «. Chamberlayne. 301 Chambers v. Atkins 327 V. Taylor 299 Chancey's Case 364 Chapman's Case 318 Chauncey «. Graydon 283 Chaworth v. Beach 333 Chichester v. BickerstafF 250 Church V. Mundy 63 Clapton V. Bulmer 225 Clark v. Clark 345 Clergy Society, Jure 46 Clifford u. Lewis 340 Clulow's Trust 388 Cockran ®. Cockran 18 Coles.Scott 18 o. Sewell, 192, 198, 194,376,378 V. Wade 225 Collins V. Wakeman 184 CoUis «. Robins 240 Colpoys v. Colpoys 43 Colsha V. Cheese 423 Coinbe v. Hughes 388 Combez v. Hill 146 Conron v. Conron 341 Cooke ®. Bowler 381 V. Cooke 307 V. Dawson 340 v. Gerrard. , •. 169 Cooper w. Williams 44, 371 Coote D. Boyd 351 Corbett's Will, In re 150 Corbyn v. French 205 CordaU's Case 177 Costabadie v. Costabadie 322 Cotton V. Cotton 305, 306 Coulson V. Coulson 97 Courtenay «. Ferrers 339 Cowan «. Harrison 224 Crawford, In re 305 Creed v. Creed 334, 335 Crichton V. Symes 349 English oases cited. XXIX Cripps «. Woolcott 199, 201 Croft D. Slee 418 Crooke ». Brooking 333 B.DeVandes 850 Crotchett «. Taynton 313 Crowder v. Stone. .190, 191, 193, 196 Crozier v. Fisher 303 Cruise ■». Barley 419 Crump V. Coleman 321, 318 Cuishan ». Newland 318 Curtis 1). Price 174 V. Rippon 333 D. Daniell v. Daniell 201 Danyers v. Manning. . . .■ 57 Dark v. Fenner 107 Barrel v. Malesworth 205 Dashwood ■». Peyton 167 Davenport ». Hanbury 307 V. Oldis 145 Davidson v. Foley 163 ». Proctor. 236 Davies ex-p^ 131 0. Davies 383 D. Thorn's 238 Day V. Earl of Coventry 41 ■V. Trig 43 Deane v. Test 386 De Beauvoir v. De BeauVoir .... 303 De Costa v. De Pas 411 DeerhuiBt (Lord) v. Duke of St. Albans 380 Defflis «. Goldschmi§t 393 Denn d. Wilkinso. Kemeys. ... 43 Devisme «. Mello 388 Dickin v. Edwards 334 Dickson's Trust 368 Doe d. AngeU v. Angell. , 300 V. Berkhead 196 d. Borwell v. Abey. 303 d. Calkin «. Tompkinson. . . 137 d. Chichester 350 d. Cholmondeley v. Weather- ly. 62 (?. Claridge. 179 d. Clarke 83 Doe d. Clayton . . 83 d. Compere «. Morris 178 d. Cooper v. Collis 809 v. Dacre 255 d. Davies ®. Davies 178 d. Ellis «. Ellis 303 d. Elton V. Stenlake 40 ». Field 177 V. Frost 131 ®. Gallini 36 d. Goldin v. Lakeman ..... 89 d. Gorges v. Webb 148, 148 d. Hayter ®. Joinyille.. . .48, 318 v. Hicks 176 d. EGlscocks v. Hiscocks. ... 49 d. Homfray 174 d. V. Huthwaite 47 d. James v. Hallett 395 d. Jersey v. Smith 43 d. King V. Frost 120 d. V. Lawton 83 d. Leicester v. Biggs 175 d. Lifford v. Sparrow . . 203 d. Lindaey v. Calyear 299 d. Littlewood v. Green. . 134, 200 d. V. Nasmyth v. Kiiowles . . 291 d. Player v. Nichols 176 V. Porter. 363 d. Shelley v. Edlin . . . .179, 418 . Taylor 98 Gotch «. Foster. 258 Goulds. Kenip 137 Grace Marshall's Case 44, S70 Graflftay «. Humpage 307 Grant v. Grant 310 Grave a. Lord Salisbury 366 Graves v. Graves 215, 217 Gray ■». Garman 305 Qtteen v. Belche*. 90 v. Marsden 324 ■D. Stephens 110, 146 Greenwood v. Greenwood 351 Greer ». Armstead 83 Gregory v. Henderson 176 V. Wilson ■ 285 Greville v. Browne 241 Grey «. Pearson 28, 35 Grieveson ®. Kirsopp 156 Griffiths ». Vere 386 Gundry v. Pinniger 320 Gwynne v. Murdock 304 ENglLISH CASES CITED. XXXI Haberston v. Vardon 415 Haddesley ■». Adams 199 Hagger v. Payne 391 Haley v. Bannister 387 Hall S.Hill 367 Halloway v. Halloway 322 Hambledon v. Hambledon: .... 373 Hames v. Hamea 307 Hammond v, Neame . . . .' 222 Harding v. Glyn 213, 217, 220, 225 Harland v. Trigg 223, 235, 318 Harman v. Dickenson 170 Harnes v. Herring 256 Harris, Me 227 n. Barnes 398 V. Davis 302 Harrison ■». Lloyd 292 Harton ®. Harton 177, 178 Hartop's Case 160 Hartshome v. Nicholson 409 Hastead v. Searle 43 Hatfield v. Thorp 400 Hawkins v. Luscombe $ 178 Haydon v. Willshere 307 Hays d. Foorde v. Foorde 95 Hayter v. Tucker 397 Heardson ■». Williamson 181 Heam v. Baker. 193 Heath v. Weston 328 Heathe v. Heathe 288 Heneage v. Lord Andover. 90 Hennell v. Whittaker 240 Hensman v. Fryer 357, 359 Herrick v. Franklin 107, 303 7). Giffard 94 Hinxman v. Poynder 321 Hobson V. Blackburn 44, 371 Holdich V. Holdich 244 Holmes ®. Custance '. . . 46 V. Meynell 144 Hood V. Oglander 215 Hooley v. Hatton 350 HopeweU «. Ackland 61 Horwood V. Griffith 51 Horwood V. West 224 Houston ®. Hughes 181 Howarth v. Dewell 223 e. Mills 415 Howe «. Earl of Dartmouth, 158, 338, 340 Howse V. Chapman 390 Hoy ®. Master 330 Howarth v. Dewell 331 Huffan V. Hubbard 201 Hughes «. Turner. 58 Hulme »., Tenant 287 Hume V. Edwards 334 Hurst B. Beach 351, 353 Hutcheson v. Hammond 164 Hutton V. Simpson '. . 93 Huxtep V. Brooman 62 Iredell «. Iredell 295 Jackson v. Noble 416 Jacques ®. Chambers 338 James v. Lord Wynford 257 C.Richardson 299 «. Smith 314 Jenkins v. Lord Clinton 81 Jennings v. Newman 318 Jemingham v. Herbert 11 Jervoise v. Duke of Northum- berland 99 Jobson's Case 33 Joel D.Mills 217 Johnson «. Rowlands 221 V. Swan 398 Jones d. Henry v. Hancock 44 (Lady) v. Lord Say & Sele 97 «. Newman 50 11. Nicholay 6 S.Tucker 52 V. Williams 401 Jubber e. Jubber 44, 237, 373 Keiley v. Fowler 137 XSXll TABLE OP OASES. Kenchel v. Scrafton 315 Kendall v. Granger. 315 Kenworthy v. Ward 133 Key V. Key 83 Kidney i>. Ooussmaker 844, 350 King V. Ackerman 84, 88 ■». Burchell 309 D. Cleveland 305 e. Milling 97, 308 Kirkman v. Lewis 373 Knight v. Boughtpn 323 V. Gould....; 418 V. Knight '. 231 KnoUys v. Shepherd 64, 183 Lamb ». Archer 154 Lance v. Aglionby 340 Lane d. Pannell 98 Langdon v. Simpson 386 Langford ii. Gowlard 408 Langston c. Langston 57, 313 Lawless v. Shaw 319, 333 Lawson B. Stitch 333 Leake v. Robinson _, . . .363, 880 Lechmere «. Lavie 334 Lee V. Pain 393 «. Priaulx 386 Leeming ■». Sherratt 193, 194 Le Grice v. Finch. ... 333 Leigh V. Leigh 33, 393, 331 Le Maistre «. Bannister 330 Leonard ®. Earl of Sussex 98 Lethiellier «. Tracy 356 Levet «. Needham 162 Lewin v. Lewin 834 Lincola (Lady) v. Pelham. .323, 334 Lingen v. Foley. 90 «. Sowray 155 Lister ». Bradley 360 Little t). Neil 317 Littlejohn v. Household ,., .. 300 Lockhart v. Hardy 339 Loddington «. Same 309 Logan «. Deshay 363 Long V. Blackall •. 306 Louth «. Bloxam 358 Lowndes ®. Stone 45 Lowther v. Condon 260 Lyon V. Michell 309 M. Maclaren e. Staunton 340 Mainwaring v. Beevor 293 Malcolm «. Taylor 135 Malim v. Kfeighley 321 Mandeville's Case . . . '. 93, •167 Manning v. Spooner 356 Marlborough (Duke of) v. Go- dolphin 84, 382 Marriott v. Abel 193, 195 Marryatt v. Townly 135 Marsh v. Tyrrell 54 Marston v. Roe 8 Mason «. Limbury 331 V. Robinson 369 V. White 312 Massey v. Sherman 322 Mather «. Thomas 183 Maybank v. Brooks 416, 420 McCuUoch dkMcCulloch ..315, 317 Medworth «. Pope 316 Meggison ®. Moore 331 Mellish V. MeUish 56 «. Vallins 236 Meredith v. Heneage 322 Meure v. Meure 99 Milner v. Milner 56 MUls V. Farmer 405, 413 Mirehouse v. Scaif 355 Mogg «. Mogg .293, 307 Moggridge v. Shackwell . . 406, 413 Mohren v. Mohren 376 Mohun «. Mohun 43 Monck v. Monck 860 Monk ®. Mawdesley 63 Moore «'. Bud d 13 V. Petchell 354 Morice x. Bishop of Durhain , . . 407 Morris «. Glynn 396 Mortimer v. Hartley 35, 168 Moseley ®. Massy 37 ENGLISH OASES CITED. XXXlll Mountain v^ Bennett . MuUins V. Smith Murray «. Jones Musgrave v. Down . . . 64 830 415 4 N. Napier v. Napier 307 Nash V. Nash 96 Neuthway «. Ham 46, 374 Nevill V. NeviU 224 Newburgh v. Newburgh 57 Newman v. Newman 380 Nichols ®. Hooper 122, 123 ■B. Savage 319 Nisbett V. Murray 339 Noel V. Henley O^ord) 306 ©.Hoy 63 Nowlan v. Neligan 321 Oddie v. Woodford 300 Ommaney v. Butcher 407 Oppenheim v. Henry 389 Orton's Trust, In re 310 Ouseley v. Anstruther. 58 Oxford (Earl of) D. Lady Rodney 381 (University of) v. Clif- ton 308 P. Page V. Page Pain B. Benson Palin V. Hills "Palmer v. Newell . . , v: Simmonds , Palsford e. Hunter. . , PapUlon r>. Voice . . . . Parker «. Bolton Parsons v. Baker V. Parsons . . Pattison «. Pattison , Paul ». Compton . . . Payne easp ' Pearce «. Edmeades . 417 195 806 309 334 336 97 321 232 46 361 393 227 150 Pearce v. Loman 259, 260 Pearman v. Leviss 357 Peck V. Halsey 44, 370 Perrin «. Blake 33, 86, 95, 104 Peyton®. Bury 356 Phene's Trusts 396 Phillips ®. Chamberlayne 56 «. Phillips 163,433 Phipard v. Mansfield 146 Pickering v. Pickering 338 v. Lord Stamford ... 347 Pierson v. Garnet 331, 235 Pitt «. Jackson 26, 383 PlattV Powles 101 Plunkett V. Lewis 366 Poad V. "Watson 178 Poole V. Poolt "... 366 Poors. Mall 397 Pope V. Whitcombe 825, 322 Porter's Case 410 Trust, In re 305 Powell V. Davies 45 V. Howells 149 Powys v. Mansfield 367 Prestwidge «. Groombridge 45 Prevost ®. Clarke 221 Price ®. Wa'rren 369 Pridie v. Field 338 Proctor i;. Bishop of Bath and Wells 381 Promise ly. Abingdon 359 Provis «. Rowe 186 Prowse V. Abingdon 259 Purse ■». Snaplin 335 Pym V. Lockyer 365 Pyot V. Pyot 323 R. Ranke v. Hard 228 Reed v. Denaynes 188 Remnant v. Hood 259 Reynolds i>. Torin 247 Rhodes v. Rudge 240 Rich «. Cockell 253 Richards ®. Richards 336 Richardson v. Chapman 230 XXXIV TABLE OF OASES. Richardson v. Spraag 88 V. Watson 44 Richmond's (Duke of) Case 146 Ricket's Trust, In re 46 Rickett ■». Gillermard 196 Ricroft V. Christy 386 , Ride V. Attricks 369 Ridges V. Morrison 350 Ridgway v. Munkittrick . ..319, 334 Ringrose v. Bramhan 391 Rishton v. Cobb 56 Roadley v. Dixon 347 Roberts ■». Walker 344 Robinson v. Addison 335 e. Hardcastle 311 V. London Hospital . . 899 Rochford v. Fitzmauridfc 889 V. Hackman 99 Roe d. Dodson v. Green 309 . Union Theolog. Seminary, 5 N. T. (1 Seld.) 193. . * Tomlinson v. Tomlinson, 1 Aahm. 324. EBVOOATION. 7 after-child ilot provided for, is a revocatibn fro tanto only. In Ohio, Indiana, Illinois, and Connecticut, the birth of a child avoids the w^ill in toto. ^ The will of a feme-sole is revoked by marriage. A devise is revoked by a sale of the land : all other spe- cific gifts are revoked if the subject matter is assigned.^ By the statute laws of Maine, Vermont, New Hampshire, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Ohio, and Ala- bama, a posthumous child, and, in all of these States, except Delaware and Alabama, children born after the making of the will, and in the lifetime of the father, will inherit as if he ha,d died intestate, unless the will comprises some provision for them, or they are par- ■ ticularly referred to in it. ^ The will is thus revoked pro tanto. The statute law in Maine, New Hampshire, * Massachusetts, and Khode Island, goes further, and "gives the same relief to all children and their legal representatives who have not been provided for in the will or previously advancedj unless the omission in the will appears to have been intentional. In Virginia and Kentucky, the birth of a child after the will, if there were none previously, revokes the will, unless the child dies unmarried or an infant. If the testator had child- ren previously, the birth operates as a revocation pro tanto. In Virginia a will is also revoked by mar- riage.^ ■ * ' See Coates e. Hughes, 3 Binney, 498 ; 4 Kent's Comm. 526, note. Stat- utes of Ohio; 1831, p. 343; Statutes of Oonn. 1821, p. 300 ; Statutes of 111. 1839; Statutes of Indiana, 1831; Digest of Ehode Island, Statutes, 1798, p. 383, 6 Haris. & Johns. 54; New York Rev. Stat, vol.11, 66, § 53; Mass. Rev. Stat. 1836, part. 3, tit. 3, c. 63. * See Infra, chapter 34, § 3, on " the ademption of specific legacies." " 4 Kent's Comm. 535. " Gage v. Gage, 9 Foster, 533. ' Rev. Stat. 1849, tit. 33, ch. 133, § 4; 4 Kent's Comm. 536. 8 NATURE AND INOIDBNTS OF WILLS. In Marston v. Eoe, ^ it was held that a will malcing no provision for the future birth of a child, although it did for a. future wife, was revoked by the birth of a child, and parol evidence was not admitted to rebut this presumption. By the New York Eevised Statutes, if the whole estate is disposed of by the will, it is revoked by mar- riage and the birth of a child, if the wife or child be living at the time of the testator's death, unless the issue be previously provided for. § 4. Gmfiict of testamentary laws^— What law prevails ? Wills of personalty were not in England required to be in writing until 1838.^ By that act, wills of personalty are required to be written and executed with the same . formalities as wills of land. Similar uniform rules likewise prevail in most of the United States. A will operates according to the laws in force at the time of the testator's decease, and not at the time of making the will.^ Statutes prescribing the effect of wills, howqver, should not be construed to have a retro- spective effect * unless this is expressly provided for in the enactment. A s-tatute enacted between the date of the will and th^t of the testator's death may also indirect- ly operate on the will.^ Aliter in New York if the tes- tator's death occurred before the passing of the Revised Statutes.* In Tliomson v. Livingston'' & will, which took ' 8 Ad. & EI. 14. " 1 Vict. c. 26. ' Adams ». Wilbur. 2 Sum. 268. * See Carroll «. Carroll, 1 How. 275. ° Sherman v. Sherman, 3 Barb. 385. ' Price V. Brown, 1 Bradf. 291. ' 4 Sandf. 589. CONFLICT OF LAWS. ■ 9 effect before the passing of the Revised Statutes and created a trust with power to a son to appoint by will, was construed in conjunction with the son's appointment to be altogether but a single will as regarded the validity of the final disposal of the property according to the provisions of the Revised Statutes. It has been decided that a testator by adding a cod- icil, after the Revised Statutes, republished his will and subjected its construction to the Revised Statutes.^ These enactments do not apply to wills made previously nor to wills of testators domiciled abroad or in other States.^ Semble, a republication by codicil in England does not bring the will under the operation of an act passed after the will and before the codicil. At least such seems to be the rule of law as regards the Dower act.^ The probate of a will by the statutory courts in England or the United States is conclusive evidence that the document i§ testamentary. Yet, a trust may be saddled by parol oa a testamentary gift obtained by fraud; and a court of law or equity may also construe the will so as to render it wholly or in part inoperative, or may deem it void as not being in conformity with the law of the testator's domicile. Prior to the establishment of. statutory courts in England and the United States, the ecclesiastical courts in England, and the analogous courts here, gave no conclusive probate of wills of realty, but only of person- alty. The statutory courts, however, have generally equal jurisdiction as regard both descriptions of prop- erty. ' Salmon «. S.tuyvesant, 16 Wend. 331. " Matter of Roberts, 8 Paige, 446. ' See Hawkins on Wills, p. 878. 10 NATUEB AND INCIDENTS OF WILLS. § 5. Domicile. Jarman ^ considers ttat a will of realty is construed according to the law of the country where the land is situate. But Story, ** Grreenleaf,* and other writers,* are of opinion that this doctrine of the lex rei sitm does not apply to the construction, as distinguished from the execution, of wills. Several American authorities may be cited in favor of either position.* The balance of decisions, however, is greatly in favor of Jarman's view. It would seem, in point of principle, that as a will of realty was formerly construed as a quasi-con- veyance, there is much reason to contend that the domiciliary law ought not to attach to devises. But, on the other hand, as wills are of an equitable origin, and, therefore, when made abroad, are like articles or contracts entered into in a foreign country, there are at least equally strong reasons for holding that devises ought to be construed according t© the law of the test- ator's domicile. A will is _presunied to be made in extremis by a person in want of counsel. Why should he be 'presumed to know the law of the rei sitce rather than that of his domicile ? However, existing authority is strongly to the effect that devises are governed by the lex rei sitoe^ Yet, in Harrison v. Nixon,'' it was held that wills are to be construed according to the laws of the testator's domicile, especially as regards personalty, unless the ' Vol. I, 1. = Conflict of Laws, § 479 h. = Ev. § 671. , ■> 1 Jarm. Am. Ed. p. 3, note. " See Trotter ». Trotter, 3 Wils. & Shaw. 407 ; see 1 Redfield on WiUs, chap. 9, § 3. " See Lynes v. Townsend, 33 N. T. 558. ' 9 Pet.(U. S.) 488; see Enohin r. Wylie, 10 H. Lds. Cas. 1. DOMICILE. 11 context provides to the contrary. In New York, too, the lex domicilii governs as to the validity and con- struction of wills of realty,^ and the same points have been so decided in most of the other States. Semble, the • law of the testator's domicile will govern as to what is to be deemed real and what personal. Jarman^ considers that the law of the test- ator's domicile governs only movables, and does not apply to leaseholds, which are not movables in the civil law. This opinion seems sound. See, however, Jerningham v. Herbert. ^ The decision of a court of the domiciliary nation, at all events, is conclusive in a question of the validity or revocation of a will, only as regards the testator's personalty, and not his realty, situate outside of that jurisdiction. * The essentials of domicile are habitation, animo manendi; in other words, a.perman67tt liome, or a home with the intention of keeping it, or of returning to it. Sometimes, where a person lives half the year in one state and half in another, it is difficult to determine the domicile. The question is one of fact for a jury.^ With regard to pioveable property, it is distributed on intestacy according to the domiciliary law. If the testator changes his domicile after making his will, and it is invalid according to the law of his new domicile, it was formerly supposed to be avoided, except that if he resumed a domicile in the nation where the will was made it was thereby revived.^ But it was decided in Exp. M'Cormick'^ that a foreign will of ^personalty, ' Bloomer v. Bloomer, 3 Bradf. 339. ^ Vol. I, 3 note. = 4 Rdss. 388. " Bloomer v. Bloomer, 3 Bradf. Sur. 339. ' See Romid on Domicile, passim ; Potter v. Titcomb, 32 Maine, 300. « Story Confl. Laws, § 473; 3 Greenl. Ey. § 668, ' 3 Bradf. 169 ; Isham ®. Gibbons, 1 Id. 69 ; but see Parsons v. Lyman, 30 N. T. (6 Smith), 103 ; Mooltrie v. Hunt, 33 N. Y. (9 Smith), 394. 12 NATUEE AKD INCIDENTS OF WILLS. duly executed at the testator's domicile according to tbe forms there required, remains valid, although he changes his domicile to a place where a different mode of execu- tion is required. The domicile of origin remains until changed. The domicile of a mother, semble, is the domicile of her children, if their father is deceased. When a domicile is once acquired, it continues until it is agaiii actually changed. An intention to remain is necessary for a domicile of acquisition ; but an intention to change is not sufficient to alter a domicile until it is actually changed. Therefore, death en route does not alter domi- cile.^ Domicile, when acquired, is the result of a volun- tary act ; consequently, imprisonment abroad does not alter domicile, but a permanent residence there has this effect, even th.ough the testator is a trader, and, as such, is protected by treaty with his native country.^ The fact of domicile is part of the res gestCB. Aaj question relating to the testator's domicile is, therefore, opep to parol evidence.* Although foreign laws are proveable as facts, yet this evidence is addressed to the court, and not to the jury. The evidence of foreign experts may be taken by the courts. ■ If no evidence is known to them of the foreign laws being different from their own, they will presume that no such difference exists.* § 6. Capacity to will. Although questions of capacity are not directly con- nected with rules of construction, yet, a few remarks on testamentary capacity will not be wholly irrelevant. ' State V. Hallett, 8 Ala. 159. " Moore v. Budd, 4 Hagg. ; = Wilson V. Terry, 9 Allen, 314. * McClellan «. Kennedy, 8 Maryland, 230. GAPAOITT TO WIIiL. 13 Indeed, questions of accidental, not personal, disability, such as fraud, undue influence, as distinguished from nonage, insanity, or 'coverture, are indirectly connected ■with rules of construction, inasmuch as fraud sometimes does not extend to the whole instrument, but merely to a part thereof, and the overthrow of a part of a will often materially affects the construction of the remainder. At common law, females at twelve and males at fourteen might dispose of personalty by will. The first English statute of wills, 32 Hen. VIII., ch. 1, § 14, required testators of realty to be of age, and the statute 34 and 35 Hen. VIIL, ch. 5, incapacitated females. The 1st Vict., ch. 26, has extended the requirement of full age to all testators, male and female. A similar law now prevails in most of our States. The day of one's birth is included in computing his legal age ; therefore, as the law regards no fraction of a tday in legal computation, a person born on the first of January, 1850, attains majority on the first moment of first January, 1871. The domiciliary law governs as to testamentary ca- pacity. In New York males of eighteen and unmarried females of sixteen may bequeath personal estate.^ The testamentary capacity of married women, as to person- ality, is in effect taken away by the section referred to.^ The married woman's Act of 1848 conferred no testa- mentary capacity, but the Act of 1849 did.® A married woman, whose husband is not civilly dead, cannot by the law of England make a will, either of real or personal property, except of personal estate settled to her separate use, or under a power* or by her ' EeT. Stat. 60 § 21. " Wadhams «. Am. Home Mission Soc. 13 N. T. (3 Kern.) 415. = Waters v. Collen, 2 Bradf. 354." * Holm ... 0. , erry, 4 Metcalf, 493. 14 NATURE AND INCIDENTS OF WILLS. husband's specific permission,^ or else as executrix. In this last capacity she can make a will, without her hus- band's consent, of all assets not previously collected, and so far as she takes no interest in them'. A will made by her with consent of her husband is void, uiiless the consent be to the particular will (in the concrete) in question, and unless the husband survive her. But a will of her separate personalty, or of her realty under a power, is independent of the husband's consent or sur- vivorship. The laws of the different States vary much in respect to testamentary capacity. As to wills of married women operating as executions of powers, see Matter of Stewart.^ An alien's will of land is voidable only, and not void until office found. Aliens, however, may make valid wills of personalty.^ Alien enemies are disqualified from doing so, unless they have a license from our government to reside here. As to the privileges of aliens, see further 2 Kent.* Their rights are now greatly modified by the laws of the different States, and possibly also indirectly by conventions formed by the Federal Government with foreign nations. At common law, testamentary capacity was destroyed by treason and felony. But this rule of the common law is now either abolished or greatly modified in most of the States. Testamentary capacity is proved by evidence that the testator knew what he was doing, even though his general business capacity was impaired.^ Persons whose ' Hood V. Archer, 1 M'Cord, 335. ' 11 Paige, 398. = See 3 Kent, 61, 5th ed. * Comm. 70, 71, 5th ed. ^ Conyerse «. Converse, 31 Vermont, 168 ; Kinne v. Kinne, 9 Conn. 103 ; Stewart v. Lispenard, 36 Wendell, 355. CAPACITY TO WILL. 15 reason is disordered, or who are drunk, are incapacitated from' making a will. But partial intoxication does not work a complete disqualification to will.^ The burden of proof of testamentary capacity is supposed to rest on the person propounding the will. The attesting wit- nesses are competent to prove a want of testamentary capacity. ** The declarations of a testator are evidence of his testamentary capacity, and also of the question whether the will has been obtained from him fairly, or by undue influence. On principle, there seems to be no ground for rejecting, as regards fraud, the testator's declarations made after the date of the will more than those made before it was executed.' On the question of capacity, see further, Davis v. Calvert.* On a question of capacity the contents of the will and the whole state of the tes- tator's affairs and conduct are relevant subjects for evidence. Various classes of persons are in England deprived by statute of rights under wills. In America no such disqualifications exist. A devise to a witness to a will formerly avoided the will unless it had three witnesses. By the present English law,^ which has been adopted in most of the United States, the will is now valid, but the legacy is void. According to the old rule, if the legacy was adeemed, the witness was restored to competency in England,® but not in America.'' ' See Lowe «. Williamson, 1 Green Ch. 85, et seq. " Whitenach v. Stryker, 1 Green Ch. 11. ' See Waterman «. Whitney, 1 Kernan (5 K Y.), 157 ; notes to Proposi- tion Seven in Sir James Wigram's treatise. ' 5 Gill and Johns. 369, 301. *■ Stat. 35 Geo. IL c. .3 ; stat. 1 V^ct. c. 36. " Windham ®. Chetwynd, 1 Burrow, 414. ' Hawes «. Humphrey, 9 Pick, 350 ; Comwell «. Isham, 1 Day's Rep. 35, 41, and note. 16 NATURE AND INCIDENTS OP WILLS. A devise to the husband or wife of a witness avoids the will, yet a devise to a child of the witness has not this effect.^ But if the witness, as a non-resident or otherwise, is not required to establish the will, a legacy to him does not invalidate it.^ An alien friend may take a bequest, but not a devise, nor even a bequest so far as it is derivable from land. An alien enemy, or a citizen domiciled in the country of an alien enemy, cannot take either a .bequest or devise. A felon, in England, forfeits to the crown all rights of action accruing to him until his term of punishment is ended ; but he forfeits nothing that accrues to him afterwards. The law of forfeiture varies much in the different States. Bequests made in the Southern States during the civil war are valid, unless tainted with a want of alle- giance.* Devises to foreign corporations are valid, unless reasons of special policy, such as the discountenancing of slavery, are in question.* § Y. Period hy reference to which a will is consPrvsd. A will has always been presumed in England to speak only from the death of the testator, as to per- sonalty ; but in that country before 1838, a will spoke from its date as to realty. By 1st Vict. c. 26 devises and bequests both speak only froin the death of the testator, unless a contrary intention appears. The rules thus settled by this act have long been adopted in most ' Allen «. Allen, 2 Overt, 173. " Cornell ». WooUey, 3 Keyes (N. Y.), 378. ' Corbett «. Nutt, 18 Gratt, 624. * Wade V. Colonization Society, 7 S. and M. 663. DATE FOR CONSTEUING A WILL. 17 of tte United States/ either in consequence of a statute or by construction. The old rule as to devises of land implied that they •were conveyances in certain respects. Therefore, if the testator parted with his seisin but for an instant, it operated as a revocation of a previous devise thereof The date of a will is perhaps the natural period with reference to which the will should be interpreted, although the operation of a will, as of a deed, doubtless can date only from its complete execution. Wills of personalty, however, and of realty in England and several of the United States, are, as already stated, presumed not to operate previously to the death of the testator. A will is presumed, in the following States, to speak only from the date of the testator's death, as regards the subject matter (as distinguished from the objects) of the testator's bounty : — Maryland, Missouri, New York, and Pennsylvania. In Virginia, wills of land speak from the making of the instrument, unless it discloses an intention to the contrary.* A similar law obtains in Massachusetts,* New Hampshire,* Vermont, Indiana, Maine, North Carolina, Connecticut, Illinois, and Kentucky,® though a testator 'may in these States convey by his will any .after-acquired land, provided he declares an intention to that effect. , The construction put on the will statutes of these States, however, virtually raises a presumption that wills speak only from the death of the testator,^ if there is nothing in the context to the contrary. ' See Gold v. Judson, 31 Conn. 616, 623. = Smith 11. Edrington, 8 Cranch, 66. ' Mass. Gen. Stat. c. 93, §4 ; Preacott ®. Presoott, 7 Met. 141, 146. * "Whittemore v. Bean, 6 N. H. 47 ; Eev. Stat. N. H. 1843, ch. 156, § 3- ' See 4 Kent's Comm. 510, et se^. ' Gushing v. Aylwin, 13 Met. 169. 18 NATUEE AND INCIDENTS OF WILLS. Specific legacies usually point to the date of the will/ general legacies to the death of the testator. The words " now," " now living," refer to the date of the will. But the present tense of verbs has not always this signification ; therefore " all I am possessed of," or " all my debts," and similar residuary clauses, refer to the time of the testator's death,* The meaning of the word " now " will not be affected by the absence of a date to the will,* since the date of any instrument, being part of the res gestae, is open to parol evidence.* In the case of AUsouls' College v. Codrington,® a testator be- queathed a library of books, " now in the custody of B." After-bought books were held to pass. The gift was, as it were, of a class of books. It is often exceedingly difficult to determine whether a testator intended that a particular clause in his will should speak from its making or from a future date. The words " now living," however, or the present tense of the verb used, may, as already noticed,* aid the interpretation. The substance of the disposition, and the context, are the best guides in this respect. Parol evidence, of course, is wholly inadmissible. Such evi- dence never relates to the willing or directing function, but only to the subject or object of gift. Specific bequests imply that the dispositions speak from the date of the making of the will. On this prin- ciple rests the doctrine of the ademption of such gifts. Jarman'' thinks that in those States where a will speaks from the death of the testator, a specific gift will not ' Cockran ». Cockran, 14 Sim. 348. " Wilde V. Holtzmeyer, 5 Ves. 811. = See contra, Cole v. Scott, 16 Sim. 259. * Deakins v. Hollis, 7 Gill & J. 311 ; Wri^t v. Wright, 5 Ind. (Porter), 389. ' 1 P. Wms. 597. , ' 1 Jarman, 278 ; Wilde v. Holtzmeyer, 5 Ves. 811. ' Vol. I. 290, et seq. INTERESTS DISPOSABLE BY WILL. 19 be considered to liave been adeemed if the testator has re-acquired some other property that suits the descrip- tion in the will. But there is no reason whatever to suppose that the 1st Vict., c. 26, and the analogous American statutes, are intended to make any change in the law of the ademption of specific testamentary gifts, since, indeed, the doctrine of ademption applies to be- quests of personalty as to which, a will always spoke only from the time of the testator's death, unless the will itself provided to the contrary. § 18. Interests Disposable hy Will. The English law down to 1 Vict., c. 26, required that a testator should be seized of any land he devised. This rule still prevails in a few States.* But, the New York Revised Statutes ^ make all descendible estates devisable. The same law prevails in Massachusetts, Vermont, Pennsylvania, and Virginia. In Ohio there is the general and most salutary provision by statute, that every kind of property may be devised. The testamentary power in the United States may therefore be considered as virtually the same as, or rather more extensive than, that which exists in England. The test in the latter country is the question whether the interest is a possibility coupled with an interest. In the United States the test usually is whether the interest is descendible. All interests, however, if vested, or executory, or con- sisting of rights of entry or of action, are devisable in most of the States,* and in England since 1838. So are all possibilities coupled with an intei'est.* Bare possihili- ■ 4 Kent's Comm. 513. " Vol. II. 57, § 3, 5. ' Smithwick ». Jordan, 15 Mass. 113. * Den V. Manners, 1 Spencer, 143. 20 NATXJBE A:*fD INCIDENTS OF WILLS. ties, however, although, descendible, are not devisahle in some of the States, although the common test of what is devisable is the inheritable quality of the interest in question.^ The possibility that the estate of a certified bank- rupt maybe restored to him by means of a supersedeas, by an arrangement with his creditors or otherwise, is not such a possibility coupled with an interest as will enable him to transmit the estate by a general devise of present and after-acquired property.* In New York, however, a testator may devise lands in the adverse possession of another, who holds under a sheriff's sale thereof, as the property of one who had no title.* Indeed, it would seem unsafe at the present day to hold that any interest, or possibility not acquired tortiously is not devisable' in any of the States, since statute law has made sad havoc upon the venerable but thorny boundaries of the common law ; and equity is bound to follow the genius of legislation.* In those States where a devise of land speaks only from its date, the equitable or legal interest alone may pass, while the correlative interest, if after acquired, descends to the testator's heir. If a testator has not entered into a contract, valid either in law or equity, for land, and has no real estate, his devisee of land takes nothing, and is not entitled to have any per- sonalty applied to . purchasing land^ in order to render the devise operative. Terms of years and estates, ^ar- autre vie, limited to ' Jackson v. Vaiick, 2 Wend. 166 ; 4 Kent's Comm. 513. See Smith V. Jones, 4, Ohio, 115. ' Estate of Moms, Dist. of Pa. Crabbe, 70. ' Waring v. Jackson, 1 Pet. 570. ' See 4 Kent's Comm. 206, 307 ; Jackson «. Waldron, 13 Wend, 178, 4 Wash. C. C. 570. ' 3 Williams Ex.-(2a Am. ed.) 1251, 1253. INTERESTS DISPOSABLE BY WILL. , 21 the lessee and Ms executors (not heirs) vest as chattels real primarily in the executor. They are devisable, like ordinary personalty, and the testamentary power over them is not embarrassed' with any question of tenure or seisin. A quasi entail of land held far autre vie, it seems, may be barred by a deed, surrender, or articles, but not by will. There is no reason, however, why it should not be barrable by will. It does not fall under the principle of recoveries, and the fiction of a recompense to the issue. It may be barred inter vivos directly. "Why should not the remainder man be equally barrable, and, where there is no fictitious equivalent, why should a will be deemed a conveyance inferior to articles ? The law on this point does not appear to be settled in the United States. It will therefore, prob- ably be determined fina,lly in analogy to principle. Even in England the question cannot be considered concluded. Estates ^a?" autre vie, and renewable leaseholds con- taining covenants for perpetual renewal are much more common in Ireland than in England or the United States. They are likely, however, to become here in the progress of society a more usual form of lease than is the case at present. The will of a joint tenant is void, unless he survives his co-tenants. Even then it will pass only the landed interest he had at the time of making the will, if made in England before 1 Vict., c. 26, or in any of the States now where wills of realty speak from their date. As joint tenants were at common law seized per tout as well a?, per mi, it is strange that their will could not pass the jus accrescendi prospectively. Yet such was the law. At present, however, where a. will speaks from the death of the testator, unless the context pro- vides to the contrary, after-acquired interests pass by the instrument. CHAPTER II. GENERAL PRESTCIPLES OF TESTAMENTARY CONSTRUCTION. § 1. Principles of American adjudication. As equity bears an analogy to law in its deductions, though not in its data, so the American law of wills may be regarded as an equitable interpretation, of the correllative English rules. A knowledge of these is, consequently, necessary for the practitioner here. But he should regard them as guides, and not as masters. Their philosophy and sense bind our courts, but not their occasionally technical rigidity and frequent close similarity to rules governing the construction of deeds. The American tribunals, therefore, will be guided by the English cases only as regards leading principles. The English authorities will afford grounds for pre- sumption and rules for direction ; but the least positive evidence to the contrary in a will must generally, if not, indeed, always, neutralize iu America any mere rule of common-law construction. The general rules relating to the constniction of wills are, however, in the main, the same in the United States as in the .United Kingdom. The leading excep- tions appear to be — 1, the rule in Shelley's case is riot so strictly followed in the United States ; 2, construction cypres is not usually adopted in behalf of charities ; and 3, semble, precatory trusts are not so readily enforced ; while, 4, parol evidence is more freely admitted. The PRECEDENTS. 23 last exception, however, is daily becoming morb and more curtailed.^ It is a settled rule of interpretation in tlie Supreme Court of the United States, as regards titles to property in the different States, to follow the statutory and unwritten laws of such States.** But, on the construction of wills, the Supreme Court takes independent ground, and may disregard the decisions of State courts.* In Cornish v. Wilson,* on the otl^er hand, the court con- sidered the case of Fenwick v. Chapman^ to be erroneous, and held that the decisions of the Supreme Court of the United States, construing the local laws of Maryland, are not conclusive authorities for the State courts. The courts seem to take for guides in construing a will — 1, decided cases ; 2, rules of law ; 3, rules of test- amentary construction; 4, the whole text of the will; and 5, the particular passage. These are the main helps to the construction ; and, though equally necessary to be considered, their relative practical force is perhaps in the order mentioned. But, as precedents rarely apply to wills drawn by laymen, and as the context predomi- nates over common law rules of construction, it is in the grammatical sense of the whole document that the key to the difficulties of testamentary interpretation is most usually to be found. § 2. Frecedents, The first rule of testamentary construction, however, is that courts must abide by decided cases. To these any supposed intention of the testator to 'Ruston '0. Ruston, 2 Dall. 244; State v. Nicols, 10 Gill. & J. 27; Inglis V. Trustees of the Sailors' Snug Harbor, 3 Pet. U. S. 117, 118. " Pollard v. Dwight, 4 Cranch, 429. » Lane «. Vick, 3 How. U. S. 464. * 6 Gill, 299. ' 9 Pet. U. 8. 461. 24 TESTAMENTAET CONSTBTJCTION, the contrary must give way. Therefore, where a long series of decisions has attached a fixed meaning to cer- tain phrases, such meaning, and not the popular sense of the terms used, will be adopted by the court,^ unless the context is clear to the contrary.^ Precedents, how- ever, have paramount weight in a testamentary cause only when they are strictly analogous.* § 3. Viules of law. "With respect to rules of law, such as fall properly within the scope of this work will be found discussed in the chapter on void testamentary gifts. § 4. Mules of construction. The rules that regulate the construction of wills are almost identical with those appertaining to contracts, or executory articles, as distinguished from final convey- ances. Indeed, where a legal phrase occurs in a will, it will be construed exactly as if it stood in a deed, pro- vided that the testator does not in some other part of the will show an intention that the legal phrase is not to be understood in its technical sense. Accordingly, Sir Edward Coke says, of the relations of testamentary to common law, " I have learned this good rule, always to judge, in respect to wills, as near as may be to the rules of law.* 'Brown «. Lyon, 6 N. T. (3 Seld.) 419; Kingsland ti. Rapelye, 3 Edw. 1. ^ I ' Bradhurst «. Bradhurst, 1 Paige, 331 ; 1 Abb. N. Y. Dig. 381 ; Lambert' ». Paine, 3 Cranch, 134; Carr «. Porter, 1 McCord, c. .71, 73; Ida v. Ide, 5 Mass. 501. ' Lyon V. Acker, 33 Conn. 335. * 1 Bulst. 130. BULES 01" CONSTRUCTION. 25 Almost all rules of intei-pretation, not of a restrictive nature, that are applicable to deeds, equally apply to wills. For instance, tlie maxim that a document toay be incorporated in a deed by reference, is equally appli- cable to a will. The manustjript referred to, so far as its contents are adopted by the will, becomes thus part and parcel thereof, and is supposed to be executed when the will itself is completed with due ceremony. The maxim that the exclusion of one person or thing is the inclusion of another, is also'- often acted upon by the courts when interpreting wills. Therefore, if a younger child is excluded from a share by reason of his becoming elder before a given period, his becoming an eldest child afterwards does not deprive him of his share. A little observation applies to the converse doctrine, that the inclusion of one is the exclusion of another ; and, indeed, to every rule of interpretation ap- plicable to contracts as distinguished from conveyances at common law. But, doctrines of tenure, and restrictive or technical rules of construction, such as the necessity for using the word '' heirs " in order to pass a fee, do not apply to wills. The benignant principles used for interpreting deeds are still more liberally applied to wills. But the negative and restrictive rules that fetter the construc- tion of the former class of instruments are not strictly enforced in respect to wills. Testamentary construc- tion, properly so called, therefore, relates to those technical rules, which the courts, when expounding wills, do not wholly ignore, but ' modify ; as, for instance, when they iuterpret the phrase " heirs of the body " to mean first and other sons taking by purchase. A cy pres construction is sometimes applied to deeds, in order to exclude a false demonstration, or to impart certainty to & seemingly uncertain gift. Yet the 26 TBSTAMENTAEY COKSTEUCTION. peculiar testamentary rule usually termed cy pres is inapplicable to deeds. In these instruments a fee tail can only be created by the express words " heirs of the body," or the few other phrases that have a similar legal significance. A cy pres construction, indeed, is also deemed inapplicable to personalty and to estates in fee simple, though if the doctrine be rightly expounded in Pitt v. Jackson,^ this limitation of its scope is contrary to an&logy, if hot to strict principle. This restriction of cy pres construction, however, as settled by decided cases, indicates the true key to the nature of testa- mentary limitations. They are essentially executory, or contractual, and will be construed as such, although some of the parties has an " equity," properly so called, or anything more than a strict legal right, such as that for which, if it arose under a contract, a court of law would give damages, but equity would give no specific relief The executory character of a claim under a will, however, is not one of a definite nature, such as arises under marriage articles where the intention of the framer of the articles is undoubted. Therefore, the rule in Shelley's case is applied more freely under wills than under marriage articles. But the essence of the claim is still executory, so far as that the text of the will is construed by the courts just as if the document were a contract in equity. Words are taken strongly against the grantor in a will as in a deed. Hence have sprung the rules which authorise the transposing or implying of words, and which favor the vesting and indefeasibleness of estates. The rights of the heir are only considered with extreme favor when the question arises between him and the ' 3 Bro. C. C. 51 ; Eoutledge v. Dorril, 3 Ves. Jun. 3S7. EULES OF CONSTEUCTIOK. 27 residuary devisee on accotmt of a partial failure of tLe testator's disposition, or else is a remote result of that disposition, as when the contest is between the heir and the next of kin under a trust to convert. Indeed, if the direction relate to personalty, the next of kin retains any portion not required for the purpose for which conversion is directed. The heir is favored only in respect to rules of law and incidents of property, but not in respect to rules of construction. An instrument may operate as a deed in one part and as a will in another.^ As to the distinctions be- tween a deed and a will, see Meek v. Holtom.^ Nevertheless, general rules for the construction of .wills, no matter how philosophically compiled these rules may be, cannot be of the same degree of use as rules for the construction of deeds.. The strict demand of the law for formal conveyancing inter vivos produces a corresponding supply of drafts, which, as a rule, vary only within definite limits from the prescribed models. But the necessary liberality of the law in construing wills has opened the flood-gates of legal chaos ; and both the religious and the secular purposes of the testator are often wholly defeated in the subsequent confusion. Yet testamentary rules are not without their uses ; first, as regards all well-drawn testaments, and secondly, because such instruments, even when prepared by ignorant persons, abound with technical phrases copied from deeds. It is to be remembered, however, that in the case of every will, whether well or ill drawn, the intention of the testator, as expressed in the document, will be sought to be effectuated in a more liberal way than if the draft were one inter vivos. ' Robinson ®. Schley, 6 Geo. 515 ; Taylor v. Kelly, 31 Ala. 59. " 33 Geo. 491 ; Babb v. Harrison, 9 Rich. Bq. 111. 28 TESTAMENTARY CONSTRUCTION. No general rule of construction, therefore, when ap- plied to a clause in a will, is without its exception, if the context is sufficiently strong to the contrary. This is always allowable in a will, though not in a deed. General rules, therefore, general words, and particular terms, are all controlled by the guiding star of the testator's lawful intent,^ which varies in almost every particular case. The only perfect bamer against liti- gation under a will is a case exactly or essentially in point. Case law is thus virtually the whole of testamentary jurisprudence. A will, statute, or other document, is construed according to the primary sense of the words used, except where a rule of law, the context, external cir- cumstances, or a rule of construction is inconsistent with such interpretation.^ As, then, the words in a will must, under the con- ditions just specified, receive their primary or gram- matical import,* an heir-at-law will not be disinherited,* a common law estate will not be construed an executory devise,® a vested estate will not be construed as contin- gent,* nor will the primary liability of the personalty to debts'' be ■ shifted, unless such is the manifest and undoubted intention of the testator. General legacies, too, are favored rather than. specific ones.* Whether an adjective in a will refers to the last sub- stantive or not depends on the intention of the testator. ' Wylie V. Wylie, 1 De, G. F. and J. 410 ; b. c. 6 Jur. N.S. 259. " Cromer v. Pinckney, 3 Barb. Ch. 466 ; Grey v. Pearson, 6 H. L. Cas. N. S. 61. = Annable «. Patch, 3 Pick. S63. * Hayden i>. Stoughton, 5 Pick. 536. ' Hawley v. Northampton, 8 Mass. 37. ' Dingley v. Dingley, 5 Mass. 535. ' Seaver v. Lewis, 14 Mass. 87. ' Foote App. 23 Pick. 303 ; Bdggs v. Hosford, 33 Pick. 389. INTENTION. 29 The general rule tliat the reference is to the last ante- cedent is inapplicable to a description consisting of several particulars.-' In such cases the reference gener- ally qualifies the whole series.^ Punctuation may be regarded as a guide to the con- strTjiction when no other means of solving an ambiguity can be found. But if itself is the source of the ambi- guity, it is then unimportant,' and will not be suffered to confuse a construction otherwise clear. These observations apply to wills the meaning of which is sensible or applicable in several different senses to the testator's circumstances. For the rules regulating the admission of parol evidence, where the will is not in any primary sense of its terms applicable to the testa- tor's circumstances, the reader is referred to the pre- ceding treatise. § 5. Intention. The intention of the testator, indeed, is often said to be the polar star to the interpretation of his will.* The testator may make his glossary in the will itself, and define the terms he employs.^ His directions, however, it is to be remembered, cannot contravene a rule of law, as that a tenant in tail is not to have power to disentail the land, or that a tenant in fee is not to alien it. It is the legal, not the actual intention of the testator, there- fore, which is the key to the construction of his will.* Lasher v. Lasher'^ is no authority to the contrary, as it ' Hunter v. Hunter, 17 Barb. 35, 85. " lb. 'Sweet «. Ge^enhemier, 3 Bradf. 114; Arcularius v. Geisenheimer, 3 Bradf. 64. 4 3 /oa-^ />^ * See Cromer » Pinckney, 3 Barb. Ch.,466; Mutter's Estate, 38 Penn. 314; 4 Kent's Comm. 535 ' 4 Kent's Comm. 535, note; see 11 Moore's P. C. C.-536. ' Martindale «. Warmer, 15 Penn. 471. , ' 13 Barb. N. Y. 106 ; see Robertson v. Johnston, 34 Geo. 103. 30 TBSTAMEKTAUT CONSTEtJCTlON. applies merely to tlie mode of creating an estate, and not to determining its permanent incidents.^ The lawful intent of the testator, however, as to each gift or power is, in practice, the cardinal rule for the construction of wills. To that intent, all inconsistent and incongruous expressions must yield.^ But the intent is often to be inferred, not from a part, of the instrument, but from the whole of it.* The intent is to be gathered from the will only.* But the whole document will be considered in its bear- ings upon each clause, and effect will be given to each of the dispositions unless it is entirely repugnant to some other clause.^ The clause which least effectuates the testator's gen,eral intention will then be expunged.' If both are equally important, the latter prevails. The introductory clause is a good key to the intention, pro- vided there is an actual clause corresponding with it.'' Sometimes, even without an actual disposition, the introductory clause operates as much by implication.^ A subsequent clause, referring to a supposed pre- ceding provision, which, however, is not in the document, will often, too, amount to a disposing clause by implication.^ So, if a clause will not be reasonable unless it be supposed the testator intended to make a corresponding disposition of other portions of his property, such dispositions will be implied." ' See Stockes «. Tilly, 1 Stockt. N. J. 130. " Finlay v. King, 3 Pet. 347 ; Smith v. Bell, 6 Pet. 68 ; Lane v. Vick, 3 How. 473 ; Kip v. Kip, 2 Pa. 366 ; Byrd v. Byrd, 2 Brock, 170. , " rb. * Jackson v. Luquere, 5 Cow. 321. '• Arcularius v. Geisenlieimer, 3 Bradf. 64 ; Sweet v. Geisenheimer, Id. 114. " Kane v. Aster, 5 Sandf. 467. ' Earl V. Grim, 1 Johns. Oh. 494. = 18 Ves. 41 ; Marsh ®. Hague, 1 Edw. 174. » Hyatt ». Pugsley, 23 Barb. 385. " Bathbone v. Dyckman, 3 Paige, 9. INTENTION. 31 The whole instrument has frequently thus to be considered when any part is under interpretation.^ Yet, to pass a fee, an introductory clause will not be sufficient, where the words of the conveying clause do not in their ordinary import convey such an estate.^ But if the introductory clause in a will indicates an intention on the part of the testator to dispose of his whole estate, this- will render a subsequent general devise a fee, if there be a connection between the two passages.* Unless there is such connection, only a life estate passes, except where the devise itself contains adequate words, or a local statute applies to alter the rule.* The old rule, however, is thus altered by statute in several of the United States, so that a general devise of land, without any words of limitation, passes the testa- tor's whole interest. A similar rule was established in England by 1st Vict. c. 26. The testator's intent, however, is to be gathered not merely from the words used by him, but from the words as defined by the law of the land,® or of his domicile, so far as the will relates to personalty.® This rule is, a,fter all, subject to any meaning imposed on his words by the testator, either directly or by the context. The rule, however, is valuable as showing that a tech- nically-drawn will shall be construed technically, sub- ject only to the testator's primary intention,^ of which no doubt the use of technical words is itself some ' Kip V. Kip, 3 Paine, 366 ; Stanley v. Colt, 5 Wall, 119 ; Gardener v. Wagner, Baldw. 454. " Wright «. Page, 10 Wheat. 304. » Van Derzee v. Van Derzee, 30 Barb. N. T. 831. * BeaU «. Holmes, 6 Har. & J. 305 ; 'Finlay v. King, 3 Pet. U. S. 846. ' Pennoyer «. Sheridan, 4 Bl. C. 0. 316. ° Harrison v. Nixon, 9 Pet. 483. ' Smith «. Bell, 6 Pet. 68. 32 TBSTAMENTABT COlifSTEUCTION. evidence. But no paf t of the testament will, if possible, be held void for uncertainty,^ or overruled by another part. A fortiori, an express limitation is not controlled by implications dravrn from other provisions in the vrill, if the latter can, by any fair intendment, be recon- ciled with the former.^ The presumption in favor of a technical use of technical words .will also be sacrificed in behalf of the general intent.* Thus, the word inherited may be applied to lands devised or conveyed by an ancestor.* On the other hand, directions merely subsidiary to the general purposes of a will can rarely, if ever, have any influence on the general construction of the docu- ment.^ As the rules of law will govern where the construc- tion is silent or ambiguous, it follows that a knowledge of conveyancing is just of as much -use to the testament- ary lawyer as it is to the practitioner in other branches. The power of the testator to override any rule of con- struction is unquestioned. But testators and their draftsmen do not always know how to apply this power. The result, therefore, is not unfrequently as in Perrin v. Blake,* that they bind themselves hand and foot to common law rules. With the exception, however, of doctrines relating either to parol evidence or to principles of public policy, every rule of construction referred to in these pages operates only where the context is silent or doubtful on the particular point in question. Sailors' wills are in some respects exceptions to the 'Kip«. Kip, 3. Pa. 366. ^ Ward «. Amory, 1 Curt. 419. " De Kay v. Irving, 5 Den. 646. * lb. ' McDonough «. Murdock, 15 How, 367. = 4 Burr, 2579; 1 W. Blackst. 672. BISTIHOT GIFTS. " 33 ordinary rules and presumptions by wMcli the j;eal intention is to be ascertained.^ § 6. Distinct gifts.^ A testator is presumed to have an additional pur- pose for each additional expression* and to intend such a meaning as will give most effect to the context.^ Every clause, theriefore,- will, if possible, be so con- strued as to be rendered operative itself, and to allow the other dispositions to be operative also. The rule that every clause in a will is to have some force, if possible, is well illustrated by an express charge of a mortgage debt on the land mortgaged. This expi'ess charge makes a devisee of the mortgaged land take it subject to the mortgage.* Unless the personalty, was thus exonerated, the clause referred to would have no force. But a construction which alters the relative liabilities of the heir and the executor gives the charge a peculiar force, which it would not otherwise hav« had. ' . . . So, a direction to pay debts implies that they are charged on the land, else the clause will be inoperative.^ Mortgaged land is at present in England, and in some of the United States, the primary fund for pay- ment of the mortgage debt.® Part of a void will, or of a provision therein, will be upheld, if it can be separated fi'om the unsound parts consistently with the testator's general intention.'^ To ' Sherry «. Lozier, 1 Bradf. 437. ■' Oddie v. Woodford, 3 Myl. & Craig, 584. ' 3 Jarm. 62 ; Jobson's Case, Cro. Eliz. 576 ; Leigh v. Leigh, 15 Ves. 93. * Evans v. Cockeram, 1 Coll. 438. ' Shallcross v. Finden, 3 Ves. 787. " Bee in/ra, chapter nineteen, on " Charges on Land." ' Oxley V. Lane, 35 N. T. 340, Ct. of App. 34 TESTAMENTAET OONSTEUCTION. sucL. primary purpose a secondary intention, if incon- sistent therewith, must always yield f and of two prob- able intentions that one will be adopted which prefers the kin of the testator to strangers.* The courts, however, will follow judicial authority, and not conjectural interpretation, where the clauses in question are identical in language.* § 1. Equitable interjprefation. The construction of a will is in the main the same at law as in equity. The Court of Chancery has always in England supplied, under certain circumstances, a surrender to the use of a will of copyholds, and our courts of equity will here, as in England, exercise their whole machinery in aid of discovery,* so that the equi- table jurisdiction is indirectly larger than that of law in testamentary matters. But, unless there is some col- lateral equity or presumption in question, the construc- tion of a will is essentially the same in all courts.^ With the exception of certain presumptions against double gifts,* a court of equity has no greater latitude than a court of law in the construction of wills, or the expunging or transposing of the words thereof. This rule has not been impugned since it was laid down by Lord Hardwicke in Duke of Marlborough v. Godol- phin.'" Both classes of courts, however, will transpose and even expunge words and clauses, in order to effectu- ate the testator's intention, as declared in other parts of - the will.* But the document will not be thus modified ' Post V. Post, 47 Barb. 72. = Downing v. Bain, 24 Ga. 372. = Myers v. Eddy, 47 Barb. 263. * See Story Eq. Jur. 1489, 1490. = See supra, Part I, 46. ' See infra, ch. 24, § 7 ; supra, PaTt I, notes to Proposition Seven. ' 2 Ves. Sen. 74 : Luxtbrd's Case, 3 Lev. 125. ' Duke of Marlborough v. Godolphin, 2 Ves. Sen. 74. EEPUGNANCY. 35 where the existing collocation of the words is clear in meaning. A like rule applies to reading the word " and " as if it were " or," and convei'«ely. These varia- tions of the letter of the will can only be made when the context imperatively requires such modifications, and when without them the whole meaning of the clauses in question would be hopelessly entangled.^ But when these conditions concur, the necessary changes will be made, and the document will be interpreted equitably at law as well as in courts of equity. Lands were not devisable at common law, but were in equity by way of use or trust. Wills of chattels, too, were expounded only by the ecclesiastical courts, which, like the Court of Chancery, were presided over by a clergyman. All wills have thus come, to be con- strued equitably by every court, while bequests of personalty are still more liberally interpreted than devises of land. In Forth v. Chapman,^ the same clause received a different interpretation, as regarded land from the meaning put upon the words when applied to personalty. In Beauniout v. Fell," too, an indistinct enunciation .by a dying testator was con- sidered sufficient for a bequest, though, if it were a devise, the court intimated that its opinion might be different. § 8. Mepugnancy. In order to effectuate the mairir intention of the testator, words in a will may not only be transposed or modified in their meaning,* but may even be wholly ■ Mortimer v. Hartley, 3 De G. & S. 316; 3 Eng. Law. & Eq. 533. See Gray v. Pearson, 6 H. Lds. Cas. N. S. 61. '' 1 P. Wms. 663. ' 3 P. Wms. 140. * Finlay v. King, 3 Pet. (U. S.) 346. 36 TESTAMEKTABT OOKSTKUCTION. rejected. The court, indeed, is expected, like a printer, to read any manuscript, or, like a reporter, to give sense to any statement, however incongruous or involved. For these so extensive functions great latitude is accorded to the judicial interpretation. For this pur- pose, words of purchase will operate by way of limita- tion, if they can have no effect in their primary sense. The word " children," too, is deemed to be a term of limitation, if those referred to are not in esse at the time of making the will. This is termed the rule in Wild's Case.^ The general or primary intention of the testator is thus always sought to be effectuated, even at the sacrifice, if necessary, of his particular intention. In other words, as false demonstration will not neces- sarily vitiate a description of the subject or object of a devise, so an incongruous direction as to the mode of devolution will be purged of its surplusage or hetero- geneous elements, and will be moulded into a shape recognised by the law. A common instance of this rule is the construction cy pres of an estate tail in one to whose unborn descendants successive life estates are given, some of which are void for remoteness. Jarman,^ indeed, very justly observes that many of the cases supposed to be decided on the basis of the cy pres doctrine were merely instances where the rule in Shelley's t?ase was applied, inasmuch as both the general and particular intentions of the testator could be observed by giving the children estates by purchase, and the ancestor an. estate in remainder afterwards, as in Doe v. Gallini.® The doctrine, however, is not as Jarman* alleges, " one of the absurdest ever advanced," " 6 Eep. 17 ; see Allen «. Hoyt, 5 Met. 324 ; see infra, ch. 23, § 4. = Vol. II, 401, et mq. ' 5 Barn. & Ad. 021 ; s. c. 3 Ad. & El. 340. * Vol. II, 404. TBANSPOSITION OF WOKDS. 37 when applied as a breakAvater' against the rule of perpetuity : neither does it seem to be always coin- cident with the rule that technical expressions must get their full force unless the context is plain to the contrary. The provision of 1 Rev. Stat, of New York, 748, § 1, it may be added, was not intended to 6xtend the doctrine of cy pres construction.^ § 9. Transposition of words. Words to be transposed must be not merely inoperative where they stand, but must also be incon- sistent with the context. Words, however, will be more readily transposed than expunged, and will be always readily shifted, if this will be in aid of the general intention of the testator, and the words are in- operative while left intact.^ Jarman thinks* that, if a clause conveys any meaning clearly, it ought not to be transposed, even though the clear meaning be an absurd one. But, if it is plainly absurd, this shows that its real signification, as intended by the testator, cannot b© clear. It should surely be transposed, if this will effectuate the obvious intention of the testator. At the same time, transpositions of clauses, it must be . admitted, are violent phases of judicial construction. If, however, estate A be given to B. and estate C be given to D., while the limitations and description of the lands show that the wrong parcels were given to B. and D., a transposition will be t^&AWj made.* As to the transposition of words see further Mason v. Jones.® ' Lorillard «. Coster, 5 Paige, 173, 237. ' See Covenhoven v. Shuler, 2 Paige, 133. = Vol. I, 440. * Mosley «. Massy, 8 East, 149. ' 3 Barb. 339 ; Pond v. Bergh, 10 Paige, 140. 3S TESTAMEHTAKY C0N8TEXJCTI0K. §10. Alteration of words. Even an alteration of. words is sometimes made^ by the Court. "All" may be read "any;" "without issue " may be read " leaving issue ; " " her " may be read " their ; "^ " severally " may be substituted for " respec- tively ; " " or " for " and,"^ and conversely. Thus " to A. or his heirs " has often been construed to mean " to A. and his heirs." So, under a gift to A, and " if he die under twenty- one or without issue," or " unmarried or without issue," then, over, the word " or " will be read " and," in accord- ance with the manifest intention of the testator, that the devise or bequest over should only take effect in case neither contingency should happen.* The principle of these cases is that the reference in the alternative is to persons who would take an interest- derivatively through the donee, if he retained the estate by surviving the first contingency.^ In New York, the word " and " has been read " or," in Van Vechter v. Pearson,® and numerous other cases. Similar rules of construction prevail in all the other States. In Richardson v. Spraag,^ the bequest was to such of the daughters or daughters' children of the testatrix- as should be living at her death. " Or " was read " and," so that the children of living as well as of deceased daughters participated in the gift. Jarman^ appears to approve of this construction. Yet, it would ' Brailsford v. Hey ward, 3 Des, 18. ' Keith v. Perry, 1 Des. 353. ' Ray «. Enslin, 3 Mass. 554. * lb. '1 Jarm. 448. "Van Vechten «. Pearson, 5 Paige, 513; Roosevelt v. Xhurman, 1 Johns. Ch. 330. ' 1 P. W. 434. » Vol. I, 451. KEJECTISra "WOKBS. 39 seem that the word " or " was purposely used to prevent a lapse to tlie families of the daughters who might die in the lifetime of the testatrix.^ Thus, iu Girdlestone v. Doe,* where a testator bequeathed £40 per annum to A. for life, and, after her decease, to B. or his heirs, it was held that B. did not take the absolute interest, but that there was a substitutional gift to his heirs in case he died in the lifetime of A. That B.'s estate was a remain- der does not seem to affect this question. In reading " or " as " and," and in all similar cases of altering the expression, the main object of such inter- pretation is not to reduce any express or implied direc- tion to total silence. § 11. Rejecting words. If a later clause in a will merely qualifies a pre- ceding one, both can stand.* But, if the two passages cannot be reconciled, the latter niust prevail, if it is equally relative to the testator's primary intention. As to what amount of mutual repugnancy will lead to the expunging of the prior clause, see Morrall v. Sutton.* Where one clause in a will gives certain property to one person, and a later clause gives the same thing to another, the latter alone, in the old cases, was held to take the gift, unless this was inconsistent with the tes- tator's primary intention,* or the latter limitation had been introduced to prevent a lapse by the death of the prior donee in the lifetime of the testator. Modern decisions greatly incline to regard both donees as joint beneficiaries. But, if there is an absolute repug- • Vide 1 Cox, 341. » 3 Sim. 325. " Sweet ». Chase, 3 N. T. 73 ; Stickle's App. 29 Penn. St. 234. * 1 Phillips Ch. 583 ; s. o. 4 Beav. 478, " See Hollins v. Cponan, 9 Gill, 63; Pratt v. Kice, 7 Cashing, 209. 40 TESTAMENTARY COIfSTEUCTIOK. nancy between two clauses, and the relative importance of neither can be determined by the general scope of the will, and the presumption of a provision for lapse cannot be entertained, the former clause will be expunged. If that clause, however, is more consistent with the general scope of the. will, then the latter will be rejected.^ Sometimes the Court will expunge words rather than cut down a limitation. As, for instance, in Doe d. Elton V. Stenlake,^ where the devise was to A. and her heirs for their lives, the phrase "for their lives" was rejected as repugnant and void. This decision, however, will not be followed except in very similar circum- stances. Probably at the present day, even in England, the word heirs would be held, in a similar passage, to mean children rather than that the limitatipn for life should be expunged. In the United States, the word " heirs " would be still more readily regarded as a term of purchase.* Of two inconsistent intentions the Court will try to select the one which the testator had probably more at heart.* Expunging a passage, however, is only used as a dernier resort, for, if possible, effect will be given to every clause.* § 12. Supplying words. It seems to be an error to suppose that words are ever " supplied," as distinguished from being implied, in a will. All that the Court does in this respect is not to amend an omission or rectify a mistake, but simply ' See Bartlett ». King, 12 Mass. 537. " 12 East, 515. ■ ' See infra, ch. 6, " Rule in Shelley's Case." " Malcolm «. Malcolm, 3 Cush. 473 ; Bradstreet v. Clarke, 13 Wend. 603. See Bradley v. Amidon, 10 Paige, 335. ' Parks «. Parks, % Paige, 107. SUPPLYING WORDS. 41 to construe provisions so liberally as that the same clause in a deed not executory might not be operative without the addition of more words. Implications in a will are, indeed, often rendered necessary by mistakes of omission. Still, the two things are plainly different: an implication construes the will as it is ; a rectification amends and alters it.^ Where a testator left annuities to two daughters in similar terms, but the annuity to one was liable in a certain contingency provided for in respect of the other, the Court construed the will so as to supply the omis- sion.^ But, as a rule, the maxim that the including of one is the excluding of another will apply. Thus, in Nichols v. Romaine,* a declaration that a certain charge should not affect one residuary devisee made the charge affect the rest of the residuary devisees. As to rejecting words, see further. Pond v, Bergh.'' Under a devise to A., and the issue male of his body, and^ if he die without issue of his body, over, the word male was supplied before the second word " issue."^ Words, however, will be supplied as sparingly as possible, and by no means with a view of effectuat- ing the whole presumed intention of the testator.^ Yet the words " die," " leaving," aeq. « Sultz V. Kiser, 2 Ired. Eq. 538. » 6 East, 604 n. " Huddlestone ». Goldsbury, 11 Jur. 464. " Harrington v. Moffatt, 4 De G. M. & G. 1. TERMS OF BEQUEST. 73 , Bound manuscripts will pass under a devise of books.^ Books, kowever, sometimes pass under a be- quest of copyright, and not under a residuary gift of books on hand. Chancellor Kent bequeathed the copy- right of his Commentaries, with the right of renewal of all previous and future editions. The residuary clause comprised unsold Commentaries on hand. At the date of the will the Chancellor had some Commentaries on hand, which were sold before he died. A new edition, which was in course of being printed when he died, was held to pass under the specific and not under the residuary bequest.** ; An exception to* a bequest will, as a rule, enlarge the bequest to mean all things answering to the description, except the thing excepted. The case of Fleming v. Brooke,' which militates to the contrary, as regards choses in action, is highly technical, and is contradicted by other decisions. It would probably not be followed in America.* " Residue" sometimes means not the remainder of the whole personalty, but what is left of a particular fand after satisfying certain special gifts.^ But, the meaning of the wxJrd " residue" will not be usually thus curtailed. On the contrary, terms of limited meaning, such as goods, money, &c., will frequently pass the residue.* ^ A residuary bequest carries not only what has_ not been specially disposed of, but also what lapses, or has ' Willis V. Ourtois, 1 Beav. 189. ' Hone V. Kent, 6 N. T. 380 ; reversing s. c. 11 Barb. 315 ; see Part I, 164. ' 1 Sch. & Lef. 318. * See Hotham v. Sutton, 15 Ves. 319 ; Sumner's note. ' 1 Jarm. 703. " See 1 Jarm. 703, et. seq. 74 MEANING OF CERTAIN WORDS. been sought to be conveyed by a void legacy.' A resid- uary disposition of realty and personalty," not herein- before specifically disposed of," will comprise specific legacies that have lapsed, the word " specifically" being construed " particularly." * But, where a portion of a residuary clause fails, the property lapses, and does not fall into the remaining residue. It is not likely that this rule will be acted on in America. There is no more reason for the exclusion of the lapsed share of one re- siduary legatee from the residue of the other residuary legatees than there is for the exclusion of a particular lapsed legacy from the general residue. Neither in- stance, however, affords any fulcrum for the a,pplication of extrinsic evidence. A residuary bequest is sometimes essentially a par- ticular legacy and is so construed. As such, it will only abate rateably with other particular legacies on a defi- ciency of assets.' ' James v. James, 4 Paige, 115 ; Gore «. Stevens, 1 Dana, 801, 206 ; Hart V. Marks, 4 Brad. 161. ' Roberts v. Cooke, 16 Ves. 451. ' Dyose «. Dyose, 1 P. Wms, 305. CHAPTER V. DEVISES OF REALTY. A devise of land to A. gives him only a life estate,^ unless a local statute provides to tlie contrary. But a devise to A. witli any words of perpetuity, such as "forever," or " to him and his blood," or " to him and his successors," will give/him a-fee.^ Words of perpe- tuity in a devise are thus tantamount to words of limit- ation.' Accordingly, a succession of life estates is sufficient to indicate a general intention to give a fee tail. In those States that have not legislated expressly upon the subject the old rule prevails. But it will prob- ably be neutralized by slighter evidences of intention to the contrary in the will than are requisite in England. If, however, the context leaves the question uncertain, the presumptidn in favor of the heir must prevail, and the devisee will be held to take only for life or a limited interest. Parol evidence is wholly inadmissible to de>- termine this question, notwithstanding what Sir James Wigram has stated in his Fifth Proposition. The rule that a general devise of land gives* tha de- visee only a life estate has been abrogated by statute in South Carolina and in Massachusetts as to wild or ' Newton v. Griffith, 1 Har, & G-. Ill ; Wheaton «. Andress, 33 Wend. 453. ' Beall V. Holmes, 6 Har. & J. 205 ; Johnson v. Johnson, 1 McMuJ. (S. C.) Eq. 346 ; Cooke v. Husbands, 11 Md. 493. = Denn w.'Gaskin, 3 Cowp. 660. * St. 1834" Whaley v. Jenkins, 3 Des. Eq. 80. 76 DEVISE OF BEALTY. uncultivated lands,' in New York,* OLio, 1834; New Jersey, 1784; Virginia, 1787; Vermont, 1839; Ken- tucky, Alabama, South Carolina, North Carolina, Mary- land, Tennessee, Mississippi, and Missouri. In these States a general devise of land is now presumed to pass a fee if the context is silent on the point.^ The rule of the common, or rather equitable, law that a devise of land conferred only -a life estate has been reversed in England by, 1 Vict., c. 26, § 28, and a natural rule of construction substituted instead. In those states that have a similar law, a general devise will now pass the fee, if the context is not adverse, and the stat- utory presumption will not be negatived by the grant of an annual allowance for repairs.* It is greatly to be regretted that a change similar to that effected by the Revised Statutes of New York^ has not been adopted by all the States, and a devise of land been held to denote the fee, unless the context speaks to the contrary. For, though the American courts will probably exclude the old English rule on less grounds than would have moved the English judges to such a construction prior to 1 Vict. c. 26, yet that old rule is still productive of violence to the testator's intent in many cases. The rule itself is almost always opposed to the testator's wishes, and unless he indulges in what may appear to him to be surplusage, the intended bene- ficiary may get only a portion of the benefit designed for him. There is obviously more reason for abolishing this rule than the almost equally perplexing rule in ' Sargeant ®. Towne, 10 Mass. 303. ' Rev. Stat. vol. I, 748, § 1 ; Id. vol. H, 57, § 5. ° Lomax's Digest, vol. Ill, 177 ; see, further. Fay «. Fay, 1 Cush. 93 ; Ellis «. Essex Merrimack Bridge, 3 Pick. 348 ; Wilent v. Calnan, 98 Mass, 75 ; Payton v. Smith, 4 McCord, 476. * Fuller V. Yates, 8 Paige, 835 ; 4 Ken^tom. 535 et se^. - Vol. I, 748, § 1 ; Id. vol. II, 57, § 5. W DEVISE OF REALTY 77 Stelly case, as applied to wills, since the use of the phrase "heirs of the body" implies some technical knowledge on the part of the testator or his adviser. In niany of the American States the English rules of testamentary construction, as existing prior to 1 Vict. c. 26,^ have been unaltered by statute. In Massachu- setts, however, " all the residue and remainder of my real estate" always passed a fee.^ So, if the devisee was per- sonally charged with the payment of money to a third person.® And where the value of the estate was estimated by the testator as nearly that of the fee, it was held to pass.* Similar rules doubtless prevail in all the States that have not yet abandoned the old rule, which con- strues a general devise of land to confer only a life estate. A devise of uncultivated land carries the fee, be- cause the cost of clearing it is equivalent to a charge of debts, and there is no income to be derived from the use of such land.^ The condition of the land in such cases may be proved by parol in aid of the construction. Any English case decided prior to 1 Vict. c. 26 that gave the devisee a fee will be followed here. But, the American courts will in most cases of a doubtful nature deal more liberally with the devisee than the English courts would have done prior to the act mentioned, although our courts will not treat the rule in question altogether as lightly as they do the rule in Shelley's case.® In those' States which have not altered the old testamentary rules of construction, the heir can. only be disinherited by plain words of devise or else by neces- ' 2 Eedfield on Wills, 335. ' Parker v. Parker, 5 Met. 134 ; Godfrey «. Humphrey, 18 Pick. 537. = Tracy v. Kilbom, 3 Cush. 557. * Baker ». Bridge, 13 Pick. 37; see Cook v. Holmes, 11 Mass. 538. ' Sargent v. Towne, 10 Mass. 303; Eussell «. Elden, 3 Shep. 193. ' See Beale v. Holmes, 6 Har. & J. 305 ; Lindsay v. McCormack, 3 Marsh, 339; Smith «. Poyas, 1 Des. 156. 78 DEVISE OB" REALTY. saiy implication.^ A devise of land, therefore, in such States to A .gives Mm only a life estate. Under a devise to the heir, he also takes here by descent, as in England before the passing of the Inheritance Act. But, if the estate given t6 the heir differs from the interest he would tate by descent, he will take under the wdl by purchase.^ In those States where statute law has not altered the old doctrine, it has been but little modified by con- struction, and in such States, if there is any doubt as to whether the will contains words of limitation or of an equivalent nature, the common law rule vdll generally be applied, and the devisee will only take for life. For, heirs are favored in law, and get the benefit of any doubt affecting their rights.* Most of the leading cases on wills are each so pe- culiar in its circumstances that very little reliance can be placed on a precedent, unless it is exactly in point, which, indeed, rarely or never occurs. In Pennsylvania, the English rules have been adopted as they existed prior to 1 Vic, c. 26.* Therefore, in that State, a devise of land gives only an estate for life ; but, on the other hand, any word importing in any way the fee will ' Eoosevelt ». Heirs of Fulton, 7 Cow. 71 ; Jackson v. Burr, 9 Jolms. 104. ' McAfee v. Gilmore, 4 N. H. 391 ; Fogg v. Clark, 1 N. H. 163 ; EnlawB V. Enlaws, 3 Marsb, 338. ' See Koberts v. Ogboume, 37 Ala. 174 ; Parish v. Parish, Id. 591 ; Cleveland ■». Spilman, 35 Ind. 95 ; Lewis v. Smith, 6 Jones, Eq. 347 ; Burke v. Chamberlain, 33 Md. 308 ; Ferris «. Smith, 17 Johns. 331 ; 01m- stead ®. Olmstead, 4 N. T. 56 ; Shutt «. Rainbow, 57 ; Penn. St. 149 ; Ba- con's Appeal, Id. 504 ; Turner v. Kittrell, 1 Winst. Eq. 39 ; Doe «. Dill, 1 Houston, 398 ; Physick's Appeal, 50 Penn. St. 138 ; McKenzie v. Jones, 39 Miss. 334; Steiner v. KoU, 57 Penn. St. l33; Quillman v. Custer, Id. 135. " See Hall ». Dickinson, 31 Penn. St. 94; Naglee's Appeal, 83 Penn. St. 89 ; McKee v. MoKinley, 33 Penn. St. 93 ; Musselman's Estate, 39 Penn. St. . 469. BBVI8E OF EBALTY. 79 pass it. In that State, however, a condition, that, if a devisee died unmarried or without issue, his interest should revert to the general estate, has been held not to prevent the devisee from taking the fee where the land was charged with debts and annuities.^ Even prior to 1 Vict., c. 26, § 28, a direct or con- tingent charge of debts implied in England that the de- visee took a fee, no matter how small the debts were.^ This rule obtains in those States which have not passed any act analogous to 1 Vict., c. 26. A distinction also prevails in these States between a charge on the person of the devisee and one on the land in respect to the point now under review. A charge of the former kind implies a fee in the devisee, but a charge of the latter kind implies only a feehold.* This presumption, how- ever, is not universally recognized in America as con- clusive.* Where a charge is imposed on the person of a devi- see, and not merely on his land, if the devisee did not take the fee, the gift might be to him a source of loss and not a gain. But, where the charge is confined to the land, this is quite consistent' in all cases with the devisees only taking a life interest.^ As the principle of these rules is that a different construction might entail loss and not gain on the devisee, therefore, any other condition as that the devisee shall convey his own fee to J. S. gives him the fee in the land devised to ' him, if the context implies nothing to the contrary. ' Schoomaker v. Stockton, 37 Penn. St, 461. » 3 Jarm. 248. " Fox V. Phelps, 17 Wend. 393 ; Jackson v. Merrill, 6 Johns. 185 ; Jack- son V. Bull, 10 Id. 148 ; Jackson v. Martin, 18 Id. 31. * Lithgow V. Havenagh, 9 Mass. 165. ' Wright V. Page, 10 Wheat, 304 ; see Ferguson v. Zepp, 4 Wash. 0. Ct. 645. 80 DEVISE OF EEALTT.. Gibson v. Horton ^ is to that effect. A devise for life, with power to convey or devise the fee, does not come within the principle stated, and gives the devisee only an estate for life.'' He also takes only for life, if the in- cumbrance or annuity is merely a charge on the land,' or the land is only devised subject to it. - For, in such circumstances, the land may possibly never be resorted to by the owner of the charge. The devisee gets only a life estate if the gift is to him after payment of the charge. For, owing to the distinctness in this case be- tween the charge and the devise, the charge throws no light on the quantity of-interest intended to be devised by the testator. If there is a devise, though it be only for life, over, on the death of the devisee under age or under age and without issue, this enlarges the devise to a fee by im- plication.* But a different construction obtains, if the ulterior limitation is not connected with the death of the first devisee.^ If the first devise is in fee, and the limitation over, whether in the same will or in a codicil, is general, the ulterior grantee takes only for life, according to the rule which deprives an heir of his common law rights only so far as is absolutely necessary to give some effect to the words of the will.® But a devise to A. in trust for B. in fee, or to A. in fee in trust for B., gives both A. and B. fees at law and in equity respectively,'^ especial- ly if the general purposes of the trust imply that the trustees take a fee.^ ' 5 Har. & J. 177. ' » See Doe ». Howland, 8 Cow. 277. ° 3 Jarm. 351 ; Andrew ®. Southouse, 5 T. R. 393 ; Burton v. Poweis, 3 Kay & J. 170; Denn «. Mellor, 1 B.' & P. 347. * 3 Jarm. 350 ; Frogmorton «. Holyday, 8 Burr. 1618. ^ Roe «. Blackett, 1 Cowp. 335. « Roe ». Holmes, 3 Wik 80. ' Challenger v. Shepherd, 8 T. R. 597 ; Shaw «. Weigh, 3 Str. 798. I = Knight ». Selby, 3 M. & G. 93 ; see wfra chapter 15, " Limitations to trustees." DEVISE OF REALTY. 81 A charge of debts which may be paid out of the personalty, will not give a fee by implication in America.^ But a charge equal to half the value of the land is sufficient to pass a fee.^ So is a charge for the purpose of supporting testator's mother.^ But an ex- press estate for life is not enlarged by a charge for debts.* In Barheydt, v. Barheydt,* the devisee, being required to give money to another, was held to have .taken the fee. Where a testator charges a devisee with the payment of debts and legacies, the charge attaches to the estate* also. The rule that a devisee of land takes only an estate for life, where there is no statute on the point, is a rule of construction, and not of law. Therefore, other ex- pressions in the context may enlarge the estate of the devisee to a fee. No technical word or phrase, such as " heirs," is requisite, for in a will a fee may be conveyed by such words as " estate," " for ever," " property," " real effects," " inheritance," " reversion," (but not " re- mainder,") " in fee simple," " to him and his executors," '' all I am worth," " all right and title," " I make him my heir," " to do what he likes w;ith it," &cJ The word " residue " was held in Rathbone v. Dyckman,* to carry the fee. Even a devise of my estate at A. will pass a fee, although the word estate, when used in connection ' Jackson «. Harris, 8 Johns. 141 ; Jackson v. Babcock, 12 Johns. 389 ; Tanner d. Livingston, 13 Wend. 83 ; Heard v. Horton, 1 Denio, 165 ; " Fox ». Phelps, 30 Wend. 437. ' Jackson v. Martin, 18 Johns, 31. • Tanner v. Livingston, 13 Wend. 83 ; see Merritt v. Brantley, 8 Fla. 336 ; Henry ». Gortennan, 1 Met. (Ky.) 465. ' 20 Wend. 576. • Sands v. Champlin, 1 Story 0. Ct. 376. ' Baker «. Raymond, And. 51 ; Jenkins v. Lord Clinton, 26 Beav. 108, 121. • 3 Paige, 9. 82 DEVISE OF REALTr. with locality, indicates a material and not a legal in- terest.^ The original rule of the common law, however, being unsound, it is sought to be cured by the courts by means of an equally unwarranted straining of slight ex- pressions in the context so as to give the devisee the fee.^ A devise of the rents of an estate will pass the fee,^ on account of the use of the word " estate," which always passes a fee, except when the word is obviously used as synonymous with a previous limited gift,* or is incon- sistent with other limitations in the context.^ A devise of premises in fee to A., with the exception of part thereout to B., gives B. the fee in the excepted part. The rule on this point proves or explains the ex- ception.* A like principle applies to estates given in the alternative or upon condition.'^ A devise of land without words of perpetuity will also pass the fee if the introductory clause and frame of the will show that the testator intended to dispose of all his property .* In Ohio, a devise of " the plantatioii on which I now live," has been held to pass the fee. And yet, prior to the change in the law made by the Eevised Statutes of New York, a devise to testator's widow for life, and on her death the land to be " equally divided " between ' 3 Redf. 328. / ' Fox ». Phelps, 17 Wend. 393 ; s. c. affi'd, 30 Wend. 437; Earl «. Grim, 1 Johns. Ch. 49,4 ; Van Derzee «. Van Derzee, 30 Barb. 331. ' Stewart v. Gamett, 3 Sim. 398 ; Craig v. Craig, 3 Barb. Ch. 76 ; Pat- erson v. Ellis, 11 Wend. 259 ; Smith ». Post, 3 Edw. 533. * Doe d. Clayton, 8 East, 141 ; Doe d. ®. Clarke, 1 Cr. & Mees. 39; ' Key «. Key, 4 be G. M. & G. 73 ; Martin v. McCausland, 4 Ir. Law, 340. ° Doe d. V. Lawton, 4 Bing. N. C. 455. ' See Greer v. Armsteed, Hob. 65 ; Shaillard v.. Baker, Cro. Eliz. 774 ; Bentley v. Oldfleld, 19 Beav. 325. ' Vanderzee d. Vanderzee, 36 N. Y. 331 ; compare with this case Van Dyke v. Emmons, 34 Id. 186. DEVISE OE REALTY. 83 testator's two sons, was held to give the sons only life estates.^ In some of the States the terms "property " and " es- tate " have not been construed as liberally as in England, where standing alone they always passed the fee.® But a devise of land for a permanent purpose — as to estab- lish schools, passes a fee, on the ground, probably, that the legal estate is always commensurate with the trust intended to be raised thereout.* In Jackson v. Housel,* a fee was held to pass under the phrase, " My property, after my debts are paid, I leave and bequeath to my beloved wife, and wish her to educate my daughters." A devise of the use for life, with a power of appointment, was held to give the fee in Jackson v. Coleman;® the rule is different if the power is to dispose of by will only.® A charge also, of ■course, often enlarged the devisee's estate to a fee in New York before the passing of the Revised Statutes.'^ As to the effect of ulterior limitations in limiting the quantity of interest of the particular tenant, see Brad- ley V. Cartwright.^ A. devised to his son an estate, W., " to do and dis- pose of as he may think proper." By a subsequent clause he devised estate H. without words of limitation. The will also directed the son to pay certain legacies. A further clause devised all the estate of the testator to ' Edwards v. Bishop, 4 K T. 61 ; s. P. Jackson v. Bull, 10 Johns. 148; LiflFen v. Eldred, 3 Barb. 130. ' Pippin V. EUisop, 13 Ired. 61 ; Hurdle v. Outlaw, 3 Jones Eq. 75 ; see Clark ». Hyman, 1 Dev. 382. ' Bell County v. Alexander, 82 Texas, 350 ; see infra, chapter fifteen. ' 17 Johns. 381 ; compare Wheaton ». Andress, 33 Wend. 453. ^ 3 Johns. 391. = Doe B. Howland, 8Cow. 377.' ' ' Dumond v. Stringham, 36 Barb. 104. ' Law Reps. 3 C. P. 511. 84 DEVISE OF EEALTT. his wife during lier widowhood. It was held that the- son took a fee in both estates.^ In Lippett v. Hopkins,** the devise was to A. " and if he shall die without an heir before he shall arrive at the age of twenty-one years, then all that is to him herein bequeathed, to be equally divided amongst his^ brothers and sisters, or their heirs," It was heM that A. took a fee simple, with an executory devise over to his brothers and sisters. The report of this case con- tains rules for construing devises without words of lim- itation, and enumerates the leading cases on this point. In Abbott V. Essex County,^ the devise was "if either of my sons, John and Jacob, should happen to die without any lawful heirs of their own, then, the share of him who may first decease, shall accrue to the other survivor and his heirs." The court held that this de- vise provided for a definite failure of issue, and that, by way of executory devise, the share of the son first dying without issue in the life-time of the other,, was to go over to that survivor, and that, subject to- this contingency, each took a fee simple. A devise to testator's wife, " for her use and com- fort, and to be disposed of as she pleases, at or before her decease, when no doubt she will make such disposi- tion of the same among our children, as she may then think most proper," has been held to give the wife a fee simple, without any trust for the childx'en.* Jarman considers that where there is a devise of both realty and personalty to trustees, but the trusts dedared relate only to the personalty, there is a* resulting trust of the realty to testator's heir. But this is very doubt- ' King «. Ackerman, 3 Black. 408. f '' 1 Gall. 454 ; 1 St. Oirc (R. I.) 1813. ' Circ. Mass. 1854 ; 3 Curt. C. Ct. 136. * Kenter «. Jenks, 43 Penn. St. 445. DEVISE OF REALTY. 85 ful. It would hardly be so decided in America. The case of Dunnage v. White,^ cited by Jarman, is not really any authority in behalf of the proposition ad- vanced by him. In such cases, the trustees most proba- bly take a fee, and the trusts, too, are charged by im- plication on the realty. This question will be more fully discussed, infra, in chapter fifteen, on " Limitations to Trustees," In Engliss v. Sailors' Snug Harbor,^ a testatrix de- vised " all her estate, real and personal, wheresoever and whatsoever, in law or equity, in possession, reversion, re- mainder, or expectancy, unto her executors, and the sur- vivor of them, his heirs and assigns, for ever," upon cer- tain designated trusts. It was held, that under the Statute of Wills of New York, all the rights of the testatrix to real estate, held adversely at the time of her -decease, passed to the devisees. A devise without words of inheritance, but direct- ing that if any of the testator's heirs, of whom, the de- visee was one, should die without lawful issue, his part should be equally divided between the survivors, im- plies that in case of issue these would take, and thus passes a fee.?, In Dumond v. Stringham,* a provision that if the devisee should die during the widowhood of the testator's wife, she should have the property during her widowhood, and no longer, was held not to be inconsistent with an intention to devise a fee. It was held, in Wright v. Page, that " tenement " does not pass a, fee.^ ♦ In Pocock V. the Bishop of Lincoln/ a testator ' 1 Jac. & Walk. 583 ; see 1 Jarm. 680, note. » 3 Pet. 99. M8 Johns. 368. * 26 Barb. 104. ° 10 Wheat. 204. * 3 Br. and B. 27. 86 DEVISE OF BEALTT. devised to his son the "perpetual advowson" of the living then held by the son. It was held Jhat the son only took a life interest, and that the word " perpetual " related to the quality, not the quantity, of the estate devised. If the son vacated the living or was translated to a see, doubtless the will would then operate. The case would palpably have been one to be elucidated by parol evidence if such could be admitted to explain the quantity of interest intended to be given. The phrase perpetual advowson, however, does not carry the fee if the bequest is to a stranger ; and the question was whether the fact that the donee had already a life inter- est should affect the construction. It must be admitted that the case can be supported on strict principle. Unless the intention to give a fee is plain, such an estate will not pass,^ The American law thus favors. the heir by analogy to the common law rule. Therefore a devise to the testator's wife of " all the rest " of his lands, Jarman* says of the rule that it "is a rule of tenure, which is not only independent of but generally operates to subvert the intention." Is not this an admission that the rule has been allowed to eliminate a broad area of testamentary discretion, and to subject wills, so far, to the cast-iron shackles of feudal interpretation % But no matter what the rule is, it is its application, and not its own nature, that is in question. Jarman, therefore, is arguing on this point without regard to the real issue. The operation of the rule is not precluded in Eng- land by an estate to trustees to preserve contingent re- mainders,^ nor by a power to jointure conferred on a tenant for life, which implies that he has not the fee ;* nor by the clause " without impeachment of waste,"® or " separate use ;"® (though this case, indeed, is not a direct authority on the point ;) nor by a declaration that the freAold devisee shall have no power to defeat the tes- tator's intent ;/ or that the heirs shall take as purchasers.^ In Douglas v. Congreve,^ even a declaration that the limitations were in strict settlement did not prevent the application of the rule. It is morally certain that none of these cases would be followed at the present day ' Con. Rem. 80 et seg. 'Vol. II, 183. = Coulson V. Coulson, 3 Stra. 1135. * King V. Melling, 3 Lev. 58. ' Papillon «. Voice, 3 P. W. 471. » Lady Jones «. Lord Say & Sele, 8 Vin. Ab. 263, pi. 19. ' Boe d. Thong v. Bedford, 4 Mau. & Sel, 363. « Harg. Law Tracts, 561 ; 8 Jarm. 183. \ 1 Bear. 59. 98 RULE IN SHEIiLET'S CASE. in America, but the heirs -would be held to take by pur- chase. , The rule is applied in England more rigorously under wills than its laxity in some respects — even in respect to limitations in deeds — would warrant. For it does not apply where the heir is the joint heir of the freeholder and another.^ If one person cannot be heir to both as testator intended, then the freeholder takes an undivided entail, and the son of the other takes by purchase. This contingent remander will of course fail if the particular estate fail previously. The rule applies to equitable as well as to legal estates. Bagshaw v. Spencer,* which decides the contrary, is not law now. But the rule does not apply to trusts executory. For instance, when the testator directs the trustees to buy and settle land or devises land to them, to be afterwards conveyed by them in a more special manner to a person and the heirs of his body, such exec- utory trusts will, as a rule, be construed as if they were contained in marriage articles as distinguished from settlements.' The case of Austen v. Taylor* has been overruled, if, indeed, it ever was an authority for the doctrine that a direction to trustees to buy and settle land differed in its legal effect from a mere direction to buy, the uses being finally declared by the testator. In principle, these two classes of cases are certainly distinguishable. The former are executory trusts; the latter are trusts executed, as regards the limitation of estates, to the ' Gossage v. Taylor, Sty. 325 ; see Lane v. Pannell, 1 Roll. Rep. 238, 317, 438. » 1 Ves. Sen. 148. = Leonard v. Earl of Sussex, 2 Vem. 525 ; Lord Gtenorchy v. Bosville, Cos temp. Talb. 3. • Amb. 376. RULE IN SHELLEY'S CASE. 99 ■ devisees. Howeverj the law in sucli cases is now settled, and, happily, contrary to the adoption of the rule in Shelley's case.^ Jarman^ thinks that, in these cases, indeed, the words used by the testators, even if standing alone, without any limitation to trustees, would not admit of the oper- ation of the rule. But the case of Meure v. Meure* is much stronger than that, although it must be admitted that its principle is infirm in law though sound in sense. For the rule in Shelley's case has been applied ip. several cases where there were no trustees, but in which the limitations were exactly analogous to those in Meure v. Meure. This case, however, is, on the other hand, hardly distinguishable from Scale v. Scale.* In Bastard v. Proby,^ the direction to the trustees to settle the lands on the heirs of the body " as counsel should advise " was held to preclude the application of the rule. But in Marshall* v. Bousfield,* under a direction that the land "should be settled by able counsel," it was held that the rule applied. The only inference, nevertheless, to be drawn jfrom these cases, as well as from Meure v. Meure or Jervoise V. Duke of Northumberland,^ is that less emphasis on the part of the testator will preclude the application of the rule in Shelley's case where there is a direction to trustees to buy or to convey than where there is no reference to trustees. The rule, of course, is more freely applied to executory trusts under wills than if the ' Meure ■». Meure, 3 Atk. 365. ' Vol. n, 191. ' 3 Atk. 365. * Pre. Ch. 431 ; s. c. 1 P. "W. 390, and Blackburn v. Staples, 3 Ves. &Bea. 367. "^ ' 3 Cox, 6. • 3 Madd. 166. - ' 1 Jac. & W. 559. 100 BTTLE IN SHELLEY'S CASE. limitations in question were contained in marriage arti- cles.^ Cases,' therefore, arising under marriage artiqjes are not strictly in point. Even the case of Seale v. Seale,* shows that the rule will be applied if the direc- tion is merely to convey to A. and his heirs, or to A. and the heirs of his body. The same principles of construction, indeed, apply to marriage articles as • to articles of any kind and to executory trusts in wills. But, as the intention of a settlor by articles is obvious, this intention is always carried out, and the unborn issue get estates by purchase. Under wills, the courts have not the same clue to the testator's intention on this point. Therefore, no general rule of construction can exist for construing words of limitation in. executory trusts under wills in the same manner as if the clause was in marriage articles. If there be a direction to trustees to settle lands on A., or if the devise be k) A. for life, and after his death to the heirs of his body, Jarman^ inclines to a strict settlement. The case of Bastard v. Proby, however, is no very conclusive authority on the effect of a declara- tion of this kind without any additional clause showing that the testator plainly intended that the first freeholder should only have an estate for life. Jarman's opinion, however, on the whole, is more likely to be followed, even in England, on any new case, than the ruling in Blackburn v. Staples.* That case, indeed, appears to be rightly decided since the limitation to the unborn issue was to him when he' attained 24, and was therefore void for remoteness, and could only be executed cy pres in the ancestor. Sir William Grant, however, did not rest ' See Eochford v. Pitzmaurice, 1 Con. & Laws, 158. ' Pre. Ch. 421, s. c. 1 P. Wma. 290. » Vol. n, 194. * 3 Ves.& Bea. 367. EULE IN SHELLEY'S CASE. 101 his decision upon this point, hut on the time-honored authority of the rule in Shelley's case. See Blackburn V. Staples, ut 8wpra. In Piatt V. Powles,^ the devise was to the testator's widow for life, and after her decease to the heirs of her body by the testator. On the death of the testator she became tenant in tail after possibility of issue ex- tinct. Jarman^ considers that for nine months after tes- tator's death she could have acquired the fee 'by a re- covery. But this opinion is surely unwarranted. The law regards possibilities only where there is no evidence to the contrary. A non-existing event, when examined after its proper date, is an impossibility. The widow's right, therefore, to acquire the fee appears to be contin- gent on her having issue in the sense that her fee would be more than defeasible on the event which happened, for it would then be proved to have been void from the beginning. The rule in "Wild's case* operates sometimes as an exception to the rule in Shelley's case.* The rule in " "Wild's case is acted on in America. That rule provides that, in case of a devise to A. and his children, A. will tate an estate taij if he has no children when the will comes into operation. But if he has, the children will take concurrently with the parent.® If the period of vesting is deferred, all children born before that date will take jointly with their parent.® An estate tail in personalty, it is to be remembered, means the whole es- tate. The rule in Wild's case applies to both realty and personalty.'^ ' 3 Mau. & Sel. 1, 1 65. ^ Vol. H, 186. = 6 Co. 17. ' 6 Rep. 17. = Mason ». Clarke, 17 B. 130. ° Cunningham «. Murray, 1 De G. & Sm. 366 ; Bee Read «. Snell, 1 Coll, 86. ' See Audsley «. Horn, 1 De G. F. & J. 326. 102 EULE IN SHELLEY'S CASE. The rule in Shelley's case was received here as part of the common law. It still prevails in North^ and South Carolina,^ Tennessee,^ "Virginia,* Maryland,^ Penn- sylvania^ and Ohio.'^ The rule has been abrogated by statute in Connecti- cut, Massachusetts,^ New Jersey,^ New York and Michi- gan." In New York the Kevised Statutes" constitute the heir a purchaser. Therefore, under a devise to A., for life, remainder to his heirs, alienation in fee is restrained during the life of A. and the minority (if any) of his heirs. These are the stock from which descent must be afterwards traced. A similar law prevails in New Hampshire.^^ In that State the rule in Shelley's case was in full force down to 1843. The decisions in New York show, beyond any doubt, that the rule in Shelley's case has been abolished in that State.^* This, however, is a remedy just as bad as the disease." The natural function of the rule is that allow- ed it by the American courts of those States where legis- lation is silent on the matter. They suffer it to operate . ' Payne «. Sale, 3 Battle, 455. " Carr «. Porter, 1 McC. Ch. 60. ' Polk V. Faris, 9 Terg. 309. * Eoy 11. Garnet, 3 Wash. 9. ' Lyles V. Digge, 6 Har. & J. 564. « Findlay v. Biddle, 3 Binn. 139; Guthrie's Appeal, 37 Penn. St. 9, 31. ' McFeely v. Moore, 5 Ohio, 465. « Steel V. Cook, 1 Met. 383 ; Rev. Stat. c. 59, § 9. ° New Jersey Rev. Law, 774. " Rev. Stat. Vol. I, 735, § 38. "Vol. I, 735, § 38. " Dennett v. Dennett, 40 N. H. 498. "Freeborn ». Wagner, 41 (N. Y.), 37; Warfield v. Crane, Id. 448; Sheridan v. House, Id. 569. " See Brant v. Gelston, 3 Johns, cks. 384 ; 1 Rev. Stat. 725. RULE IN SHELLEY'S CASE. 103 wtere the context contains notHng to tlie contrary. It is likely that in those States the rule would not be applied "where it is not the word heirs or heir that is used, but " son," " child," " family," " issue," or some other word of purchase. Issue, indeed, in England is considered to be, of its own nature, a word of limitation in wills. It certainly is less of purchase than the terms "son," ""child," or "family," and therefore less efl&ciently resists the rule in Shelley's case. The rule in Shelley's case is in force in Delaware. But, it is only regarded by the courts there as a rule of construction and intention. In Vermont there is a stat • utory system of conveyance. The rules of the common law, therefore, are by analogy to be considered as .so far excluded in the construction pf wills. In other words, the genius of construction, should follow the statutory system of conveyance, and should only regard the use of technical phrases in wills as evidences of intent, and not possessing any cast-iron operation of their own. The reader is referred to a very able judgment by Judge Redfield, in 27 Vt. 475, and in Smith v. Hastings, 29 Vt. 240, where the learned author of the treatise on wills admirably suggests that the rule was founded on principles of feudal policy, which are obsolete and abro- gated in America. In Connecticut the rule was recognized to a certain extent until it was abrogated in 1821.^ But, where there is no contest between ancestor and heir, the Connecticut , courts incline to regard the devisee as taking in fee as against the heir of the testator.^ ' 2 Redf. 339, 840. " IngersoU «. Knowlton, 15 Conn. 468. See Cordey n. Adams, 1 Har- rington, 439; Patterson v. Doe, 7 Ind. 383; Allen o. Hoyt, 5 Met. 334; Cul- bertson «. Daly, 7 W. & 8.195; Willis «. Rutcher, 3 Wash. C. C. 369; :Stower v. Stower, 9 S. & R. 434. 104 • RULE IN SHELLEY'S CASE. In Kentucky the clause " heirs of the body " is com- monly a phrase of purchase.^ In Pennsylvania the com- mon interpretation is to regard the phrase as one of limitation.^ The rule in Shelley's case, however, prevails in Penn- sylvania only to its natural extent. In other words, any clause to the contrary will neutralize it.^ As Chief- Justice Lewis very well observed in Gernet v. Lynn,* " Neither the policy nor the words of the rule apply" where the word used is children, and there are two in existence to whom the devise relates. The case of Wil- liams V. Leech^ treats the word children as equivalent to " heirs." But that decision is completely outweighed by a host of authorities, which show that the rule in Shelley's case will be applied in Pennsylvania — and we may add in any other State — only where the context says nothing whatever to the contrary. The cases of Nagle's Appeal® and McKee v. McKin- ley,'^ indeed, incline towards the adoption of the rule in Shelley's case, with all its feudal strictness as exemplified in the case of Perrin v. Blake.^ But the current of au- thorities is clearly in the opposite direction,' whither, also, tends every legislative provision on the point. It is safe to assert that no American court would, at the present day, apply the rule in any case where the context militated to the contrary. Under a devise to one for life and after his death to- his children, the children, being alive when the will ■ Prescott 11. Prescott, 10 Belton, 56 ; Jarvis «. Quigley, 10 Id. 104. " Guthrie's Appeal, 37 Penn. St. 9. ' Findlay «. Biddle, 3 Binn. 189. ' 7 Casey, 94. ^ 4 Casey, 89. ' 9 Casey, 89. ' 9 Casey, 93. ' 4 Burr. 3579. ' See Chew's Appeal, 37 Penn. St. 33. KXJLE IN SHELLEY'S CASE. » 105 took effect, were held to take as purcliasers.^ It follows, from this and various cases decided in Pennsylvania, that the rule in Shelley's case, like most of the common law rules of England, will prevail only where th^re is no expression whatever of a contrary intent in the will,* In Sisson v. Seabury,^ a devise to A. and his male children, " lawfully begotten of his body, and their heirs forever, to be equally divided among them and their heirs forever," was held to pass a life estate to A., with a contingent remainder in fee to his children. He had none when the will was made. The operation of the rule in Shelley's case is not excluded as often as is desirable, even in the United States. Thus, in Monroe v. Douglass,* the devise was to three brothers, equally to be divided among them, provided that, " in case of the death of one or more of them, his or their share or their part should descend to the heirs of his or their body, and in case of the death of either without lawful children, then that said remainder should be equally divided." It was held that the brothers took estates tail. In Daly v. James® the rule in Shelley's case was as strictly acted upon as the judges who decided Perrin v. Blake could desire. In Daly v. James the testator devised all his real property to his son, and the heirs of his son lawfully begotten^ and in case of the death of his son without such heirs, he directed that his real estate should be sold and the proceeds divided among the brothers and sisters of the testator and their heirs, or such of them as should be living at the time of his ■ Gemet v. Lynn, 31 Penn. St. 94. ' See Schoonmaker v. Stockton, 37 Penn. St. 461 ; also, 3 Redfield on Wills, 338. ' 1st Cire. (R. L) 1833, 1 Sunm. 335. * 5 N. Y. (1 Seld.) 447. ■ ' 8 Wheat. 495. 106 . KULE IN SHELIiET'S CASE. death. The brothers and sisters all died leaving issue. Afterwards the son died -without issue. It was held that, the Court being divided upon the construction of the devise, as an original question, it would follow the decision of the Supreme Court of the State^ that the word " heirs " is to be construed a word of limitation, and, consequently, that the devise to the brothers and sisters failed to take effect, as they died in the lifetime of the son. This decision does not appear to' be very satisfactory ; at all events, at the present day it is of doubtful authority. There was no reason why the word " heirs " should be mentioned in order to pass the produce of the sale, which was personalty, to the sisters. The ruling, therefore, was equivalent to striking the word heirs out of the will, not for the purpose of effect- •uating, but of defeating the bequest to the heirs of such sisters as might die in the son's lifetime. Osborne v. Shrieve^ is another American decision where the rule in Shelley's case was applied without apparent cause. A. devised land to his son S. and to his male heir (in the singular), and to his heirs and assigns forever; but, if it should be that S. should depart this life leaving no male heir lawfully begotten, of his body as aforesaid," then to the testator's grandson O. in fee. It was held that S. took an estate tail, with remainder over to O. on the indefinite failure of the issue of S. This was Archer's case,^ almost in so many words ; nor was there room to contend that S. even took an estate tail in remainder after the remainder to his heir (by purchase), since the words " as aforesaid " pre- cluded this construction. Yet, the heir of S., it was held, could not take by purchase, but that S. took an estate tail. ' 1 Binn, 546. ' 3 Maa. 391. » 1 Co. 66. EULE IN SHELLEY'S CASE. • 107 In Smith v. Bell,^ the Supreme Court of the United States held that where personalty was given to testa- tor's wife " absolutely," remainder after her decease to testator's son, the widow took only a life estate. The English courts would formerly have held the wOl void for uncertainty. At present they would doubtless act on the rule in Smith v. Bell. It is melancholy to find so many cases where a testator's directions in behalf of his issue have been, even as regards personalty, annulled by reasoning formed on analogies to the rule in Shelley's case. In many other cases the limitations have been, with eq^ual imprudence, held to be repugnant to the context. The operation of the rule has not, latterly, been sought to be extended even in England.^ In Herrick v. Franklin, Giffard, N. C, denied the case of Dark v. Fen- ner^ to be law now. At the same time, there is no ground for hoping that, in the absence of legislative in- terposition, courts in the United Kingdom will adopt the American principles of construing the rule. ' 6 Pet. 68. = See Herrick v. Franklin, Law Eep. 6 Eq. 593 ; Halloway ». Halloway, Id. 533. ' 3 Russ & My. 557 ; see Dott v. Cunnington, 1 Bay, 453 ; qu. contra Swain v. Roscoe, 3 Ired. 300, CHAPTEE Vn. ESTATES TAIL. § 1. Thei/r natv/re and incidents. The greatest defect in the law of England and of some of tlie United States, is the existence of estates tail. These interests, as a rale, are not devisable nnless they have been previously disentailed; nor are they subject to any charge or conveyance that does not oper- ate so far as a disentailing assurance. An estate tail differs from an estate in fee in de- scending, only to the particular heirs indicated. Thus, a devise to A., and the heirs female of his body, escheats if there be no such heir. A female collateral heir, not a descendant of A., will not inherit as she would if the devise was to A. and his heirs. So a devise to A. and the heirs male of his body, begotten by his wife B., wiU not descend to a son of A. by C, a subsequent wife. A fortiori, the entajl will not descend to a daughter or a distant relation of A. as an estate in fee simple would. Besides this peculiarity of descent from the first donee in tail, estates tail are subject to other special in- cidents. Although subject to dower and curtsey, they are not alienable except by fine or recovery. A fine bars the issue. A fine and recovery, or a recovery alone, wiU bar both the issue and remainder-men. An ordinary .conveyance of the land is voidable by the issue. But, a deed of grant of rent charge or of any interest agaiast " common right " is absolutely void on the grantor's death. K, however, he disentail the land, this lets in Ills nTlfl.rofp.a ! nl/tfAf if +,Tlfi ihsup rlieo-n+.aila THEIR NATUEF. AND INOIDBNTS. 109 Conveyances, leases, charges and incumlbrances by tenants in tail are distinguishable into three classes, viz. : 1, those vyhich are absolutely valid and indefeasi- ble by the issue in tail ; 2, those which may be avoided by him ; and, 3, those which are absolutely void on the death of the tenant in tail, and are incapable of con- firmation by the issue. To the first class belong fines, recoveries, all charges secured thereby, and leases or debts confirmed by statute. The second class comprises all conveSyances of the land except by fine or recovery. The third class consists of grants of incorporeal rights and judgments.^ If a tenant in tail first execute a rent charge or con- fess a judgment, and then settle the property by a void- able deed, the charges will endure until the deed is avoided by the issue. But if the tenant in tail settle the land by merely creating a term to certain uses, it is doubtful whether the issue in tail, if he takes an estate under the term .cannot set it up, and yet avoid the rent charge and judgment, while, if the settlement were in fee, he would be at once remitted, taking a legal estate, and thus the settlement itself would be an- nulled.* In a deed an entail can only be created by the words "heirs of the body," "heirs of the blood," " heirs of the flesh," &c. Words of inheritance and of procre- ation are both necessary. The estate likewise of the donor must be one of inheritance, and not an estate par autre vie or a term of years. This latter rule applies also to the creation of estates tail by will. A tenant ^^r , autre vie cannot create a greater estate than he himself owns. Therefore, such estates admit only of quasi en- tails. These may be barred by deed surrender or arti- ' See Co. Litt. Titles " Confirmation," " Estates Tail." " See 1 Dyer, 51, a, note. 110 ESTATES TAIL. cles, but not by will. But the rule that requires words of inheritance for the creation of an estate tail by deed only apply in a will so far that the language used must be capable of implying a limitation equivalent to an estate tail in a deed. Any gift by will, therefor, that will confine the descent to the issue of the donee, will con- stitute an estate tail special or general, male or female, according to the directions, and may also imply cross- remainders.^ Words of procreation will often be sup- plied in a will. Thus a devise to A, and his heirs male for ever, or to A. and his heirs males living to attain the age of twenty-one,^ gives A. an estate in tail male. A tenant in tail may commit unlimited waste of every kind, and cannot be restrained by condition from aliening by fine or recovery. As the estate is one of inheritance, it is liable to dower and curtesy, but not to debts after the death of the debtor, except so far as a local statute provides to the contrary. A devise to A. and the heirs, of his body, or to A. for life and after his death to the heirs of his body, vests an estate tail in A. So under a gift to A. and his issue or to A., and if he die without issue then over, A. takes an estate tail in realty, and the absolute inter- est in personalty in England and in those States where a restricted meaning of the word issue does not obtain. The word " heirs," if used as synonymous with " is- sue," means " heirs of the body."* .Even in a deed a gift to heirs in the premises may be cut down in the .. habendum to " heirs of the body," although the haben- dum, as a rule, cannot abridge an estate given in the premises. The distinction is that the habendum may ' Green «. Stevens, 13 Yes. 419 ; Doe d. Tremewan «. Permewan, 3 Per. & D. 330. ' Albec ». Carpenter, 13 Cush. 383 ; Appleton v. Kowley, L. E. 8- Eq. 139. ' Albec v. Carpenter, 13 Cush. 383. THEIR NATURE AND INCIDENTS. Ill explain the premises and " heirs of the body" are still " heirs." Under a devise to A. and his heirs, and, if he die without issue, then to B., A. takes only an estate tail,^ if there is no local statute on the point. So a devise to A. and his heirs, or heir or next heir,^ or to A. simply, and, if he die without issue,* remainder to B., gives A. an estate t^il. But, if the ^devise be to the heir male of A.'s body with remainder to his heirs, the issue of A. takes an estate tail, according to the early cases.* The superadded words varying the descent served to show that the heir and not A. was the stock of the entail. Mr. Hawkins,® however, considei?8 that words of limita- tion have now no more effect than words of distribution in excluding the rule. This opinion is probably right so far as the English cases are concerned. A devise to A. and his children, he having none at that time, gives A. an estate tail.® A devise to B., if A. have no heirs, gives A. an estate tail if B. is a relative of A., for, otherwise, the limitation would be unmeaning. But if A. is a stranger, or a person who cannot be heir to B., the devise is void for remoteness.'^ Under a devise to A., and if he die without heir or issue, the estate to go to B., his brother, gives an estate tail to A. by impli- cation.^ Under a devise by testator to his wife for life, and after her decease to her two daughters, A. and B., to them, their heirs and assigns ; but, in case they should die without issue, that the same should, go to and vest • Hansen o. HufebeU, 34 Penn. St. 244. » Cuffee «. Milk, 10 Met. 366. ' Hawley v. Northampton, 8 Mass. 3. • Archer's Case, 1 Co. 66. ' P. 186. • Nightingale «i BurreU, 15 Pick. 104, 1,14. 'Griffiths®. Grieye, 1 Jac.&W. 31. » 3d Giro. Pa. 1818 ; WiUis d. Bucher, 3 Wash. C. Ct. 369. 112 ESTATES TAIIi. in their two sisters, C. and D., it was held^ that the devise to A. and B. was a fee tail and not a fee simple, the contingency upon which the limitation was to take effect not being limited to a life in being, but upon an indefinite failure of issue. It was also held that the es- tate given to C. and D. was a vested remainder, to take effect upon the death of both A. and B. without issue ; that cross remainders in tail were to be implied between A. and B. ; that at common law A. and B., would take a joint estate for life with several remain- ders in tail to their issue ; but that, by the Statute of Ehode Island, it was turned into a tenancy in common, and that several estates tail vested in them. In Murdock v. Shackleford the devise was as fol- lows : " I lend to my son, W., the tract of land whereon I live during my life, and, if he has children at his death, he may dispose of it as he thinks proper, reserv- ing to his now wife the use of the land for her life, as long as she remains his widjw ; but, if she marry, then she is to have only one-third part. If my son, ~W,, dies without heirs of his body, then the land, with the consideration above-mentioned, to go to my son, Z.,' &c. It was held that "W. took an executory devise in tail after an estate for life to himself, with remainder in fee to his children living at the time of his death, which ex- ecutory devise in tail was to take effect on the contin- gency of his dying without children living at the time of his death. W. appears to have taken a remainder in detail, and not .an executory devise in tail after his life estate ; since, if land be limited to two for their lives, with remainder to the heirs of him who dies first, the remainder, nevertheless, vests in the ancestor who dies » Lillibridge v. Adie, 1 Mass. 224, 1 Circ. R. I. 1816. " 4th Circ. Va. 1808, 1 Brock Marsh, 131 ; see Wright ». Scott, i Wash. 0. Ct. 16. NO MERGEE OF ESTATES TAIL. 113 first. W.'s estate is capable of being considered as a re- mainder. It therefore comes under the rule which for- bids a contingent remainder to be ever construed as an executory devise. § 2. No merger of estates tail. A remainder in fee is very common after a limitation in tail to the same person or to his sons. . The estate tail does not merge in this remainder, unless it is changed by a fine into a base fee. It will then merge in the remain- der when it descends, and the tenant will be in by de- scent and not by purchase. He will thus be liable for his ancestor's debts. Accordingly, wherever a tenant in tail can command the consent of the immediate feeholder, or has that feehold himself, he always suffers a recovery, which creates not a base fee, as a fine does, but a fee simple, incapable of merging in the remainder in fee, which it destroys. A remainder in fee may be created in a will as in a deed, after a limitation in tail. The estate tail in such a context will not be expanded into a fee, but left as an entail, with a remainder in fee. As a fee simple may, by implication, be cut down to a fee tail, so an entail general may, by the context, be cut down to mean an estate in tail special. Entails by impli- cation are very frequent in wills, where there is a refer- ence to a devisee's death without issue. The incidents of an estate tail are, of course, the same whether the es- tate is created by express words or arises by implica- tion. When a tenant tail has (which is usually the case), the reversion alone in fee by descent, he should never levy a fine. The effect of a fine is different from that of a recovery, inasmuch as it does not bar the remainder, but merely converts the entail into a base fee. This 114 ESTATES TAIL. estate in tlie case put would merge at once in the rever- sion in fee. The tenant in tail would then be tenant in fee by descent and not by purchase. He would, con- sequently, be liable for his ancestor's charges and debts, though if he had suffered a recovery its effect would be to expand the entail into a fee simple, and so shut out the reversionary fee by descent. He would thus be tenant in fee by purchase, and hold the land free and clear of all manner of incumbrances, except those cre- ated by himself. A fine, however, is often alone available to a tenant in tail in remainder, if the particular tenant will not consent to the disentailing of the land. A fine is also convenient, as it can be levied at any time of the year, and not, like a recovery, merely in term. Besides, it is less expensive, and when levied with proclamations^ gives a title by non-claim. It operates thus as a spe- cial statute of limitations in favor of tenants an tail. Yet, all these advantages are completely outweighed by the fact that if the tenant in tail owns the reversion in fee, he changes by a fine his estate from one by pur- chase to one by descent.^ Redfield^lays down the doctrine that a remainder after an estate tail is void, as being too remote and founded on an indefinite failure of issue. No remainder^ however^ after an estate tail is void for remoteness, but, if limited after the indefinite failure of issue of one who takes no estate tail, then the limitation is void. If it is limited not immediately after the estate tail or in defeasance of it, but at a period, say a year or a month^ after the termination of the estate tail, it is also void, ' See Burton's Compendium, title "Estates tail," Co. Litt. titles, "Es- tates tail," " Confirmation," " Charge," " Recovery." Shelford's Real Prop. Statutes. ' Vol. n, 216, § 3, 3d ed. ISO MERGER OF ESTATES TAIL. 115 because, though executory, it is not limited so as neces- sarily to vest during a life or lives in being and twenty- one years afterwards. The reason why a limitation by way of remainder after an estate tail, or as an executory interest defeating such an estate, cannot be too remote, is drawn from the fact that the tenant in tail can at any time bar such ulterior interest. If he die without barring it, then if it is a remainder, unless it vests at farthest upon the death of the tenant in tail, it is defeated and ceases to tie up the inheritance. If it is an executory interest, however, it may be void for remoteness, even though limited after an estate tail, although this position is denied by some writers of. authority. Executory interests, as they alone come within the reason of the rule against perpetuities, so are they unaffected by the incidents of remainders. These, as will be shown in a subsequent part of this work,^ can- not be too remote, whether limited after estates in tail or for life. . But, executory interests jest on a wholly different foundation. For instance, under a devise to A. in tail, remainder forty years afterwards to the heirs of B., here, if this executory interest to B.'s heir were valid, the inheritance might be in abeyance for forty years. It is clear such executory interest is void for remoteness. But if it were to abridge or defeat the estate tail, it could not be too remote. The statement in Kent,^- therefore, that a limitation after an estate tail is void by way of executory devise, as being too remote, is only true with the qualification mentioned. In other words, certain, but not all execu- tory devises after estates tail are void. If the limitation * See infra, ch. 26 on " Void testamentary gifts." ' 4 Comm. 376. 116 ESTATES TAIL. is a remainder, or even a shifting use, it is valid. But if it is a springing use, it is void. § 3. American modifications of the law of entails. Estates tail were introduced into our law with the other elements of English jurisprudence.^ But, being inconsistent with the more radical principles of a Be- public, estates tail are now obsolete in some States, and are greatly modified in most others. Where they do exist in their primary force, they can only be barred by fine or recovery. Although they still prevail in Massachusetts, Del- aware, Pennsylvania and Maine, they may in all of these States be barred by ordinary, deed and in some by will. In Massachusetts estates tail descend as in England,^ and in some of the States where they still exist they may be barred by will and attached by creditors.* Estates tail are abolished in Virginia, New. Jersey, New York, North Carolina, Kentucky, Tennessee and Georgia. They* are unknown to the laws of South Car- olina and Louisiana. In New Hampshire a tenant in tail may convey by ordinary deed. In Alabama and Mis- sissippi a conveyance may be made to a succession of donees, and to the heirs of the remainder-man. In Connecticut, Missouri, Ohio, Illinois, New Jersey and Vermont, the first donee in tail takes a life estate and a fee simple vests in his heirs or in the first remainder man. A tenant in tail in these States has virtually only an estate for life, as he cannot encumber the inher- itance.* ' 4th Kent, 5 ed. 14, 15. ' Wight V. Thayer, 1 Gray, 286. »■ Danes Abr. vol. 4', p. 621 ; Purdon's, Dig. 353. * See Den v. Small, 1 Spender, 151 ; Saunders ii. Hyatt, 1 Hawks, 247 ; Tinsley ®. Jones, 18 Grat. 289 ; Bramble «. Phillips, 4 Leigh, 90 ; Thorn- MODIFICATIOIfS OF LAW OF ENTAILS. 117 In Indiana a tenant in tail is deemed to be seized in fee after the second generation. In Connecticut there may "be a tenancy in special tail. In Rhode Island estates tail may be created by deed, but not by will longer than to children of the devisee, and they may be barred by deed or will. In some other States almost all the common law distinctions between estates in fee simple and in tail are abolished, and both kinds of limitation are held to be virtually in fee simple.^ In Maryland estates tail general are virtually abol- ished, being devisable and chargeable with debts. . But estates tail special in that State cannot be devised or charged with other than mortgage debts.* In the other States where estates tail are abolished by statute, a limitation in fee tail is equivalent to one in fee simple.* ason V. Andersons, 4 Leigh, 118; Boss v. Toms, 4 Dev. 376; Doe v. Craiger, 8 Leigh, 449. For Connecticut, see Hamilton v. Hemstead, 3 Day, 333; Allyn v. Mather, 9 Conn. 114. For Vermont, see Giddings v. Smith, 15 Vermont, 344. ' See Johnson o. Johnson, 3 Met. (Ky.) 831. = See Newton «. Griffith, 1 Harris & Gill, 111. ' Bramble «. Billups, 4 Leigh, 90. CHAPTER VIII. DYING WITHOUT ISSUE. Whatever liberality of construction is allowed in the case of a deed, the same and much more is conceded in the case of a will. Now, even in a deed the haben- dum is allowed to explain the premises, and thus indi- rectly often to abridge the quantity of interest passed by the premises. For instance, a grant to A. and his heirs, liabend/wm to him and the heirs of his body, wUl give A. only an estate" tail, although he takes a fee by the premises. But, if the grant were to A. and his heirs, Tiahendum to him for life, the Jiabendum would be void. For, of two totally repugnant clauses in a deed, the first will prevail. The reverse rule is adopted in the case of wills. It is rarely, however, that even a will contains two passages that are strictly contradic' tory of one another, though wills doubtless often enough abound in sentences that are more or less incon- gruous. By analogy to the limitation to A. and his heirs, and if he die without heirs of his body,' over, a devise to A. and his heirs, and if he die without issue over, gives A. an estate tail. For " issue " in a will is equivalent to "heirs of the body" in a deed; and, as this clause may cut down a fee in instruments of the latter class, a fortiori, it may have the same effect in wills. In the case put there is no difficulty. But let us suppose that the devise is to A., and if B. dies without issue, remainder to C. in fee. Here the operation of the phrase " dying without issue, " would have the effect of rendering the devise to 0. void for remoteness. In other words, the phrase " dying without issue " means BTING WITHOUT ISSUE. 119 ■dying and leaving no issue at some time or other, and not merely at the time of death of the prapositus. As such, an indefinite failure of issue might not happen within a life or lives in being, and twenty- one years after, the remainder to C. is void for remoteness. But, if the limitation were to A. and his heirs, and if he die without issue, remainder to C, this remainder would be good, inasmuch as it would ^be limited to take effect on the determination of an estate tail, and no remainder after an estate tail can be too remote, because the ten- ant in tail can always bar such ulterior interest.-^ This meaning of the phrase in question is much more easily got rid of in bequests of personalty, than where the devise relates to freehold. The phrase Head- ing no issue," accordingly/ has been decided to point to a failure of issue at the death of th.Q propositus, in case the subject of the disposition be personalty ; but, if the subject-matter is freehold, the phrase is construed to mean an indefinite failui'e, even though in the very same will it be construed, as already stated, so far as it is used in disposing of personalty. This actually happened in the case of Forth 'W. Chapman.^ The phrase "leaving no issue" was construed in that case to denote an indefi- nite failure as regarded realty, and a failure at the time of death of the propositus, as regarded personalty. The very same point was decided in Mayzcker v. Van- derhorst.' In that case the devise was of real and per- sonal estate to the testator's daughter and " the heirs of her body forever," but, if she should " depart this life leaving no lawful heir or heirs of her body " then over. It was held that the limitation over pointed to an indef ' See Hailet v. Pope, 3 Harr. 543 ; Moore v. Howe, 4 Mon. ; Downing v. Wherrin, 19 N. H. 9. = 1 P. Wms. 653. ' 1 Bailey's Eq. 48. 120 DYING WITHOUT ISSUE. inite failure of lier issue as regarded the realty, l)ut to a failure at tlie time of her death as regarded the person- alty. As the general rule of construction is not carried out where the bequest is personalty, provided the con- text at all favors a departure from it, so also the courts have engrafted anotherv exception upon it, viz., where the testator has no issue and uses the phrase " dying without issue " in reference to himself. This will then mean a failure of issue at his death, no matter whether the subject of the donation is real or personal.^ A third class of exceptions to the general construc- tion of the phrase " dying without issue " consists of those cases where the context of the will shows that the testator meant a failure at the time of death. This, indeed, is not so much an exception to the rule of con- struction referred to as a statement of the fact that a testator is bound by no rule of conveyancing not amounting to a rule of public policy. The reader of a treatise on wills, therefore, should remember that ^very rule and exception thereto which he is reading applies only if the testator has said nothing to the contrary. If he has, the will of the testator, and not the rule of law,- will be followed. We refer, therefore, to the fact that the testator may preclude the statutory or common-law meaning of the phrase " dying without issue " merely that we may add that a failure of issue, at the time of death of the proposilms, will always be more readily in ferred if the subject of the gift tae personalty than if it be freehold.^ Where the gift over is to take eJffect expressly on thfr death of the first taker, there is no difficulty,® no matter ' French v. Caddell, 3 B. P. C. (Toml. ed.) 257. ' Fearne on Cont. Rem. 471. ' Doe d. King v. Frost, 3. B. and Aid. 546. DYISG WITHOUT ISSUE. 121 whether the propositus takes an express or an implied fee.^ But, if he takes only an estate for life or an estate tail, the restricted construction will not be adopted.* ^ ^ The reason is because the issue of the propositus will be sought to be benefitted in the cases last put by giv- ing the first taker an estate tail. This reference or pre- sumption in favor of an estate tail, however, will be rebutted if the propositus gets by the will certain lim- ited powers which he would not require if he was to be plenary tenant in tail.* If the event of dying is confined within a certain age of the propositus, the failure of issue cannot be Tield to be indefinite. In such a case, as, for instance, under a devise to A. and his heirs, and if he die under twenty-one and without issue remainder to B., this remainder will take effect if A. has no issue living at the time of his death. A. does not take an estate tail, but a fee. subject to an executory devise in favor of B.* An estate tail in possession is thus always better than an estate in fee, if this is subject to an executory devise ; because the tenant in tail can bar all remainders and executory devises after, or in defeasance of, his estate tail, whereas a tenant in fee cannot defeat any valid, ulterior limitation whatever. As an estate tail always prevents a limitation after it from being too remote, because the tenant in tail can bar it, it was on this account that? the courts inter- preted a failure of issue to mean an indefinite failure a& regarded land^ because the remainder over was thus supported and prevented from being too remote, while,, even if the tenant in tail defeated it, he then had a fee ' Blinston v. Warburton, 2 K. & J. 400. " lb. Ex parte Davies, 3 Sim. K 8. 114. ' Doe v. Frost, 3 B. & Aid. 546. * Eastman v. Baker, 1 Taunt. 174. 122 DYING WITHOUT ISSUE. •which, would go to all his issue, as well as to his heirs general. In cases of personalty, however, there is no such thing as an estate tail. The person to whom an entail is limited in personalty takes the absolute inter- est,^ and a remainder over is void. Hence the courts strained after confining the meaning of the phrase " dying without issue," and especially to denote a fail- ure of issue at,the death of the propositus^ in case the subject of the donation was personalty. The nature of the subject-matter, and the terms of the ulterior devise, sometimes show that a failure of issue at the time of the death of the propositus is what is intended. Thus, if the land is chargeable with moneys to be paid within a definite period after the decease of the first taker ;^ or, if the ulterior estate is for life only,® the restricted construction will obtain. Jarman* thinks that, as an estate for life is often, in practice, limited after an estate tail, the fact that the ulterior interest is for life ought not to lead to an adop- tion of a restricted construction of the phrase " dying without issue." But this reasoning is hardly philosoph- ical or practical; for, in the case of the limitation in question, the testator means that the first taker is to have only a life interest, unless he has issue. Life. in- terests are often limited after estates tail, but not where the tenant in tail has actually in existence a large family at the time. Such a limitation over would be frivolous. Jarman then compares his merely abstract position with an actual limitation to- a living person, after a gift for life to a person who, most probably, has no issue at all at the time of making the devise. Sir ' Appleton ti. Romley, Law Rep. 8 Eq. 139. ' Nichols «. Hooper, 1 P. Wms. 98. ' Roe d. Sheers «. Jefferey, 7 Burn. «fc East. 589 .' ■> Vol. II, 435. BYING WITHOUT ISSUE. 123 W. Grant, however, would not adopt the restricted con- struction in a case where some only of the remainders over were for life.^ Where the property,' in the devise over, was charged with certain sums of money to, be disposed of by the will of the first devisee, the restricted construction will obtain.^ Jarman^ very justly observes that, if the first taker gets only an express estate for life, the restricted con- struction ought not to be so readily applied as where he gets the fee, because in the latter case the issue may take by descent, whereas in the former they get noth- ing, and yet the remainder-man takes nothing until they fail. Besides, when the first taker has a fee limited to him, the ulterior tenant cannot be barred by a recovery, while the prior tenant has a fee which may become obsolete. The phrase " dying without issue," in a devise of freehold land, is construed generally in the United States as it was in England* prior to 1838.^ Conse- quently, in those States where there is no statutory provision on the point, the phrase is equivalent to dying without heirs of the body. In several of the States, however, as in England since the date men- tioned, the failure of issue refers to the death of the ancestor. Even in those States where there is no statutory rule of construction on this head, the courts strain at some plea in the context for interpreting the phrase in its restricted sense, if this is necessary to support a limitation over. Thus, it has been held, » Barlow v. Salter, 17 Ves. 479. ' Mchols V. Hooper, ut supra. .' Vol. II, p. 440. * 1 Vict. c. 36, § 39. ' 3d Circ. Pa. 1818, Willis v. Buclier, 3 Wash. C. Ct. 369. 124 DYING WITHOUT ISSUE.. that a devise, " if either of my sons A. and B. should happen to die without any lawful heirs of their own, then the share of him who may first decease shall accrue to the other survivor and his heirs," points to a failure of ,issue at the death of A. or B. A, and B. were held each to take a conditional fee, subject to an executory devise in favor of the survivor.^ If the subsequent estates are for life only, this is some intimation that the testator did not contemplate an indefinite failure of issue.'* Jarman, however, thinks the decision cited an " extraordinary one."^ The phrase, " leaving no issue," will be construed more readily than " dying without issue," in a restricted sense. Yet, " leaving no issue " will not be restricted in meaning as to realty in England, even though the lands be copyhold, in which there is no custom of entailing, and of which the ulterior limitation is, there- fore, too remote. But, if the testator has no issue, and refers to himself leaving no issue, the failure referred to will be admitted to point to the time of his decease.* So a devise to A. and his heirs, but if he die under twenty-one and without issue, then over gives A. a fee determinable on his death without issue. A like construc- tion prevails in every case where the dying without issue is connected with some event personal to an individual.* A gift over if the devisee dies under twenty-one, or under twenty-one and without issue, gives him the fee by implication if he attains age, even in those States ' 3 Abbott ». Essex Company, 2 Curt. C. C. 126 ; see Smith's Appeal, 23 Pemi. St. 9. ' . . » Roe d. Sheers ». Jeflfery, 7 Durnf. & E. 589. = 2 Jarm. 485. * French ». Caddell, 3 B. P. C. Toml. ed. 257. ' Griswold ». Greer, 18 Geo. 545 ; Armstrong v. Armstrong, 14 B. Mon. (Ky.) 383. pYTSGr WITHOUT ISSUE. 125 where a general devise does not mean a fee.^ In these States, also, the devisee takes the fee if the legal estate is in trustees, and the purposes of the trust require that they should take the legal fee. In Doe V. Watson^ there was a devise to two grand- children of the testator, provided that if both should die under age and without lawful issue, then over. It was held that, as the children attained age, the devise over never took effect. Where a testator does not contemplate the event of any of his children dying under age, but directs the distribution of his estate to be made when the youngest child attains majority, the beqhest may be deemed dependant on the majority of that child alone, and is not void as suspending the power of alienation for more than two lives.® A devise of a reversion expectant on an estate tail should provide that the clause, dying without issue, should mean the issue inheritable under the entail, or else refer to that estate, otherwise the gift may be void for remoteness. The phrase, " dying without issue," by the 1st Vic. c. 26, s. 29, points to issue at the decease of the ancestor. The phrase in question, therefore, cannot in future in- England, or in States having analogous statutes, give an estate tail by implication, except in the instances excepted in the section. This section will not abridge estates given previously to children, because the word issue will refer to the children, and, if occuring subsequently, will mean such issue according to the rule in Malcolm v. Taylor,* while in other cases it will pre- vent the limitation over from being void f6r remoteness. ' Burke ». Annis, 11 Hare, 233. ' 8 How. 363. ' Burke i;. Valentine, 53 Barb. 412 ; s. c. 5 Abb. Pr. N. S. 164. * 3 Russ. & Myl. 416. 126 DYING WITHOUT ISSUER A limitation over after a general failure of issue is; void as to personalty. Hence, the courts endeavour still more earnestly than in the case of realty to confine the reference to a failure of issue, to the time of th& death of the first taker of personalty. As regards such property, therefore, words denoting a failure of issue, following a bequest to children,^ either for life in fee or in tail, refer to them and will not enlarge any of the prior estates. This construction will afortim'i apply where the previous bequest is to children, even though they be subjected to certain qualifications.. Where the phrase is " in default of such issue," it ob- viously points to the preceding donees, whether children,, sons, or daughters. This rule applies to devises as well as bequests, and even though the previous bequest be to child or daughter in the singular. The parent in such cases takes no estate tail. Where there is a devise to issue of a particular kind, or subjected to certain restrictions, the clause, in default of issue (not " such issue"), will usually be held not to refer to the preceding issue, but to enlarge the ancestors' estate by implication to an estate tail in remainder.^ Therefore, under a devise to A., remainder to his eldest son, or to a limited number of his sons, or to one son • only in tail male, or for life, and in case A. dies without issue, over, A. takes an implied estate tail in remainder.''' Jarman very justly considers that the phrase, in default of issue, ought always have been construed to be referential only,® and as equivalent to the phrase, " in default of such issue." Even as to personalty ,the clause, " dying without issue," will receive only the restricted signification when followed by the words " after his decease," (but not ' 2 Jarm. 363. ° Stanley v. Lennard, 1 Eden, 87. BYING WITHOUT ISSUE. 127 " after him,)" or, " if lie marry without consent, or die without issue." This latter phrase shows that the testa- tor did not mean to give the devisee an entail at all haz- ards, but only a fee determinable.^ This seems to be the true principle of the decision in Keiley v. Fowler.^ The ulterior legatee in all cases of this sort must be intended not merely to survive the propositus, but all his issue. The context, by reference to a definite period when the issue are to fail, or, by containing powers having only a li&ited scope, may cut down the phrase, " dying without issue" to failure at the time of the death of the pro- positus.^ As the American courts incline to ignoring the rule' in Shelley's case, so they also lean to construing the words " dying without issue," when unexplained by the context, as denoting a failure of issue at the death of the ancestor. With respect to this rule, the English cases prior to 1838 are more in harmony with those of , the United States than where the question relates to the rule in Shelley's case. The English courts always inclined, almost as much as our own, to give the phrase,. " dying without issue," a restricted meaning. Old Eng- lish cases on this question, therefore, are valuable to the American practitioner. The doctrine of Forth v. Chapman * has not been absolutely adopted by the American courts, but their disposition is strong to cut down the meaning of the pkrase, " dying without leaving issue," or, " dying with- out issue," to death, or failure at the death of the pro- positus, even as regards realty. Thus, in Den v. Schenck,^ > Trotter v. Oswald, 1 Cox, 317. = 3 B. P. 0. Torn], ed. 299. , ' See further Dallam v. Dallam, 7 Har. & J. 230 ; Carter v. Tyler, 1 Call, 143; Moody v. Walker, 3 Ark. 198. * 1 P. Wms. 663. ^ 3 Halst. 29. 128 DYnrG WITHOUT ISSUE. the phrase, " die without issue alive," was held to im- part only the restricted meaning. In Anderson v. Jack- son^ the phrase, " the share of the devisee dying without lawful issue, was to go to the survivor," received a similar construction. But if there is no expression, however slight,^ the rule of the common law will be applied, and the failure of issue will refer to all descendants,^ except in those States where a statutory provision exists to the con- trary. The American statutes on this point are more satisfactory than the analogous English provision (1 Vict. c. 26, § 29), which relates only to the use of the word " issue," and not " heirs or children." The rule of construction ? adopted by the 29th sec- tion of 1 Vict. c. 26, had been previously enacted in Virginia in 1819, in Mississippi in 1824, in North Car- olina in 1827, and in New York by the Revised Stat- utes.* The old rule, however, may apply if the clause refers to a preceding limitation, and it must apply if the context is plain to that effect. In such cases the clause will either raise an implied estate tail in the prop- ositus, or else will render the, ulterior limitation void for remoteness. The statutes referred to only operate where the testator's meaning of the words used by him is not clear or defined by the context. It has been doubted whether, in case of a devise to A. and his heirs, and, if he die without issue over, A. would not still take an estate tail in England and those States which have analogous statutory provisions on this point. It is probable the English -Wills Act will be held not to apply to this case. The issue referred to ' 16 Johns. 382. ' Ladd D. Harvey, 1 Fost. 614. ' See Edelen «. Middleton, 9 Gill, 161, where the cases are examined. * See 4th Kent, 5th ed. 379. DYING WITHOUT ISSUE. 129 are comprised in the previous word " heirs." The con- text thus shows that the testator contemplates a general failure of issue, and not a failure of them at his death. The statutory interpretation of the meaning of the phrase, therefore, seems precluded by the previous de- vise in fee. But more difficult questions will arise on this head under the American statutes, which (unlike the English act), expressly provides for a death without " heirs " as well as for death without " issue," In Virginia,^ Mississippi,^ North Carolina,* dying without issue, hei^s, heirs of the body, or children, will mean, whether in a deed or will, a failure of issue at the death of the ancestor or propositus. By the New York Revised Statutes, a remainder, limited after an entail, operates as a contingent limitation on a fee, and vests- in possession on the death of the first taker without issue living at his death.* As to the question whether a limitation of personalty to the survivor of several persons, in default of issue of either, involves a restricted construction of the phrase we are considering. See Cutter v. Doughty.* If the phrase " importing a failure of issue " is pre- ceded by a power implying a gift in default of appoint- ment to the issue of the donee, living at his decease, the restricted construction will of course prevail in any State." The rule of construction established by the 29th section of 1 Vic, c. 26, and the analogous American statutes, does not apply if the context implies to the contrary. It will, however, be often still a question of 'Stat. 1819. =Stat. 1824. ' Stat. 1837. ^ See Hone v. Van Schaick, 3 Barb Ch. 489. " 33 Wend. 513 ; Zollic6flFer«. ZoUicofifer, 4 Dev. & Bat. 438. • Target «. Gaunt. 1 P. W. 433. I t 130 DYING WITHOUT ISSUE. difficulty to determine whetlier the statutory rule is neutralized by the context or not. The old cases thus continue to have much, though, of course, not the whole of their pristine value, even in those States where the restricted construction obtains by statute. For further elucidation of the phrases " dying with- out issue," or " without lawful issue," see Patterson v. Ellis.i Under the statutory meaning of the word " issue," the remainder man over takes an executory interest which cannot be barred. Under the ordinary meaning of the phrase " dying without issue," the remainder man over takes a remainder, which is at the mercy of the preceding tenant in tail. The enactrnents on this head are, on the whole, to be condemned, except where they restrict the new meaning of the word " issue " to wills where the propositus takes no estate. For, in those instances where he takes expressly for life, the intention of the limitation over on his dying without issue is certainly to benefit the issue, either as heirs or purchasers. But the act defeats their claims under either head. ' 11 Wend. 359; Norris ». Byea, 13 N. Y. (3 Kern.) 373; Dumond v. Stringham, 36 Barb. 104; Wilson v. Wilson, 32 Barb. 338; Du Boia v, Kay, 7 Boaw. 344; 11 Wend. 359; 5 Mass. 500. CHAPTER IX. JOINT TENANCY. The law favors the amalgamation of different estates in one person. Hence, perhaps, arose the rule in Shelley's case, and the doctrine of merger. The law also favors the concentration of the estates of different persons in one of them, if the construction will so per- mit. Hence, semble, flowed the motive for its pre- suining a. jus accresceTidi, under a limitation to several. This doctrine, indeed, is found in Eoman law ; but Tinder the feudal system the civil law did not prevail of its own authority, but only by its intrinsic merits, a,nd its convenience for feudal purposes. A devise, like a conveyance, to two or more per- sons, not being husband and wife, constitutes them joint tenants. The law presumes a joint tenancy in such cases, and equity follows the law. The peculiar incident of a joint tenancy is that, though any of the partners can assign or can devise his share without the consent of the others, these, nevertheless, have what is termed the jus acorescenM^ or right of survivorship or accruer as to unassigned shares. This is very convenient in trust estates, as it is not then necessary to seek out the heirs of deceased trust- ees, in order to convey. The common law of joint tenancy, however, is much infringed upon by statute, both in the United States and in England.^ At common law there were some nice distinctions ' See Kent, 5th ed. 361, 368 ; Frewen «. Kolfe, 3 Br. C. C. 334; Vamum «. Abbott, 13 Mass. 474. 132 JOINT TENANCY, between the forms of conveyance open respectively to joint tenants, tehants in common, and parceners. Joint tenants could both enfeoff and release, while tenants in common could only enfeoff, and parceners release. This privilege of joint tenants was important, when we con- sider the efforts made in early times to devise a system of secret conveyancing by means of releases founded upon nominal leases. As a joint tenant was by statute authorized to dismember the joint tenancy, he could also thus constitute himself a tenant in common any time by deed, though not by will. The incidents of a joint tenancy at common law are unity of possession or seisin, of interest, title, and time- of vesting. Under wills or conveyances by way of use or trust, the last incident is not indispensable. Devisees- may take joint interests, and yet come into being or otherwise attain vested interests at different periods of time. For instance, under a gift to A., remainder to the children of B., all B.'s children at the death of A. are joint tenants, although their interests vested at different times.* Under a limitation of this kind to a class, some members of which are already born, the natural con- struction would appear to be to hold the existing members to take as joint tenants, but subject to a divesting of their interests proportionately on the birth of fresh members of the class. The divesting operation cannot affect the quality of the interest taken by the existing devisees more than it can the vested nature of the interest. However, in Woodgate v. Unwin* all were held to take in common, while in Stratton v. Best* ' Kenwortby v. Ward, 11 Hare,. 196. '' 4 Sim. 129. ' 2 B. C. C. 233. JOINT TENANCY. 133 all were, held to take jointly. The only mode of reconciling these cases is to consider that limitations of realty will be construed more readily than gifts of per- sonalty to be in conformity with the common law pre- sumption in favor of a joint tenancy. The former case was under a will ; the latter under a deed to uses. But wills and uses are, as already stated, considered to be on the same footing with respect to common law presump- tions. Indeed, neither of the cases referred to can be considered as of much authority. The doctrine in Ken- worthy V. Ward* may, therefore, be considered as the correct statement of the law on this point. Whether the devise be to several by name, or to a class, they take as joint tenants, and whether they be children, issue, or next of kin, unless there is a refer- ence to the statute of distributions,^ or some of the shares are (fontingent, as when the limitation is to such members of the class as will attain twenty-one.* The case of Woodgate v. Unwin, however, is of no real . authority on the point, inasmuch as the principle of the decision, as expressed by the court, was that no interests that vested at different times could be held in joint tenancy, a doctrine long exploded as regards wills and conveyances by way of use. The exceptions to the rule presuming a joint tenan- cy in case of a limitation to several are, first, where the gift is to two, being husband and wife. Such a grant or devise constitutes a peculiar tenancy. The donees -take by entireties, and differ from joint tenants, inasmuch as neither alone can defeat the interest of the other sur- viving. Another exception exists in the case of partner- ' 11 Hare, 196. = Bullock V. DowTies, 9 H. L. C. 1. ' Woodgate v. Unwia, 4 Sim. 139. 134 JOINT TENANCY. ship property. A third exception to the rule is, that if a de- vise or grant be made to two persons who cannot lawfully intermarry, or to two men or two women,^ and the heirs- of their bodies, the donees are joint tenants only for life, with several inheritances in tail. For, it is not possible that they can have a common lawful heir of their bodies. The right of accruer in such a case attaches only to the life interest. The presumption of a joint tenancy is also often varied in equity under contracts where the parties contribute unequally. The slightest indication, too,, in a will that the donees are to take in common wUl be enforced in equity. For the court is ever ready to^ overrule the common law jus accrescendi, on the ground that equality or a tenancy in common is more equitable than a chance game of survivorships. However, if there be nothing in the context to enable the court to carry out its favorite views, it must adopt the legal pre- sumption. , The presumption of a joint tenancy applies to a be- quest by way of trust or otherwise, and .whether the gift be of a sum of money or of a residue. But, it is possible that a tenancy in common would be more readily inferred in a doubtful case where the bequest was personal than if it be real, just as in conveyances, by way of use or under a will, a tenancy in common may be created by words that would fail to sever the jointure in a deed. As the presumption of a joint ten- ancy is a common law rule, the further we pass from common law into the region of equity, and still further into that of the civil law and of the ecclesiastical courts, the common law presumption grows weaker. Indeed,, equity so favors a tenancy in common that it grasps at any straw in the context to promote such a construction.. ' Doe d. Littlewood v. Green, 1 Mee. & W. 329. JOINT TENANCY. ^ 135 But, if there "be nothing of this nature in the context, the Court of Chancery is powerless to ignore the rule of law that presumes a joint tenancy in a gift to two or more, so far as such presumption is practicable. The presumption of a joint tenancy applies to gifts, to classes and to children. But, if some are unborn, then, as to these, the gift, if it arises under a common law deed, is necessarily in common. For common law estates that vest at different times cannot be in joint tenancy. Yet, as regards the devisees, and especially the members living at the time of testator's death, these, semble, take jointly. The case of Woodgate v. Unwin^ differs on this point from Stratton v. Best.^ But this, as already stated, was a conveyance by way of use, and uses and wills are considered as capable of conferring a joint ten- ancy, even though the shares vest at different times. As the court, when enforcing any equity, will carry out its own peculiar rules, so, when executing trusts ex- ecutory, whether contained in wills or deeds, it will .constitute any classes of donees tenants in common.^ The exceptions, then, to the common law presump- tion (which is followed by equity), in favor of a joint tenancy in a gift to a class, are : 1, where the donees are husband and wife ; 2, as to inheritances, but not life interests, where the donees cannot by possibility have a joint heir ; 3, cases of partnership ; 4, executory trusts. The dictum of Lord Hardwicke in Bagshaw v. Spencer,* to the effect that trusts executory do not differ from trusts executed, has been long since overruled. Executory trusts are directions contained in wills, marriage articles and contracts, to convey or settle ' 4 Sim. 139. = 3 B. C. C. 233. " Marryatt «. Townly, 1 Ves. Sen, 103. - 1 Ves. Sen. 143. 136 JOINT TENANOr. property in a certain manner. Sucli directions are con- strued differently from clauses in final instruments, the trustS' of which are said to be executed or completed. Most wills contain very few executory trusts, as distin- guished from executory interests, or future uses or trusts. The testator generally settles the property himself; but if, instead of doing this, he directs a devisee in trust, or the donee of a power to convey land to A. in strict set- tlement, or to the children of A., equity will, in the former case, direct the conveyance to be to A. only for life, with remainder to his first and other sons in tail, and in the latter case to the children as tenants in com- mon. But, if the devise was a trust executed to A. and the heirs of his body, A. would take an estate tail, while under the devise to the children they would take as joint tenants. The preceding observations respecting devises and trusts executed apply only where the context discloses no intention on the part of the testator to create a ten- ancy in common. Any limitation to this effect, of course, will be as legal in a will as in a deed, while many ex- pressions in a will or conveyance by way of use that will create a tenancy in common will not have this effect in a common law deed. Any phrase in a will that imports division by equal or unequal shares^ wUl create, a tenancy in common. A tenancy in common has been held to be created by the phrases, "equally to be divided," "equally amongst them," " severally," " equally," " respectively," " part alike," " in n^oieties," &c} "Where an ulterior donee,, however, is not to take his interest until after the death of a survivor or of ' 2 Jarm. 163. '' See m re Tiyerton Market Act, 30 B. 374. JOIKT TENANCY. 137 previous donees, ttis imports that these take as joint tenants^ and that the jus accrescendi^ or accruer, applies to accrued as well as to original shares.* If the gift is in joint tenancy, and any of the limita- tions are void, lapse, or are revoked, the remaining donees take the whole. But, if it be a tenancy in com- mon, the heirs will take unless the gift is to a class,® in which case all the members of the class living at the death of the testator will take. In Brownell v. De Wolf,* a person devised to " all his surviving children in equal divisioifs" all his real estate, and afterwards, by a codicil, revoked the share of a daughter without limiting any devise over. It was held that, as the devise to the children was in common, the revocation of the daughter's share did not enlarge the estate of the others, but produced an intestacy as to that share. As to what constitutes a severance of a jointure, see Gould V. Kemp.^ Even in England the presumption of a joint tenancy is a very slight one, and is daily becom- ing more evanescent.® In the United States it is no- where regarded as more cogent than the presumption in favor of the rule in Shelley's case, which, as stated in Chapter VI, may be defeated by any expression, how- ever trivial, to the contrary.'' ' Doe d. Calkin «. Tompkinson, 3 Mau. & Sel. 165. " 3 Jam. 166, note ; see chapter 16, infra, on Survivorship. =■ Sackett «. Mallory, 1 Met. 356. ^ 3 Mass. 486 ; see Pryor v. Dunkle, 3 Wash. C. Ct. 416, for a plain case of partial intestacy. ' 3 My. & K. 304. ' See mr« Morse, 31 L. J. Ch. 363. ' See 4th Kent Comm. 5th ed. 361, 363 ; 3 HiUiard's Abr. Law of Eeal Estate, 0. 4, pp. 43-4; Sackett v. Mallory, 1 Met. 355. CHAPTER X. FUTURE ESTATES. § 1. Remainder. At common law the feehold could not be first limited on a contingency, but an executory devise may be thus created. A common law remainder should wait until the preceding estate or estates determined, but an executory devise may abridge them. In short, an executory devise is bound by no doctrine of convey- ancing, except the rule against perpetuities, and it cannot, like a remainder, be defeated by any incident of the estate of the pax-ticular tenant.^ The framers of the Eevised Statutes of New York* have "imbued remainders with all the qualities of execu- tory devises, and have also abolished uses, thus copying in the letter the ancient doctrine of the common law judges that there could be no use of a use. A remainder is either vested or contingent. A con- tingent remainder fails altogether, if it does not become vested before the period specified in the will. For in- stance, under a devise to A. for life, remainder to the heir of B., if B. survives 'A., the heir of B. never takes anything. Contingent remainders are divided by Fearne into four classes. The following remainder is contingent; on the four conditions described by that writer. To A. till B. returns from Rome, and from and after the return of B. and C. from Rome, and the death of D., remainder- to the heir of E., when he shall attain age. Unless all these contingencies are fulfilled before ' See Allen i). White, 16 Ala. 181. ' Vol. I, 728, § 45. EEMALNDEB. 139 B. returns from Rome, tlie heir of E. never takes the estate. Executory devises are subject to no legal period like remainders before or at which at latest they must vest. They are, therefore, more advantageous than re- mainders to devisees. They can only arise under wills or deeds by way of use, and will not be construed as execu- tory even in those instruments if the limitations can by possibility at the time of the testator's decease be deemed remainders.^ For a common law estate is al- ways presumed, instead of a statutory one. The law of remainders is thus more extensive under wills than would be suspected on first consideration. Contingent remainders may be preserved from de- struction by the particular tenant, by means of a limitation to trustees to preserve the contingent estates. Even where contingent limitations are protected by statute against the merger, surrender, or forfeiture of the estate of the particular tenant, a limitation to trustees to preserve, &c., is desirable, especially if the particular estate may expire by effluxion of time 'before the remainders can vest, or if the particular tenant is likely to commit waste. For,, an injunction will lie against him at suit of a trustee to preserve, &c., who, in turn, will be prevented by the court from concurring in the destruction of the contingent remainders.^ A remainder that may be deemed vested is never construed contingent, for, as the courts incline towards holding interests as common law ones, so also do they favor a vesting; It is often, however, very difficult to- determine to what class a remainder belongs. The cases on this question are not at all in hjarmony with prin- ciple. Even the common limitation to trustees to pre- ' Doe V. Provoost, 4 Johns. 61. » See Garth v. Sir John Hind Cotton, 1 White & Tud. Lead. Gas. 604, and notes thereto. 140 FUTUBE ESTATES. serve contingent remainders is, a contingent remainder in point of principle, though the contrary has been re- peatedly decided. In Olney v. Hull^ the. devise was to testator's widow while she remained unmarried, remainder on her death or marriage to be equally divided among the testator's surviving sons. This remainder was held contingent. If the testator meant the sons surviving himself, the remainder would have been vested.^ In Putnam v. Gleeson,^ the devise was to the testator's 'daughter for life, and at her death to her heirs and as- signs. The remainder was held contingent, as the rule in Shelley's .case was abolished in the State. But, a remain^ der to the testator's heirs would have vested at the same time as the life estate.* The English law of vested and contingent remain- ders is adopted in the American States.® A remainder, however, has always been more readily held than a particular estate in the United States, to be in fee if there was no word of perpetuity in the context, as, to A. for life, remainder to B. Here B. sometimes took a fee,® even before the recent changes in the laws on this point made by several of the States.'^ The law of re- mainders' and executory interests is the same in the United States as in England.^ As to vested remainders, ' 31 Pick. 311. " Emerson ii. Cutler, 14 Pick. 108 ; see Manderson «. Lukens, 33 Penn. ■St. 31. ■ ' 99 Mass. 454. * Abbott V. Bradstreet, 3 Allen, 587 ; Dunn v. Bryan, 38 Ga. 154 ; see Petrom's Estate, 58 Penn. St. 424 ; Browne «. Lawrence, 3 Cush, 390. ' 3 Eedf. 247. ' Plimpton V. Plimpton, 12 Cush. 458. ' See «u,pra, chapter 5, on Devises. ' Miller v. Chittenden, 4 Iowa, 253 ; Pierce ». Hakes, 33 Penn. St. 231 ; Downing ». Wherrin, 19 N. H. 9. EXECTJTOET DEVISES. 141 , see fmrtter Young v: Stover ;^ see further as to contin- gent remainders, Evers v. Ohallis.'' As an estate will be construed as a remainder rather than as an executory devise, if both constructions are open to the court,* so an heir under a devise is deemed in by the common law, unless there is a local statute to the contrary. § 2. Executory Devises. Executory devises are springing or shifting uses in wills ; in other words, future estates that cannot be con- strued as remainders. Such future estates either have no particular precedent estate, or else do not come into- possession exactly on its determination, but either before or after it. To A. for life, remainder to B. in tail, re- mainder to the heir of C. in fee. Here B.'s estate is a vested remainder, and that of the heir of C. is a contin- gent one. It may vest in interest during the currency of the preceding estates, though it cannot vest in pos- session until both A.'s and B.'s estates determine.* But, if the devises were to A. twelve months hence for life,, but if B. marry during A.'s lifetime, then to B. here A.'s estate is a springing use and B's a shifting one, inasmuch as it may abridge A's. interest.® If the limitations were to A. for twelve months, remainder to the heirs of B., a person in existence, yet this estate is an executory de- vise, since it would be void as a remainder, inasmuch as these interests, when contingent, must be preceded by ' 37 Penn. St. 105; Felton v. Sawyer, 41 N. H. 303. ' 7 H. L. Cas. 531 ; 29 L. J. 131; 30 L. J. Q. B. 113; Stephens©. Evans, 30 Ind. 39; following 38 Mass. 31 ; distinguishing 31 Pa. 504; 7 B. Mon. (Ky.) 633; 35 Wend. (N. Y.) 115; 3 Denio (N. Y.), 9; 34 Barb.. (N. Y.) 388 ; 38 N. H. (8 Post.) 459. ' Hawley v. Northampton, 8 Mass. 38. * Holme V. Low, 4 Met. 190; Ide v. Ide, 5 Mass. 500,503. ° Church in Brattle Square v. Grant, 3 Gray, 150. 142 FUTURE ESTATES. one or more estates of freehold, transmitting an unbroken seisin from the owner. Therefore, under a devise to A. for life, and a year after his death remainder to B., this estate to B. is an executory devise, since it would be void as a remainder, the freehold being in abeyance for a year. The law of executory devises is thus exactly coincident with that of uses. Whatever is good as a use is also good as a devise, and, conversely, while if either can, by possibility, be construed to be a remainder, even though contingent, it will be liable to all the dangers that attend that class of estates. All future bequests of chattels are executory and not remainders, since such interests can arise only in land or other freehold realty, such as rents and incor- poreal tenements, which are the subjects of tenure, and imply one continuous and unbroken seisin. A settle- ment of chattels, consequently, is void, at common law, but is good by way of use or bequest.^ If the chattels are consumable by use,,such as hay, &c., they should be sold, and the interest only of the proceeds given to the tenant for life.^ The tenant for life is himself bound to convert them, else his estate will be liable for a devas- tavit. The court will compel him to give an inventory, and, in case of danger, security also, that the property will not be wasted.^ An executory devise cannot be defeated in the United States more than in England.* Therefore a gift over, upon the decease of the first taker without issue living at his death, will operate by way of executory devise, notwithstanding any conveyance by such first taker. An executory devise thus differs ' See 2 Kent, 5th ed. 353. ' Patterson v. Devfin, 1 M'Mullan, S. C. 459. = De Peyster v. Clendning, 8 Paige, 395 ; Clark v. Clark, 8 Paige, 153 ; see infra, chapter 24, on legacies. * Couch V. Q-orham, 1 Conn. 36. EXECUTORY DEVISES. 143 from a contingent remainder both in its capacity of defeating previous estates and in being indestructible its.elf. As executory devises may defeat previous lim- • itations of tbe same property, tbey may be limited on a fee,^ although no remainder can be limited on a fee. An executory devise that abridges a preceding estate is thus of the nature of a condition subsequent. If it does not arise, the preceding estate will continue according to the terms of its limitation. The chief characteristic and value of an executory interest, as distinguished from a remainder, is that it is indestructible by the merger, surrender, or forfeiture of a preceding estate. The limitation to trustees to pre- serve contingent remainders (which indeed is, in point of principle, a mere contingent remainder), is no ade- quate security for the remainders, and the trustee, unless restrained by chancery, may defeat them. As any interest, however, that can be construed as a remainder will not take effect as an executory devise, because a common law estate is more favored than an equitable or statutable one, so, conversely, any interest that is at the time of the testator's death executory will not afterwards be deemed a remainder, just as an appar- ent feehold carved out of a chattel is still a mere term of years determinable on an uncertain event. Where an estate is limited on alternative contingencieSj there is no reason why, if failing on one of the contingencies to vest as a remainder, it should not arise on the alterna- tive as an executory devise.^ A fee defeasible by an executory devise is still sub- ject to dower, curtesy, I give to my beloved wife, C, in trust for the maintenance of herself '■ White V. Green, 1 Ired..Eq. 50. ° See Saunders v. Low, 2 Sir W. Bl. 1014; Wainwright v. Wain- wright, 3 Ves. 558. ' Manigault «. Deas, 1 Bail. Eq. 398 ; Kathtione v. Dyckman, 3 Paige, 9. * Walker v. Mackie, 4 Russ. 76. ' Kellogg «.Mix. 37_Conn. 343. 172 IMPLIED GIFTS. during her life, and of my daughter E., so long as she remains single, and to my son G., $400 a year to be paid by my trustees." A previous clause had given the entire property to trustees for purposes to be after- wards stated in the will. No other disposition of the income, which was $4,000 a year, was made during the life of the widow ; but the income was given to his children after her death, and any appropriation of the principal of any part of the estate before her death was forbidden unless with her consent, and she was to have the entire use of her portion of the estate until "her death.^ It was held that the testator intended to give his widow the net income of the estate during her life, except the $400 given to his son, and that those words should be supplied in construing the legacy to. her.^ As to implied gifts under powers of selection or distribu- tion, see chapter 15, § 2, infra, oh precatory trusts. A recital does not necessarily pass an interest.* But if a testator recites in part of his will that he has con- veyed an interest to a certain person, this operates as a conveyance, if no such clause as that to which the testa- tor refers is found in the will.* Yet a mis-recital of a will in a codicil will not operate as a revocation pro tanto, unless there is a plain indication of an intention to revoke.® An executor may be appointed by implication. Therefore the assigning executorial duties to one ira. pliedly appoints him executor.* As to implied powers, see chapter fourteen, infra, on Limitations to Trustees. ' See Holms b. Williams, 1 Eoot, 332 ; Eai;lierly v. Eatherly, 1 Ooldw. (Tenn) 461 ; Chappel v. Avery, 6 Conn. 31. " Kellogg V. Mix. 37 Conn, 243. " Wright e. Wignell, 2 Vent. 56. * Tilly «. Collyer, 3 Keb. 589. ' Skerratt ». Oakley, 7 Bum. & East, 492. ' Exp. McDonnell 2 Bradf. 32 ; Exp. McCornick, Id. 169. CHAPTER XV. LIMITATIONS TO TRUSTEES. Devises are executed by tlie statute of uses. The fact that the statute preceded the statute of wills is an argument in favor of this theory, and not against it, as has been imagined. For, the statute of wills, by author- izing conveyances by will, put them on a level with conveyances by deed. However, the' point is practically immaterial, since all admit that testamentary uses are executed by the intent, under the statute of wills, if not under the statute of uses. The statute of uses, indeed, does not "forbid the limitation of a use," as Jarman, strange to say, alleges.^ For that doctrine was the invention of the courts of law, and not a provision of the statute; but such limitations in wills are, of course, construed by analogy to deeds ; or, rather, the statute of wills, if not governed by the statute of uses, at all events, does not enlarge the operation of that act, so as to make it execute a use upon a use in a will. . The difficulty suggested 4n Sugden on Powers,^ as to a lapse of the legal estate by the death of the devisee to uses in the testator's lifetime, does not appear to exist ; since the courts would hold that there was. an intention on the part of the testator of substituting the trustee's heir, in such an event, in place of the trustee, in order to have the use executed. There certainly does not seem to be the least neces- ■ Vol. n, 145. » Vol. I, 6th ed. 173. 174 LIMITATIONS TO TBUSTEES. sity for devising to the cestvd que use at once, so far as the doctrine of lapse is concerned; although, if the trustee be an alien or a corporation, and incapable of taking or transmitting a seisin, the question would be different and much more difficult. In such a case, how- ever, the court, which never wants a trustee, would con- stitute the testator's heir a constructive trustee or grantee to uses. A devisee to uses will take a legal estate, and not merely a momentary seisin, if the devise be unto his use, as in a deed, or if any active function be imposed on him. But a limitation " unto and to the use " of trustees will not necessarily give them a fee, nor any quantity of estate greater than the necessities of the trusts require. If their duties in respect to the trusts^ imply that they should have the whole legal fee, this presumption will be a conclusive one, and will not be rebutted by direct limitations to beneficiaries in other parts of the will.^ There need not be a direct limita- tion in the .will to the trustees, in order to give them the legal estate. Any indication that A. is to receive the rents, and pay them to B., will give A. the legal estate.^ The questions, therefore, whether trustees take any, and, if any, what quantity of legal interest, is to be determined by the nature and extent of the active duties, or of the trusts imposed on them.* If the will be an appointment, the devisee to uses takes the legal estate. For, appointments are mere limitations of uses, and a use on a use is not executed. Therefore, testamentary appointments should be made directly to those intended to take the legal estate. ' See Curtis v. Price, 12 Ves. 89 ; 2 Jarm. 214. = See Sandford v. Irby, 3 B. & Aid. 634. = Doe d. Homfray, 6 Ad. & Ell. 106. LlMITATI03rS TO TBUSTEES. tations, the latter prevails. Jarman suggests that the "clause gives the trustees^ an option. If the trustees are authorized to manage the estate, or pay taxes,^ or if the purposes of the trust, as if it be for the separate use of a married woman, imply the active intervention of the trustees, they take the legal interest. Trustees take no estate, legal or equitable, but only a momentary seisin in the following devises : To trustees and their heirs in trust, for A. for life, remainder toB. and his heirs, or in trust to permit A. to receive the rents during his life, remainder in trust to permit B. and his heirs to receive the rents. If the limitation be to trustees and their heirs, in trust to pay to A. the reats for his life, and after his decease in trust for ' the heirs of his body, the rule in Shelly's case will not apply, as the trustees take the legal estate only for the life of A. His life estate, there- fore, alone is legal, the remainder is equitable ; and estates of different quality do not coalesce according to the rule in Shelly's case. The heir is thus in by pur- chase.* To trustees and their heirs to pay the rents to A. during his minority, remainder in trust for A. and his heirs. Here the trustees take only a term terminable with A.'s minority. The courts thus incline to'cxecuting uses and trusts, and will do so as soon as the purposes of the limitation to trustees are satisfied, whether the trustees are to preserve contingent remainders or not,' unless the phraseology used shows an intention on the part of the testator that the trustees are to hold the legal estate. Such an intention will be indicated by a ' See Gregory «. Henderson, 4 Taunt. 772. " Watson V. Pearson, 3 Exch. 581. = Doe I'. Hicts, 77 R. 437 ; Doe d. Player ». Nichols, 1 B. & Cr. 336. LIMITATIONS TO TRUSTEES. 177 tecLnical limitation unto and to their use/ or if pur- poses here and there in the will render it expedient* that they should retain their fiduciary functions, and therewith the legal estate.^ Even if the trustees get an express fee, they only take the legal estate so far as the purposes of the trust require. If these are indefinite, their estate is now held to be equally so. For a fee always passes to them if the purposes of the trust require it. Therefore, although a general devise of land conveys only a life interest to the beneficiary, yet a devise unto and to the use of A., in trust for B. and his heirs, gives A. the legal fee. Where the amount of the rent is stated in the will, or there is a general reference to the annual rents, and a direction to apply them in the payment of certain specified charges, it would seem, on principle, that the trustees take only a term determin- able on the payment of the charges, just as a rent- charger in equity, or a tenant by elegit, is held to be only a termor, inasmuch as, by computing, his debt with the amount of the annual rents, the duration of his possession can be accurately defined. But this is the meaning of a term of years. It is a certain estate in land, and, not like a freehold, one that is of uncertain duration. The early cases accordingly, and even some of the later ones,^ give the trustees under such limitations indefinite terms,* if the devise be to them, or to them and their executofs, to pay debts and legacies, raise a sum of money, or secure a jointure. If the devise was to them and their heirs, they took, in the earlier cases, ' Doe «!. i;ield, 3 B. & Ad. 564. ' Harton ». Harton, 7 T. R. 653. , 'Wykham ». Wykham, H East, 458; Ellis ». Page, 7 Gush. 164, 165. * Cordall's Case, Cro. El. 315 ; Doe d. White v. Simpson, 5 East, 162 ; Ackland ». Lutley, 9 Ad.& El. 879. L 178 LIMITATIONS TO TRUSTEES. a determinable fee.^ But the later authorities decide •that, as the use of the word heirs will not give trustees the fee, if the trusts, lasting only a certain time, as, for instance, to preserve contingent remainders,^ do not re- quire a fee, so, conversely, if the trust to pay debts be spread over an indefinite period, the trustees take the fee and the remainders, or rather the executory inter- ests over, will not be legal estates.* A devise to trustees, therefore, to pay debts would, in England, even before 1st Vict., c. 26, give them the fee if the trusts were at all scattered, or if convenience would require the trustees to have the legal estate, and even though the personalty were the primary fund for pay- ment of debts. A mere charge of debts, however, has no effect on the quantity of estate taken by the trus- tees,* and, if the devise is to them on condition, or in case the personalty prove deficient, they take no estate until the contingency happens. But then they take a legal fee.® It is provided in England, by 1 Vict., c. 26, § 30, that in future, trustees under wills are not to take an indefinite term of years by will. But, where the charges are specified, perhaps their estate is a definite term by implication. This point, indeed, has been decided the other way as regards annuities charged on the land, and not merely on the annual rents.^ Yet, in analogy to an estate by statute merchant or ' ©lover V. Monckton, 3 Bing. 13. " Doe d. Compere v. Morris, 7 Dum. & East, 488. gee Smith «. Dun- woody, 19 Ga. 288. = Doe d. Davies v. Davies, 1 Q. B. 430 ; Poad ». Watson, 6 El. & Bl. 615 ; Harton v. Harton, 7 Dum. & E. 653. See Huwkins v. Luscombe, 3 Swanst. 391. * See 33 & 23 Vict. c. 35, § 14, et aeq. ; 1 Vict. c. 26, §§ 30, 31. ' Doe d. Cadogan v. Ewart, 7 Ad. & El. 636. " Eenwick v. Potts, 8 D. M. G. 506. ' LIMITATIONS TO TRUSTEES. 179 elegit, the position seems sound, in point of principle, that trustees for incumbrancers ought to be deemed to take only the estate which the owners of the charges could claim, and that when these could not sell the fee, the trustees likewise should not be deemed to have greater power. A direction that executors shall pay testator's debts gives them only a power to sell, and not an estate, and does not enlarge any express estate given to the trustees.^ The estate which trustees take under an ambiguous context may, in England, be much influenced by the enactments referred to. A devise to trustees and their heirs, on limited trusts, followed by a power of sale or of leasing, gives them the fee.^ So does a devise to them in trust to con- vey the fee.^ But, if they are empowered merely to devise, the implication is not made,* and, if the devise is not to them and. their heirs, or generally, but merely for life expressly, this express estate is not enlarged by the addition of a power, unless the general context also implies a fee.® Semhle, conveyances by will are construed much more liberally, and in accordance with the intention of the settlor, than conveyances by way of use, in deeds. For instance, if there is once a limitation in a deed of the fee to trustees and their heirs, to preserve contingent remainders without adding "during the life" of ' Doe d. V. Claridge, 6 C. B. 641. As to the question wtether executors take a power of sale by implication, see Joshua Williams upon Real as- sets, and the notes to Silk v. Prime, 2 White & Tud. Lead. Cas. 82. ' Watson V. Pearson, 2 Exch. 581. ».Doe d. Shelley v. Edlin, 4 Ad. & Ell. * Doe V. Howland, 8 Cow. ,277. ° Jackson v. Robins, .16 Johns. 588. 180 lilSflTATIONS TO TEUSTEES. the particular tenant, the fee remains with the trustees.^ But, in a will, the addition of the word heirs give trustees to preserve merely an estate pour autre vie, un- less the trust or purpose of the will requires that they should take a greater estate. Yet, in Venables v. Mor- ris,^ which was the case of a deed, the arguments and judgment on the construction appear to have been founded mainly on the intention and not on the letter of the limitations. Jarman® disapproves of the case on the ground that a limitation to trustees and their heirs for certain trusts, including a power to appoint the fee, should not be held to give the trustees the legal fee, merely because the appointment may be of a contingent remainder, which would require a legal estate in a trustee to protect it. It certainly does seem strange to construe a legal fee to be in trustees, and thus to render all the ulterior limitations equitable, merely because an ap- pointment may be contingent. If the trustees take the legal fee, the appointment, indeed, can be only of an equitable interest, which is indestructible by a particular tenant. But the donee of the power can make it un- destructible if he pleases. Jarman's opinion, therefore, on Verables v. Morris,, appears to be right. The argu- ment for holding the legal fee to be in the trustees does not appear to be so strong where the deed contains a power to appoint in fee, as where the document actually contains a contingent limitation. For, where there is a power to appoint the fee, the power is executory, and the Court will direct under its execution a limitation to trustees to preserve, &c., when necessary. On principle, therefore, the primary trustees should not always,' in the same circumstances, necessarily be deemed to have the legal estate, that is, a legal fee for this purpose. ' See Fearne, p. 56 et seq. = 7 Dura. & E. 343 and 437. » Vnl TT 9,5!7 LIMITATIONS TO TRUSTEES. 181 Indeed, the mere fact of a contingent remainder in a will, wlietlier directly limited or to be raised under a power, does not simpUciter raise a conclusive or, indeed, any presumption tliat tlie testator intended it to loe indestructible. If be uses technical language, and yet omits a limitation to trustees to preserve, etc., the in- ference is that be meant tbe contingent remainder to take only its natural course.-^ However, in Houston v. Hugbes,^ tbe circumstance tbat tbere was a contingent remainder in tbe will was considered by tbe Court an element for holding tbat tbe legal estate was in tbe trustees. Unless technical language is aptly used, it is likely, indeed, tbat tbe limitation of a contingent remainder is an element in favor of tbe position tba,t the trustees take, tbe legal fee. But, if the testator has not tbe legal estate himself, or if the will comprises only personalty, contingent limitations of which do not need protection, tbere is, of course, no reason for enlarging tbe estate of the trustees by reference to con- tingent limitations of such property. If other devises or trusts give the trustees an absolute property in tbe subject matter of such trusts, tbere is a presumption tbat they take tbe fee also of real estate where the context is ambiguous;^ but a devise of land to trustees and their heirs, with power of sale, is not inconsistent with an executory devise of tbe fee to others after a life estate.* Under a devise of lands in Maine to trustees and their heirs,^ to tbe use of E., the testator's son, for life, remainder to trustees to preserve contingent remainders. ' See Heardson v. Williamson, 1 Keen, 33. " 6 Barn. & Cress. 430. ' Houston 41. Hughes, 6 Bam. & Cress. 403. ' Ward V. Amory, 1 Curt. C. Ct. 419. ' Webster v. Cooper, 14 How. 48. 182 LIMITATIONS TO. TEUSTEES. remainder to- the sons of E., if any, as tenants in com- mon in tail with, cross-remainders, remainder to R's daughter, E., for life, remainder to trustees to preserve, &c., remainder to the sons of E, in tail, it was held, 1, that the devise did not. vest the legal estate in the trustees ; 2, that the estate of R. and the remainders limited thereon were legal estates ; 3, that E. did not, under the rule in Shelley's case, take an estate tail; 4, that, upon her death, her two sons took as purchasers each an estate tail in a moiety of the land as tenants in common. This decision shows that the American rules of conveyancing by will to trustees are exactly the same in principle with the analogous English system. Uses, remainders, and limitations by way of purchase, are, in the main,' construed in the two nations in the same manner. Mortgages for years are chattels even at law, and will not pass under a general deyise of land, if the gift will be otherwise operative.^ All interests and charges created out of chattels real are also of the same personal nature. An equity of redemption subsequently acquired by foreclosure will not pass by a devise of the mortgage,^ which will in all cases be construed as con- veying only the legal estate, unless,' owing to long possession, a release of the equity of redemption will be presumed,* or there be a local statute, presuming all ■ wills to speak from the date of the testator's death. A specific devise of land held in mortgage, and a fortiori, a general devise of land will not carry the ben- ' Roe d. Pye v. Bird, 3 Black. 1301 ; Rose v. Bartlett, Cro. Car. 293. ' Ballard «. Carter, 5 Pick. 112-; Brigham v. Wincliester, 1 Met. 390; 1 JartQ. 654. ' As to such presumption, see 2 Story, Eq. Jur. § 1520; Gates ». LIMITATIONS TO TRUSTEES. 183 eficial interest of a mortgage/ unless the testator is in possession, or puts tlie land in settlement.^ Yet, it yvas held in Mather v. Thomas,^ that land held in mortgage will pass under a gift of debts and securities for money. As to the expressions creating a trust or beneficial in- terest, see Taylor v. Plaine,* The devisee of an estate which is stated in the will to be under a contract for sale takes only thfe legal in- terest.* Yet, if after the devise of an estate which the testator contracted to sell the bargain fails, Jarman® thinks the devisee holds benefically. But this seems to construe a will by an event not referred to in the document. The devisee ought rather, perhaps, be held a trustee for the heir, assuming that, if the contract was executed, the devisee would still be a mere trustee for the next of kin. A testator who recites that he has contracted to sell his estate is a mere trustee, and a de- vise of the land, subject to -any implied trust thereout arising, ought not to have the effect of substituting in any event the devisee for another beneficary. The only rational ground for Jarman's opinion on this point is the unreasonable nature of the decision in Knollys V. Shepherd, which did not give the devisee any bene- ficial interest. But, whatever estate a devisee takes by construction, cannot be lessened by accident or any subsequent event, except ademption.'^ A direction that all the residue remain in the hands of the executors or under their control, for the use of the testator's wife and children while under age, and that ' 1 Jarm. 634. ' Woodhouse v. Meredith, 1 Mer. 450. ' 10 Bing. 44. ' 31 Md. 158; Freedley's Appeal, 60 Pa. St. 344. ' Knollys v. Shepherd, sited 1 Jac. & Walk. 489. ' Vol. II, 653. ' See Craig v. Scobie, 3 Wheat. 563, 577. 184 LIMITATIONS TO TRUSTEES. after the youngest child shall have arrived at age, the same shall be divided among the children, does not give the executors an estate in trust.^ But, where the will gave the executors control of the realty, which they were to rent and pay the annual charges, and some an- nuities, and apply the balance of rents towards payment of certain mortgages, the satisfaction of which was the only limitation on the duration of their trust, it was held that this clause created a trust in the executors, which was void for suspending the power of alienation for more than two lives in being, but that the annuities were separable from the void parts of the will.^ As to the changes made in the law of trusts by the IS'ew York revised statutes, see Lang v. Rofke.^ By these statutes, all trusts except certain express ones are abolished. Trusts not authorized by these statutes can operate only as powers in trust.* The statute does not apply to trusts of personalty, nor to mortgages,^ but it extends to charitable and all other uses, unless they are expressly protected by subsequent statutes. The civil code of Louisiana* prohibits substitutions and Jldei com- missa, or trusts. The person to take must be in esse and designated in the will. By 1 Vict., c. 26, §. 30 and 3L, a limitation to trustees is to be deemed to pass the fee, no matter whether the trusts exhaust the whole interest or not. It is still questionable in England, however, whether un- der an ambiguous will, trustees take any estate or only a power, and, if they take an estate, whether it be for life ' Burke v. Valentine, 52 Barb. 413. ' Killam ii. Allen, 53 Barb. 605. ' 5 Sandf. 363. * 1 Rev. Stat. 737. ' King V. Merchant's Exchange Co. 5 N. T. (1 Seld.) 547. LIMITATIONS TO,TEUSTBES. 185 par autre vie, or in fee, and also whetlier under section 30 they may not still in certain cases take " a definite term of years, absolute or determinable, or an estate of freehold expressly or by implication." But they cannot now take in England an undefined term of years, nor perhaps an estate par autre vie, with a power by implication, although Jarman^ is of a different opinion. Cases under this act will greatly aid the practitioner when construing a State statute of a similar nature. The English decisions, however, under the sections stated do not appear to be very numerous. Questions relating to the estate taken by trustees or beneficiaries are all important in England, where a puisne incumbrancer can obtain priority over all pre- ceeding mortgagees, chargeants, and encumbrancers, by taking an assignment of the legal estate, even with notice of the prior charges, provided he had not such notice when he first became a chargeant himself. This doctrine of tacking is founded on the equitable maxim that when the equities are -equal the law will prevail. But this doctrine does not apply to States having gen- eral registries. For, registration is notice to all the world, and, therefore, in such countries possession of the legal estate is valueless as regards title. The legal estate is only of use when an ejectment or other pro- ceedings at law are to be taken against a tenant who has not attorned to the plaintiff. If of two Registered 'incumbrancers one has the legal estate, he alone at law is entitled to tl^e possession. Yet, even if he has a bene- ficial charge or interest, which his legal interest was in- tended to support, he may be restrained by equity from recovering the possession at law. And where the trusts of a legal estate are satisfied, a registered instru- ' Vol. n. 230. 186 LIMITATIONS TO TEUSXEES. ment whether will or deed, ■ conferring such legal estate is valueless, as the trustee will be restrained in' equity * from impeding the owner of a subsequent beneficial in- terest from recovering possession of the property. If the legal estate be long outstanding, it will be presumed to be assigned or released to the equitable owner, who can obtain at any time a decree for its surrender, if the trustee or his heir refuses to do so,^ Meantime, a trustee will not be permitted to abuse his discretion,*' and if he refuse to execute an existing trust, the court can appoint another to execute it.* But if he acts lona fide in a trust wholly confided to his discretion, the court will not interfere.* It is probable that, at the present day, any great degree of imprudence or negligence on the part of the trustee would be deemed by the court constructive evidence of mala fides, and would be checked accordingly. , An illegal secret trust may be proved by parol, and defeats the express gift.^ But an illegal trust, in an un- attested paper or other illegal codicil, will not affect a gift in a prior will duly executed and fairly obtained.^ The illegality must be part of the res gestae, and not subsequent thereto. Yet, of course, the subsequent conduct of the parties'' or the subsequent declaration of the testator is evidence of the illegality if it relates to such, and shows that it existed at the time of the ' See story Eq. Jur. 998-1003, and notes ; Sugd. Cone. View, 477. ' Prewett v. Land, 36 Miss. 495. , ' 30 Texas, 69. * Hawes Place Society ». Hawes Fund, 5 Cush. 454 ; Sharon «. Simons, 30 Vt. 458 ; but see Heard ii. Sill, 36 Ga. 303. " See Sweeting «. Sweeting, 13 W. B. 339. " See Addlington v. Cann, 3 Atk. 153. ' Trimmer «. Bayne, 7 Ves. 508, 518 ; Hester ». Hester, 4 Dev. 328 ; contra, Provis «. Kowe, 5 Bing. 485 ; see mpra, Part I, notes to Proposition Seven, p. 350. LIMITATIONS, TO TRUSTEES. 187 will. In otter words, sucli subsequent declarations are admissions, and are, as such, evidence of the res gestae in a question of fraud or other illegality. The legal estate of a mortgagee or trustee will pass by a general devise of land,^ even though the testator has other property to satisfy the gift, and though the devisee gets a power of appointment.^ But mortgage or trust land will not pass. by a general devise if it is subjected to the payment of debts, legacies, annuities or other charges, or is put in settlement, or subjected to executory limitations or a trust for sale.' Yet it seems strange why the rule of rendering to each term only its own respective force — reddendo singula singulis — should not be applied in such cases, and the mortgage or trust estate be held to pass.* The word " mortgage," doubt- less, ought to be held to pass both the legal and equitable interest in the mortgage land. But the phrase " secu- rities for money " does not seem applicable to a legal estate in land. Though a general devise of land will not, in England, carry the beneficial interest in a mortgage,® (iior, semile, will a devise of the particular lands held in mortgage have this effect), yet, Jarman® thinks that if the testator is in possession of the land, this is evidence that he intended the beneficial interest to pass. But it is doubtful whether parol evidence is admissible in such cases, as the ambiguity relates to the words of disposition. Jarman thinks^ that if there is a bequest of all mortgages or securities, this does not affect the right of a devisee of a particular mortgage to the beneficial interest ' 4 Kent, 5th Ed. 538. ' Ex parte Shaw, 8 Sim. 159 . = a Jarm. 645. * See Jackscm v. Delancy, 13 Johns. 537. ' See Cogdell v. Cogdell, 3 Desaus, 346. " 3 Jarm. 684; see, mpra, 182-3. ' Vol. 11. 636. 188 lilMITATIONS TO TRUSTEES. therein, as the general bequest may contemplate future mortgages, but that if there was a specific bequest of the mortgage debt this presumption will not apply. Where executors are to pay rents and profits to a devisee, of the land, the executors take the legal estate by implication.^ However, a legacy not residuary to an executor is conditional on his acting in the office f and a debtor, too, when appointed executor, is still a trustee of his debt as assets for legatees, and even for next of kin.^ As to substituted executors, see Smiley v. Bai- ley* and Foster's case.® ' Vail V. Vail, 4 Paige, 317 ; compare Sterricker v. Dickinson, 9 Barb 516. ^ Eeed «, Deyaynes, 3 Cox. 385. = Carey v. Goodinge, 3 Br. C. C. 110. ' 49 Barb. Sup. Ct. 80. " English Law Bep.,1873, C. L. 304. CHAPTER XVI. SUBVIVORSHIP.' § 1. Mule m Ferguson v. DunbdT, If the phrase " dying without issue " has defeated many testamentary limitations and made the fortunes of many practitioners, subsequent clauses in the same will respecting a survivorship among the issue have had tenfold greater effect iu the same direction. The word " survivor " is the most difficult of construction among all the terms which either legal acumen or lay eloquence can suggest. In addition to the express contingencies or conditions which are to determine what is a survivor within, the definition referred to in the will, there is also superadded the additional danger of lapse, and the im- plied reference to the contingency of each of the intended survivors of a class also surviving the testator. The questions respecting the meaning of the term " survivor " which have most puzzled the courts — and those difficulties are not yet finally settled by adjudica- tion— rmay be divided into three leading classes. The first point to be determined respecting the term is, whether it is itself to be construed literally or in the sense of " other." An example will best illustrate the nature of this difficulty. In Ferguson v. Dunbar,^ a testator bequeathed a legacy to his wife, remainder to her three children, one-half to her son Gr., and one to her daughters E. and C, if living at the death of their mother, and if any of them should die in the life-time ' Part of this chapter was published by the author in Alb. Law Journal, vol. V. p. 130. , "3 B. C. C. 468, note. 190 SURVIVORSHIP. of their motlier, leaving issue, tlie testator gave that share to the issue of such child or children equally, at the age of twenty-one years, or day of marriage ; hut if any of them should die before the age of twenty-one years, without issue, he gave that share to the survivors, and, if all of them should die without issue, the share was to fall into the residue. C. died, leaving children ; E. afterwards died under twenty-one, and without issue. The question was, whether the children of C. were enti- tled to any part of the share of E. It was held that they were not. Lord Thurlow admitted that the testa- tor intended that the children should take the shares which would have accrued to their parents while living, but as he had not said so in his will, but limited such shares to the survivors or survivor, the court should declare that G., as the only surviving child, was entitled to the whole of E.'s share. This decision was followed by Wilson v. Audrey,^ and especially by Crowder v. Stone,^ which divided for a long time with Ferguson v. Dunbar the honor of be- ing known as the leading cases on the doctrine now under consideration. In Crowder v. Stone, a testator bequeathed certain stocks to tenants for life, and, after their decease, to be equally divided between his nephew and four nieces, and in case of the death of his said nephew, or of any of his said nieces without lawful issue, before their respective parts should become payable, then the part of him'or her so dying without issue, as aforesaid, was to go to the survivors or survivor, as ten- ants in common. At the decease of the last of the tenants for life, one niece only survived, but some of the deceased nieces left issue. Yet, Lord Lyndhurst decreed thp whole fund to the survivor. ' 5 Ves. 565. » 3 Russ. 817. EULE IN FERGUSON V. DUNBAR. 191 . The case of Crowder v. Stone is not in principle in the least more strong or extreme than the case of Fergu- son V. Dunbar. The former case only shows the extreme inconvenience and absurdity that may result from adopt- ing the rule in Ferguson v. Dunbar invariably, and ap- plying to wills in this special instance the same rules that prohibit the implication of cross remainders in . deeds. The cases We are now considering are the more to be abhorred, inasmuch as cross remainders under other limitations are freely allowed in wills. A bounty is held out for the loose drawing of wills, as these are supposed to be liberally construed by the courts ; and yet the judges now and then halt at some magical phrase, such as " survivor," " heirs of the body," "issue," and refuse to take away one jot or tittle of the old law applicable to deeds. Even a slight change in any rule of construction is certainly very dangerous td be adopted unless all the consequences of the innovation are carefully considered beforehand. For, what seems to be an innocent reform may work very great changes under new limitations. Yet an occasional alteration in a rule of testament- ary construction is not as inconvenient as a change in a rule applicabl-e to deeds, because certainty in the law does not and cannot insure good testamentary draught- manship, which has largely been, from time immemorial, a perquisite of the village schoolmaster. Indeed, cer- tainty in the law and rules of construction eliminates judicial discretion, and this is not one of the least valua- ble results of a certain jurisprudence.' But adherence to fixed rule, as regards testamentary construction, ought to be restricted to received interpretations of common phrases, and not to a perpetuation of the technical meaning of technical terms such as " survivor," " heirs of the body," &c. 192 SUEVIVOESHIP. The rule in Ferguson v. Dunbar has lately been mucli shaken in England, and though it appears to be still unbroken in the United States/ yet it is evidently \dooined. In Cole v. Sewell,^ the doctrine in Crowder v. Stone was attacked by Lord St. Leonards; and. that case, with its special surroundings, has fallen recently beneath the judicial axe in Marriott v. Abel.' At pres- ent, if there is any collateral condition or contingency affecting the gift to the survivors, except the implied condition of their survivorship, the rule in Ferguson v. Dunbar will not apply. If, for instance, the testator expressly refers not merely to one of the legatees dying in the lifetime of the other, but of one of them dying cMldless, or without issue, in the sense of children, the word " survivor " will be construed " other," and chil- dren such as those excluded in Ferguson v. Dunbar and Crowder v. Stone will take. Jarman, however,* thinks "the authorities seem now to present an insuperable obstacle to the adoption of any change in the rule where the context is silent as to other contingencies than that of survivorship alone." But, the recent case of Marriott v. Abel shows that Jarman's apprehensions were not well founded. As the old rule is thus so completely wrecked in Eng- land, there is an a fortiori ground for expecting that it will not in future be applied in the United States, espe- cially when the context affords any aid to a liberal con- struction of the term " survivor." It is hard to see how the doctrine in Crowder v. Stone can be maintained without endangering all the established rules for implying cross-remainders and ' See 3 Redfleld on Wills, p. 371, et aeq. ' 3 Con. and Laws, 344, Irish. ' L. Rep. 7 Eq. 478. ' Vol. II. 617. EULE IN FERGUSON V. DUNBAR. ^ 193 other interests in wills. From the observations of Lord St. Leonard, in Cole v. Sewell/ and the case of Slade v. Parr,* the old rules certainly appear to rest at present on a slender and timeworn foundation. In the American States, indeed, hitherto the term survivor, when unaffected by the context, has received its proper acceptation only, and has not been interpreted " other."® Yet, even in a deed, cross-remainders in fail to surving children have been held, even in. England, to give an interest to the issue of a deceased child, as the estate was not to go over, unless the issue of all the children failed.* However, if the bequest be to A. for life, and after his decease to B., C. & D., or the survivors, those living at the death of A. alone will take.^ Even if the word survivor is used elsewhere in the will as synonymous with " other," yet the rule in Ferguson V. Dunbar may still prevail.* Survivor, too, will be construed other, more ^readily where the limitation over is on the decease of any of the prior objects, combined with some collateral event, especially if this relates to the issue.'' The alleged reason of the dis- tinction is that the limitation over is not wholly inter- woven with the point of survivorship. But, if the con- tingency is confined to the donees themselves, such as their not leaving issue, and not as in Alton v. Brooks, relating to the issue, the rule in Ferguson v,- Dunbar, and Leeming v. Sherrat,® will apply. ' 2 Conn. & Laws, 344. " 7 Jur. 103. ' Moore v. Lyons, 3.5 Wend. 119 ; see Fowler v. Depau, 36 Barb. 334 ; Norris V. Beyea, 13 N. T. (3 Kern.) 373. * Doe V. Wainwright, 5 Dum. & Bast, 437. ' Heam v. Baker, 3 K. & J. 883; see Doe «. Townsend, 1 Houst. 865. ° See Leeming v. Sherrat, 3 Hare, 14. ' Aiton V. Brooks, 7 Sim. 304. » 3 Hare, 14. 194 • SURVIVORSHIP. But, as the ruling in the cases mentioned pre- eminently defeats the intention of testators, the courts "will be astute in discovering in the context some loop- hole for escape. The contingencies on which the limit- ation to. the survivors depends, are however, usually the only pivots whereon the beneflcient intentions of the Judges can turn.^ For instances, where the term " survivor" may be construed other, see Cole v. Sewell.^ The distinction taken in Alton v. Brooks, between the event of one of the donees dying in the life-time of the other, and that of dying childless contains, as Jar- man observes, much good aense.^ This distinction, in- deed, is one. which is present to the mind of every testator who dictates any similar limitation, only that he may not express his intention with sufficient point to meet the very technical rule of construction estab- lished by Ferguson v. Dunbar,* Where the word survivors is used merely with refer- ence to a class, to denote the duration of an estate, and does not intrinsically impose a fresh condition of survivorship, those wha die before the end of the term may have vested and transmissible interests.^ The incident of survivorship is abolished by the Act of 31 March, 1862, in Pennsylvania, in cases where there is a devise to two or more by name, unless the testator shows a plain intention to vest the estate in the survivor." ' See Leeming ». Sherratt, 3 Hare, 14. " 2 H. L. C. 186; Smith «. Osborne, 6 H. L. C. 375. ' 3 Jarm. 617. ' 3 Br. C. C. 468. " Biyan «. Twigg, Law Rep. 3 Ch. App. 183, ' Kennedy's App. 60 Pa. St, 311. ACCRUED INTERESTS. 195 § 2. SurvivorsJiip — Accrued mterests. If a testator gives a sum of money to four as tenants in common, and declares that if any die under twenty- one or before marriage it shall survive to the others, if one dies, his share survives to. the other three, but if a second dies, the other two will take only the second's original share, and not the one he got by accruer on the death of the first,^ Let the sum be |1,200, and the par- ties be designated as A., B., C. and D. Each takes $300. On A.'s death, B., C. and D. get each $100. But, on B.'s death, C. and D. get only $150 each, and not $200, though A. gains altogether $400 under the will. A concrete example always best explains an abstract rule. The doctrine in question is known as the rule that a gift to survivors in a class does not carry shares accrued already to the members as surviv- ors, but only their original shares; in other words, a limitation to survivors does not operate on shares already accrued to members of the class of donees under the gift to which the survivorship of the donees relates. This doctrine is founded on the general disinclination of the courts to divest estates. If some of the donees die in the testator's lifetime, Mr. Hawkins^ considers that their shares will go to the survivors. This will proba- bly be the case if the donees constitute a class, though the shares are in common, and not joint.®. The doctrine in ex parte West would, perhaps, not be adopted in America in similar cases.* There is, indeed, no doubt that a testator intends by a gift over ' See Lawrence v. JIcArter, 10 Ohio, 37 ; ex parte West, 1 Bro. C. 0. 575 ; Pain v. Benson, 3 Atk. 80 ; Crowder v. Stone, 3 Russ. 317 ; but see Marriott v. AbeU, L. K. 7 Eq. 478. » P. 269. = Barker «. GHes, 3 Bro. P. C. Toml. 104. ^ See 2 Redfleld, 373, note 3. 196 SUEVIVOKSHIP. to survivors to pass accrued as well as original shares of the donees who die previously. Yet in England even the word " share," " portion " or " part " will not carry the accrued interest. It will be suffered to lapse rather than to pass under the terms^ mentioned. The phrase " share and interest," however, may have this effect.^ But, of course, if the testator pleases, he can make the accrued shares devolve on the ultimate survivor, either by express direction or by using phraseology that will necessarily raise that impli- cation. If his intention, as declared in the will, be that the entire property shall pass iuone mass to the ultimate sur- vivors, this will imply a survivorship as to the accrued shares,^ especially if there is a gift over.* Jarman thinks® that, under a gift over, in case all the legatees die with- out issue, " all " would not be construed " any."® But, as " survivor " is sometimes construed " other," so, pari ratione, " all " may be construed " any " in the cases re- ferred to. The phrases " benefit of survivorship," " in the manner aforesaid," directed- regarding the original shares, will pass the accrued shares. For a curious illustration of the effect of t]ie rule in ex parte "West, see Eyre v. Marsden.^ It seems only to apply to limitations to survivors, and not to alternative limitations to the children of the donees. If direct or original shares are given for life, and accrued shares indefinitely, these will not be cut down in meaning by analogy to the primary interests, although ' Eickett «. GUlermard, 6 Jur. 818. ° Douglas V. Andrews, 14 B. 347. " 3 Jarm. 633. * Doe V. Berkhead, 4 Exch. 110. » Vol. n, 636, 4th Am. Ed. " See, contra, Douglas v. Andrews, ut sup ; Worlidge i: Churchill, 3 Bro. C. g. 465. PERIOD FOR ASOERTAINIKG SURVIVORSHIP. 197 such is probably the intention of the testator. The cases cited by Jarman,^ however,' rather prove the con- trary of his position. But, where there are various restrictions on the primary shares, and not merely a limitation of interest, as for a life, and the restrictions are not repeated on an express gift by the testator of the accruing shares, it seems to be settled that the restrictions will not be extended to such shares by im- plication: nor, semhle, if the original shares vary in amount, will the accruing ones be distributed in the same proportion, unless otherwise the accrued shares would be void for remoteness, or would, in some way, be inconsistent with the testator's primary intentions.* § 3. Period for ascertaining survivorsMp. A third question, connected with a limitation to survivors of a class, or several donees, relates to the period when the survivorship is to be determined, or to the inquiry whether the reference is indefinite in point of time. Under a tenancy in common, with an express limitation to the survivors, none of the ten-ants in common can defeat the gift to the survivors. Under a joint tenancy, the legal right of accruer is- of no value, inasmuch as any of the joint tenants may still alien his share, and defeat the right of accruer. If the donees take an interest vested in possession on the testator's decease, the survivorship clause is deemed to have been inserted to provide against the death of any of the donees in the testator's lifetime, and to refer to the date of the testator's decease.^ But, where there ' Vol. n, 634. ' Georges v. Georges, Hayes' Inquiry, 52 ; Gibbons «. Langdon, 6 Sim. 260. ' See Passmore's Appeal, 23 Penn. St. 381. 198 SITEVIVORSHIP. is a preceding life interest, the question is more difficult. Owing to an impression that indefinite survivorship was inconsistent with a tenancy in common, the death of the testator was the period to which the early adjudications on the point referred the survivorship.^ Under a gift to A. for life, and in case B. die with- out issue, remainder to two or more, and the survivors or survivor, as tenants in common, the survivorship may be construed in four diflferent ways. It may mean that the do.nees who survive the testator should take vested interests, or that those only who survived both the tenant for life and the testator should take, or that they should survive both these periods, and also that of the contingency referred to ; or the clause of surviv- orship may be construed as indefinite, and giving the whole interest to the final survivor. A gift over on the decease of the survivor will impart this last meaning. With the exception of limitations of the last description, there is little ground for doubting that the period of the testator's death, and not that of the tenant for life, is the natural date for a vesting in possession of a gift to survivors, and that when an express contingency or condition is also limited, those who survive the contin- gency and the testator ought to be deemed to take. Jarman opposes this view with his usual learning and affiliation of cases. But these are hardly, perhaps, as strong as he deems them, while they do not apply to . devises of land. Such gift^ are, in the main, construed as vesting at the testator's death. When the gift was to the donees as tenant in com- mon, the judges considered that the clause of survivor- ship was to prevent lapse, and, therefore, necessarily pointed to the date of the testator's death, and not to PERIOD FOR ASCERTAmiNG SURVIVORSHIP. 199 that of the tenant for life. The difference between the two renderings is that survivors taking at the death of 'the testator, and dying during the life of the particular tenant, transmit their shares to their heirs or ne3i:t of kin according to the nature of the property, but if the survivorship relates to the death of the tenant for life, those donees only who are then living take vested and transmissible interests. Exceptions to the early rule on this point, as far as regards bequests of personalty, were soon founded on the fact that the testator referred to the donees by name, or to the sur- vivor (in the singular), or, that the interest was of a deferred nature. Finally, it has become firmly settled in England, that, as regards bequests of personalty, the period of survivorship is that of distribution and i-elates to the death of the tenant for life.^ The old rule, however, though cavilled at, still re- mains unbroken as regards devises of realty.* Jarman® greatly bemoans this divergence from the rule that reg- ulates similar dispositions of personalty.* But with all respect to that very learned commentator, the intention of a testator appears to be better effectuated by giving a little to many, rather than a large deferred and con- tingent interest to a few. " To him that hath shall be given," is not by any means a motto likely to be present to the mind of a testator when about distributing his means amongst his family. > Some writers now think that the change of the law, as indicated by the cases on personalty, renders it un- certain whether the rule as to bequests may not in ' Cripps «. Woolcott, 4 Madd. 11 ; see Den. ■». Sayre, 2 Penn. 598 ; Blewitt V. Stanflfers, 9 L. J. N. 8. Ch. 209. " Edwards®. Symonds, 6 Taunt. 213. ' 2 Jarm., 463 ; see Haddelsley v. Adams, 22 B. 271. * See Buckle «. Fawcett, 4 Hare, 536. 200 SUEVIVOESHIP. future be extended to devises. But these appear to be protected from such, a calamity by the general rules wbich favor tlie early vesting of estates.^ Mr. Hawkins considers^ that- the " true rule, perhaps, is, that survivor- ship's prima facie refers to the point of time mentioned in the gift in nearest juxtaposition with the words." If no other clue to the intention of the testator is avail- able, no doubt the suggestion of Mr. Hawkins ought' to be acted on. But in a will grammatical construction is rarely important, owing to the special wording of ill- drawn instruments under which alone questions of diffi- culty can now arise, testamentary law being in the main so well settled by cases.* With respect to this point, substitutional bequests are to be distinguished from cases such as Barker -?;. Giles,* where, under a devise to A. & B., and the sur- vivors of them, their heirs and assigns as tenants in common, A. & B. were held to be joint tenants for life with several remainders in fee. The words of severance here are not necessarily applied to the estates for life. Therefore, the usual legal presumption in favor of a joint tenantcy so far prevails. Besides, the words of division and severance are thus sought to be reconciled with a gift to the survivor. Yet, this construction may occasion a lapse of a moiety of the inheritance which would otherwise vest in A. or B. surviving the testator. The doctrine in Barker -y. Giles, seems equally ap- plicable in principle to similar bequests of personalty, and would probably be followed in the American courts. If the gift to survivors is to take place on a contin- gency, as if any of the donees, or if another, or if the ten- ' Jarm. Vol. II, 750. " P. 366. = See Littlejohn d. Household, 21 B. 29. " 3 Bro. P. C. Toml. 104; see Doe d. Littlewood ». Green, 4 M. & W. 229. PERIOD FOR ASCERTAINIUa SURVIVORSHIP. 201 ant for life die "without issue, Jarman considers^ this strengtlieiis the argument for a reference to the time of the death of the tenant for life, inasmuch as a contingent limitation to survivors is clearly consistent with a tenancy in common. But the argument in favor of com- puting survivors at the time of the testator's death is not wholly founded upon the incidents of a tenancy in com- mon as distinguished from a joint-tenancy, but upon the leaning of the courts to deem interests vested, especially as regards real estate. In Carver v. Burgess,^ the bequest to the survivors was on a contingency, and it was held that the period of distribution related to the happening of the contin- gency; but there was no preceding life estate. The case is thus only in conformity with the general rule, which makes the vesting of a legacy to survivors depend oti the period of distribution.* In accordance with this rule, under a bequest to A. for life, and after his death to his surviving children, if A. dies in the lifetime of the testator, the date not of A.'s, but of the testator's death is the time for computing the survivorship, as that is the period of distribution. The question, however, even in such cases, does not necessarily appear to be whether the survivorship is indefinite, or relates to the death of the tenant for life. For, though the contingency shows that the testator did not mean merely to guard against a lapse, yet, on the other hand, it does not imply that he did not also in- tend to guard against that contingency, and yet not to expose the gift to a special risk. Certainly, if it is open to one danger, there is only the more reason for presum- ' 3 Jarm. 650; Huffan ®. Hubbard, 16 B., 579; Daniell «. Daniell, 6 Ves. 397. = 7 D. M. G. 96. ' Cripps. V. Woolcott, 4 Madd. 15. 202 SUEVITOESHIP. ing that the testator did not mean to render it liable to others. The argument founded' on the contingency ap- pears not to be of much value either way.^ In Koe d. Sheers v. Jeffrey,* indeed, it appears to have been conceded that where one of the donees sur- vived the testator, and only died after the contingency happened, but during the life of the particular tenant, he did not take under the limitation to survivors. But neither this case, nor the opposite one of Doe d. Lifford V. Sparrow,^ is any real authority on the point, as these cases were decided upon special grounds. The nezt case cited by Jarman — that of Weeden v. Fell * — is distinct- ly against his view. That case was one of personalty, while the other two decisions just referred to were cases of devises. Weeden v. Fell is, therefore, an a forUori authority as regards similar limitations of realty. The case of Weeden v. Fell ^ indicates that where there is a special contingency or condition imposed, sur- vivorship will, as a rule, refer to the period of the cpn- tingency. Does not this exclusion of regard for the decease of the tenant for life show that the date of the testator's death is the natural period for computing sur- vivorship, when no contingency is in question ? If several contingencies or conditions are imposed, some of which are not personal to the legatees, these latter conditions will not prevent a vesting, although they may operate to divest the interest afterwards.* Mr. Hawkins justly observes that contingent pro- visions for children may not, owing to the general ten- ' See White v. Baker, 3 De G. P. & J. 55. " 7 D. & E. 589. ' 13 East, 359. * 3 Atk. 128; Dickenson v. Jordan, 1 Murph. 888. =■ 3 Atk. 133. ' Crozier «. Fisher, 4 Russ. 898. PERIOD FOK ASOERTAISmG SUKVIVOESHIP. 203 dencies of tlie courts, be construed to be subject to tlie additional contingency of tlie children siu-viving tlie testator.^ This reason is sound, and applies, though in a less forcible form, to all similar limitations. If there is a limitation over after the death of the survivor, this points, of course, to an indefinite surviv- orship.* The word "survivor" has thus produced a very abundant crop of litigation. The net results of the cases appear to be, first, that the term will be constf ued" literally, and not as other, and that any' of the donees not surviving the appointed period takes, as survivor, no vested and transmissible interest ; secondly, a limit- ation to survivors does not carry shares previously accrued under the operation of the same clause ; third- ly, a gift to the survivors, svrmplidter, of a number of tenants in common, refers to the donees surviving the testator. But, where there is a precedent life interest, and the subject is personalty, the " survivors " take no vested interest or are not ascertained until the period of distribution, that is to say, at the time of the decease of the tenant for life. The limitations considered in this chapter are prob- ably not of frequent occuirence in American wills. But, as our settlements of property become more com- plicated, there is no doubt that testators will likewise be equally provident in respect to remote contingen- cies. Even at present the doctrines relating to sur- vivorship have been illustrated by some American decisions. Howevei', although, doubtless, the value of the English rules will be taken into account in future adjudications upon these questions, yet there is equally ' Berry «. Briant, 2 Dr. & Sm. 1. = Doe d. Borwell e. Abey, 1 M. & Selw. 428. 204 SUEVIVOESHIP. strong ground for considering that tlie technical rules established in Ferguson v. Dunbar/ expa^te West,^ and Brograve v. Winder® (although the latter decision is highly approved by Jarman), would, if at^ all followed here, be, at all events, confined within the strictest pos- sible bounds. It has, indeed, been already frequently decided in the American courts, that survivors may mean others, and not actual survivors,* even though the survivors do not take the accrued share which a deceased member of the class took by lapse, but only the original shares of the bequest.® See further as to the construction of the term " survivor " in the New York courts, Cushney v. Henry.® § 4. Limitations dependent vjpon decease. If the testator does not leave the period of surviv- orship uncertain, as in the cases last considered, but limits the interest over in the event of the donee, or one of the donees, dying before a certain contingency happens, and if a donee subject to such contin- gency dies in the lifetime of the testator, there is no lapse, but the gift over in the first case, or to the other members of the class in the second, will operate. Thus, for instance, where there is a gift to A., but if he die under age to B., and A. dies in the lifetime of the testator, the remainder to B. takes effect as a simple ' 3 B. C. 0. 468 n. = 1 B. C. 0. 575. = 2 Ves. Jun. 634. * Carter v. Bloodgeod, 3 Sandf. Oh. 293. ' Norris b. Beyea, 13 N. T. (3 Kern.) 373 ; see Fowler v. Depau, 26 Barb. 224 ; Pimie v. Purdy, 10 Barb. 60. ° 4 Paige, 345 ; Dominick r. Moore, 3 Bradf. 201 ; Goodall «. McLeani 3 Bradf. 306 ; Clark v. Clark, 3 Sradf. 33. lilMITATIONS DEPENDANT UPON DECEASE. 205 absolute gift on tlie testator's decease.^ There is no lapse. Even where the gift is to a class, sucli as children who cannot be ascertained until the death of the testator, yet if one dies before that period, although he never was an actual donee, his share will go to the surviving children. But, where the donees in the clause in question are the executors of the deceased legatee, the word " exec- utors " merely indicates that the interest is vested on the testator's decease, and prior to the period of dis- tribution, and the executors will not be deemed to take by substitute in case of lapse. The ground of this somewhat strange doctrine appears to be the presump- tion that a testator believes the objects of his bounty will survive him.^ This is a most violent presumption, where he almost expressly provides for the contingency of lapse. A bequest to the next of kin of a married woman, in case she die, her husband living, is held to apply only to the contingency specified, and not to a lapse.^ This is a comparatively reasonable rale. Mcpressio v/tiius, &c. As regards the issue of a deceased child, however, the courts will strain at any expression that may admit such issue to a participation in a general family settle- ment. ' Darrel v. Molesworth, 3 Vem. 378. " Corbyn v. ' French, 4 Ves. 418 ; see Fisher «. Hill, 7 Mass. 86 ; Princes Dig. 356 ; Nelson v. Moore, 1 Ired. Eq. 31. ' Baker v. Hanbury, 3 Russ. 340. CHAPTER XVII. § 1. Nature and incidefits of powefs. . Powers are either appendant, collateral, or simply- collateral, according as the donee of the power — or, as he is sometimes termed, the appointor — has an interest ; 1, in the particular property to be appointed ; or, 2, in another part of the same property ; or, 3, has no interest of any kind in it. Powers of the first kind are sus- pended by any grant or change by the donee on his inter- est. For, it would be inequitable to allow a person under a power to defeat his own grant. If, therefore, he assigns away his whole interest, his power is com- pletely extinguished, and, if he makes a partial disposi- tion of it, his power is so far suspended ; or, rather, he may still execute his power at once, but the appoint- ments so made by him will be puisne in order of pri- ority to his own graints or changes, so far as his interest extends. So far as his interest does not extend, the ap- pointment will operate from the date of the primary deed conferring the power, and not from the date of the deed executing it.^ A power may thus be appendant as regards one limitation and collateral as regards another limitation in the same settlement.^ The peculiar value of a power, therefore, is that it operates from the date of the primary deed. It also overrides all other limitations in that deed, unless so far as the power is appendant, and has been indirectly sus- ' Noel V. Lord Henleyj 1 McClell. & Y. 53. " See Sugden on Powers, p. 3, et seq. NATURE AND INCIDElirTS OF POWEES. 207 pended by some grant or cliange by tlie donee on his own interest in the subject matter of the power. Powers appendant may be thus impliedly suspended. They may also be suspended expressly by a covenant to that effect. Powers collateral are, in their nature, incapable of indirect suspension, but may be suspended or extin- guished by express contract. Powers simply collateral are considered to be incapable of suspension even by express contract.^ In the absence of satisfactory judicial decisions on; these points, it would seem that neither of the two lat- ter classes of powers can be suspended, much less extin- guished, if they are trust powers, but that, on the other hand, if they are merely discretionary, there is some reason to contend that they may be voluntarily extin- guished by the donee. Yet, it seems inequitable to allow even a donee of a bare discretionary power to ab- dicate his functions. He is a trustee of his discretion. These remarks are suggested with great diffidence on points which have been elucidated to some extent other- wise by so distinguished a judge and author as Lord St. Leonards. However, the courts will not interfere with a })ona fide exercise of discretion by the donee of a power, even when it is a trust power.^ As to discre. tionary powers, see, further, Forman v. Whitney,* A general power is never a trust power. A special power may or may not be in trust. Both kinds of powers may be contained in wills, and, semble, in any kind of deed also, although Lord St. Leonards considers that special powers cannot be reserved in deeds operating by way of use and not at common law.* ' 1 Sugden on Powers, c. 1,2. = Portsmouth «. Shackford, 46 K H. (Hadley) 433. ' 3 Keyes, 165; Bundy v. Bundy, 38 N. Y. 410. * See this question discussed by the author ia a review of Sugden on Powers, in Law Mag. and Eeview, London, May, 1863. 208 NATUEE AND IITOIDENTS OF POWEES. la Learned v. Tallmadge,^ a devisee of a power execu- ted it, notwithstanding that he had previously covenanted by deed not to do so. The covenant was held to be inoperative, as the power was deemed to be simply col- lateral. But, as the husband took a contingent estate, besides the power, this was not a power simply collat- eral. The decision, however, can be supported on prin- ciple, inasmuch as the power was a trust. The order of priority of various powers comprised in the same instrument will be determined by the justice and reason of the matter, and the probable necessity for executing them at an early or late date, according to their nature. Therefore, a power to jointure overrides a power to portion, because a wife's claims are prior to those of children, who may never require portions. Powers of leasing appear to be still more urgent,, inas- much as they relate to the management of the estate, without proper attention to which there might be no adequate property _^to appoint at all. On these points, see the distinguished work already cited, and also the very copious treatise of Mr. Chance. A general devise will not operate as an execution of a power if the gift may be otherwise operative,^ unless where a local statute provides to the contrary. Where a married woman makes a will of realty, which would be void except as an appointment, it will be construed as such.^ So, a devise of lands in A. and B. will operate as an execution of a power over lands in B.-, though testator has lands in A.,* if he have none in B. A general bequest of personalty does not operate as an execution of a power, because, as it takes effect in ' 36 Barb. 443. = Blagge V. Miles, 1 Story C. C. 426, 445. ' Berger v. Berger, 1 HoflF. 3. * Napier v. Napier, 1 Sim. 28. NATURE AND INCIDENTS OF POWERS. 209 every State only from the death of the testator, he may have personal property then to satisfy the gift.^ And this rule applies to wills of married women, inasmuch as they may have separate estate. All powers conferred on the testator after the date of the will are now executed by a general devise in all those States where devises speak from %h.e death of the testator, if the powers would under the old law hav? been executed if they had existed at the date of the will, and if they are not mere powers of revocation con- tained in deeds executing powers.* In Wilson v. Bell * a testator bequeathed all his per- sonalty to his son T., and devised his real estate to T. for life, with remainder over, and appointed T. his exec- utor. The will contained the following clause : " And I direct that my said daughter A. B. shall reside with and be maintained by my said son so long as she shall remain single and unmarried." The English Court of Appeal in Chancery held (reversing the decision of Vice Chancellor James), that A. B/ had no claim on the ex- ecutors of T., but that the trust was imperative, if A. B. was willing to reside with T. during his life ; in other words, that the maintenance of A. B. was conditioned upon her willingness to reside with T., and that this trust on T. ended with his life, A power to the executors to sell real and personal property does not pass to them any estate, or break the descent, and the land (if any), passes at once to the de- " visees, or else to the testator's heir, subject only to the ' Andrews ». Emmot, 3 B. 0. C. 397. = Palmer v. Newell, 30 Beav. 38. " Law Bep. 4. Ct. App. 681 ; 17 W. R, 944, 210 NATURE AND INCIDENTS OF POWERS. execution of the power.^ But a devise of land to executors to sell gives them the fee.^ A devise to sell, being a mere power, does not break the descent, even where the donee of the power is re- siduary devisee.* So, where the executors were ap- pointed trustees of minor beneficiaries, and authorized to sell, it was teld that they took only a power.* Giving legacies, and directing the execuijors to appraise the real estate and increase or diminish the legacies, ac- cording to the surplus after paying debts, has also been, held not to amount to a devise of the real estate.® Where executors are directed to apply the proceeds, or to invest a share and pay over the interest, they take a power of sale by implication.* A direction to pay interest implies a power to in- vest'^ and a power to " dispose of" land, implies a power to lease,® where the remainder men are minors. Although a direction in a will that land is to be sold for payment of testator's debts gives the executors a power of sale by implication, ^ yet, under a devise of lands to several, to be equally divided between them " by sale or otherwise, as may be deemed best," the ex- ecutor has no implied power to sell.^" ' • Scott ®. Morell, 5 N. Y. Surr. (1 Kedf.) 431, 3 Rev. Stat. 5 ed. 20, 21. §§ 75, 77 ; Mapes v. Tyler, 43 Barb. 421 ; 3 Rev. Stat. 3 ed. 14, § 56 ; 3 Cow.. 651 ; 7 Wend. 47; Matter of McLaughlin, 2 Bradf. 107. ' Peck D. Henderson, 7 Yerg. 18 ; Greenough v. Wells, 10 Cush. 571,. 577. = Germond v. Jones, 2 Hill, 659. * Fowler v. Depau, 26 Barb. 224. ' Jackson v. Burr, 9 Johns. 104. " 4 Kent. Com. 319 ; Borland v. Borland, 2 Barb. 63 ; Bogert v. Hertell, 4 Hill, 492. ' Ackerman v. Emott, 4 Barb. 626. " Hedges v. Riker, 5 Johns. Ch. 163. » Peter ». Beverley, 10 Pet. 5^3 ; S. P. Taylor v. Benham, 5 How. 233.. "> Dunlap V. Pyle, 5 McLean, 323. PKECATORT TRUSTS. 211 A trust for " maintenance" will not usually authorize a sale.^ A direction to raise a certain gross sum out of rents and profits is latterly held to authorize a sale, unless the testator refers to a mode of enjoying the property inconsistent with a sale, or otherwise shows an intention not to have the land sold, but that the charge should be raised only out of the annual rents.^ A power of sale in New York, given to three exec- utors, is well exercised by one only, he alone having acted under the will.® But a power to sell with con- sent of A. fails on the death of A. without having con- sented to, even though he did not dissent from, the exe- cution of the power.* Where a power is to be exercised, after certain con- ditions are fulfilled, it cannot be executed prior to such fulfilment.® As to the time when a power may be exercised, where it is qualified by certain previous trusts,* see Matter of Vandervoort. As to the time when a trust power to sell can be exercised, see Egerton v. ConMin.'' • § 2. Precatory Trusts. All difficulties of construction — whether it be a will or a deed that is the subject of interpretation — arise either from the words of grant being indistinct or else from an indefiniteness in the subject-matter or the object of the gift. In the case of a deed, a question rarely '■ Kingsland v. Betts, 1 Edw. 596. ' Wilson ». Halliley, 1 Russ. & My. 590; Bootle v. BlundeU, 1 Mer. 333. 'Taylor «. Morris, 1 Comst. 341. * Barber v. Gary, 1 Kem. 397. " Minot «. Prescott, 14 Mass. 496. ' 7 N. T. Leg. Obs. 35. ' 35 Wend. 334 ; see also Bradhurst ». Bradhurst, 1 Paige, 331. 212 PEEOATOEY TEUSTS. arises wlietlier tlie grantor iutended to convey or not. He never uses any of the words " desire," " wish," or " will," but employs terms of present operation, as, for instance, "I give, grant, bargain and sell, stand seized of, enfeoff, convey, assign," &c. There is no ambiguity in such terms of present grant. But, in the case of a will, the draftsman often uses merely recommendatory expressions, as to which it is very hard to discover the sense in which they were most probably used by the testator. If he makes a gift directly to A., the question, indeed, is rarely entangled in any difficulty. But, when he devises or bequeaths to A., " wishing," " willing," " hoping," " trusting," or " not doubting," that A. wOl either immediately or at his death convey the same to B., the question arises, whether, in default of any ap- pointment by A. to B., the latter, nevertheless, has the •power executed to him by the construction which the court gives to the will. Imperative powers of this kind are usually termed precatory trusts, or trusts by implication in default of appointment. The only distinction between the form of a limitation of a precatory trust and a trust by im- plication in default of appointment is, that an ipiterest is conveyed to the donee of the power in the former case, but not in the latter. For instance, the phrase " I hope A. will appoint a sum of $10,000 amongst B.'s children, and charge the same properly on the lands devised to B.," is an *example of a precatory trust. But.it would be a trust by implication to the children of B., in default of appointment by A., if the phrase ran, " I give unto A. the sum of |10,000, now possessed by me in the public stocks, not doubting that he will convey the same at some time to the children of B." The legal incidents of these two kinds of limitation are, as regards the children of B., exactly the same. PRBOATOJIY TRUSTS. 213 They are not always so, however, as regards A., the trustee. A leading case in the law of precatory trusts is Harding v. Glyn.^ The rule as deducible from that case and from Brown v. Higgs ^ may be summarized as follows : A power to appoint is construed a trust in de- fault of complete appointment, where the direction to appoint is imperative, and the subject-matter and objects of the power can be distinctly defined. The law of precatory trusts, however, has under- gone some changes in England within th^ last thirty years. It is also somewhat different in the United States from what prevails in the United Kingdom, while some of the States differ from others on the matter. We will, therefore, briefly sketch these differ- ences in the present section, and illustrate our views by reference to a few leading cases. Questions of precatory trusts, on account of the diversities mentioned, elucidate, with singular distinctness of outline, most of the ques- tions that arise on the construction of wills. For, these disputes always relate either to the meaning of the terms in which the gift is made, or else to its subject- matter or object. The law of England has not undergone any appre- ciable change as to the nature of the terms by which , alone a precatory power can be conferred. The cases have varied mainly as to the other two points men- tioned, viz. : the certainty of the description of the sub- ject or of the object of the gift. But, though the law has been uniform in requiiing expressions of an impera- tive nature, yet the coiarts did not adopt the rules of construction applicable to similar limitations in deeds, but decided that various words and phases, not at all denoting a mandate in their primary or grammatical ' 3 White & Tud; Lead. Cas. 3d ed. 184 ; 1 Atk. 470. = 4 Ves, 708. 214 PKBCATOBT TEUSTS. sense, were, nevertheless, really imperative when found in wills. • In the early American cases on this question, the English latitude of construction was allowed, and any expression of recommendation by the testator that A. should give an interest to B., was regarded by the courts here as a trust for B., which he took, no matter whether A. acted or not on the' discretion given him by the testator/ But a change is alleged to have come over the spirit of the judicial dream. Our courts now, sometimes, will not, with all their old readiness, construe every expres- sion of desire as imperative. Jarman ^ and Redfield on Wills ^ approve of this innovation, as effectuating the testator's iatention better than the old latitude of con- struing as imperative trusts mere limitations that ini' plied a discretion in the donee to use or not, as he pleased, the power conferred on him by the testator. We cannot agree with those authorities on this point. A testator recommends, instead of commanding, simply because he does not wish to give offense to the donee of the power, and also because he believes that the courts will carry out any wish of his declared ia a will. Let us take the case of a person dying, and leaving after him a young widow and family. He will not show any want of confidence in her, because he knows that his children will be still more or less in her power. Now, almost all the cases where mere recommendations in wUls have been construed trusts are instances of the kind mentioned. Truly, the courts acted most pru- dently in thus construing mere expressions of desire. But, it is said that no one would use such mild terms, unless he wished the -trustee to have a discretion. No '■ See Collins ». Carlisle, 7 B*. Moar. 14 ; Bull v. Bull, 8 Conn. 47 ; Prewett V. Land, 36 Miss. 495 ; Gamble v. Dabney, 20 Texas, 69. "Vol. L 338. . = Vol. II, p. 433. PREeXTORy TRUSTS. 215 i;estator, however, will refer at all in Ms will to any matter that he had not at heart. We thint, therefore, the courts will act wisely in following, as much as pos- sible, the good old rule, and turning the donee of a power into a trustee, except when the testator has plainly mieant that the donee should have a discretion either to serve as a check upon the conduct of the "beneficiary, or for some other reasonable motive. The leading case upon the supposed American rule, which is not to consider a mere recommendation im- perative, is Gilbert v. Chapin.^ It was held in that case, that a devise to testator's widow and her heirs for- ever, " recommending " her to give the same to testator's children, created a fee simple in the widow and no inter- est in the children of the testator. This decision, how- ever, has fortunately not been followed in the very similar case of Warren v. Bates.® The words in the latter case were, " in the full confidence," &c. And in Eeed v. Eeed,^ under a " wish " that the testator's son should give his grandson the gift bequeathed, the son was held to be constituted a trustee for the grandson. It is stated in Redfield on Wills,* that in some late cases in England the courts have exhibited an inclina- tion to adopt the principle of Gilbert v. Chapin, and to treat recommendatory expressions in a will as dependent for their fall force on the discretion of the donee of the power.^ On the whole, the question whether the old English rules on the question in Gilbert v. Chapin is to prevail may be considered as still sub Jtedice, even in America. No doubt some mere suggestions by testators have been 1 > 19 Conn. 343. . ' 98 Mass. 374. = 30 Ind. 313. * Vol. II, p. 435. ° See McCulloch v. McCulloch, 11 Weekly Rep, 504 ; Grayes «.. Graves, 13 Irish C. 183 ; Godfrey ®. Godfrey, 11 Weekly Rep. 554; Scott «. Key, 11 Jur. (F. S.) § 19 ; and Hood v. Oglander, 13 L. T. (N. S.) 636. 216 PRECATORY TRUSTS, construed in England as imperative, althougli sucli seems not to have been the real intent of the testator. Still, a tendency is this direction is, we think, better than the rule in Gilbert v. Chapin. If the question was not so mapped out by the decis- ions the natural rule would be for the courts to regard those cases where a testator is providing for his children, through the intervention of a trustee, as stronger than ordinary delegations of a power to a stranger for the benefit of strangers. Moral considerations require thstt a parent's dying wisTi, desire, or recommendation should be held as sacred as his most positive precept. Unfor- tunately, however, moral obligations have strained the doctrine in the contrary direction. This question of precatory trusts elucidates very well the general rules for interpreting wills, and shows some strong instances where the primary meaning of terms has been controlled either by the context or external evi- dence. Of course the testamentary draftsman should leave nothing indefinite. At the same time he should avoid resort to technical terms, unless he fully under- stands their import and consequences. A little law, like a little learning, is a dangerous thing, and is often even worse than the pure simplicity of the layman. Although an unexecuted discretionary power is as if it never existed, yet it is a general rule of construction applicable both to wills and deeds, that where a power is directed to be exercised in terms that are construed inoperative and not discretionary, the power is a trust, and will be executed by the court in default of appoint- ment, in case the subject matter and objects of the power can be distinctly .ascertained.^ Three conditions, then, must concur in order that the power be deemed a trust, ' Brown v. Higgs, 4 Ves. 708 ; 8 Ves. 561. PRECATORY TRUSTS. 217 or ttat the specified beneficiaries take trust interests by implication in default of appointment. These three con- ditions are ; 1, imperativeness of request that the donee execute the power ; 2, certainty of subject matter; and, 3, of object.^ Judge Redfield^ gives a strong opinion with respect to the natural value of mere hortatory ex- pressions in a will.* The adoption by statute of the rule in Gilbert v. Chapin is, however, not needed in England, if, as is alleged,, the later cases run in- the direction of the American- rule.* The opinion of J^arman , however, is of so much weight as fo be likely -to turn the scale in the direction referred to, if it has not veered thither already. No great progress, however, has yet been made in this respect. Even in many American . cases as great latitude has been exhibited in the con- struction of terras as in England,® so that the doctrine in Gilbert v. Chapin is by no means, as yet, firmly established here. Of course, if it is plain from the will that the testator intended, that the donee of the interest or power should have a choice as to the carrying out of the ulterior rec- ommendation, there' is no trust.* Nor will the court interfere if the discretion given to the trustee is reason- ably exercised by him.'^ There are, indeed, but comparatively few American ' Briggs «. Penny, 3 Mac. & U. 554; Harding v, Glyn, 1 Atk. 469; Wright «. Atkyns, Turn. & Russ. 143 ; see notes to Harding ®. Glyn, 2 W. & Tud. L. O. 2d ed. 184; 3 Story Eq. Jur. § 979 a; Joel ». Mills, 7 Jur. N. 8. 389; Little «. Neil, 10 W. Rep. 592; 1 Jarm. (ed. 1861) 374. ' Vol. II, 423. » See Gilbert v. Chapin, 19 Conn. 343. * 1 Jarm. 368 ; Bayne v. Crowther, 30 Beav. 408. " See Collins v. Carlisle, 7 B. Monr. 14; Bull «. Bull, 8 Conn. 47; Pre- wett v. Land, 36 Miss. 495 ; Gamble v. Dabney, 30 Tex. 69. " Erickson u Willard, 1 N. H. 217 ; Lucas v. Lockhart, 10 Sm. & Mar. 466. ' Sharon v. Simons, 80 Vt. 458 ; Hawes Place Society ». Hawes' Fund, 5 Cush. 454. 318 PREOATOKT TRUSTS. cases on the question of precatory trusts. The whole doctrine, however, underwent a searching review in Coates' appeal,^ decided by the Supreme Court of Penn- sylvania. In that case the testator was possessed of considerable real and personal estate. He gave the " use, benefit and profits of his real estate to his wife for life, and also all his personalty, of whatever description, ab- solutely, in the full confidence that she would leave the surplus to be divided at her decease justly among his children." He then, after devising certain portions of his realty to his son's, and giving annuities to his daugh- ters out of his personal estate, which were to cease on their marriage, went on to direct that in case the mar- riage or education of his children should make an addi- tion to the income of his wife necessary, certain portions of his real estate should be sold, and the proceeds placed at her disposal. The court held that the widow took merely a life estate in the personalty as well as the realty, and that the word " surplus " meant that definite residue which would remain after the purposes first mentioned in the will were satisfied. Rogers, J., when delivering judgment in that case, said : " Setting aside the words ' absolutely ' and ' sur- plus '; — of which I shall speak hereafter — it cannot be doubted that this case falls within the principle of the cases cited, and, particularly, of Wright v. Atkyns, 17 Ves." He then, further on, adds : " With the utmost deference to the wisdom of the profound jurists who seem to censure the judgment of their predecessors, I hope it will not be considered as presumptuous if I ven- ture to adhere to and vindicate the propriety of the ancient doctrine." The words "absolutely" and "surplus" certain- ' 3 Barr, 129. PEBCATOBY TRUSTS. 219 • ly militated against the judge's reasoning. The word "surplus," too, hardly admitted of the definite in- terpretation he put upon it. However, His Honor considered that none of the cases supposed to be adverse strictly applied, and, consequently, that it was a fit op- portunity to uphold the doctrine of Atkins v. Wright, Brown v. Higgs and Harding v. Glyn. In America, therefore, there is not perhaps the sup- posed tendency to depart from the spirit of these cases. Notwithstanding the array of text writers of a contrary opinion, there is no new current of any great strength in the late decisions. In Brunson v. King,^ a testator had made a settlement at the time of his marriage, but retained in it a power of revocation by deed or will. In his will he expressly confirmed the settlement, and then afterwards expressed a " wish " which would be incon- sistent with the previous confirmation. It was held that the " wish " was inoperative to engraft a trust upon the settlement. But, this decision was founded not upon the weakness of the precatory term to effectuate the in- tended trust, but on its inconsistency with the plain confirmation of a previous instrument executed for the m.ost valuable consideration known to the law. The English cases, up to the present time, do not ap- pear to have seriously departed from the rule in Brown "v. Higgs.^ In the case of Lawless v. Shaw,^ for instance, the deyisee was requested to continue an old steward in his office. This was held by the House of Lords not io be a precatory trust, since, as such, it would be in- consistent with the preceding plenary devise. Wor are the cases of McCulloch v. McCulloch,* and Graves v. Graves,® any great innovations towards the doctrine ' 3 HiU Ch. 483. ' Ut sup. ' Lloyd & Gould, 154 ; s. c. 5 CI. & Fin. 139. * 11 W. R. 504. * 13 Irish C. 183. 220 PKBCAXORT TRUSTS. • contended for. The doctrine in GUbert v. Chapin/ is plausible in tlie abstract, but its practical faultiness is patent where, as in that case, the recommendation re- lates to the testator's own children, and the donee of the power is his wife. The reason for discarding mere hortatory expressions does not apply to such a case, be- cause a testator purposely uses mild language to a wife, although if he thought she would fail in her parental duty towards their common offspring, he would be more explicit. Considerations of moral duty, however, unfor- tunately, have induced the courts to incline still further against holding the trusts imperative. For instance, a request to a parent to use the interest given him for his children's benefit is weaker in their behalf than if the request was made to a stranger.* The opinion that the current of recent decisions is against converting the legatee into a trustee is supposed to derive confirmation from Sale v. Moore.* But in Sale V. Moore the subject of the bequest was indefinite. A like observation is applicable to Bardswell v. Bards- well.* The principle of Harding v. Glyn is at all events intact, and even though the subject be indivisible, or one object out of a class is to be selected by the trustee, the English Court of Chancery will nevertheless, even at the present day, if possible, execute the power.^ The tend- ency of the English courts latterly is even to execute precatory trusts, even if the objects are in terms indefi- nite, and in cases where formerly the trust would prob- " 19 Conn. 343. " Brown «. Cassamajor, 4 Ves. 498. = 1 Sim. 504; see Hoy v. Master, 6 Sim. 568. * 9 Sim. 319; Le Maistre v. Bannister, Prec. Ch. by Finch, 200, n. 1; Pope V. Pope, 10 Sim. 1. ' Richardson «. Chapman, 7 Bro. P. 0. 818, Toml. edit ; Moseley v. Moseley, Rep. & Finch, 53 ; Bro-wn v. Higgs, 5 Ves. 504 ; see Cruwys ». Colman, 9 Yes. 319. I TEEMS OF REQUEST. 221 ably have been held to be void for uncertainty. Espe- cially wUl the trust be now enforced if the donee of the power take not the whole interest, but merely for life.^ As Story, Jarman, Redfield, and White and Tudor, how- ever, consider that the recent tenor of the cases is in conformity with their own views on this question, this will probably be the direction of future adjudications on questions of precatory trust, where the context, is left doubtful by the existing decisions. § 3. Terms of request. The expression of a mere wish or desire has been long held by the courts to be equivalent to an impera- tive direction.^ The term "recommend," though some- times not considered imperative in America,^ has been held in England to create a trust.* A trust is also raised by the terms " request," ^ " wish and request," ® " dying request," "^ " entreat," ® " a. last wish to daughter to give to grandchildren," * " desire," " " advised him to settle," " " Howarth v. Dewell, 6 Jur. N. S. 1360. = Malim v. Keighley. 3 Ves. 333; Knight «. Roulton, 11 CI. & F. 513 ; Knight «. Knight, 3 B. 148 ; Briggs v. Penny, 3 Mac. & G. 546 ; Cwfv. Gary, 3 Sch.& Lef. 189. ' Gilbert ». Chapin, 19 Conn. 343. ■* Ford V. Fowler, 3 B. 146 ; see Johnson lb. ' See Part 1, Prop. 11 ; infra, chap. 23, § 5. ' ' Horwitz V. Norris, 60 Pa. St. 361. * 48 111. 471. ' Kempton Appl. 23 Pick. 163 ; see Crane v. Crane, 17 Pick. 433; see Mass. Rev. Stat. c. 60, § 11. 246 lUCUMBKANCES. widow is presumed to elect in favor of the will, in case she does no positive act of election within the statutory- period. But in England a beneficiary is always pre- sumed to elect against the instrujnent in question, ex- cept that the court will elect for an infant'in the manner most advantageous for him. In Illinois, any provision by will is presumed to bar dower, unless the widow repudiate the gift within six months.^ The phrase " subject to the dower and thirds of my wife," does not entitle the wife to a share in the person- alty, the meaning of the phrase referred to being well linown.^ A legacy to the wife in lieu of dower fails by reason of her electing to take dower.^ But a devise of testa- tor's whole estate, with remainders over, is not necessa- rily in lieu of dower, and she may take one-third as dowress and the remainder as devisee.* However, a provision for the widow under a trust vesting the entire legal estate in trustees is inconsistent with her right to dower,® and puts her to an election between the testa- m.entary provision and her dower. A generg,! devise of the testator's real estate does not necessarily compel the widow to elect between her dower and a legacy given her in the will. She can retain it and all other benefits given her by the will, unless her retention of her dower operates to defeat some other disposition in the instru- ment.^ Thus, if the testator's land is devised to his widow and his children, equally to be divided between them, this excludes her dower.'' But a mere annuity, payable '111. Rev. Stat., 1833, p. 624; see 1 Jann. 342, note by Judge. Perkins. = O'Hara v. Sullivan, 80 How. Pr. 278. ' Hawley v. James, 5 Paige, 318. " Lewis V. Smith, 9 N. Y. (5 Seld.) 503. ^ Savage v. Burnham, 17 N. Y. (3 Smith),. 661. » See Chalmers d. Storril, 2 Ves. & B. 323. ' li- DOWEE. 247 out of tLe dower land, is not inconsistent witli a claim of dower. There must iDe an absolute inconsistency be- tween tbe claim of a beneficiary and the dispositions in a will to raise a case of election.^ An election, however, must be made by her if there is a devise, either to her- self or to others, inconsistent with lier claim to dower. Thus, a gift to her of a share or proportion of the land or rents will be considered as inconsistent with her claim of her common law share.^ So if the land is devised to a third person, and the mode of his enjoyment of the property, as directed in the will, is inconsistent with dower, she will be put to her election if she tates any benefit under the will. These are cases of necessary implication ; but if, by any conceivable hypothesis, the dispositions in the will can be reconciled with the wife's common law rights, she will not be put to her election. In the cases mentioned, however, dower would be in- consistent with the terms of. the will. In like manner, powers of leasing, of occupation, or of managing the land, conferred on trustees or others, are also held to be inconsistent with a right of dower, which implies an enjoyment by metes and bounds.^ "Where a gift is given to the wife in lieu of dower and the devise of the dowry lands determines, the heir takes then, discharged of the dower.* But it has been decided that she cau claim a share of the personalty if its bequest is void ; semhle^ also, if the devise of the realty is void and not merely determinable. By the 3 and 4 Wm. 4, c. 105, a widow's dower is placed wholly at the mercy of the husband. Yet it is not defeated in England even now by a mere bequest, ' Dowson «. Bell, 1 Keen, 761. " Reynolds v. Torin, 1 Russ. 129. ^ Roadley v. Dixon, 3 Russ. 193. " See Pickering ii. Lord Stamford, 3 Ves. 337. 248 INCUMBBANOES. nor by a devise to her of land not liable to her dower. By the English dower act referred to,^ the widow's dower is subject to all the dispositions in the will, and a devise of the land to another, or of any interest in the land to the widow, absolutely defeats her claim " unless a contrary intention appears " by the will. A devise to the widow of land not liable to dower would seem to preclude her claim to dower, by the terms of the statute. Yet, the contrary seems to have been de- cided in England. A gift of personalty to the widow does not come within the terms of the act. It gives the widow dower of trust estates as a sort of set-off to the injury done to her dower rights by the general scope of the enactment. "In the American States the same rules as to dower apply as in England prior to the act men- tioned. Here, therefore, a widow is not entitled to dower of trust estates, unless a local statute provides to the contrary. Although parol evidence, as a rule, is not admissible to raise a case of election, yet in some instances such evidence has been admitted in America.* Cases of this sort, however, are infirm as general authorities, espe- cially with respect to the reception of parol evidence, the rules for admitting which are daily more and more approximating a scientific shape in America. There has been considerable positive legislation in the various States on the subject of dower.** » §§ 4, 5. ' Bailey ». Duncan, 4 Mon. 365, ' See 1 Jarm. 397, note by Judge Perkins. CHAPTER XIX. ELECTION. The doctrine of election is foTinded on the principle that a person cannot take a benefit under a will or deed "without being bound • or estopped by the contents of the whole instrument. The doctrine is acted on in the American courts. Accordingly, if a testator deals with the property of one who is a beneficiary under the will, the beneficiary must either waive the benefit given to him by the will, or else acquiesce in the disposition made of his property by the testator. If he prefers retaining his own property, then equity will appropriate the interest given him in the will, in order to make com- pensation to the other party.^ The statements in the will are an estoppel on all the beneficiaries. Therefore, it is not competent for them to show that a child has not received the advance- ments mentioned in the will, with any view to enla,rge the provision made for such, child by the will.^ A case of election will not be raised, if it be possible to construe all the provisions in the will to relate to the testator's own property or powers.* But, any in- terest, however slight, such as a small annuity given to the heir or next of kin, may put them to their election, in case other provisions of the will are void.* It is not » Havens «. Sackett, 15 K T. (1 Smith), 365. ' Painter ». Painter, 18 Ohio, 247. = Havens v. Sackett, 15 K. Y. (1 Smith), 365. ' Arnold v. Gilbert, 3 Sand. Ch. 531. 250 ELECTIOK. material to determine whether the testator was aware that he was raising a case of election or not, provided he had testamentary capacity. A person electing against a will loses only what is sufficient to compensate the other object of the testator's bounty. The object of the court is not forfeiture, but compensation, to the disappointed beneficiary. The doctrine is, therefore, not 'very strictly enforced, and a beneficiary may retain his gift, and yet derive property from another who elected against . the will. The doc- trine, too, does not apply to creditors.^ Parol evidence is not admissible to prove a case of election. It must, if available, appear on the face of the wilP in clear terms. Therefore, a mere general devise of land, even if the testator had no such prop- erty, never raises a case of election.® If there is a refer-' ence to lands at a particular locality, of course, the case is different. Where wills of realty speak only from the death of the testator, a general devise of land is still less potent to raise a case of election than where wills of land speak from their date. For, as the testator may buy lands after making his- will, and these may pass by it, it is not clear that he intends to convey any property not his own. But this is the assumption of fact on which the doctrine of election rests. If a foreign heir seeks part of the personalty, he will get it by the testator's domiciliary law, without incurring any peculiar obligation which his own law would impose on him as heir.* Conversely, if he seeks to shift any special charge from his land to the general ' Kidney v. Coussmaker, 12 Ves. 136. ' Story Eq. Jur.' § 1092, and note ; see Hapgood v. Houghton, 22 Pick. 480; s«pra,Pai-tI,171. " Doe d. Cliichester, 4 Dow, 76. ' Balfour v. Scott, cited in 5 Ves. 750 ; 2 Ves. & B. 131. ELECTION. 251 personalty, lie will fail in such claim.^ The reasoning of Sir Wm. Grant as to these two different questions, however, is not satisfactory. All the liabilities of the general personalty of the deceased,it would seem, should, in principle, be admitted by the administering court. The general personalty is as much the property of the creditors of the deceased as it is of his next of kin. The question whether the land is in or out of the juris- diction- ought not be deemed to affect this liability of the personalty in the court of administration. How- ever, the cases cited would probably be followed in America. In Hunter v. Bryant,^ a devise to testator's wife was, under the particular circumstances of the will, taken to be in satisfaction of a bond given to her before mar- riage, but subject to her election between the bond and the devise. This privilege of electing was also held to- have passed to her devisee. A daughter, owning a lot subject to her mother's life estate in a third of it, directed her executors, ta lease all her real estate, and pay annuities to her mother and others out of the rents. It was held that the mother was not compelled to elect, but took the an- nuity in addition to her own estate, though it might be otherwise, if the charge was on the whole lot specif- ically.* In Pinckney v. Pinckney,* it was held that a legacy to one of the next of kin, " in lieu of all rights she might have in the real or personal estate" of the tes- tator, did not require the legatee to elect between the legacy and her share as next of kin, of a portion of ' Drummond ». Drummond, cited in 3 Ves. & B. 133. ' 3 Wheat. 33, reversing 8 Wash. C. Ct. 848, " Harrington v. Hughes, 1 Paige, 569. * 1 Bradf. 369. 252 ELEOTION,^ the estate not disposed of by tlie will, and that she took both. It thus appears that a testator cannot bar his next of kin from a share of his estate by mere words of negation. Consequently, as regards rules of construction, the next of kin are just as much favored as the heir. Both have vested rights which the court will not divest without express words or necessary im- plication. The court will elect for an infant. An adult may elect by parol, or by any matter in pais. If, however, the person bound by a covenant to convert money into land, or conversely, becomes also entitled, to the benefit of the covenant, the property is then " at home," and retains unconverted.^ In Van Dyke's App.^ indeed, the personal estate was given to the daughters, and the real to the sons, but the will was not executed so as to pass real estate. Yet the daughters were compelled to elect. The decision has not much lateral support in the analogous cases, but it has in principle. In most of the States, the testator must be com- petent to dispose by will of the property in question, and the will must have been legally executed before a case of election arises, except that a testator having ca- pacity to bequeath personalty, but not realty, may yet raise a case of election as to realty by giving his be- quest expressly on condition that the legatee acquiesce in the transfer of the realty. Unless the legatee com- plies with this injunction, he forfeits the whole legacy, and not merely a sufficient part to compensate the dis- appointed devisee, as happens under a case of election proper. Unless the medium of a condition is resorted to, the beneficiary under the will may, in the case put, keep ' Chichester v. Bickerstaff, 2 Vern. 395. = 60 Penn. St. 480. ELECTION. 253' the testamentary gift, and yet refuse to part with any property of his own which the testator had not capacity to devise, or did not dispose of by a will appropriately executed. A married woman who executes a power, and tries to put the appointee to an election, by devis- ing away property from him which she is incapacitated from doing by coverture, will fail to raise any case for election. The appointee can retain the gift appointed, and yet refuse to part with his own property.^ SemhUy the married woman could not even effectuate her de- sign of an election by imposing any condition on the appointee. Such a condition would be ultra vires, and void. Indeed, the substitution of a condition for an elec- tion seems to be altogether technical and contrary to principle. Either the beneficiary ought to be put to his election whether the will was properly executed by a competent person or not, or else a condition ought not to be deemed to overcome the inherent invalidity of the disposition. However, the distinction seems to be well settled by authority.^ Any change in the law ought to be perhaps to deem every case of election as one of im- plied condition. The margin for flections is much narrowed by the statutes which have assimilated the law of wills of realty to that of personalty, and have made realty assets for the payment of debts.^ ' Kich V. Cockell, 9 Ves. 370. " Boughton V. Boughton, 3 Ves. Sen. 12. ' As to election, see further, Parsons v. Snook, 40 Barb. 144 ; Sullivan V. Mara, 43 Barb. 523; Tobias «. Ketchum, 32 N. Y. 319 ; Havens «■ Sackett, 15 N. Y. 365 ; O'Riley v. Nicholson, 45 Mo. 160 ; Storring «.. Borren, 55 Barb. N. Y. 595. CHAPTER XX. VESTING. § 1. Interests in land. A vested remainder, according to Fearne's definition, is a remainder that has a present- capacity to take effect in possession, if all prior limitations determined. He explains the nature of a vested interest thoroughly and completely, although his reasoning with respect, to a limitation to a trustee to preserve contingent remainders is entirely inconsistent with his own de- definition ; inasmuch as a trustee to preserve &c. has no capacity to take the estate, unless the previous limita- tion determines on a contingency not certain of ever happening. The word "vested" in a will is sometimes construed as denoting possession of property already vested in interest,^ and a reference to estates "given," vested, or to which the donees were " entitled " may, owing to the context, refer only to estates vesting in possession at the period referred to.^ In like manner sums bequeathed to children, not to "vest " until major- ity, vest at once in interest, though not in possession, until majority.^ In a doubtful case an estate will be more readily construed to be vested than contingent.* For the law ' Berkeley s Swinburne, 16 Sim. 375. = Kane v. Astor, 9 N. Y. (5 Seld.) 113. ' Thompson «. Thompson, 28 Barb. 432. \ ^ Dingley v. Dingley, 5 Mass. 539; 2 Pick. 469; 4 Pick. 198; 31 Pick. 814 ; Eldridge v. Eldridge, 9 Cush. 516. IKTERBSTS IN LAND. 255 favors the vesting of interests.^ Therefore, remainders and future estates that relate to the determination of prior ones are vested, if there is a present capacity in the ulterior donee to take were there no preceding interest. The phrase " in default of issue," too, means a failure of issue, and does not render a remainder there- on contingent on there never being any such issue or on any such estate not failing by lapse.* Even certain apparent contingencies are not construed tb be really such. Thus on a devise to a widow for life, ^and if she marry again, over, the remainder takes effect, whether she marries or not. The form of such limitations is unimportant, if the intention be to have the remainder vested. 'Though a future devise be contingent in terms, yet, if there is a preceding devise covering the whole "period before the contingency, the ulterior devisee takes a vested interest, the prior devise being construed as an exception, and not a condition, to his taking. Thus, under a devise of lands to trustees, until A. shall attain twenty-one, and if or when he shall attain that age then to him in fee, here A. takes a vested interest.^ A. fortiori will the rule prevail, if the prior interest, as in the case cited, is for the benefit of the devisee. And where a devise standing alone would be con- tingent, as to A. if he should attain twenty-one, yet, if there is a devise over, if he die under age, or on any other event, this gives him a vested interest at once, as the devise over shows that he was to take an inde- feasable interest, if he attained age.* ' 4 Kent, 5th ed. 203 et seq. ; Dingley v. Dingley, 5 Mass. 535 ; see Winslow «. Goodwin, 7 Met. 363. " Doe V. Dacre, 1 Bros. & Pull. 250 ; Bates «. Webb, 8 Mass. 458; Per- son V. Dodge, 33 Pick. 387. ' Edward v. Symonds, 6 Taunt. 313. * Peyton «. Bury, 3 P. W. 626. 256 VESTING. If there be a devise to trustees iu trust to convey^ yet, the rule in Peyton v. Bury^ will be adopted, al- though executory limitations are generally to be con- strued with much care. The context in all these cases is to be studied with attention, and any express decla- ration or condition as to the period of vesting will, of coui'se, put all implied rules to silence.^ A devise after payment of debts, however, does not postpone the vesting.^ But the period of possession or of a division (when such is to be made) is often coincident with the period of vesting, which it postpones.* So, if the testator er- roneously supposes that he has no power to dispose of the estate, except on the contingency plainly indicated in his will, his error of law or fact does not prevent the devise from being contingent. • A contingency affecting a particular estate will, of course, sometimes affect the whole series of remainders. But if these are substantive gifts, or if there is any point of substantial contrast between the preceding estate and the ulterior ones, these' will not be deemed affected with the contingent nature of the previous estate.® Nor will a vested estate be divested, unless all the conditions and contingencies affecting the ulterior divesting estate are fulfilled.® The courts in the United States incline to the vest- ing both of devises and bequests.'^ Yet a remainder will not be deemed vested during the currency of the particular estate, if the testator has disposed of the in- ' 3 p. Wms. 636. •' Glanyil v. Glanvil, 3 Mer. 38. " Barnardiston v. Carter, 1 P. W. 505. * See 4 Kent, 5th ed. 206. " Lethiellier ». Tracy, 3 Atk. 774. " Homes v. Herring, 1 McCle. & You. 395. ' Kane t. Aston, 5 Sandf. 467. FUTURE VESTED GIFTS OF LAND. 257 terest or dividends only for a particular purpose/ The general rule is, that remainders (if not contingent in their own nature), vest in interest at the same time as the first estate vests in possession. A gift to persons living at a certain period is, however, contingent as to the persons who will be bene'ficiaries.^ But a substitu- tional gift to children in place of their parents dying before the period of distribution is vested,^ and a be- quest to a person when he should attain a "specified age, with a direction to apply the interest, meantime, to his education is vested.* In Converse v. Kellogg,^ it was held that under a devise of " all the residue of my estate to my children," naming them, " and to the de- scendants of such of them as shall have died in equal por- tions, but not to .be divided until ten years after the death of my wife," the children or their descendants, took present vested interests on the death of the tes- tator. § 2. Futwre vested gifts of land. As the courts incline to regarding limitations as vest- ed® and conditions as subsequent if the coittext is at all doubtful, therefore, a devise to A. when^ (but not if), he attains a given age, and, meantime, to B., gives to A. a vested estate, and to B. a term.'^ Even if there is a limitation over in case A. die under the specified age, . his interest, nevertheless, will be vested. The courts will deem an interest in land vested where they would hold a similar gift of personalty contingent by reason of the whole of the interest not being given meantime.* * ' Drake v. Pell, 3 Edw. 251. '' Phelps v. Phelps, 38 Barb. 131 ° Beekman u. Schermerhom, 3 Sandf. Oh. 181. ' BurriU ». Shell, 3 Barb. 457. " 7 Barb. 590. » Ferson'B. Dodge, 33 Pick. 387. ' Boraston's Case, 3 Co. 31, a, b ; Winslow d. Goodwin, 7 Met. 863. ' James ». Lord Wynfbrd, 1 Sm. & G. 40. 2S8 VESTIUG, Sometimes, indeed, if there is no preceding interest, or if the word "if" and not "when" be used, the devise' will be deemed contingent, unless there is a gift over, in the event of the donee dying under the specified age. Under such a context he will take a vested i^iterest, unless the condition is imported into> the desmption of him in the will, as if the devise be to such of the chil- dren of A. as shall attain twenty-one. If a precedent estate determines by lapse, the ul- terior vested interest then takes effect in possession.^ Bora-ston's case,* has been followed in various decisions in the United States.® But if there is a devise over to- others of the same class, in case of the first devisee dying under the prescribed age, his estate will be deemed con- tingent.* This seems to be the more natural con- struction. In Zeller v. Eckert,^ A. testator devised to his widow until his son should attain fifteen. The widow was held entitled to hold for fifteen years, even though the son died previously.^ In Farmers' Bank v. Hoof,'^ A. devised to his wife during widowhood,- but in case she should marry again, then to his daughter and her heirs. The daughter's remainder in fee was held to be vested.^ As to vested charges or portions, see Fuller v^ ' See Gotch ». Poster, 5 Law Rep. Eq. 811. ' 3 Co. Rep. 19. ' Hodgson ®. Gemmil, 5 Rawle, 99 ; Cowdin s. Perry, 11 Pick. 603. 508. ' lb. '■ Supreme Ct. 1846, 4 How. 389. . ' See further as to vesting, Walls v. Garrison, 83 Ga. 341 ; Roberts' Ap- peal, 59 Pa. St. 70 ; McGiU's Appeal, 61 Pa. St. 46 ; Kerr v. Rosier, 63 Pa. St. 183; Abbott's United States Digest, Vol. I, 461, ' Moon V. Stone, 19 Gratt. (Va.) 130 ; Wiggins v. Blount, 33 Ga. 409;, Buzby's Appeal, 61 Pa. St. Ill ; Pike v. Stephenson, 99 Mass. 188. ° See LoTett ». Gillender, 85 K. Y. 617 ; Carmichael «. Carmichael, 4 Keyes, 346 ; Roome v. Phillips, 34 N. Y. 468. LEGACIES CHARGED ON LAND. 259 Wintlirop ; ^ and as to vested charges, see further Bur- rell V. Steill.* • A vested interest is assignable, devisable, and trans- missible on intestacy. An estate vests under a devise before entry. But, of course, a devisee may disclaim.* To give the devise effect as against the heir, the New York statutes require the will to be proved and recorded in the surrogate's office within four years after the tes, tator's death.* As to the admission of wills of person- alty in the State of New York, see also the Revised Statutes.® § 3. Vesting of legacies cha/rged on land. Legacies charged on land, if not payable until a future date, /do not vest prior to that period, even though interest be given in the meantime,* unless the postponement is for the convenience of the estate, as, where there is a preceding life interest.^ In such a case the legacy does not sink for the benefit of the inherit- ance, but is vested and transmissible. A legacy payable out of both realty and personalty is governed by the rules relating to personalty, so far as the personal estate extends.® Land directed to be sold and terms of years are for this purpose considered to be personalty. But the assets will not be marshaled ' 3 Allen, 51 ; Lane «. Lane, 8 Allen, 350. =" 2 Barb. Sup. Ct. 457 ; Harris «. Fly, 7 Paige, 421 ; Conklki v. Moore, 2 Bradf. 179 ; ' Sweet b. Chase, 2 N. T. 78. ' See Townson n'. TickeU, 3 B. & Aid. 31. * See Rev. Stat. N. Y. Vol. H, 57-59, aa to personal estate. ' Vol. n, 60, 62; lb. 66-68, and the Act of 20th April, 1830; 4 Kent Com. 534. ° Pearce i). Loman, 3 Ves. 135. ' Remnant ». Hood, 2 De G. F. & J. 410. ' Prowse «. Abingdon, 1 Atk. 483. 260 VESTING. for the legatee,^ However, the rule in Pearce v. Low. man would probably not be followed 'in the United States. A legacy to one when he attains age is often con- strued as vested, though no interest is payable mean- time,* especially if there is a limitation over, in case of lapse or some other contingency.^ Where a sum is to be raised" within .a certain period, it is vested at once, the period specified being only the major limit of the time for raising the sum, unless the testator's ^interest is reversionary.* , : Bequests are governed by the same general prin- ciples, as to vesting, as devises, although limitations of the two kinds of property are not always construed in the same ;way.® Pecuniary legacies charged on land, however, are construed as if dispositions of realty. A legacy to a person in esse simply is vested on the death of the testator. A legacy to him at a future date, as when he attains age, is not vested . until that period, even though interest meantime be given for his main- tenance, unless the future date relates to the estate, as if it be after the determination of a prior particular estate.^ The distinction is obvious ; in the one case the contingency relates to the person of the donee ; in the other, to the subject-matter of the gift. If interest is given meantime, however, it will, in the United States, be held to be vested.'' If the legacy is payable out of a future sale of land. ' Pearce ». Lowman, 3 Ves. 135. ' Caldwell «. Kinkead, 1 B. Mon. 231 ; Lister v. Bradley, 1 Hare, 10. ' Lowther v. Condon, 3 Atk. 180. * See Bowker ii. Bowker, 3 Gush. 319. ° See Ferson ». Dodge, 33 Pick. 287. ' Birdsall v. Hewett, 1 Paige, 33 ; Childs v. Russell, 11 Met. 16. ' Gifibrd v. Thorn, 1 Stockt. N. J. 702. VESTING OF PERSONAL LEGACIES. 261 to be made on tLe death or marriage of the devisee,. tte legacy is vested, the postponement being for the con- venience of the estate.^ In Bowker v. Bowker,* after a devise upon condi- tion that the devisee pay $100 annually for seven years to his brother, the brother died before the seven years elapsed, yet his executors were held entitled to receive the annuity for the rest of the seven years. § 4. Vesting of personal legacies. In the civil law, the term vested means uncondi- tional and transmissible, while non-transmissible or con- ditional interests were termed contingent. But, in our law, a contingent interest is not always intransmissible. The term vested, with us, means a certain interest in a certain person. The term contingent, on the other hand, denotes that either the person or event on which the gift depends is uncertain ever to exist. The former class of interests is saleable, although the actual pos- session of the property may be deferred. When the donee is uncertain, however, it is clear that the interest is unsaleable. If it is limited at a remote period, there- fore,' it may keep property out of commerce and be a perpetuity, unless it is a remainder at common law, and, as such, destructible by the preceding tenant of a vested freehold. It is generally considered that if a legacy is given to A. at twenty-one, or to be paid to A. at twenty-one, it does not vest till payable. But, if given to A. to be paid to him at twenty-one, it is vested at once. This distinction has been followed in the United States,^ and ' Sharpsteen v. Tillon^S Cow. 651. " 9 Cush. 519. ' Marsh v. Wheeler, 3 Edw. Ch. 156; Kihler v. Whitman, 3 Har. 401. 262 TESTING. SO much importance has been attached to the insertion of tTie word " payable," that a legacy to one " if he shall arrive at the age of twenty-one years, then to be paid over to him by my executor " is not a contingent, but a vested legacy.^ It is often, indeed, very difficult to determine whether the futurity is of the substance of the gift or merely of the time of payment. Division at a future period, how- ever, does not, more than payment, at such a time sus- pend the vesting. But, if the payment or distribution depends on a contingency, as marriage vdth consent, this will render the legacy contingent,* and, in case the legatee dies without fulfilment of the condition, the legacy is not transmitted. A gift of interest, unless it be of a portion of such proceeds for maintenance, is almost con- clusive evidence that an immediate vesting was intended by the testator. But, a direction that the interest shall be added to the principal until the legatee attains age does not sifspend the vesting.* A bequest to A. "upon," or "at," or "wJien," or "if" he attain a given age, or on his marriage, is contingent. A like rule applies to a gift to a class.* The question in such cases usually is whether the gift and time of payment are distinct. K they are, then, as each clause in a will is to have some opera/tion, the gift is deemed to be vested at once ^ — due at once and payable at a future time — especially if interest is given meantime.* • Fumess «. Fox, 1 Cush. 134 ; see Eldridge v. Eldridge, 9 Gush. 516. ' Atkins V. Hiccocks, 1 Atk. 500. = Stretch v. Watkins, 1 Madd. 353. * Leake e. Eobinson, 3 Mgr. 363. ' Paterson v. Ellis, 11 Wend. 259; Turk, ex parte, 1 Bradf. 154. ' 6 Ves. 249; Van Wyck v. Bloodgood, 1 Bradf. 154. VESTING OF PEESOUAL LEGACIES. 263 In Southern v. Wallaston,^ however, the gift was to such of the children of A. as should attain twenty-five, with interest meantime, and the bequests were held to T)e contingent. For, accumulation is o»ly one ground for presuming that the legacy to which it relates is vested ; and this implication may be outweighed by the context.* The period of actual payment will confine the vest- ing of a bequest made to the children of A. " when the youngest child attains twenty-one," to such of the chil- dren as shall attain that age.^ They or their represent- atives, and not any dying under twenty-one, will par- ticipate. This case of Leeming-y. Sherratt seems weak in point of principle. The youngest child was probably fixed upon by the testator merely in order to prevent a premature division, and not as impliedly imposing a condition on the vesting or transmissibility of any of the children's shares. Yet, the decision has been followed by several others, and the case of* Cooper v. Cooper* is not any real authority to the contrary, as the children in that case were enumerated by name. Requiring a legatee to prove his identity within a specified time in no way affects the vesting.® Neither does the legacy become contingent because it cannot vest in possession during the life of the legatee.* A gift of interest subject to a charge does not pre- vent the principal from vesting ; "^ aliter, if the gift of interest is itself contingent or dependent as to its quan- ' 16 B. 166. " Lyman «. Parsons, 38 Barb. 564. ' Hawkins on Wills, 233 ; Iieeming ». Sherratt, 3 Hare, 14. * 29 B. 339. ' Ennis v. Penty, 3 Bradf. 388. " Sweet «. Chase, 3 N. Y. 73. ' Jones V. Mcllwain, 1 Russ. 330. 264 VESTING. tity on the discretion of a trustee/ unless there is a trust for its accumulation. As to yested legacies see further Bowman's Ap- peal.^ * The courts lean much to the- vesting of residuary- bequests in order to prevent .intestacy. Yet, a residuary bequest to the children, or to such children as shall at- tain twenty-one, is obviously contingent. A contingent interest, however, is transmissible, when the contingency does not relate to the person of the donee, but to some other person, or thing, or to the subject matter of the giftV A legacy to a church, if C. continues to be its pastor for seven years, but if not, to C. with interest, is given on a condition precedent, and vests in C. on his retiring from the church with consent of the congregation.* But,, a devise to children, " if they should come of age," gives them no right of immediate possession, and the property meantime ^oes to the heir.^ A condition, however, is often virtually a mere specification of the time when the. interest shall vest in possession.* In Brownson v. Gifford '' it was held that a devise to a mar- ried woman, with a provision that if her husband ad- vanced any claim against the testator's estate, the gift should be void, was merely a condition subsequent. Wills of personalty, it is to be remembered, are con- strued according to the rules of the civil law. But wills of ' Palsford v. Hunter, 3 Rev. C. C. 416. ' 34 Penn. St. 19; Barker v. Woods, 1 Sand. Ch. 139; Pinney v. Fan- cher, 3 Bradf. 198 ; ex parte Turk, 1 Bradf. 110 ; Adams ». Beekman, 1 Paige,' 631. ' Wilson «. Bayley,.8 B. P. C. Toml. ed. 135. * Caw V. Robertson, 5 N. T. (1 Seld.) 125. " Jackson ». Winnie, 7 Wend. 47. " Crosby v. Wendell, 6 Paige, 548. ' 8 How. Pr. 93. VESTING OF PERSONAL. LEGACIES. 265 realty are interpreted more in conformity with the com- mon law. As to contingent beq'aests of personalty see further Nash v. Culter.^ If the legacies be given to a class, however, it is thought that the American courts incline to postpone the period of vesting until the time appointed for payment, especially if they are charged on land.* '16 Pick. 491 ; Boone «. Dyke's Legatees, 3 Mon. 539; Emerson d. Culter, 14 Pick. 108; Bateman v. Gray, Law Rep. 6 Eq. 215; Fnmess v. Fox, 1 Cush. 134 ; Trustees of Smith's Charities v. Northampton, 10 Allen, 498. ' See Hawkins v. Everett, 5 Jones, Eq. 42 ; 2 Redfield, 243 ; Cooper v. Cooper, 7. Jur. N. S. 178; Conklia v. Conklin, 3 Sandf, Ch. 64; Wessenger V. Hunt, 9 Rich. Eq. 459. CHAPTER XXI. CONDITIONS. § 1. Their nature and incidents. Rules of law are often confounded with rules of construction. Yet there is a patent difference between them. In deeds some rules of construction are rules of law. The rule in Shelley's case, for instance, is a rule of law in a deed ; so is the rule that, under a limitation to one and his heirs, the donee takes a fee mple, or under a limitation to him and the heirs of his body, an estate tail. These rules of construction are so cogent that any clause to the contrary is void. Therefore, a condition that a tenant in fee shall not alien, or that" a tenant in tail shall not disentail the land, is void. This rule applies whether the limitation be in a deed or a will. The legal incidents of estates are of their very essence, and cannot be eliminated from the gifts. Such a restriction would amount to saying, you shall and you shall not have the property. But, in wills there is al- ways the preliminary question of construction. A "testator cannot, indeed, as to the estate limited, give ab- solute property without certain consequences attached thereto, as liability to debts, dower, curtesy, &c. But the question under a vnll must £rst be determined, whether the absolute property is given or not ; and, if it is fettered with certain restrictions inconsistent with an absolute interest, the courts may cut down the ab- solute gift, instead of eliminating the incongruous inci- THEIR NATUKB AND INCIDENTS. 267 dents, as would be done if the document were a deed. Rules of law, then, are applicable to wills. But their application depends on rules of construction, which, un- like the case of a deed, are as varied as the sentiments expressed by different testators. A condition was a common-law mode of defeating,^ but not for transferring, an estate. For instance, if land was given to A. and his heirs, on. condition that A. should pay a yearly rent to the grantor, or attend at the county court, with power of re-entry to the grantor on breach of the condition, A.'s estate would be defeated by such entry for a breach of the condition. Rents, though not conditions, be it remembered, can be reserved on alienations in fee even since the statute Quia empfores. The only effect of that act is, that no tenant in fee can make himself a lord of a manor, or reserve any tenure to himself from his grantee in fee. But, as a rent may be given in fee to a stranger, so may it be reserved by one who has parted with his reversion. Yet, he cannot by reserving a clause of re-entry, resume his old estate on breach of a condition for payment, of the rent. Neither can a condition on a deed transfer an estate. It is only the grantor or his heir who can take advan- tage of it. Therefore, at common law, on a grant in fee to A. and his heirs, on condition that if B. returned from Rome, A.'s estate should pass to him or to C, this condition is void. But, in a will, this condition is good. The ulterior estate is thus a shifting use or executory devise. It is no matter how a condition is worded in a will, effect will be sought to be given to it, in this or some other way, if the condition be itself legal. Ac- cordingly, conditions subsequent in wills are usually construed to be conditional limitations. .No precise form of words being 'necessary to con- 268 CONDITIONS. stitute^ a condition ^ or, indeed, any limitation in a will, a devise to A., "he paying $1,000 within a month after my decease," imports a condition. Only the grantor or heir could enter for a condition broken at common law, and when an entry was thus made, it defeated all puisne grants by the tenant. Therefore, a release of a condition for once operated to destroy it wholly, else, on a second breach without license, the grantor entering would defeat the estate to the creation of which he had assented by his license. In a will th6re may be a liniitation over on breach of a condition. But such a limitation would be void in a deed operating at com- mon law and not by way of use. When contained in an instrument of the latter description, it is termed a shifting use ; in a will it is called an executory devise or conditional limitation. Conditions of re-entry in deeds are very useful, as they enable the grantor to de- feat the conveyance wholly, and not merely to have a receiver appointed. Accordingly, such conditions are very common in leases. .If a forfeiture of a legacy is inflicted upon the legatee, if he do not comply with the testator's in- junctions, yet, if the legacy be not given over, the threat will be deemed to be in terrorem only, and„not as concluding the rights of the parties.^ It is strange that the doctrine that a condition is merely in terrorem and void was ever adopted by the courts. Lord Cran- worth in Dickson's trust * said that no condition should be deemed in terrorem. But, this dictum is opposed to numerous decided cases. ' Part of fhis chapter has already been published in the Albany Law Journal, Vol. V, p. 145. " See Stark «. Smiley, 25 Maine, 201 ; 4 Kent, 5 ed. 134; 1 Jann. 798, note. = Pray v Belt, 1 Pet. 670. * 1 Sim. N. S. 37.- . THEIR NATURE AND INCIDENTS. 269 The in terrorem doctrine is daily loosing ground. In Haydyn v. Stoughton ^ an estate was devised oo con- dition that a school house should be built on the land. , The condition was held valid, and the residuary devisee (not the heir at law), was allowed to enter for the breach, twenty years having elapsed from the entry of the devisee. There is no objection to a devise to one, " if he be a citizen of the United States, and as such capable of holding land at the time of testator's death," but, if not, that the lands be sold and the proceeds given to him.^ And yet this condition seems intended to contra- vene the rule of law forbidding aliens to hold land. When a condition is annexed to a preceding estate that never arises, a remainder, nevertheless, may take effect. The previous estate in such cases is a limitation, but not itself a condition, in respect io the ulterior interest.^ On a devise to A. for life, remainder to B. in fee, upon condition that, if the rents were not sufficient for the support of A., thfe deficiency should be supplied by B., the Supreme Court of Massachusetts held that there was no trust created for A., but only a condition, of which the grantor's heir could take advantage.* This decision, with all respect be it said, seems to be worthy of the days of Perrin -y. Blake.^ In Moore v. Moore,^ there was a clause in a will re- voking a devise, on account of the intemperance of the devisee, and directing that unless he should reform, the ' 5 Pick. 528. " Supreme Ot. 1835, Beard v. Rowan, 9 Pet. 301 ; affirming 1 McLean, 135. ' Norris v. Beyea, 18 N. V. (3 Kern.) 273. * Temple ®. Nilson, 4 Met. 568. ' 4 Burr. 2579. « 47 Barb. 257. 270 CONDIXIONS. property sLould be held in trust for three years, to give Mm time for reformation. The condition was held void, as attempting to create an illegal trust, as suspend? ing the power of alienation illegally, and for uncertainty: The forfeiture being thus held void, the devise toot effect simply. If the beneficiary accept the gift, he is bound by any condition attached thereto.^ But conditions in .wills- can only operate by way of election.* As to conditions, see further Harris v. Hearne.* § 2. Classification of conditions. Conditions are either express or implied, precedent or subsequent, real or personal, general or special.* Conditions in deeds are alsb distinguished from limit- ations in abridging the estate, and from covenants,, which only give a claim to damages, and not to an annulling of the grant. But in a will, limitations (for there can be no covenants) and other directions are virtually conditions. The court cannot construe them as covenants, or as giving any claim (except in a case of election), to damages, although a claim in a contract will be more readily construed, as a covenant, which may be apportioned, than as a condition. But valid con- ditions in wills are virtually trusts, and will be as such specifically enforced in equity. Conditions are most usually classed only as precedent or subsequent.^ They either relate to the acquisition of an estate or to its retention. Thus, a devise to A., if ' Runnels ®. Runnels, 27 Texas, 515. " lb. " 1 Winst. Eq. 93 ; Gridley v. Gridley, 24 N. Y. 130. ' Litt, § 325, 328. ' See Fox v. Phelps, 17 Wend. 893. CLASSIFICATION OF OONBITIONS. 271 he live to a certain age, and pay to B. a certain sum^ imports conditions precedent.^ If sucli a condition be- comes'^ impossible, the estate will never vest. It is sometimes difficult to determine whether a condition is precedent or subsequent, but if it is subsequent and im- possible, then, the former estate becomes indefeasible.* As the immediate freehold could not at common law be ' limited on a contingency, this is perhaps the reason why the courts incline to construe a condition as subsequent rather than as precedent. Yet a stranger cannot take an advantage of the breach of a condition subsequent in a devise.* In Taylor v. Mason,^ the Supreme Court of the United States held that, if a void condition is precedent, the estate cannot take effect. This doctrine, too, is as old as the common law. Any consideration exacted from the beneficiary, or' any duty imposed on him, unless it is spread over a very unusual period of time, is a condition precedent. Sometimes a condition such as the dying of A. un- married, is imposed on a limitation to B. In such a case, B.'s estate does not vest during the life of A., as the condition may be determined affirmatively or negatively any time during that period,' and though suspended so long, the condition is precedent. » Yet, in Woodcock -y. Woodcock,^ a devise in remainder to A. upon such equivalent as the executors might determine, was held to be subject only to a condition subsequent, as the execu- ' Johngoii' ». Castle, 5 Vin. Ab. 343, pi. 41 ; Vanhome v. Dorrance, 2- Dall. 817. ' Wells V. Smith, 3 Edw. 78. ' Morrell v. Emery, 10 Pick. 507. * Sup. Ct. 1852, Webster «. Cooper, 14 How. 488. ' 9 Wend. 350. • KandaU «. Paine, 1 B. C. C. 55. ' Cro. El. 795. ' 272 CONDITIONS. tors "would require time to deliberate iu estimating what would be an equivalent consideration. If the condition is at all capable of being construed as subsequent, it will be deemed to be such. Therefore, a condition to be performed at any time will usually be held to be a subsequent one,^ as, for instance, a devise to A. to enable him to support B. In Page v. Hayward,^ lands were devised to A. and B. in case they married a person named S. They married each a person of a differ- ent name, yet they were held to take vested interests, the condition being subsequent, and being capable of being performed, as their husbands might die, and they might then marry persons of the coveted name. As a gift of a legacy, when distinct from the time of payment, implies that it is vested, so, if an interest is distinctly devised, and afterwards made subject to a condition, this implies that the condition is subsequent, as to A. for life, but if she many without consent, then to B.« Jarman* infers from the cases that the presumption is in favor of a condition being deemed precedent where it relates, 1, to the raising of a gross sum out of land, and not to a devise of the land itself; 2, where a pecu- niary legacy is given, and not a residue; 3, where the 9,ct may be performedtbefore the enjoyment of the inter- est begins ; 4, where the condition is capable of being immediately performed; but, 5, that if a certain time is fixed for the performance of the condition, this strength- ens the argument in favor of its being subsequent. A condition of the nature of a consideration is usu- ally deemed precedent.^ A condition that the benefi- ciary shall cease to resort to public houses is a condition ' Finley v. King, 3 Peters, 876. ' ' 3 Salk. 670. " Lloyd V. Branton, 8 Mar. 108. * Vol. I, 804. ' Acherley v. Vernon, Willis, 158. CLASSIFIOATION OF CONDITIONS. 273 precedent, and not void for uncertairi'ty/ If tte condi- tion comprises various acts, all must be- performed.^ A requirement that tlie devisee should remain witli the testator during his life is a condition precedent, and must be performed.* It is often hard to determine whether a donee is bound to perform a condition within a reasonable time, or has his whole life to perform it. But, as a rule, the condition should be performed within a reasonable time.* Any condition subsequent to an estate tail may be defeated by the tenant disentailing the land. Jar- man^ inclines to think that, if the estate is given over, this limitation takes effect if a condition subsequent to a prior estate on which it is itself limited becomes im- possible ; in other words, he considers that the impossi- bility of performing a. condition subseqiuent renders the prior estate indefeasible only if there is no limitation over. This opinion he entertains in analogy to the effect of conditions respecting marriage. The American cases recognize the distinctions be- tween conditions precedent and subsequent and those annexed to realty and to personalty. Accordingly, if an illegal precedent condition be attached to a devise, it will not vest.^ The courts, however, latterly incline to hold gifts in restraint of marriage or lawful cohabita- tion as valid, and the condition alone to be void. If the condition is subsequent, and the property is given over on non-performance, this may divest the first estate, even if the condition becouies impossible.^ But ' See West ». Moore, 37 Miss. 114. ' Moakley v. Riggs, 19 Johns. 71, 72. ' Den ». Messenger, 33 N. J. L. (4 Vr.) 499. * Ross «. Tremaine, 3 M-et. 495. " Vol. I, 808. ° 3 Greenl. Cruise, 16; see Maddox «. Maddox, 11 Gratt. 804. ' Graydon v. Picks, 2 Atk. 16. 274 CONDITIONS. if the irapossibilitjr is owing to the act of the grantor^ the condition is thereby avoided.^ In Taylor v. Mason,^ a condition that the devisee should take an oath that he would make no change in the property during his life was held, under the terms of the will, to be a condition subsequent and to be re- pugnant to the nature of the estate previously granted. It was therefore void. § 3. Conditions in restraint of alienation. Conditions that are repugnant to the nature of a a gift are absolutely void.^ There is, consequently, much ground for contending that any condition against alienation, where the condition is not attached to a re- version or other assignable interest, is void entirely, and not merely beyoftd the line of perpetuity, un]ess there is a limitation over. The nature of the condition is then reversed. For, it operates to assign instead of preventing the assignment of property. A condition contrary to a plain rule of law is admit- tedly void. Therefore, if land be devised to A. in fee^ l>ut with a condition that he shall not alien or subject to debts, this condition is void.* Even a condition not to alien by any mode not tortious and allowed by law is invalid. But a condition not to assign to a particular person or use as in^ mortmain is valid, for the same reason that a condition in partial restraint of contract is good, though a contract or condition in general restraint of fature transfer or dealing is void. ' United States ». Arredondo, 6 Pet. U. S. 691, 745. = 9 Wheat. 335. ' Stockton 1}. Turner, 7 J. J. Marsh. 193. * Hall ®. Tufts, 18 Pick. 455 ; Newkirk v. Newkirk, 3 Gaines, 345 ; Bram- hill V. Ferris, 4 Kern. (N. T.) 44. " Mc Williams v. Nisley, 3 Serg. & R. 513. CONDITIONS IN RESTRAINT OP ALIENATION. 275 Conditions evidently come within the reason of the rule against perpetuities. Another reason why a re- straint on the alienation of property is often deemed to be void, is, that it is incongruous and inconsistent with. the gift itself. A condition, as such, operates, like a future use, to keep property out of the market, because tbe person who imposed the condition, or his heir, to whom the condition descends, 'can alone release it, and only to his grantee. There is no person always in esse beyond the perpetuity period who can launch the es- tate on the market, if the condition goes beyond the line of perpetuities. But, as a reversion is assignable, so is its accessory, or thQ right to the condition. Therefore, since the statute Quia Umptores^semble, no condition can be reserved on a grant in fee. The authorities, however, differ respecting the valid- ity of a condition against alienation annexed to an estate in fee. In Eockford v. Hackman,^ the condition was held void. Kent considers^ that the condition is good. Leases for years often contain such conditions, and there seems to be no valid reason, therefore, why leases for life should not be subjected to a similar restriction. But, of course, a condition not to assign, imposed on a tenant in fee is altogether repugnant to the estate, and also void as a perpetuity.. A condition against aliena- tion even within the line of perpetuity seems void if attached to a fee. Such conditions, when imposed on lessees, are assignable, because the reversions in which they inhere are assignable. But where there is no rever- sion, land is made inalienable in the case put. The con- dition, therefore, is, in point of principle, void. The case is different from a settlement of property in which ' 10 Eng. L. & Eq. 64. = 4 Comm. 131. 276 COISTDITIONS, the tenant for life can alien his own interest ; but here is property sought to be rendered wholly inalienable for a certain period. Such a restriction is inconsistent with the incidents of property/ even though it do not violate the rule against perpetuities. It is" equivalent to an inalienable use or trust for a man, which is void both at law and in equity. Suspending the vesting of an interest is an entirely different thing. The particular tenants, in the latter case, may meantime dispose of their own intere^s, and even the contingent remainder-man, or cestuy que use, has a right which is assignable in , equity (unless his interest is a bare possibility), even though he cannot give such a title to the fee or absolute property which a court of equity would force upon an unwilling purchas- er. The case of Pierce v. Win,^ therefore, is inconsistent with principle, and does not seem to derive much sup- port from the later authorities. In Jackson v. Schutz, however, it was held that a condition against alienation, without the consent of the grantor and offering him pre-emption, was valid in a grant of a fee.^ In Simonds v. Simonds,* too, it was considered that a devise to one son in fee, on condition of his not aliening during the life of the other was valid. In Timothy v. Camp,^ a condition against alienation before the devisee was tbii'ty-five years old, was held to be void. The same restriction in Stewart v. Brady,^ was held to be ' Grleason ®. Tayerweather, 4 G-ray, 348, 351 ; Blackstone Bank v. Da- vis, 21 Pick. 43; McWilliama v. Nisly, 2 Serg. & R. 507. = 1 Vent. 321. = 7 Johns. 227; 18 Johns. 174; see McWiUiams ». Nisly, 3 Serg. & R. 507. . ' 3 Met. 563. " 1 Phil. Eq. 61. ° 3 Bush. 633. CONDITIONS IN RESTRAINT OF ALIENATION. 277 valid. The former decision is alone in accordance with principle.^ A devise to testator's cHildren only in case they con. tinned inhabitants of a certain place, was held, in New- kirk V. Newkirk,^ to be void. Such a general restraint, against a change of domicile, is doubtless unreasonable and void. It is to some extent equivalent to a con- dition against alienation, for if the devisees are required to live on a certain estate, they are not likely to sell it. Yet, such a qualification in the early reports seems to have been deemed good. ' In Gray v. Blanchard,^ a condition that no window should be made in a certain wall was held valid, but a condition that the house should have no window, it Was said by the court, would be void. The condition in this case seems to be repugnant to the nature of the grant, and, therefore, to be void. Jarman thinks,* that a condition imposed upon a devisee in fee, not to assign except to a particular per- son is valid. But such acondition is evidently void on ^principle, as it must operate in general restraint of trade in land, and be a kind of perpetuity. A condition against marrying any one but A. B. is doubtless void. In the case of Pierce -w. Win,® the condition was confined to a life in being, which the analogy of separate estate tended to support. To take the converse case, Kent * thinks that a con- dition not to assign to a particular person is unsound in principle. But the legality of a partial condition in restraint of trade, as of marriage, seems to be rather a consequence of freedom than an impediment to it, for a partial condition implies a consideration,or motive of some ' 3 Bush. 323. " 2 Caines, 845. ' 8 Pick. 284. * Vol. I. 814. " 1 Vent. 321. » 4 Com. 131." 278 CONDITIONS. reasonable kind. Therefore, if A. devises to B. on con- dition that he is not to sell to C, it is likely A. has some reasonable cause for disliking C. But A. would be an enemy of the human race if he forbade alienation to every one. The authority of Kent/ as- of Jarman, however, is very likely to weigh with our courts quite as much as if it was a judicial decision. I, therefore, take the liberty of impugning boldly any of their positions that seem unsound. Were I even to prove my views conclusively, I could hardly detract from the general merits of these authors, particularly from the philosoph- ical value of the commentaries. A personal inalienable trust for men or unmarried females, is void by the law of England and the United States. But a life interest may be made to cease on alienation either voluntarily or by act of law^. Conditions are not favored at law, and still less in equity, because they operate as forfeitures. Yet, they tend to consolidate tenures and titles — an object which the Common law endeavored to effect by various means, such as the presumption of a joint tenancy, with the right of accruer, and the rule in Shelley's case. Con- ditions, however, were of a divesting nature, and the law leans to the vesting of interests, and to their con- tinuance when vested. Conditions, too, are not as flex- ible as uses, and, accordingly, those old levers of the common law are now in most cases construed in wills, as operating by way of contingent use. § 4. Other void conditions. A condition against aliening the subject-matter of any absolute bequest or devise not a separate use, as a • 4 Com. 131. " See Stevens ». James, 4 Sim. 499 ; see infra c. 36, § 4. OTHER VOID OOUDITIONS. 279 general rule, is void, and so is any interest limited on breach of sucli void condition.^ A condition against charging with debts any interest absolute or limited is also void. So is a condition that the property is not to be liable to be sequestered in case of bankruptcy.® Yet a disposition to A. until he becomes bankrupt, and then over, is valid.^ But neither a life estate nor an absolute one can be given without power of alienation, unless the gift is worded in the manner already described. , It has, indeed, been repeatedly held in the American States that general restraints on alienation aire illegal if they extend beyond the line of perpetuity.^ Yet it seems that a trust for a person and his family may be made independent of the creditors of the head of the family. It has been decided in Bramhall v. Fer- ris ^ that a similar provision might be deemed equally valid, even if there was no trustee. For, the inter- vention of such in a will seems never to be indispen- sible to the carrying out of the intention of the testator. Equity never wants a trustee. In Bramhall v. Ferris,® a testator directed his execu- tor to pay the proceeds of his property to his son for life, in order to support his family. It was held that the son's creditors could only attach any surplus that existed beyond wl^at was necessary for the support of ^h^ son and his family. This decision was made under the New York statutes. It is wholly at variance with the English rules as regards any interest given to the ' Ross «. Boss, 1 Jae. & W. 154. ' Bramhall v. Ferris, 4 Kern. N. Y. 44, 45. ^ Brandon ■». Rpbinson, 18 Ves. 439. ■* Newkirk ». Newkirk, 3 Caines, 345 ; Hawley v. Northampton, 8 Mass. .3, 6. =^ 14 N. T. 41 ; see Clute «. Pool, 8 Paige, 88. • 4 K»m. K T."41. 280 OONBITIONS. son, as distinguislied from, tlie shares of his family. For^ no trust for the separate use of a man free from the claims of his creditors can he established in English law.-' But if the trustees have a discretion either to ap- ply the property to the use of the beneficiary in ques- tion or to some other purpose, they may thus prevent the creditors from^ seizing it. This is equivalent to a gift to A. until bankruptcy, or to A. for life, and then,, on his bankruptcy, to B.^ K there is a provision in the will prohibiting alienation, .insolvency is a breach of that condition, as such an assignment, is voluntary; but bankruptcy generally is an assignment in invitum^ and will not be a breach of a condition against assignment,^ un- less the condition is so worded as to include assign' ments by operation of law, or unless a person can by his own act become a bankrupt under the local law. A condition against assigning a life interest thus appears to be valid in some of the States, though a condition against incumbering it with debts is void, as creditors claim by the j?os^, and not by the per ; in other words, they claim by law, and not through the grantor. Semhle, though a gift be so worded as to be deemed either a loan or a gift, yet the creditors of the beneficiary can attach it.* § 5. Conditions in restraint of marriage. Though all conditions iu restraint of marriage were void by the civil law, yet our courts recognise the val- idity of such restrictions if they are not general.® But, though these conditions are not illegal, they may stiU ' See 1 Jarm. 830, et aeq. ' See Dommett v. Bedford, 8 Ves. 149. ' See 1 Jarm. 828. .' Williams c. Jones, 3 Swans. 630. ' Bullock v. Bennett, 31 Eng. L. & Eq. 463. CONDITIONS IN RESTRAINT OP MARRIAGE. 281 be void, or, at least, ineffectual, unless there is a gift over on breach. If there is. not snch an ulterior dispo- sition o^ the property in question, the condition is termed in t&rrorem, or a mere threat.^ As a condition precedent, however, must be fulfilled, it is not construed in terrorem, even though there be no gift over, though even this point is still, perhaps, sub judice. These dis- tinctions relate only to bequests of personalty. All conditions relating to devises of land are construed ac- cording to the common law, no matter whether the re- striction relates to marriage or not. By the civil law all conditions, whether precedent or subsequent, in restraint of marriage, were void.^ But, in English law, a condition for consent to mar- riage is valid; so is a condition against maiTying a particular person, or under a certain age. And a con- dition that a widow shall not marry again, has been held valid.'^ Yet, this condition, being in general re- straint of marriage, seems contrary to public policy, and would doubtless be held to be merely in terrorem^ both in the United States and in England, at the present day.* Semhle^ a condition of consent to mar- riage, though legal, is inoperative, unless there is a limitation over on breach of the conditions;^ and a residuary gift is not a limitation over within the mean- ing of this rule. Conditions in restraint of marriage are thus con- strued in the American States, and if the gift is per- sonalty, they will be held to be in terrorenp, unless coupled with a limitation over ia case of a breach.® > 1 Story Eq. Jur. § 287. ' ' Paraons v. Winslow, 6 Mass. 169. = Amb. 209. ■* See Binnerman i). Weaver, 8 Md. 517. ^ See Parsons v. Winslow, ut sup. ' McHvain v. GitMn, 3 Whart. 375 ; 3 Lead. Cas. in Eq. 390, 8rd Am. ed. 282 CONDITIONS. In tlie American States, however, a condition against the re-marriage of a widow is Heeined legal.^ This de- cision is supported by some old authorities; but, in point of principle, it is clearly a prohibition in general restraint of marriage, which is void in respect of all persons not widows. There is surely no reason why these should be thus restricted more than otters. Conditions precedent to marry with consent, will not be deemed in terrorem^ even when there is no limitation over on breach, if the legatee takes a gift in the alternative of marrying without consent, or the marriage without consent is only one of two events on either of which the legatee will be entitled to the legacy, or if marriage with consent is confined to minority. Jarman's statement of the law on this point is to this effect * But, in reality, these are cases where there is a limitation on breach, but the same person is the alternative donee, or else the condition enters into the limitation so that it comes under the principle of the in terrorem doctrine as applied to conditions sub- sequent, and which, regards a limitation over coupled with the condition as jointly constituting the terms of the gift over. At all events, a legacy given on marriage with consent, without any gift over, will not vest until marriage. A legacy to a female, if she shall not cohabit with her husband, seems to be void on grounds of public policy. All conditions in restraint of marriage attached to legacies, however, though void by the civU law,^ are good as to land by the common law.* Our ' 2 Redfield, 295; Hughes v. Boyd, 2 Sneed. 513; Holmes «. Field, 13 111. 424. "^ Vol. I. 839. ' Hoopes v. Dundas, 10 Barr, 75. * Commonwealtli v. Stauflfer, 10 Barr, 350. CONDITIOIJS IN RESTRAINT OP MARRIAGE. 283 present law is thus somewliat heterogeneous, "but is, on the whole, sensible. A condition against celibacy is valid. Thus, in Cooper V. Remsen,^ a gift to A. to cease when she became a nun, was held to be legal. All conditions, however, abridging religious liberty, in the American States, where there is no common law or established church, would seem to be, in the main, against constitu- tional law and the principles of public policy. In ShacHeford v. Hall,^ a condition subsequent in general restraint of marriage, was held to be valid and to divest the estate. Devises in restraint of marriage, without any gift over, are valid in Pennsylvania.^ A devise on condition not to marry except according to Quaker rules Avas held valid in Houghton v. Hough- ton,* but invalid in Maddox v. Maddox.® It seems clear that, on principle, such restrictions are invalid. A re- straint against marriage, when extended to whole classes, is evidently unlawful ; but, confined to a class, it does not perhaps abridge freedom of choice too much. There- fore, a condition against marrying a Scotchman was held to be valid in Peirren ■«. Lyon.^ But a^ condition to, marry none but a Scotchman would seem to be too general, and, as such, void. If a bequest is made to a legatee at twenty-one, or on marriage with consent, with a clause of forfeiture upon marriage without consent, if the legatee attains twenty-one, the condition is gone.' ~ If a trustee with- holds his consent without cause, the court will authorize a marriage without consent. Jarman thinks^ the court ' 5 Johns. Ch. 459. = 19 111. 212. » 3 Eedfleld, 304. " 1 Moll. 611. ^ 11 Grat. Va. 804. ' " 9 East. 170. ' See Chauncey i>. Graydon, 3 Atk. 616 ; Durney v. Schaeffler, 24 Mo. (3 Jones) 170; Hughes v. Boyd, 3 Sneed, Tenn. 512. « Vol. I. 844. 284 CONDITIONS. win not do this, if the consent was to be in writing. But, as a writing is merely the evidence of the consent, and there is a sufficient equity for the court to act dehors the document, its requirement would seem not to be material where there was bad faith on the part of the trustee. A condition in partial restraint of marriage, unless there is a gift over, will not be held void in respect to legacies charged on land, so far as the realty must be resorted to, since the in terrorem doctrine is taken from the civil law, and is applicable to personal legacies only. These were formerly administered in the ecclesiastical courts, which adopted the rules of the civil, and not of the common law. But the latter law applies to devises and charges on land. A condition that a legatee shall not dispute the will is also in terrorem^ unless there is a gift over. But this doctrine is not applied to devises of land. Where there was a devise on marrying with consent and a gift over on marrying against consent, the word " against " was read " without."^ A consents to marriage must be before or at the time of its celebration. If one of the trustees is dead, the consent of the survivors will suffice, while, if the con- dition is subsequent, it is wholly gone. The consent may be express or implied, and one marriage with con- sent of testator, or of the trustee, destroys the condition forever afterwards.^ 'This is a general rule of conditions, except so far as the law is altered by statute or judicial construction. If a condition, even at the present day in some of the States, is released once, it is gone for ever. A general consent is sufficient. But a consent to a marriage vnth A. is no consent to a marriage with B. > Long «. Ricketts, 2 Sim. & Stu. 179. = 3 Williams, Ex. 3d Am. ed. p. 914, et seq. EQUITABLE BELIEF. 285 A consent once given cannot be retracted. The consent of all the trustees who have acted, or of the survivors, is sufficient. A condition that the beneficiary, shall change his name is fulfilled by his doing so, without compliance with any ceremony that may be required by law for that purpose. § 6. Equitable relief. The question of the inter-dependence of covenants in the same instrument is mainly determined by the order of time of their performance.^ If an estate be limited to A. on his maxriage with B., this is a condition prece- dent.^ It is strictly enforced, and equity wiU hardly relieve against its non-fulfilment. The case of the City Bank V. Smith^ is, as the note in Kent alleges,* an authority for holding that equity will relieve in the case of a con- dition precedent. But the circumstances under which the court will thus exercise its remedial j^^•isdiction are very rare.* The court, however, will either relieve against a breach of a condition precedent, or interfere to defeat a vested interest, when the condition is intended to secure a sum of money or the performance of any other act, and the loss can be readily made the subject of compensation.® , Conditions are apportionable in most of the United States as in England, so far as t"hat a waiver of forfeiture operates only for that occasion, and does not destroy the condition.* Yet, at common law no condition was apportionable. ' 4 Kent Com. 135, note. = lb. =3 Gill & J. 265. * 4 Kent Com. 135 ; Story, §§ 1330-36 ; Gregory v. "^ilson, 9 Hare, 689 ; Thompson «. Hudson, L. R. 3, Eq. Cas. 613 ; 3 Ch. App. 355. , * FlandearB v. Lamphear, 9 N. H. 301. ° See 31 Vict. c. 37. Supra, 368. CHAPTEE XXII. TKUSTS FOR SEPARATE USE. A trust for tlie separate use of married women, in respect to whicli they can act precisely as if they were unmarried, may be created in the American States. But the intention must be very explicit.^ A trust for her " sole use and benefit," however, is sufficient for this purpose.^ So is a trust of "property to remain in her possession," "for her special use and benefit,"^ " for her own use and benefit absolutely," * " for her own use and at her own disposal," "for her livelihood," "her receipt to be a sufficient discharge," " independently of any other person," ^ or, " whether married or single." ^ Bat,, a gift for separate use is • not raised by the use merely of the words " absolutely," " for her own absolute use," or ," for her own use and benefit," " to her and the heirs of her body, and them alone," '' " entirely for her and her children," or, " for her own use and benefit." * Neither do the words " own," " proper," or " abso- lute " use, raise a trust for a sepgtrate use.^ For phrases that will create a trust for the separate use of a married woman, see the authorities referred to ' Stevenson -o. Schriver, 9 Gill & J. S34. '' Jarvis v. Prentice, 19 Conn. 372 ; see Jones v. Jones, 7 Ga. 76. ' Freeman v. Flood, 16 Ga. 538. * Tarsey's Trust L. R. 1 Eq. 561. " Lee V. Priaulx, 8 Bro. C. C. 381. ° See Shewell v. Dwarris, Johna. Eng. 173. ' Foster «. Kerr, 4 Rich. Eq. 390. » Foley «. Foley, Irish Ch. App. 18 W. R. 81. ^ " Rycroft v. Christy, 3 Beav. 338. TRUSTS rOE SEPA.EATE USB. 287 in the note.^ Semhle, any expressions of desire that her Jiusband or his creditors shall not attach the wife's estate will render it separate. The appointment of a trustee for this or any other trust by the testator is unnecessary. For, it is a maxim of equity that it never wants a trustee, and when a trust for a married woman is raised, it wilt regard the husband as the 1;rustee, if none other is appointed.^ A trust fof the separate, inalienable use of a woman on future marriage is valid.* But, a trust for the use of a man for life, without anticipatioQ, is void. He may assign his life interest, or it will pass to his as- signees in bankruptcy.* The American law, however, on this point, is not as rigid as the English.^ A gift to husband and wife and a third person, gives th^ husband and wife only a moiety, and not two- thirds, as husband and wife are only one person in law. This rule applies to land as well as personalty, and whether the limitation be to the donees as joint tenants, or as tenants ih common. But, if the gift be to A. (hus- band) and B. (wife), the limitation, thus worded, will give- them a share each, though the wife will not take tO' ' her separate use in the equitable sense of that phrase. ' Clancy's Rights of Women, Am. ed. p. 362, et seq. ; Hamilton v. Bishop,. 8 Terg. 33 ; Hulme v. Tenant, 1 Br. 0. 0. 16 ; s. c. 1 White & Tud. Lead. Cas. and notes thereto, 2d ed. 394, et seq.' ' 3 Story Eq. Jur. § 1393 ; Bradish,«. Gibbs, 3 Johns. Ch. 540. ' 1 Bear. 34. * 3 Btory Eq. Jur. § 1383. ^ See suprtf, chapter XX f, § 3. CHAPTER XXIU. GIFTS TO CERTAm PERSONS AND CLASSES. § 1. Gifts to a class. A legacy to a class is often confined by the context to tlie individuals known to the testator. But if a class is really intended by him, the text writers say that all will participate who answer the description of the class when the gift takes effect in possession- — that is, at the period of distribution. This statement, however, proves nothing. The question, is, when does the period of dis- tribution occur. Indeed, gifts to classes are not all con- strued in the same manner with respect to the period of distribution. Sanders, in his note to Heathe v. Heathe, says that, in the case of a gift to children, where the gift is not confined to time, the death of the testator is the period when the members of the class are to be reckoned, but where the distribution is postponed on account of a preceding gift for life or otherwise, then all who are born before the period of distribution take, but not those born afterwards.* If, however, the par- ticular tenant dies in the lifetime of the testator, aU who are born into the class afterwards, but in the life- time of the testator, will take.^ It is thus plain that in England and in most of the States an immediate gift to " children," " grandchildren," " issue," " brothers," " sis- ters," " cousins," refers to those in existence at the testa- tor's death, if there be any such at that period.^ Those who do not survive the testator take nothing* in Eng- ' 3 Atk. 131. ■ " Carver «. Oakley, 4 Jones Eq. 85. = Viner «. Francis, 2 Cox, 190. * Deyisme v. Mello, 1 Bro. C. C. 537. GIFTS TO A CLASS. 289 land and most of the States. But if the gift is not im- mediate, all will take who correspond with the descrip- tion at or before the period of distribution, or represent those Avho so correspond. The members of the class take vested interests at the testator's death, sub onodo^ or subject to be partially divested by the appearance of a new member of the class, but not lost by their own decease before the period of distribution. It is then transmitted to their representative.' The rules relating to this point, therefore, may be thus summarized: — Gifts to children apply only to those who correspond with the description at the period of disfribution. Therefore, immediate gifts extend only to those who can claim to be beneficiaries at the testa- tor's death. But, deferred gifts will be applied in favor of all, or their representatives, who correspond with the description any time after the testator's death and be- 'fore the period of distribution. Where the shares of children or other members of a class are made payable at twenty-one or marriage, the period of distribution occurs when the contingency first happens. None can take who do not answer the description until after- wards.^ Immediate gifts to children mean those living at the testator's death.* Deferred gifts include all, or their representatives, born before the period of distribution.* If there is no preceding limitation, but the testator's in- terest in the subject-matter of the bequest is itself reversionary, the rule in Oppenheim v. Henry ° still applies, and all who come within the. definition of the ' Oppenheim «. Henry, 10 Hare, 441. " Andrews ». Partington, 3 Bro. C. C. 403 ; see Gillman v. Daunt, 3 K. & J. 48. ' Jenkins «. Freyer, 4 Paige, 47 ; Van Hook ». Rogers, 3 Murph. 176. ■■ Haskins «. Tate, 35 Penn. St. 349 ; Carroll o. Hancock, 3 Jones' Law, (N. C.) 471. = 10 Hare, 441. 290 GIFTS TO OEETATU PBESONS AND CLASSES. class down to the period of distribution will take. This latter rule, does not apply to a limitation of residue to a class, if only part of the residue be previously given by the will to others for life. The residuary legatees must correspond with the description in the will at the time of testator's death. Gifts subject to a term are also considered as immediate.^ Perkins, J.,^ and Eedfield, J.,^ lay down the position that, where a legacy is given to a class of individuals, it win take in all who answer the description at the time the gift shall take eflPect. K by taking effect is meant the period of distribution, this is true only as applied to children," and not to next of kin. * K the phrase means the death of the testator, it is not accurate as regards gifts to children, the period of distributing which is deferred. In other words, no general rule can be applied to gifts to classes ; since gifts to children, brothers, sisters, nephQws, nieces, &c., with respect to the point in question, are construed differently from gifts to other classes of persons.^ The rule which gives vested interests only to those persons who come within the definition of a class of beneficiaries at the testator's death applies, though the phrase " all and every " be used. The members still take as a class, and not individually. Of course, if the context means otherwise, the express will of the testator must prevail. Therefore, a gift to " all the children of A. and B. who shall be born during the lifetime of A. and B," comprises all born within the period specified.^ When children are substituted for their parents dy- ing before the period of distribution, the children must also survive the period of distribution, else their shares go to those who survive that period.. This rule is pe- ' Singleton «. Gilbert, 1. Cox, 68. ' 2 Jarm. 73. = Vol. II, 10. ■■ 3 Jai-m. 78. " Scott v. Lord Scarborough, 1 Beav. 154. GIFTS TO A CLASS. 291 culiar to gifts to cMldren. It imports into tte substi,- ^ tuted gift a condition wHcli is expressly imposed by tlie testator only on tbe pi'imary gift. Tlie rule does not apply to other substitutionary legacies. Accruing shares to such are not by necessary implication subject to clauses of accruer imposed by the testator only on the primary shares. A gift to such issue as a person may leave, points to the time of his death, and those who die before him take nothing.^ A gift over in case of a prior devisee or legatee dying without children means without leaving children at his death. But " without having children " means without having had a child. The first legatee's interest, in the latter case,, becomes indefeasible on the birth of a chUd.'^ T'^s phrase " in- case A. and B., hus- band and wife, have no children," means " in case no child survives both parents."® The rule which postpones the reckoning of the mem- bers of a class of beneficiaries until the period of distribu- ti'on applies only where the whole charge on the testator's estate is not thus increased. Therefore a gift of $5,000 to all the children of A., payable to them when they attain twenty-one, will let in all children born after the testa- tor's death who are born before the eldest child attains twenty-one. But, a gift of $100 to each of A.'s children who shall attain twenty-one, will extend only to those answering the description at the testator's death. Else the administration of the testator's personalty should be indefinitely deferred.* For this reason, also, though the payment of legacies is postponed for a year from the date of testator's death, this does 'not enlarge the class of beneficiaries.® ' 3 Jarm. 114. ''2 Jarm..ll3. ' Doe d. Nasmyth «. Knowles, 1 Barn. & Adol. 324. ■' Ringrose «. Bramham, 2 Cox, 384. ^ Hagger v. Payne, 33 B. 479. 292 GIFTS TO CERTAIN PERSONS AND CLASSES. . When the first share becomes payable the whole fund must then be distributed, even though there be words of ulterior futurity in the limitation as to " the children (jf A. born or to be born, as many as there may be." But, the rule which requires the distribution to be made when the first share becomes payable is founded on mere principles of convenience. It is a rule of construction, and not of law, and may be neutralized by a plain clause or context to the contrary,^ or where the shares are not made payable until the yoiingest attains twenty-one,^ or where the interest is to be applied until they attain twenty-one.^ If there be a gift to A. for life, remainder to the' children of B. who attain twenty -one, or to be payable to them at twenty-one, the period of distribution is deferred to the latest of these events, and all who answer the description down to the occurrence of the last con- tingency will take.* A gift to aU " the present born children of A." will still apply only to those who survive the testator.^ Even a power to A. to appoint to the children of B. can be exercised only in favor of the children in existence at testator's death.^ The rule that a class is to be defined at the period of the testator's death does not apply when there are no persons then answering the description. In such an event, all who correspond with the description any time afterwards (within the bounds of perpetuity), are admitted,'' and the interest that accrues until the first. ' Iredell v. Iredell, 25 B. 485. ° Mainwaring ». Beevor, 8 Hare, 44. ' Armitage i). Williams, 37 B. 346. * -Hawkins on Wills, 77. ' Leigh D. Leigh, 17 B. 605 ; see Lee v. Pain, 4 Hare, 350. » Paul V. Compton, 8 Ves. 375. ' Harrison ». Lloyd, T. & B. 310. GIFTS TO A CLASS. , 293 taker appears falls into the residue. If the gift is a legal contingent remainder, it Avill, of course, also fail. But the rule applies only to immediate gifts. Where there is a gift, not to a class, but to individuals, and one of these dies before the testator, his share lapses. It is notTyet completely settled in England^ whether a gift to children " born " or " to be born " will let in children born after the testator's death, or whether the testator merely contemplated the case of the birth of children l)etween the making of his will and the i;ime of his death.^ In some cases such children have been admitted.^ It was held in Kevern v. WUliams,* that under a bequest to A. for life, remainder to the grandchildren of B., payable at their ages of twenty, none could take but those born in A.'s lifetime. The limitation, indeed, would, under any other construction, be void for re- moteness. A bequest of chattels to A., and, if he die without children, over, gives A. the absolute property, subject to an executory interest on the contingency specified.^ But, if the gift is to A. for life expressly, the limitation will resemble a devise of land to A. for life, and if he die without issue living at his death, remainder to B. In this case, if A. have issue, there is an intestacy of the subject of bequest after A.'s death. The courts', how- ever, 'will be astute in discovering in the context some means for implying interests in the children by pur- chase. The natural mode of interpreting the word issue -would seem to be to construe it as a word of purchase, and also as conveying a fee tail. But, it was held at an ' Hawkins, 71. " Defflis «. Goldschmidt, 1 Mer. 417; Mogg «. Mogg, 1 Mer. 654. ' Hawkins, 71. " 5 Sim. 173. "■ Weakley d. Knight v.. Bugg, 7 Durn. & East. 333. 294 GIFTS TO CEETAISr PEBSOKS AKD CLASSES. early date to be a word of limitation in wills, and from this construction all the complications resulting from the use of the phrase have been derived.^ Deferred gifts become all payable on the first vesting in possession of any one share. Therefore, gifts to the children of A. on marriage, become distributable when any of A.'s children marries. -But, if the gift is to them at twenty-one, only children born before the period of the testator's death can take, otherwise the whole per- sonalty of the testator should remain unadministered. This exception to the general rule as to deferred gifts does not apply when, as already stated, the total amount to be given to the whole class is fixed by the testator. To A. for life, remainder to the children of B., there being no children of B. born during A.'s life, children of B. born after A.'s death will take,, if the limitation is one of personalty, or an equitable trust of realty. But, if it is a legal contingent remainder, it fails,^ unless there is a limitation to trustees to preserve, &g., during the life of B. Therefore, under a gift to children after a life estate, all children living at testator's death, and all born during, but not after, the pendency of the life estate, will participate; but none of those born after the determina- tion of that estate will take, uliless there were no chil- dren then in esse. In this event, all born afterwards will take, unless the limitation is a legal contingent remainder, unsuppor;ted by an estate in trustees. The distribution of the fund will not be delayed, nor the class enlarged, because there is a gift over on failure of the whole class.^ Although, if there is, at the time of the testator's death, no person answering the description-of the class of ' Ex parte Kogers, 3 Madd. 449. = 3 Jarm. 93. ' Andrews v. Partington, 3 B. C. C. 401. GIFTS TO A CLASS. 295 children referred to in the will, all the children born sub- sequently to the death of the testator will take, yet, the rents, meantime, of the reality will fall to the heir at law, unless there is a general residuary devise. When any child is born, he takes the whole income until another is born, and so on.^ A gift to children "now living " extends only to those living at the date of the will. But, the word " be- gotten " has a prospective as well as retrospective force.* The words " to be born " will let in all future children, unless the case be one of a general pecuniary legacy. The same words do not exclude children already born.* Jarman seems justly to disapprove of this rule.* For the express including of one class of children implies the exclusion of others. JExpressio unius, . Massey, 3 De G. F. & J. 113; Tiffin i'. Longmaii,15 B. 375. * Boys s. Bradley, 10 Hare, 889. ' Gundry «. Pinniger, 14 Beav. 94. " Williams «. Ashton, 1 Johns. & H. 115. ' Morton d. BaiTett, 32 Me. 357. " 1 Penn; Stat. 506. " 4 Jurist, 717. KELATIONS. 321 Tinder the statute of distributions. In tlie case cited, the parents as well as the children of the testator par- ticipated in a gift to next of kin. The word " near," " deserving " or " poor," prefixed to " relations," does not alter the sense of the latter term. But the phrase " nearest relations " means next of kin simply, and without representation. " To my next of kin as if I had died intestate " is only the same as " to my next of kin," and does not include the testator's widow.^ A gift to poor relations is sometimes construed as a charitable use, though confined to next of kin. If such a gift, therefore, consists of realty, it will be void ■ by statute in England and in some of the States.^ A gift to relations of one's ncvme means a gift to per- sons of his stock or family. Therefore, a married sister will take, unless the testator really meant that his name should be borne 'by the donee at the time of the vesting of the interest. In the latter case, the assumption of the name by legal license is of no avail.' K the testator specifies a certain number of his "nearest" relatives, the description will be applied irrespectively of the statute.* The case cited also deter- mines that, where the gift is to "relatives or connec- tions," connections by affinity will not take until the list of blood relations is exhausted. Under a gift to " such of my nearest relations as my executors shall think the greatest objects of charity," only those entitled un- der the statute of distributions will take in New Hamp- shire.® "Relations" mean those existing at the time of testator's death. A like rule applies where a life inter- ' Smith V. Campbell, 10 Ves. 400. = See infra, c. 26, § 5. ' Leigh ». Leigh, 5 Ves. 92. * Eunis «. Pentz, 3 Bradf. 383. ° Varrell t>. Wendell, 30 K H. 431. 322 GIFTS TO CEKTAIN PEKSONS AND CLASSES. est is given to a stranger, remainder to the testator's next of kin. The gift vests in interest at the testator's death, though not in possession until the death of the life ten- ant.^ " Next of tin " of another, who is dead or dies l)efore the testator, are reckoned at the testator's death, but, if the testator dies before him, then at his death, no matter whether the gift vests then in possession or not. If the gift be to the next of kin of B. living at a certain time, still none can take but those who were next of kin at the time of the testator's death, and who survive the stated period. K there be a gift to A. for life, remainder to A.'s next of kin, and A. is the testator's sole next of kin, then it is alleged that these are reckoned at A.'s' death, and not at the. testator's, contrary to the general rule.^ But, it is doubtful whether this excep- tion to the general rule of vesting at the testator's death applies at all to realty, as the law is greatly opposed to suspensions of interests in realty. Lord Hardwicke, in Pyot V. Pyot,^ thought that in cases of executory devise the period of vesting was the period of distribution, but Jarman doubts the force of this case. Mr. Hawkins* considers that the period of vesting is not affected by the fact that the tenant for life is the testator's sole next of kin, and cites Halloway v. Halloway,^ Ware v. Row- land,^ and other cases in support of his view. The later cases have settled this point as Mr. Hawkins alleges. A charitable gift to relations, however, is not con- fined to those within the statute.'^ Therefore, also, a power of selection of relations may be exercised in favor of those outside the bounds of the statute.^ But a power of distribution is confined within those limits. ' 2 Jarm. 53. ^ 3 Jarm. 60; » 1 Ves. Sen. 335. ' P. 100. ' 5 Ves. 399. ' 3 Phill. 635. ' Attorney-General v. Price, 17 Ves. 371. ' Pope V. Whitcombe, 3 Mer. 689. KELAa?IONS. 323 The donee of any power to appoint amongst next of Mn may appoint amongst those who are such at the period of distribution.^ By the phrase " relatives or connections " substitu- tion may be intended ; but connections by affinity will not take until the class of relatives by blood is first ex- hausted.^ The court will never give a term a secondary mean- ing if such will render the gift void,^ but will readily deviate from the primary sense in order to effectuate the intention. Thus, " children " may comprise grandchil; dren,* and more remote descendants. " Cousins," how- ever, means merely first cousins. The phrase " brothers and sisters " comprises those of the half blood, but relations by affinity are, as a rule, not regarded as com- prised under general terms. A devise to one's wife means only the person who is the testator's wife at the date of the will.' A devise to " the husbands of my daughters " will probably be construed in the same way.® A gift to " my servants," it is thought,'' will extend to those in testator's service at date of the will, though they leave it before his death. Judge Redfield* prefers to comprise by such a phrase only those wh© are in the testator's service at the time of his decease, no matter whether they were his servants at the time of his mak- ing the will or not. The best rule, perhaps, would be not to admit those who entered testator's service recent- » Finch V. Hollingaworth, 31 B. 113. ' Ennis v Pentz, 3 Bradf. 383, ' Crooke v. Brooking, 3 Vem. 107. * Prowelt V. Rodman, 37 N. Y. 43; see Jackson a. Staats, 11 Johns. 337, 351 ; Hallowell «. Phipps, 3 Whart. 376. ' 2 Redf. 38, n; Lady Lincoln v. Pelham, 10 Ves. 166. • Bryant's Trusts, 2 Sim. N..8. 103. ' 1 Jarm. 306. ' Vol II, 96. 324 GIFTS TO CERTAIN PERSONS AND CLASSES. ly before Ms death, nor those who were then serving^ elsewhere, but to confine the bequest to such of testa- tor's servants as were in his service both at the date of the will and at the time of his death. The term " serv- ants " means domestics hired at a yearly stipend. Of course, if a word occurs frequently in a will, the term wiU be throughout interpreted in the same manner, if there is nothing in the context to the contrary.^ AUter if the context is adverse to such an interpretation.^ § 9. Stocks and indwidiuxls. " Issue " take as joint tenants. If the gift is to them as tenants in common, they take per capita.^ A gift to the children of several persons, as of A. and B., is dis- tributed amongst them. per capita, and not per stirpes* A like rule applies to a gift to one, and the children of another standing in the same relation to the testator, as " to my brother A. and the children of my brother B." This rule, however, will not apply if the income is aip^ ■plicahle per stirpes. Other slight indications of inten- tion will neutralize the legal presumption. The rule is somewhat irrational. It is doubtful whether it is recog- nized in America.® Though, under a gift to the children of A. and B^ as tenants in common, the children take per capita,^ yet they will take per stirpes, if A. and B. take life estates.'^ The doctrine in Arrow v. Mellish seems sound, yet it is so limited, if not infringed upon, by other cases,^ that no ' Ridgway v. Munkettrick, 1 Dru. & W ar. 84. ' Carter v. Bentall, 3 Beav. 551 . " Davenport v. Hanbury, 3 Ves. !?58. < Bx parte Leith, 1 Hill Ch. 153. ' See Alder v. Beall, 11 Gill & J. 138 ; Tissel's Appeal, 37 Penn. St. 55. ° Lincoln ii. Pelham, 10 Yes. 166. ' Arrow v. Mellisli, 1 De G. & Sm. 355. ° See Abrey ii. Newman, 16 B. 481. STOCKS AND INDIVIDUALS. 325 great reliance can be placed on it, except where the con- text is the same as in the instrument there adjudicated upon. As the phrase, " to be divided equally among the children of A., B., and C." gives fCT capita^ so a like rule applies where the gift is to persons standing in various degrees of relationship to the testator.^ Under a devise of a homstead to testator's three daughters, A., B., and C, and the children of his son, D., the devisees were held to take per stirpes? Under a devise of the testator's estate,* " one-fourth part to be given to the families of G H.„W. B. B., and A. B., to those of their children that my wife shall think proper, but in a greater proportion to F. P. H., than to any other of G, H.'s children ; to E. B. in a greater propor- tion than any other of A. B.'s children ; and the bal- ance to be given to the families of C and J. T. G.'s children, in equal proportion," it was held that the children of C and J. T. G. took per stirpes and not per ■capita, and that the property devised to them was to be divided into two equal parts, one moiety to be as- signed to each family. " I wish my personal and real estate to be appro- priated equally to the benefit of my M'ife, E., and of my children," ® naming two. It was held the legatees all took per capita, and that each was entitled to one-third of the residue, after the widow's dower was satisfied. A testator bequeathed the residue to his brother A., and to the male heirs of his deceased brother B., with ihe direction that C, one of the sons of B., should re- ' Collins e. Hoxie, 9 Paige, 81. ' Murphy v. Harvey, 4 Edw. 131 ; see Bunner a. Storm, 1 Sandf. Ch. 357. ' Lyon v. Acker, 33 Conn. 333; see Leland v. Adams, 13 Allen, 286. * Walker «. Griffin, 11 Wheat. 375. ° Seabury v. Brewer, 53 Barb. 663. 326 GIFTS TO CEBTAIN PEBSONS AND CLASSES. ceive "no part whatever, but the same to be divided among the other male heirs of said B., deceased." ^ It was held that the distribution should he per stirpes and not per capita. Under a bequest to " the descendants of my three- uncles," the children of the uncles take per capita, and not per stvrpes',^ and, under a bequest " to the heirs of my late husband, and to my heirs equally," each class of heirs takes, fD INDIVIDUALS. 327 Mr. Justice Williams' treatise from Toller, and that " it appears to stand there on the authority of Toller, since the only cases cited are those cited by Toller, and that these are irrelevant." In the case supposed by Toller, therefore, the issue take fer stirpes, and not per capita. CHAPTER XXIV. § 1. Nature of legacies. A testamentary gift of land is termed a devise ; of personalty, a legacy or bequest. The term legacy in- cludes annuities and all personal charges/ unless the context is to the contrary. A bec[uest, however, of an annuity or clear yearly sum, is a gift free of legacy duty.^ The phrase " all the legacies before mentioned " will not include a portion.* " An equal share of my property" applies to the interest which the donee is to take, as well as to the subject of the gift.* " Equally to be divided " relates to the quality and not to the quan- tity of interest given, and creates a tenancy in common.^ In Eagle v. Emmet,^ it was held that a policy of iiij surance does not pass under a general devise of personal estate, but that the representatives of the testator take such moneys as may accrue from the policy in trust for the parties interested in the property insured. It "was held in Ennis v. Smith,'' that a bequest of "all my effects" may be so controlled by the context and surrounding circumstances as to deprive the phrase of its full natural effect. Parol evidence, however, would not be admitted in England of the meaning of the ' See Heath v, Weston, 3 D. M. & G-. 601. ' Pridie «. Field, 19 B. 497. ' ShoU «. ShoU, 5 Barb. 313. * Lawrence v. Lawrence, 1 Edw. 241. " Sweet ». Geisenhainer, 3 Bradf. 314. - 4 Bradf. 117. ' 14 H. 400 '; Smith «. BeU, 6 Pet. 68. IfATUEB OF LEGACIES. 329 phrase, even ia more, peculiar circumstances than existed in the case of Ennis v. Smith. Indeed, there seems to be no ground, in point of principle," for hold- ing that the phrase admits of any basis whatever for the adduction of parol evidence. Such evidence is ad- mitted when the ambiguity relates to a concrete subject or object, and not to abstract phrases, such as effects, property, or wealth in general. In deciding on the validity and construction of purely personal legacies, the court follows the analogies, of the civil law, but, as regards legacies charged on land, these are interpreted according to the rules of the common law. For, formerly, personal legacies were administered by the ecclesiastical courts, which used the civil law. But, devises of land were construed by the common law courts since the reign of Henry the Eighth. No suit lies at common law by a legatee against an executor, unless he has assented to the legacy, and it is specific ; because until the testator's debts are paid, it is not clear that the legatee has any claim.^ This is another advantage which a specific has over a general legatee, yfho, semble, can never sue at common law, even though the executor has assented to his bequest.^ These rules of law are now altered in many of the States. But, where no statute applies, the rules of the common law, of course, still subsist, unless nullified by the course of adjudication. Where there is an actual trust, express, implied, or constructive, or the legacy is charged on land, equity will assert an exclusive jurisdiction, and in all other cases the court has a concurrent jurisdiction, except where statute law provides to the contrary. A testator is presumed to speak of the state of his • 2 Bl. Com. 513. » story, Eq. Jur. 591. 330 LEGACIES CLASSIFIED. personalty as existing at the time of his death, unless there is something in the context on the nature of the subject matter, or of the provision, to preclude this pre- sumption. Therefore, where a testator releases A. from all notes, charges, or advances, this means such securities as may be due by A. to the testator at his decease.^ Bequests, indeed, are often construed as if the will spoke from its date. A codicil, however, makes the will always speak from the date of the codicil, unless a contrary intention is apparent.^ § 2. Legacies classified. Legacies are either general, demonstrative, or spe- cific. A legacy is generpl when it is a sum of money or a gift of an article, such as a horse or ring, shares or stocks, without further description. General gifts of the latter kind, however, are rare. They are usually specific, such as " my shares, ring, horse," &c. A demon- strative legacy is a gift of a general legacy to be drawn from a specific fund. A specific legacy is a gift of a thing in specie, and not of its value, as "my brown mare," " my gold watch," " my leasehold " or " my freehold at Greenacre." Such a legacy is ear-marked^ and is not drawn from a larger fund of a different kind, though, of course, it may form part of a larger specific fund of the same . nature. Thus, a bequest of 1,000 bonds out of my five-twenty bonds or consols, is specific.^ But, a bequest of $1,000 oijt of my five- twenty bonds, is demonstrative. Legacies may thus be specific, although no suit in equity might lie for a ' Van Vechten v. Van Vechten, 8 Paige, 104* Collin v. Collin, 1 Barb. Ch. 630. ' Van Alstyne ». Van Alstyne, 28 N. Y. 375 ; 1 Williams on Ex'ors, 1,75, 1 Hill, 590. ' Mullins «. Smith, 1 Dr. & Sm. 304. LEGACIES CLASSIFIED. 331 specific performance on a contract to transfer the prop- erty bequeathed. The term specific, therefore, as applied to a legacy, denotes a gift that is capable of identification or an ear-mark, and which is, in point of fact, actually identified by the testator for the purpose of transmission to the legatee. _A demonstrative legacy is a general legacy payable, primarily, out of a specific fiind.^ It is a legacy of quantity, of the nature of a specific legacy, as of so much money, with reference to a particular fund for payment. The term demonstra- tive is derived from the civilians.'^ If the legacy is a specific part of a larger specified fund, it is, of course, specific, and not demonstrative.* The most beneficial kind of legacy for a donee is a demonstrative gift. Except that it does not carry interest from the date of the testator's death, it unites aE the good incidents of specific with those of general legacies, inasmuch asj like the latter, it is not cancelled by ademption of the property, but is still payable out of the general assets, while, unlike general legacies, it does not abate on a deficiency of assets, except so far as it is payable out , of the non-specific personalty. It is, however, of course, subject to the claims of creditors if the general assets are insufficient to satisfy their claims. A specific legacy may be defined to be the gift, by will, of one or more articles, the render of which alone will satisfy the literal terms of the bequest. If the gift be of an abstract value, such as money or cash, a tender of the amount is a literal compliance with the direction in the wiU, . and this request can be satis- fied, by the render to the donee of any pieces of coin ' Ludlam's Estate, 1 Harris, 188; Walls v. Stewart, 4 Harris, 281. " See Malone v. Mooring, 40 Miss. 347; Milieus v. Smith, 1 Dr. & Sm. 204 ; Gilmer®. Gilmer, 43 Ala. 9 ; Manice v. Manice, 1 Lans. (N. Y.) 348. 332 liBGACIBS CLASSIFIED. amounting in value to the sum bequeathed. But, a gift of " my brown horse," " the piano I bought at Clinton Hall," " my shares in the Harlem Railway Company," ^'the money in my green silk purse," &c., is specific, and points to certain articles the render of which alone can be a strict compliance with the testator's direction. A specific legacy is always prefixed with a definite article or pronoun, such as the horse I bought from A. B., or my brown horse.^ A bequest of " as many of my horses as will amount to $800," is specific, for it can be made specifici Id certum est, &c. A bequest of " my brown horse " when the testator has only a gray one, is still specific. If he has two brown horses, parol evidence is admissible to show which was intended. A specific legacy entitles the legatee to demand the particular article bequeathed, and not merely its value at the executor's choice. Therefore, where there is a bequest not of a particular fund, but of a sum out of it, this indicates a conversion of the fund by the executor for the purposes of the payment, rather than a specific render of the fund or any part thereof So, a sum of money given out of a debt due to the testator, is general ; aliter, if the gift was of the debt itself* A gift of money may be specific, if ear-marked, or particularly described, as the $1,000 in my drawer, The courts lean against construing legacies as specific. Therefore, a legacy of stock in general terms is not specific, even though the testa,tor has . stocks of the kind mentioned. The gift is merely equivalent to a direction that the executor purchase so much stock, if ' Gibbons v. Hills, 1 Dick. 334. " 1 Roper, 203. " Aufher v. Auther, 13 Sim. 423. * 1 Roper, 318; Stephenson «. Dowson, 3 Beav. 343. ' Stevenson v. Dowson, 3 Beav. 342. ' Le Grice v. Finch, 8 Mer. 50; Chaworth v. Beech, 4 Ves. 555 ; Walls- «. Stuart, 16 Penn. St. 275, 381. ' Fagan «. Jones, 3 Dev. & Batt. Eq. 69. ' Townsend ». Martin, 7 Hare, 471, 334 LB&ACIES CLASSIFIED. the testator have it not at his decease.^ In Jefferys v. Jefferys,^ however, a gift of bank stock of the precise amount then owned by the testator, was held to be specific ; in Walton v. Walton,® a bequest of all the testator's interest in thirty shares in the Bank of the United States was held to be of the same nature ; and in Norris v. Thompson,* a bequest of bank stock shares was held to be specific, although the testator held a greater number of the shares in question. The following gifts of debt are specific :; — A be- quest of the debt or " money now due me by A.," or " in the hands of A.," or '' the naoney due me on the bond of A.," or " my mortgage," " my East India bond," or " my note from D." ® A bequest of part of a debt, if in similar terms, will be equally specific. But, if the gift is not of the fund* itself, or any part thereof, though it is referred to as a source of payment or security for the legacy, the gift is demonstrative. This construction will prevail in doubtful cases, owing to the leaning of equity against specific gifts.* Personal annuities are mere general legacies.'^ But a rent charge or annuity charged only on land is spe- cific. A general legacy, however, though charged on land, is not specific f neither is an annuity that is only primarily charged on land specific. If a testator charges his real estate with a sum of money, and then bequeaths that sum, this is a specific legacy, being equivalent to' the capital sum of an annuity charged only on land. The question in all &uch cases is whether the gift is only ' Webster v. Hale, 8 Ves. 410. = 3 Atk. 120 ; see Webster ®. Hale, 8 Ves. 410. ' 7 Jobns. Ch. 358. * 1 C. E. areen, 318, 543. " 1 Rop."337. " 1 Rop. 334. ' Lewin «. Lewin, 3 Ves. Sen. 416. ' Creeds. Creed, 11 CI. & F. 491 ; s. c. 1 Dr. & W. 416. liEGAOIES CLASSIFIED. 335 primarily or solely charged on the property in question. If charged solely upon it, the gift is specific.^ Annuities charged on land are thus usually specific, while a personal annuity for life is gen,eral.^ A legacy of the whole or part of the proceeds of real estate is equivalent to a gift of an interest in land, and is, there- fore, specific, though a charge of legacies on real estate is not thereby rendered specific* A gift of particular stocks or annuities, or of stock or annuities or particular funds is still general,* even though the testator own such, unless he declares his in- tention expressly or by implication to bequeath such identical stock or part thereof Unless he is thus explicit, the coincidence in amount of the bequest and of the value of the stock owned by him will not render the gift specific.^ The case of Avelyn v. Ward,® but not that of Ashton v. Ashton,^ is inconsist- ent with Purse v. Snaplin. Eoper successfully recon- ciles Ashton V. Ashton with Purse v. Snaplin, upon the ground that in the former case there was a trust to sell the shares or annuities in question, and this trust would be insensible unless the legacy was specific. A bequest of stocks or shares will pass any of the denomination possessed by the testator at the time of his decease,® and the legatee will be entitled to elect, if the number bequeathed be less than the amount owned by the testator. Such a bequest is general unless the shares are referred to in a specific manner as " my shares," or are otherwise identified.® The case of Av- ' See 1 Rop. 197, 198; Dickin v. Edwards, 4 Hare, 373. = Hume ». Edwards, 3 Atk. 693. = See Creed v. Creed, 11 CI. & Fin. 491. * 1 Rop. 315. ' Purse ■». Snaplin, 1 Atk. 415. " 1 Ves. Sen. 420. ' 3 P. Wms. 384. ° See Trinder ». Trinder, L R. 1 Eq. 695. " Robinson v. Addison, 3 Beav. 515. 336 LEGACIES CLASSIFIED. elyn v. Ward,^ whicL. is to the contrary, seems to liave Ibeen overruled. A gift of money " in stock," " out of stock," " out of the dividends of stock," or of a personal annuity out of the dividends of stock, is general, and is not a gift of any specific stock.* For, the thing bequeathed is money and not stock.* A gift of all the stocks the testator has or vpill have at the time of his decease is specific. For, that is spe- cific which can he rendered such. Id ceri/um^ &c.* A bequest of a certain amount " of the stock which I hold" in a specified corporation, is a specific legacy^ and should be paid out of bonds of the estate, of the specified character, without abatement. But, a bequest " of five thousand dollars in railroad bonds " is a general legacy, and, if there is any deficiency of such bonds, it must be. supplied, out of the general assets of the estate.^ In Palsford v. Hunter,* the legacy was of the value of securities, which were money bills then in the testa- tor's possession. The money bills were afterwards paid by exchange bills, which remained on hand at the de- cease of the testator. The gift was held to be specific. Yet the term " value " was as general as a logician or political economist could desire. The case would hardly be followed at the present day. The conversion into somewhat similar securities, and the fact that these re- mained on hand should not, of course, affect a question of construction, which should be considered independ- ' 1 Ves. Sen. 430. ^ See Deane ii. Test, 9 Ves. 146. ' 1 Rop. 221. ■* See Stevenson v. Dowson, 3 Beav. 343 ; Kichards v. Richards, 9 Price,. 219, 230. = Gilmer ®. Gilmer, 42 Ala. 9 ; see Corbin v. Mills, 19 Gratt. 438. • 3 Br. C. C. 416. LEGACIES CLASSIEIED. 337 ently of the event. The case of Fontaine v. Tyler^ is not authority to the contrary, inasmuch as the legacy was virtually alternative, being specific if the testator had the stock bequeathed, and general if he had not. The will itself, in effect, directed that the value of the gift should be interpreted by the event. A similar though not exactly identical alternative provision is found in the case of Foote, appellant.^ A direction to invest a certain amount in govern- ment securities is a general legacy. But, semble, a direction to add to the testator's existing, government securities up to a certain amount renders the whole gift specific. The former position, though refined, appears to be founded on the rule that the purpose for which a bequest is given never renders it specifix;. But, where part of the fund is specific, and the direction is to assimilate the remainder of the gift to the specific por- tion, the money gift, though apparently general, inas- much as it comes out of the general assets, yet, seems to be specific in principle, by reference to the existing fund, to which it is attracted.* Still, general legacies in substitution for specific legacies are not the less general,* In Taylor v. Martindale,^ a testator bequeathed £10,000 3 per cents., and directed his executors to make up the deficiency, if he should not leave sufficient stocks, but he left £70,000 worth. The bequest was held specific. Here, however, the testator directed that his will should be interpreted by the court, and this ' constituted the whole gift specific. As the courts lean against construing a legacy as ' 9 Price, 94, 104. ' 22 Pick. 299. ' See Taylor ». Martindale, 12 Sim. 158. ' See Sparks v. Weedon, 21 Md. 164. ^ 12 Sim. 158.. 338 LEGACIES CLASSIFIED. specific,^ so, if the gift is of a sum of money, though mentioned as secured by a bond, note, or mortgage, the court will hold the legacy demonstrative. Therefore, also, unless the gift is in its terms and by construction specific, it is not rendered so by the fact or event. Thus, a legacy of stock is not rendered specific by the fact of the testator's possessing the amount indicated at the time of making the will, or at his decease, unless there is a reference to such, as "my interest in such stocks," or " my shares,"^ or some other definite allusion to particular stocks owned or intended to be owned by the testator. A direction that a legacy is not to be considered specific in respect to liability to ademption, however, will not prevent its retaining other specific incidents.* • A legacy of all of one's personal estate is necessarily, ex vi termini, general, even though given and limited in settlement with realty. A general bequest of per- sonalty, however, if qualified by a reference to locality, is specific. It is for this reason that a bequest of all one's personal estate at B. is specific* So, if the testator ' shows that his intention is that the tenant for life of it should enjoy it specifically,® the gift will be so con- strued. In Dormer v. Burnet, A. bequeathed to B. " all the goods she brought into her house at D., except what are mentioned in a schedule." There was no schedule ' Mayrant v. Davis, 1 Desaus, 303 ; Warren v. Wigfall, 3 Desaus, 47; Smith V. Lampton, 8 Dana, 69. " Tifft V. Porter, 8 N. Y. 516 ; Eyerett v. Lane, 3 Ired. Bq. 548; over- ruled, Davis V. Cain, 1 Ired. Eq. 304. ' Jacques v. Chambers, 3 Coll. C. 0. 435 ; see Ludlam's estate, 13 Penn. St. 188. * Howe ». Earl of Dartmouth, 7 Ves. 137; Sayer v. Sayer, 3 Vern. 688. ° Pickering v. Pickering, 4 My. & Or. 389. LEGACIES 0LASSIPIE]5. 339 found. It was held tliat the exception was void, but that no goods, passed but those in the house at the date of the will. The phrase " now owned or posesssed Ipj me" will usually prevent after-acquired property from passing. But, a gift of my library now in Bv's custody has not this restrictive force. The word now in similar gifts of " sundries," or collective bequests, as of a flock of sheep, would probably be construed in the same way, as carrying any subsequent enlargement of the subject-matter of the gift. Accretions, ^uch-as bonuses, will pass under a gift of money secured by a policy of insurance,^ at least in those States where the win. speaks from the death of the testator, and the con- text is not to the contrary. A charge upon land devised by will of a certain percentage on the value of the land is a pecuniary legacy, and passes to the surviving husband of the legatee.^ Though a general residuary clause is not specific merely because, it enumerates some particulars, yet, a bequest of residue in a particular country or county is specific.^ So is a residue of certain stocks, after deduct- ing previous specific bequests.* The maxim id cerhmi ^st applies to such cases. In Minor v. Dabney,* after an enumeration of certain articles, there was a gift of " all the estate not before devised." This clause, however, was construed to include merely articles of the same nature, ejusdem gefieris, as those enumerated, and, consequently not to be a general residuary devise. Although a tenant for life of a specific bequest, or ' 1 Roper, 396 ; Courtenay v. Ferrers, 1 Sim. 137. " Gray «. McDowell, 6 Bush. (Ky.) 475. " Niabett «. Murray, 5 Ves. 149. ' Elwes V. Canston, 30 Bear. 554. ' 3 Rand, 191. 340 LEGACIES CLASSIFIED. of a lease, enjoys it in specie^ a tenant for life of a residue, or of tlae bulk of a testator's estate, has not the same privilege. The court converts terminable funds into public stocks, in order to equalize the income foj* the benefit of the tenant for life and the remainder- man.'^ Judge Redfield,^ however, thinks the rule in Howe's case would not be acted on by the American courts. At all events, the same rules as to requiring security or an inventory from the tenant for life prevail in' the American as in the English tribunals.^ Extra dividends or bonuses on shares belong to the tenant for life, and not to the remainder-man ; and, if the shares are specifically bequeathed, the bonuses, if declared after the testator's death, belong to the specific legatee, and not to the general personalty.* If a specific legacy is once converted by the testa- tor, it is adeemed, even though the price of it, or the securities into which its price has been converted, con- tinue in his hands.® If a legacy, in terms specific, is not in reality such, owing to the testator's not having the whole interest or amount in the particular interest bequeathed, yet the legacy is construed as specific. Therefore, a bequest of 100 shares in the St. Louis Railway, while the testator has only 20 of such shares at the time of his decease, is good only for the 20.® If he has more than 100 at his decease, only 100 will ^till pass.''' Gifts of specific legacies, however, usually speak from the date of the will. As a gift of all of a testator's personal estate is > Howe «. Earl of Dartmouth, 7 Ves. 137. ' Vol. II, 151. " Covenhoven ». Shuller, 2 Paige, 122, 132. * Maclaren v. Staunton, 7 Jur. N. S. 691 ; Simpson v. Moore, 80 Barb. 637. ' Gilbert v. Gilbert, 29 Beay. 496. ' Gordon v. Duff, 7 Jur. N. S. 746. ' Foote, ex parte, 22 Pick. 299. LEGACIES CLASSIEIED. 341 generaP and not > specific, the only principle on whicli the distinction between a gift of a residue of land and a gift of all one's personalty can be supported, rests on the primary liability of the personalty to the testator's debts. His personalty, therefore, as such, and not con- veyed in terms necessarily specific, cannot be deemed of that nature. It is only apparently of a certain quan- tity or amount. From that value must be deducted the unknown and uncertain amount of testator's debts. A donee of a specific legacy is entitled to have it given to him redeemed, if subject to any pledge, or to have it specifically replaced by other property of the same description, at the value of such legacy, at the end of a year from the date of the testator's death, if the subject-matter of the specific gift was improperly sold by the executor. If the chattel be of peculiar value, such as a painting or heirloom, the executor will be restrained by injunction from disposing of it, except to pay debts. If a legacy is given for a particular purpose which cannot be effected, as to apprentice one or the like, the legatee, nevertheless, takes a vested interest in it f and when a future period of distribution among children is •contemplated by the will, all who are born during the life of the parent, or before the period of distribution, are entitled to a share.* The court will not give a portion intended for a younger child to the person who, by the decease of his elder brother, obtains the family estate. This is on the same principle that renders it averse to give double portions.* It will rather hold a legacy to be in satis- ' Calkins «. Calkins, 1 Redf. 337 ; but see Worley ». Worley, 1 Bailey €h. 397. " 3 Spence, 463, 466. ' See Viner «. Francis, Tud. Lead. Cas. R. Prop. 3d ed. 703. * 3 Spence, 411-413. 342 LEGACIES CLASSIFIED. faction of a portion, while it will not extend a portion raisable out of land, under a settlement, to the personal estate, at all, unless it is so directed by the testator, in which case the gift takes rank only as an ordinary , legacy, unless otherwise directed in the will. A por- tion, too, is never raisable until required. These rules ' show a leaning to the heir or nesft of kin, and a disin- clination to encumber or dismember inheritances.^ But, the infant has an immediate right to interest, even though it is not charged in the wilP As regards future legacies, the court will compel the executor to give security for their payment, or bring the fund into court.^ A remainder-man can likewise require the tenant for life to give security that the chat- tels will be forthcoming, if there is danger of waste. If there is no such danger; the remainder-man is only entitled to an inventory.* A first legatee of chattels consumable by use cm only get the interest arising from the chattels when converted into money, unless the bequest is specific. In this case he gets the thing itself for the time limited in the will.^ A like rule applies where the legacy com- prises some things of a permanent character.® If legacies abate, owing to a deficiency of assets, and the testator had provided expressly for such deficiency, a fund subsequently arising from trusts that fail goes to the residuary legatee, and not to replace the abatement made in the legacies.'' ' 3 Spence, 398. ' 2 Rop. Leg. 1357, 1348, ed. 4. = Story Eq. Jur. 603. * Story Eq. Jur. 604. ' Rapalye v. Rapalye, 27 Barb. 610. • 3 Paige, 132 ; 3 Mer. 193. ' Dudman v. Sheriff, 18 W. R. 596. PAYMENT OF LEGACIES. 343 § 3. Payment of legacies — Interest. A legatee cannot compel payment before a twelve- month from the death of the testator/ even though he otherwise directs in the will. The legatee must, of course, be willing to perform any condition precedent.^ Interest is recoverable from the time when the legacy is payable.' But, if it is a gift of residue, or 0:6 a sum to the executor to invest for the benefit of the legatee, or is in satisfaction of a debt, or is charged on land only,* or is given to a widow in lieu of dower, or for a child of the testator, and the widow or child is otherwise un- provided for in the will, the legacy so bequeathed bears interest from the death of the testator, and, in the last case put, the child will be entitled to interest, even though the possession of the fund is deferred,^ if his maintenance is not otherwise provided for. These rules do not apply to grandchildren. ((^Specific bequests will carry all gains accruing, like bonuses, by way of accession, and all interest earned thereon after the death of the testator. If the postponement of the enjoyment of the corpus of a legacy given to a child is for some reason personal to the child, as, for instance, until he attains age, the gift bears interest only from a twelve-month after the testator's death. A legacy carries interest from the date 'at which it vests,® and, when it vests in possession, it is then at once payable, provided that a twelvemonth has elapsed from the date of the testator's death. But, where prop- erty is limited to A. for life, remainder to B., B.'s re- ' Hoyland ». Schenck's Estate, 1 Harrison, 370. " Curtis V. Potter, 1 Houst, 383; see Redfield on Wills, "Vol. 11, p. 466, and notes. ' Taylor v. Hibbert, 1 Jac. & W. 308. * Pearson v. Pearson. 1 Sch. & Lef. 10. ' Pollard V. Pollard, 1 Allen, 490._ .. « Barber ». Barber, 3 My. & Cr. 688 ; Harris v. Finch, McLel. 141* 344 PAYMENT OV LEGACIPS. mainder, though, vested, (Joes not bear interest, that "being expressly given to A. daring his life. A conditional or contingent legacy does not bear interest, except that where the gift is to a minor, other- wise unprovided for, the court will give the interest even before the gift vesfcp,^ provided the interest is not meantime otherwise disposed of. Jf the gift is vested, though subject to be divested, as, if the minor do not attain age, he is, of course, entitled to interest under the general rule as having a vested interest, even though he may die under age, and the gift over then take effect. "Where the first interest is contingent, the interest accu- mulates for the benefit of the vested gift in remainder.^ If an anniiity is bequeathed, interest is due one year from the testator's death ; in other words, it bears inter- est from his death. But, interest is not due on a gen- eral legacy until two years have elapsed from the date of the testator's death,^ because the executor is allowed a year to collect and realize the assets. On a devise to an infant, and, in case he die without issue before majority, over, the infant can only require the income meantime.* A provision for maintenance, however, will not always be limited to the interest o the fund.® As to deducting advances, see Morton v. Morton^ and Bunner v. Storm.'^ In appointing a guardian in the State of New York, it is not necessary to pursue the words of the statute.^ ' Pinney v. Fancher, 3 Bradf. 198. ' s'Wms. Ex'ors, 1290. ' aibson V. Bath, 7 Ves. 89 ; Bitzer d. Hahn, 14 Serg. & R. 233. ' Bradley v. Amidon, 10 Paige, 235. * Van Vechten v. Van Vechten, 8 Paige, 104 ; King v. WoodhuU, 8 Edw. 79 ; see Craig ®. Craig, 3 Barb. Ch. 76 ; Wood v. Cone, 7 Paige, 471 ; Stewart v. Chambers, 2 Sandf. Ch. 382. ' 2 Edw. 457. ' 1 Bandf. Ch. 357. ' Corrigan v. Kiernan, 1 Bradf. 208. SPECIFIC DEVISES. 345 A devise of rents is equivalent to a devise of the land itself.^ In Kuppert's estate,^ no disposition was made of such income as might accrue on each child's share of the real estate after that child should attain majority. It was held that such income must remain in the hands of thetrustees until final distribution, and then be distributed among the residuary legatees. A testator gave property to his wife " for her benefit and support and the support of his son." It was held that half the income was for the wife's support, and half for that of the son.^ For a decision under the 1 N. Y. Rev. Stat., 726, § 40, with respect to a bejieficiary being en- titled to accumulations, as being " the person pi*esump- tively entitled to the next eventual estate," see Schettler V. Smith.* A tenant for life of the interest of a fund is virtu- ally tenant for life of the principal, and entitled to its possession upon securing the interest of those in remaih- der.° As to interest, see, further. Cooper v. Scott.® >• § 4. Specific devises. Devises of freehold and bequests of chattel land are specific, whether given as a residue or by particular description.^ But, in Blaney v. Blaney,* Metcalf, J.,- said that the English rule, which regarded a devise of land as specific is destroyed by a statute which enables ' Schryer's Estate, 3 Brews. (Pa.) 536. " 1 Tuck. (N.T. Surr.) 480. ' Loring v. Lorlng, 100 Mass. 340. * 41 KT. T. 338. ' Parker's App. 61 Pa. St. 478. » 63 Pa. St. 139; Leddel ». Starr, 30 N. J. Eq. (5 C. E. 6r.) 374; Dev- lin's Estate, 1 Tuck. (N. T. Surr.) 460 ; Fish's Estate, 1 Tuck. (N. Y. Surr.) 133. ' Gibbons v. Eyden, L. R. 7 Eq, 371 ; see Cl»rk v. Clark, 11 Jur. N. a 830. ' 1 Cush. 107, 116. 346 RESIDUE— KEAIiTY. the testator to dispbse of after-acquired lands. A con- trary doctrine prevails in England. On principle, the present English doctrine seems the sounder. The rule established by the^ Revised Statutes of New York, the 1st Vict. c. 26, and the analogous Revised* Statutes of Massachusetts, &c., applies only to the disposing power of testators \^ho use general language, but does not affect the inherent specific nature of a devise of land. Those statutes, too, were not intended to work any change in the law of specific devises. In Walker v. Parker,^ a devise of " the balance of my real estate, believed to consist of lots numbered six," &c., was held to be specific, though, in Blaney v. Blaney,* it was held that a residuary devise of land is not specific, where, as in Massachusetts,* there is a statute which operates to pass lands acquired after the making of the will. Where there was a specific devise to a wife of one- third part of the testator's real estate for life, Remainder to his son, followed by specific devises to the son and to other persons, it was held that the devise to' the wife was to be satisfied out of the whole estate, and not exclusively out of the specific devise to the son.* As to the effect of a residuary devise to passing land, a specific devise of which was revoked by a change of interest in the testator, see Bosley v. Bosley.® § 5. Mesidue — Realty. A residuary devise* of realty does not comprise either lapsed or void devises, except where a local stat- ' 13 Pet. U. S. 166. = 1 Cusk 107. ' Rev. Stat. c. 63, § 3. * Walker v. Parker, 13 Pet. 166. ' 14 How. 390. « Van Kleeck «. Eeformed Dutch Cliiircli, 20 Wend. 457. t KESIDUE— REALTY. 347 ute is in question. But, a residuary bequest of person- alty includes sucB ineffectual gifts.^ They will like- wise be included in case of a revoked disposition.^ Sometimes, however, owing to the context, a residuary legatee takes only a part of the residue.* As specific sums given out of real estate directed to- be sold fall to the heir, and not to the residuary de- visee, when the trust for sale is void, authority as well as principle seem to imply that the heir, and not the residuary devisee, should take yoid as well as lapsed devises. The true foundation of the rule, however, is the favor shown to the heir by the law. He must take in a doubtful case, and as a residuary devise of land is specific, it seems rather strong to hold that it includes specifically what is intended to be specifically given to another. If the specific devisee takes only a partial interest,: and not the fee, the residuary devisee, of course, takes the remainder ; for, unless it is expressly limited to the heir.* If the specific devisee is also the residuary devisee, he will still be preferred to the heir. In England and several of the American States at present, a will of land speaks from the death of the testator, and residuary devises include lapsed and void devises. In cases arising under such statutes, therefore, few cases of dijficulty can occur. A residuary devise, accordingly, is held, under these enactnients, to include all rents not expressly disposed o£^ As a contingent residuary bequest carries prior in- come/ Jarman thinks '' that a contingent residuary ' Bowers o. Smith, 10 Paige, 193. " Kip V. Van Cortland, 7 Hill, 346. » King V. Woodhull, 3 Edw. 79. " Smith d. Davis v. Saunders, 2 Bl. 736. ° But see Brailsford v. Heyward, 3 Desaus, 32. • Trevanion v. Vivian, 2 Ves. Sen. 430. ' Vol. 1, 595. 348 RESIDUE— REALTY. devise should have the same effect. On the other hand, as a contingent or future specific devise does not carry the income meantime, and as a residuary devise is still specific, it is doubtful whether it ought to attract the previous income. The better opinion appears to be that it should not carry the income in question. The rights of the heir are to be strictly guarded. Jarman's reason- ing to the contrary proves too much. It is equally ap- plicable to specific devises. But, although a future estate in land does not carry.the intermediate rents, yet, if the real and personal estate be mixed up in one fund, the whole property is then impressed with the nature and incidents of personalty, and the future estate wiU attract the intermediate rents.^ In Tucker v. Tucker,^ it was held that a void devise only falls into the residue, when the particular devisee of the void gift is also residuary devisee, and no statute provides to the contrary. However, both in England a.nd most of the States, at present a residuary devise •comprises lapsed and void devises.' The heir, even when a particular devisee,* and not the residuary devisee, takes undisposed-of realty.^ The residuary devisee, of course, takes all remainders after express devises for life.* A lapsed gift of money arising from the sale of realty falls to the heir. But, a residuary devisee of testator's "prop- erty" takes land sought to be conveyed by a void devise in the will.'' ' Genery v. Fitzgferald,^ Jac. 408. = 1 Seld. 408. ' 1 Vict. .c. 26, § 35 ; Frazier v. Frazier, 2 Leigh, 642 ; Redfleld on Wills, Vol. II, 174. * Tongue ®. Nutwell, 13 Md. 415. " Ridgely v. Bond, 18 Md. 433 ; Van Kleet v. The Reformed Dutch Church, 6 Paige, 600. ' Cline v. Latimer, 1 Winst. Law, 207. ' Morris v. Henderson, 37 Miss. 493. KESIDUE— PEESONALTr. 349' § 6. Residue- — Personally. . A residuary bequest comprises lapsed and void be- quests,^ ttougli, if the gift relates to lan!d, the heir, as already stated, and not the residuary devisee, takes what is void as well as what lapses, notwithstanding that it has been doubted whether he takes void gifts.* This distinction between residuary legatees and devisees obtains ia America as well as in England.'^ A legatee of a portion of the residue, however, will not take a lapsed or void gift of another portion of the residue.* Such gifts will enure for the benefit of the next of kin.® A residue is generally bequeathed by the words " rest and residue ;" but, any equivalent expression renders the gift residuary. The phrase " goods, chattels and effects," will amount to a general residuary gift.*^ The word " effects " is still more comprehensive than "goods and chattels," and will comprise things in ac- tion. Sometimes, however, general words are construed merely as a sort of et cetera to the articles previously enumerated, and not to amount to a gift of the residue, especially if there are particular legacies given after- wards to the donee of the residue himself or to others.'^ But a gift of " all the rest, residue and remainder of my estate and effects " will not be construed as restricted to articles afterwards enumerated,^ unless there is another gift of the residue. In Anison v. Simpson,® a bequest of ' Banks «. Phelan, 4 Barb. Sup. Ct. 80 ; James «. James, 4 Paige, 115 ; Peay v. Barber, 1 Hill Ch. (S. C.) 95. ' Van Kleet «. the Reformed Dutch Church, 6 Paige, 600. ' Redfield on Wills, Vol II, 117. * Skrymsher v. Northcote, 1 Swanst. 566. " Sykes ». Sykes, Law Rep. 3 Ch. App. 301. ' See Heame v. Wigginton, Mad. & Geld. 119. ' Crichton v. Symes, 3 Atk. 61. ' Fishery. Hepburn, 14 Beav. 636. » Johns. Eng. Ch. 48. 350 CUMULATIVE LEGACIES. ^'furniture, goods, ready money, debts and securities," was held to carry the residue. Except with a friendly context, however, the words " goods," " money," &c. will not carry the residue. A gift of the residue is often coijstrued to mean a particular legacy, and, as such, not to abate except xateably with the other legacies. But the courts are disincliaed to this construction, if it work a partial in- testacy.^ A general residuary clause wiU, therefore, ■operate as an execution of a power.^ § 7. Cumulative Legacies. If two or more legacies of the same specific article, or of the same interest or sum of money are given in the same will, or the same codicil, to the same person, the second gift is presumed to be a repetition of the prior' one and to confer no new interest, unless the con- text is to the contrary.^ But if the gifts are in sepa- rate testamentary instruments, or if they differ in amount, they are presumed to be cumulative,* unless the presumption is rebutted on the construction of the whole will. If the same motive is expressed for conferring both gifts, or if other coincidences are apparent between the two donations, such resemblances strengthen the pre- sumption that the legacies are not cmnulative. On the other hand, the contention for acciunulation wiU be strengthened by any differences between the two gifts, whether the diversity of the latter be found iu the amount, in the character in which it is given, in the mode of enjoyment, in the extent of interest, or in the ' Crooke v. De Vandes, 9 Ves. 197. ' Bangs V. Smith, 98 Mass. 270. ^ Suisse V. Lowther, 2 Hare, 424, 433. ' Hooley v. Hatton, 1 Br. C. C. 390 n ; see Ridges «. Morrison, 1 Br. 0. 0. 389. CUMULATIVE LEGACIES. 351 motive for the "bounty.^ But, if no sucli element is found in the context, the general presumption against double legacies vrill prevail, if these are in the same instrument. Sometimes a variation of circumstance is a proof of the identity of the two legacies, as vrhere a gift is given to a married woman, and it is afterwards given her for her separate use, the construction is that the second limitation was merely instituted for caution's sake.^ K the gifts, however, whether the same or not " in amount, are in different instruments, or vary in their dates of payment, or in the conditions respecting their Vesting, or the like, the presumption, is that they are cumulative.^ If the gifts are in different instruments, mere coin- cidence in amount will not rebut the presumption that the legacies are cumulative. But if the same motive is expressed for bequeathing both gifts, and their amount is the same, this double coincidence will render the legacies repetitive merely,* unless the second instrument is essentially in substitution for, and not in addition to, the first. K there is a repetition of several gifts, this shows that none at all of the new legacies was intended to be cumulative.® The word "besides," however, in the second instrument, wUl show that the gifts were in- tended to be cumulative.* ' See De Witt v. Yates, 10 Johns. 156. ' Grreenwood. v. Greenwood, 1 Br. C. C. 30; Wilson v. O'Leaiy, 20 W. K. 38. ' Wray «. Field, Mad. & Geld. 300 ; Hofifman, Admr. ■». Cromwell, 6 G. & J. 144. * Hurst V. Beach, 5 Mad. 351. " Coote «. Boyd, 3 Br. C. C. 521. ' Guy v. Sharp, 1 My. & K. 589. 352 CUMULATIVE LEGACIES. As regards repetitions of specific, as distinguislie'd, from demonstrative, gifts, they cannot be cumulative.^ If, in diflferent wills, as distinguished from a will and codicil, thej are not prima facie cumulative, as a sub- sequent will is substitutional for a prior one, whereas a codicil is an addition to' it. The rules respecting repeated legacies may be thus summarized. A specific legacy, though bequeathed in different instruments, passes only once.^ Twq legacies of quantity, of equal amount, in the same instrument, pass only once. But, if the legacies are unequal in amount, or are limited on different contingencies,^ though in the same instrument, or of equal amount but in different instruments, the gifts are cumulative. The American courts, it is -to be remembered, lean rather strongly against accumulation, although, in. the absence of any clue in the context, they would doubt- less interpret the disposition itself according to the English rules.^ In Hurst v. Beach,* Sir John Leach rejected parol evidence intended to show that a legacy of j£500 in a codicil, was substitutional for a legacy of £300 in a, will. He said such evidence was admissible only when, the presumption was against the letter of a will. This is an important doctrine with respect to the admissi- bility of parol evidence.^ ' Duke of St. Albans v. Beauclerk, 2 Atk. 636. " Jones V. Creveling, 4 Har. 127. ' See Cunningham v. Spickles^ 4 Gill, 280 ; 1 Zabriskie Eep. 573 ;, 2 Lomax on Exors. 173, 176, 2d ed. ' 5 Madd. 351. " See Part I, 271, et seq. CHAPTER XXV. ADMINISTRATION OF ASSETS. § 1. General principles. Assets are legal or equitable. Legal assets are those which, the executor takes by operation of law, and whiqh creditors could attach in a court of law. Equitable assets are those which the executor takes by an express charge of the testator, and which a creditor could only reach through a court of equity. Assets are thus denominated legal or equitable according to the kind of remedy open to the creditor, and not ac- cording to their own nature. For, an equitable estate is legal assets, if any statute enables the creditor to seize and a,ppropriate such property at law.^ An equity of redemption, therefore, constitutes legal assets ^ in the United States. So does any fund undistinguishable from the testator's own personalty. Equity follows the law as regards legal assets, and also gives priority to specific charges according to their dates. But, where the assets are not legal, or the charge specific, the court administers the assets pari passu among all the creditors, and then among the legatees. If the fund is insufficient to pay all the creditors, they must abate pro rata, and so must the legatees, if the fund, though adequate to meet the .claims of the creditors, is insufficient to satisfy all the legacies, unless the testator have' otherwise di- rected.* ' See Silk v. Prime, 2 White & Tud. Lead. Cas. and notes thereto, 8d ed. 83, 95, et seq.; Story, 551, 553 ; 3 Spence, 314, 315. " 4 Kent, 5th ed. 161 ; Judge Perkins' notes to 3 Jarm. 645 ; Van Ness V. Hyatt, 13 Peters, 294. = Story, 554-6. 354 • ADMTNISTKATION OF ASSETS. A few observations only are required on the order of administering assets for debts and legacies charged on land. As to debts, a trust for their payment renders them payable, not in distinct classes, as special and simple, hut pa/ri passu. Debts barred by the statute of limit- ations are not revived by such a charge,^ although, in England, it will prevent the statute from running in favor of the testator's real representative, b^t not in favor of his executor, as to whom the charge is inop- erative, being expressive only of his common law duty.* Neither doies such a charge haake simple contract debts bear interest. The pari passu rule is applied to charges as well as devises in trust, and to the latter even though the exec- utors are the devisees in trust. Specialty creditors, availing themselves of such a charge, must allow the simple contract creditors to share rateably in the per- sonalty, as it is a maxim of equity, that he who seeks equity must do equity; and another maxim is, that equality is equity. But if the creditor wishes or has any specific charge, he is not bound by rules of admin- istration, which only apply as between the testator's beneficiaries. The following is the order of administering assets for creditors : 1. The general personalty ; 2. Any estate in land expressly devised for payment of debts ; 3. Estates descended;* 4. Specific bequests and devises charged with debts ; * 5. General legacies, pro rata ; ^ 6. Residuary devises ; 7. Specific legacies and devises ; \ See Stackhouse «. Barnston, 10 Ves. Sumner's ed. 453, note b. " Moore v. Petchell, 32 Beav. 172. ' Adams ». Brackett, 5 Met. 280. * Hubbell v. Hubbell, 9 Pick. 561. ' Humes v. Wood, fi Pick. 418. GENEEAL PRINCIPLES. 355 and 8. Personalty and realty appointed under a general power. In England, it has teen held ^ that classes 6 and 7 are virtually the same, as a residuary devise there is held to be specific, ^ven in wills made since 1 Vict. c. 26, under which after-acquired lands pass, as the will only speaks from the death of the testator. A different rule prevails in America, under similar enact- ments,^ although prior thereto, every devise of land in terms, however general, was held to be specific.® In the order of satisfaction, creditors are preferred to legatees ; specific legatees are preferred to the heir and to the devisee of land charged with debts, and to a residuary devisee. But, general pecuniary legatees are not preferred to residuary devisees of land, and, a fortiori, not in England, where a residuary is still a specific devisee. Specific devisees of land not charged with debts are in the same rank as specific legatees. If a particular portion of the personalty is bequeathed, subject to the payment of debts and legacies, then, as between the legatees, the residuary personalty is exon- erated, if there is a residuary bequest, but not where there is no gift of the residue.^ A devisee even of mortgaged premises is preferred to the heir-at-law, if mortgaged and unincumbered lands are specifically de- vised, but, after payment of debts, both classes of estates contribute rateably to the mortgage debt.® The personal estate of a testator, in America, is primarily liable for all his debts, even to those by mort- gage.® Lands, however, are auxiliary assets in most of ' Pearman v. Twiss, 2 Giff. 130. ' Blaney v. Blaney, 1 Cush. 107. » Mirehouse v. Scaif, 3 Myl. & Cr. 695 ; see Rev. Stat. Mass. c. ea. ■ ■* Story Eq. Jur. 571. ' Story Eq. Jur. 571 ; Smith's Manual Eq. Jur. 383, 1st Am. ed. ' Wyse V. Smith, 4 Gill. & J. 295; McDowell ■». Lauless, 6 Mon. 141 ; Chase V, Lockerman, 11 Gill. & J. 185; McCampbeU r. McCampbell, 5 Litt. 95. 356 ADMINISTEATION 01" ASSETS. the States, just as they are in England siiice the 3 & 4 "W. 4, c. 104. But, it is doubtful whether the common law rule does not still prevail in Virginia and Ken- tucky.^ A devisee of a mortgaged estate is not entitled to exoneration out of a specific legacy, but takes subject to any charge thereon, even where his old rights to exoneration are left untouched by any recent statute. Where debts are charged on a devise, the devisee, in point of principle, ought to be liable for the debts be- fore the heir. Yet the contrary has always been the law,^ unless there was a devise also to the heir.' If personalty and land are expressly charged, both contritute pro rata, whether mixed up in a common fund or not,* although the residue reverts to the heir or next of kin, according as it is primarily personal or real. Different lands or specific gifts of realty and per- sonalty, when liable to a common charge, contribute pro rata? Specific legacies, however, do not abate with general legacies. An appointment under a general power is assets, though the power itself is not, as, to be operative at all, it must be exercised. A trust power is assets for the creditors and legatees of the intended appointees, but not for those of the appointer.® § 2. Ma/rshallmg of assets. Although marshalling relates to administration rather than to construction, yet, as it is a consequence ' 4 Kent, 5th ed. 421, 432, and notes. , ' Manning v. Spooner, 3 Ves. 114. ' Brederman v. Seymour, 3 Beav. 36S. * See Swoope's App. 27 Penn. St. Rep. 58 ; Witman v. Norton, 6 Binn. 895. ^ Livingston v. Livingston, 3 Johns. Ch. 148. " See Williams on Real Assets, ako chapter XVII, supra, § 3. MAESHAXLING OP ASSETS. 357 of legal interpretation^ and as the doctrine may rest upon, and influence to some extent, 'tte construction of a will, a brief notice of the equitable rules for marshal- ling assets seems necessary for the completeness of our enquiry. The principle of the doctrine of marshalling is, that where one creditor can at law reach two or more funds, and another creditor cannot reach all these assets of their common debtor, the former will be pre- sumed to seek satisfaction only out of the funds ex- clusively available to him, so far as the claims of the other creditors against the common debtor are con- cerned. If,. then, the best circumstanced creditor ex- hausts at law the funds alone available to the other or restricted creditor, the latter in equity is allowed to stand 'pro tanto in the shoes of the former, and is deemed to have an implied transfer of his claims.*, Therefore, of the various classes of property and gifts specified, supra,^ if the creditor seizes the property in a lower classj the donee of a gift in the latter will be reimbursed out of the interests more immediately liable ; in other words, such property or assets are marshalled in his favor. The practical test of a right to marshal is easily un- derstood. If a beneficiary find that any one else has on the testator's assets a claim which, if satisfied one way, will defeat the gift to himself wholly or in part, but which may be satisfied in some other way without having this effect, the legatee can compel the creditor to confine himself to the latter fund, or else the legatee may stand in his place until compensated. The court so arranges the claims and the funds as to carry out as far as possible, ut res magis valeat, the claims of ' See Hensman v. Fryer, L. R. 3 Eq. 627 ; contra, Eddels v. Johnson, 1 Giff. 32 ; Peannan v. Twiss, 2 Giff. 130. ' See Aldrich«. Cooper, 3 White. & Tud. Lead. Cas. 3d ed., et seq. ' Pp. 354-5. 358 . ADMINISTEATION OF ASSETS. the various classes of creditors, legatees, and bene- ficiaries. Marshalling^ is adopted* not only in favor of any class of creditors but of legatees, (except residuary legatees, where the residue is not exonerated by the testator), portionists, heirs at law, and devisees, and as against simple contract creditors in favor of legatees, and also against a surety for a first mortgagor in favor of a second mortgagee.^ Legatees are substituted for creditors by specialty as against real assets descended. Legatees are likewise put in place of a mortgagee who has exhausted the person- alty, whether -the mortgaged lands have descended to the heir at law or been devised burdened with the m.ortgage.* Marshalling is also allowed, of course, to legatees when the personalty is exhausted by creditors, ' although there is a trust for payment of debts, and even where there is no trust, in all the States where land is assets for simple contract creditors.* A devisee or specific legatee of a chattel mortgaged is entitled to exoneration out of the .general personalty^ even though the mortgage have been with a power of- sale, by exercising which the mortgageecould, during the testator's lifetime, have defeated the gift in specie. So it has been held that a legatee of shares or stocks is entitled to have future calls paid out of the general personalty.® This seems to be a very hard case, and an undue extension of a somewhat technical rule. But legatees whose gifts are out of a residue have, ex vi termini, no claim to anything but what is left after satisfying all legal demands. Neither has a lega- • tee any equity of marshalling against a devisee, whether " story Eq. Jur. 562-566. ^ = See Louth ». Bloxam, 2 Hem. & Mil. 457. ■ ^ Surtees v. Perkins, 19 Beay. 406. ' " Story, 566. ^ » Blomt v. Hopkins, 7 Sim. 51. , MABSHAIiliING Off ASSETS. . 359 specific or residuary/ of unincumbered land. But lie has against a legatee whose gift is charged on land.^ Assets are not marshalled in favor of charities in England and most of the States, as the mortmain laws, being also rules of public policy, are therefore stronger than ordinary laws, whether common or statuory. In the United States, the reluctance of the courts thus to mar- shal is perhaps a consequence of its general indisposi- tion to adopt a cy pres construction or administration. Marshalling is allowed as between simple contract creditors and a vendee of land, and as between legatees and the .testator's heir or devisee,® in respect of the ven- dor's lien for unpaid purchase-money, where the matter is not provided for by a statute.. This relief, however, is rarely given against a devisee in the United, States.* The value of a specific gift is owing to the doctrine of marshalling, as it compels any chargeant on, the subject of the specific gift to resort to the general personalty, or else entitles the specific donee to do so. Marshalling is allowed in Jfavor of a widow's paraphernalia. As to foreign assets, the intention of the testator determines the funds for payment in cases of testacy. But, the priorities of creditors are adjusted according to the laws of the testator's domicil.!" In Promise v. Abingdon,® a legatee who died before the time for paying his legacy, which was charged on land, had elapsed, and who thereby lost his hold on the realty, was held to have no claim to marshal. The case, however, is obscure, and is disapproved of by Jarman.'^ Marshalling is not enforced against a purchaser for ' See Hensman v. Fryer, L. K. 3 Eq. Cas. 637, contra. ' 2 Spence, 830, 830 ; 3 Story, 565. ^' Story, 564a ; 3 Sp. 833 ; Sproule v. Prior, 8 Sim: 189. * Judge Perkins notes to 3 Jarm. 601, and cases there cited. ^ Wilson V. Dunsany, 18 Beav. 393. " 1 Atk. 483. ' Vol. n, 608. 360 ADMIIJISTEATION OP ASSETS. value without notice, at least if the 'party claiming to marshal is puisne in the order of time to the security he seeks to marshal against. For, where the equities and laws are equal, priority in time prevails.^ § 3. Ademption of legacies. Ademption is a mode of satisfaction or payment, and not a question of construction. Therefore, where a testator gives a legacy for a particular purpose and afterwards gives the legatee the same sum for the same purpose, this is an ademption,'^ even where the testator is no relative of the legatee. A testator advanced money to a hushand whose wife would be at his death an heir and distributee of the testator, and directed that the husband should be debited with the amount, that it might be deducted after the testator's death "from the share coming to the family." It was held that such sum was not to be de- ducted from a legacy given to the wife by a subsequent will.* A legacy to a creditor is a satisfaction of the debt ; so a legacy to a child is deemed to be a satisfaction of a portion. But these presumptions of equity may be rebutted or supported by parol evidence even of the testator's intention. All legacies, it is to be remembered, abate pro rata in case a posthumous child is born to the testator, who made no provision either in the will or otherwise for it. A legatee to whom, alone, endearing expressions are used, nevertheless must abate whenever a pro rata con- tribution is legally made on legatees. ' Averall v. Wade, L. & C. Temp. Sugden, 253. " Monck V. Monck, 1 Ball & B. 398. " Gallego 11. Gallego, 3 Brock. 386. ADEMPTION 01" SPECIFIC LEGACIES. 361 § 4. Ademption of speoific legacies. A specific legacy becomes adeemed when the testator parts with the subject-matter of the gift, or alters its form so that it can no longer be identified. Thus, ^ spe- cific legacy of a gold chain is adeemed by its sale or its being melted.^ A legacy of a debt is adeemed by its being paid to the testator, and a part payment operates as an ademption pro tanto. Stock specifically be- queathed is likewise adeemed to the extent to which it is sold by the testator,^ even though he purchases more of the same kind.' If the goods which are the subject of a specific bequest have been destroyed by accident during the life of the testator, or perish with him at sea, or never were his property, the legacy is adeemed.* A legacy, semhle, is not held to be adeemed in America on slight variations of its nature or investment.^ Ademption is not occasioned by pawning;* neither does any necessary removal of furniture, books, &c., specifically bequeathed as at a certain place, work an ademption. A lease, if a legal one, has been deemed in England to be so altered by renewal as not to pass under a previous specific gift."^ But it is not likely that this doctrine, if at all valid at the present day, even in England, would be extended to leases renewed under a covenant for perpetual renewal, unless the surrenderor of the old lease obtained some advantage by the sur- render. ■ Ford V. Ford, 3 Foster, 313; Donaliue v. Lea, 1 Swan (Tenn.) 119. ° White V. Winchester, 6 Pick. 48 ; Welch's App. 4 Cas. 363. » Pattison v. Pattison, 1 M. & E. 13. • See 3 Bedfleld on Wills, p. 4-31 ; Havens v. Havens, 1 Sandf. Ch. 334; Smith v. Jones, 4 Ohio, 115. ■> See Walton v. Walton, 7 Johns. Oh. 358 ; Cogdell's Ex'ors v. His Widow, 3 Desaus, 346. « See Walton v. Walton, 7 Johns Ch. 365 ; Hoke v. Herman, 9 Harris,301.' ' Abney v. Miller, 3 Atk. 593. 362 ADMINISTBATION OF ASSETS. / It has been held here that a bequest of a lease which is specific, is not adeemed by a renewal in the lifetime of the tenant for life/ semhle, even though the renewal be more beneficial than the interest bequeathed.* The fees and other, cost of renewal will be apportioned be- tween the tenant for life and remainder-man.* A con- version by operation of law or by statute, or by an a.cci. dent, does not work an ^.demption.* Yet, a legacy given to A., and, if be die with out issue, then to B., will be adeemed as to both by a subsequent gift to A.^ ■ Where a testator sold all his personalty and made the notes payable to the legatees, it was held that the sale worked an ademption of certain legacies, but that, under the circumstances, .the notes belonged to the legar tees.® In McNaughton v. McNaughton,^ however, after a devise of land for life, remainder in trust for sale on certain trusts, the testator sold the land. This was held to adeem both the life estate and the trusts of the pro- ceeds of sale. A legacy revoked, adeemed or satisfied is not re- A'ived by a republication of the will, or by a codicil, though this may always pass lands acquired after the date of the will.^ But, if, after the ademption of the subject of a specific legacy, the testator acquires similar property, and republishes his will or makes a codicil, the specific legacy will be revived.^ ' Covenhoven v. Shuler, 3 Paige, 133. = Doe «. Porter, 3 T. R. 13. » See 1 Rop. on Leg. 318. " Walton «. Walton, 7 Johns. Ch. 358; Warner «. Beach, 4 Gray, 163; Verdiere. Verdier, 8 Rich. (8. C.) 185 ; but see Hoke v. Herman, 31 Penn. (9>HaiTis,) 301. ' Twining v. Powell, 3 Coll 363. ° Logan «. Deshay, Clarke Ch. 209. ' 34 N. Y. 301, affirming 41 Barb. 50. ° 3 Williams on Ex'ors, 1199, Am. ed. ° 3 Williams on Ex'ors, 1300, Am. ed. SATISr ACTION OF DEBTS BY LEGACIES. 363 The common law rule that alienation adeems a spe- cific bequest is modified in Kentucky so as not to apply to bequests to testator's heirs, unless the testato;r so in- tends.^ Where, however, bonds given as a general legacy proved worthless, it has been held in Alabama that the legatee takes nothing on account thereof.^ § 5. Satisfaction of debts hy legacies. Whenever a person is bound by covenant or other obligation to give or appoint a certain interest or sum to an individual or class, any gift capable of being con- strued as a discharge of such obligation will be so held. Equity, besides, inclines against double gifts of every kind whether they be legacies to creditors or portions, although it is said in Thynne v. Lord Glengall,* that this pre- sumption does not apply to gifts to creditors. In these cases, as the amount of the legal liability affords a clue to some external evidence of the testator's intention to be just only and not generous, the courts have adopted tlie rule that where a creditor bequeaths a legacy of an equal or greater amount than the debt, and payable after the debt falls due, the legacy is only in satisfaction of the debt." If the legacy is expressed to be given for a particular motive or obj ect, or if it is not equally as beneficial in every respect as the debt, the gift is not presumed to be a satis- faction of the legal liability evQupro tanto. If the debt is in the nature of unliquidated damages, a floatiag balance, or temporary bill of exchange, the legacy will be deemed to have no reference to the debt. So, if the will con- tains a direction to pay debts, the court endeavors ' Lilly V. Curry, 6 Bush (Ky.) 590. ' Gilmer v. Gilmer, 43 Ala. 9 ; see Johnson v. FarreU, 64 N. C. 266 ; Drayton's App. 61 Pa. St. 173. ' 3 Ho. Lds. 131. * Eaton ». Benton, 3 Hill N. Y. 576. 364 ADMINISTRATION OF ASSETS. by all possible means to escape from the presumption. The question has not yet been finally settled by Ameri- can decisions.^ But, semhle, the English principles on the point are in the main observed here.* A bequest to a creditor is presumably a satisfaction of the debt, unless the will contains a charge of debts. If the legacy is given after the charge of dfebts, there is no satisfaction of the debt.^ But neither a legacy not payable at testator's death, nor a gift of an annuity for life and not a gross sum, nor a gift of a residue (as that is contingent upon there being assets),* will be deemed, a satisfaction. If the debt be on bond or, s&mile, even if it be only a simple contract or if it be a specific chat- tel or a devise of land, it will not be deemed a satisfac- tion. A legacy given by a parent to a child is con- strued, with respect to the rule in question, just as if the legacy were given to a stranger.' A legacy, however, by a debtor to his creditor is presumed to be a satisfac- tion of the debt if the legacy is equal or greater in amount than the debt. It is said that a legacy shall always be construed a satisfaction, if there is a deficiency of assets,* yet, this seems to interpret a will by the event. A legacy may be deemed a satisfaction In America of a debt due to the legatee, even where there is no defi- ciency of assets, though the legacy and debt differ ia their natures, or the debt is certain and the legacy is uncertain.'' ■ See Eeifleld on Wills, Vol. II, 186. ' See Errington t'.Evans, 2 Dick. 456. ' Chanoey's Case, 1 P. Wms. 410. * See Clark v. Bogard, 3 Edw. Ch. 387 ; Van Reper v. Van Reper, 1 Green's Ch. 1; Zeigler v. Eckert, 6 Barb. 18. ' See Williams «. Crary, 6 Cow. 246 ; Sorelle v. Sorelle;5 Ala. 245 ; Pitch V. Peckham, 16 Verm. 150. " Toller, 337. ' Williams on Ex'ors, 1170 Am. ed.; Dey v. Williams, 2 Dev. & Bat. Ch. 66. SATISFACTION OF P0BTI0K8 BY LEGACIES. 365 § 6. Satisfaction of portions ly legacies. Tlie courts strongly incline against double portions j therefore legades, even less in amount tlian tlie portions, or payable at different periods, will still be deemed satisfactions ^a^. Brooks, 1 Bro. C. C. 84. LAPSE. 417 tBat the testator was providing for the contingency of a lapse, since otherwise the use of the additional words would be unnecessary. However, even though the tes- tator expressly negative the legal event of a lapse, it will nevertheless occur, unless there is a limitation ex- pressly over to a third party or to the executors of the donee. These last two rules would doubtless be ignored- in most, if not all, of the United States. The doctrines in question are wholly irrational. It is strange that while the courts studiously endeavor, as a rule, to prevent a testamentary gift from failing, they, on this particular question of lapse, act contrary to their general benefi- cent tendencies. In Wisner v. Barnet,^ a testator bequeathed a certain fund to his executrix, to be paid to three persons whom he should thereafter name. He died without naming any. It was held that there was an intestacy as to the fund, which went accordipgly to the persons entitled under--the statute of distribution. Where donees take as joint tenants, no lapse can occur, unless the whole class becomes extinct during the life of the testator f aliter, if they take as tenants in common.® The legal presumption is that donees take as joint tenants. But, this presumption is easily nega- tived in a will. The clause " equally to be divided," for instance, in such an instrument operates to create a tenancy in common, though at common law it has not this effect. The feudal doctrines were adapted to pre- vent the inefficacy or contingency of a gift. Hence arose the rule m. Shelley's case^ and the presumption in favor of joint tenancy — doctrines which chancery follows only -when the context contains nothing to guide its choice. ' 4 W. c! 0. 631. ' Buffar v. Bradford, 3 Atk. 320. ' Page V. Page, 3 P. W. 489. 418 VOID TESTAMENT ABT aiETS. IS the gift is to a class, even as tenants in common, yet, if tlie members of the class are not to be reckoned until a fature date, those dying before that period take no interest, and occasion no lapse.^ But if they are severally named,^ the' case will be different.' If the future event happens in the testator's lifetime, any of the tenants in common, members of the class, dying after the contingent eVent, and before the testator's death, suffer a lapse of their shares,* though Jarman ^ questions the soundness of this rule. Lapse may befall the equitable or the legal interest only.® The question, therefore, was never open to the vexed dispute concerning the sdinUlla jv/ris ; all testa- mentary gifts, being so far equitable in their nature as, in the primary instance, not to depend upon any doc- trine of tenure. In conveyancing int&r vi/vos, however, although there never was any ground for questioning the validity of any use which would have been good as a remainder in a direct conveyance, without the interven. tion .of trustees, yet it certainly required a statutory exposition or enactment to hold that the common law line of trustees might become extinct without affecting the rise of the future uses for which the trustees were appointed. Charges on the interest given a beneficiary do not become extinguished on the lapse of his interest.'' The case is analogous to the lapse of the legal estate only, which does not affect the equitable limitation. ' Jarm. Vol. I, 395 ; Doe d. Stewart v. Sheffield, 13 East, 536 ; Anderson v. Parsons, 4 Grreenl. 486. = Knight V. Gould, 3 My. & K. 395. ' Barber «. Barber, 3 My. & Cr. 688. ' Allen V. Callow, 3 Ves". 389. ' Vol. II, 397. " Doe d. Shelley v. Edlin, 4 Ad. & Ell. 583. ' Croft V. Slee, 4 Ves. 60. LAPSE. 419 But charges on a devise when lapsed usually inure to tlie laenefit of the devisee. The difficulty in' some cases is to determine whether the heir should not be entitled to the charge as the produce of undisposed-of realty ; in other words, whether the charge is an excep- tion from the gift, in which case its lapse would inure for the benefit of the heir. This usually happens in the case of void charges.^ A legacy charged on real estate faUs for the benefit of the heir or devisee, if the legatee die before the time of payment, and the postponement of payment was not through a desire on the part of the testator, as indicated in the wiU, of accommodating the heir or devisee.^ The opinion of that most philosophic judge. Lord Eldon,* inclines in favor of the heir, except where, there is an intention totally to disinherit him. This doctrine seems sound. For, equity, though it does not regard rules of tenure favorably, yet, it favors the heir, and gives him, and not a residuary legatee, the produce of a void charge,* except where statute law provides to the contrary.^ As the residuary devisee, however, seems to have a stronger claim than a particular devisee to the benefit of a lapsed charge, the doctrine iu Cruise v. Barley,* appears to apply a fortiori to lapsed charges on particular gifts, and to divert them from the particu- lar devisee to the heir. The provisions of 1 Vict. c. 26, § 25, and of similar statutes in the United States, making lapsed and void devises fall into the residue, apply only to cases of lapse, not to contingent charges, that never become vested. ' Arnold v. Chapman, 1 Ves. Sen, 108. " See Lyman v. Vanderspiegel, 1 Aikens, Vt. 375, 280. ' 19 Ves. 363. * Cruise v. Barley, 8 P. W. 30. = 1 Vict. c. 36, § 35. " Ut sup. 420 VOID TESTAMENTARY GIFTS, The acts referred to provide against a lapse of an estate tail, or of an interest given to a child who has a child living at testator's decease. Jarman thinks^ that the 1 Vict. c. 26, does not apply to bequests to children as a class. But the plain words of section 32 seem to imply the contrary. Children taking under such a section appear to be in by descent, not by purchase. A similar inference seems to apply to the analogous acts in the ' United States. According to the old rules of chancery, all gifts by will lapse, if the donees die in the lifetime of the tes- tator. But, if any of the issue of the legatee be living when the. testator dies,^ there is no lapse in any of the following States : Pennsylvania, South Carolina, Vir- ginia, Maryland, Massachusetts, Connecticut, Vermont, New Jersey, Mississippi, Maine, or Ehode Island.^ In Maryland there is the salutary law that there never is a lapse.* The provision contained in New York Revised Statutes,^ however, applies only to be- quests to children, or lineal descendants of the testator,® but the section applies to past wills, if the testator sur- vived the period of the passing of the Revised Statutes.'^ An intestacy was considered to occur in Nightin- gale V. Sheldon^ under the following circumstances : — A. devised all his estate to Ms wife for life ; if she died before his son I. arrived of age, then to his daughter A. until I. came of age ; at that time the estate to be equally divided among his three children in fee, or to the survi- vors of them if either should die without issue, and if all his children should die without issue, and neither ■ Vol. I, 313. ' Prince's Dig. 256. ' 4 Kent, 543 ; note, 526 ; see Redfield on Wills, Vol. II, 174. * 4 Kent, 526. ' Vol. H, 66, § 52. " Armstrong «. Moran, 1 Bradf. 314. ' Bishop v. Bishop, 4 Hill, 188. » 5 Mas. 336. LAPSE. 421 should survive him, then to her in fee. All the children died in the lifetime of the wife, but two of them left issue who survived her. It was held that owing to the doubt of the testator's intentions, and from the omission to provide for the event which happened, an intestacy was the result. Yet the issue appear to have taken implied estates tail by purchase under the clause, " If either of them should die without issue." The doctrine in Maybank v. Brooks,^ that a gift to A., his executors, administrators, or assigns, may lapse, has prevailed, even though the fact that the legatee was dead at the time of making the will was known to the testator. But, this rule would hardly be followed in America. Where there is a gift to several, not as a class or as joint tenants, but by name or as tenants in common, the gift to each is specific, and, on a lapse, falls to the heir.^ In Jackson v. Roberts,* it was held that there is no lapse in the United States of a gift in joint tenancy or even in a tenancy in common, if given to a class. In Downing v. Marshall,* the devise was to A. for life, and to his heirs, if he dies leaving issue, but if he dies without issue, then over to the testator's nephews and nieces. Though A. died in the lifetime of the tes- tator, yet the remainder to the nephews and nieces did not lapse, as it was intended to be independent of the time when A. died. But where the devise was that the executors should apply the property to such charitable uses as they should think best on the death of the wife, this gift was held to lapse by the death of the wife in the testator's lifetime.® ' 1 Br. 0. C. 84 ; see 1 Koper on Legacies, 467. ' Hyatt V. Paysley, 33 Barb. 385. » 14 Gray, 546. ^ 33 N. T. 366. " Fontain v. Ravenel, 17 How. U, S. 369. 422 VOID TESTAMENTABT GIFTS. In Green v. Dennis/ the heir was preferred to a re- siduary devisee as to a void devise. This case, therefore, is opposed to the common notion that there is any diflfer- ence between lapsed and void devises as to the rights of the residuary devisee. Yet the residuary devisee attracted a contingent interest which failed in Hayden v. Stough- ton.^ The law, therefore, on this point varies in • the different States, and perhaps is not yet quite settled in any. Lapsed legacies fall into the residue. Lapsed devises do not, because they are specific — ^they fall to the heir. In those States where all wills speak only from the death of the testator, it is doubtful whether the old doctrine of lapse will be still applied or not. Every devise- of land, however, is specific, so that the old rule would still seem to apply, especially as land is only a secondary fund to the general creditors. This appears to be the opinion in England, though not in the United States.^ Construction has given to residuary devises, in some States, the effect of including lapsed and void devises.* But, in most States, if several devisees take not as joint tenants, but as tenants in common, a lapse of the share of any of them predeceasing the testator occurs for the benefit of the heir. The lapse of a particular interest, however, does not affect ulterior limitations.® If A. bequeaths his property according to the uses of B.'s will, and B.'s devisees die after the death of B., but before the death of A., there is a lapse.® This decision, ' 1 Conn. 293 ; see Tongue v. l^utwell, 13 Md. 415^ see Van Kleeck v. Refd. Dutch Ch. 6 Paige, 600. ' 5 Pick. 528. =■ Prescott «. Prescott, 7 Met. 146 ; see Van Kleeck v. Dutch Church, 20 Wend. 499 ; aitpra, c. 24, § 4. * Graighead v. Given, 10 Serg. & R. 351. " West V. Williams, 15 Ark. 683. ° Colsha V. Cheese, 7 Hare, 286. LAPSE. • 423 however, seems to be contrary to principle. For as B.'s will is incorporated by reference in A.'s, the will of A. speaks expressly not from its date nor from A.'s death, but according to the context of B.'s will and its date of operation, which is the date of B.'s death. The prin- ciple, indeed, of the decision in Maybank v. Brooks,^ tends to support the ruling in Colsha v. Cheese. A testator is not presumed to provide for a case of lapse, in the absence of any express or implied statement to this effect. Accordingly, a mere legacy to a debtor of the amount of the debt, may lapse, and is not a remission of the debt. But it cancels the debt, whether the creditor survives* the testator or n6t,* if there are words used not only of bequeathing or giving, but of forgiving or remitting.' The intention relates then to a present, not a future favor, although revocable in either case. If the testator directs his executor to deliver up the security, the legacy will not be subject to lapse.* A general provision for creditors seems in- tended expressly not to lapse.^ Where property is given to A. if he survive testator, and both are drowned together at sea, the next of kin of the testator, and not of A., will take, if they fail to adduce any evidence of A.'s survivorship,® as the burden of the proof of sur- vivorship is on them. In France, the presumption of survivorship in such cases is regulated by express enact- ment. Although, if a person named devisee is dead at the time of making the will, this, as a rule, causes a • 1 Br. C. C. 84. ' Sibthorp v. Moxton, 1 Ves. Sen. 49 ; South v. Williams, 13 Sim, 566 j see Roper on Legacies, 470-7. ' Elliott ». Davenport, 1 P. Wms. 83. ■* Sibthorp *». Moxton, 1 Ves. Sen. 49. ° Philips V. Phillips, 3 Hare, 281. " Underwood v. Wing, 19 Beav. 459. 424 VOID TESTAMENTAET GIFTS. lapse ; yet, if the devise is to one or Ms heirs, or even to one and his heirs, the word heirs may, on the con- text, be held to be substitutional^ However, if standing alone, it will be deemed merely a word of limitation.^ On the lapse of a deyise for life, any remainder or exec- utory gift, if vested in interest, becomes vested in pos- session on the testator's death.* The term lapse is sometimes used in the United States as synonymous with failure. In England, the term is confined to denote only the particular kind of failure caused by the beneficiary dying before the tes- tator. In Whitehead v. Lassiter,* und^sr a bequest, to tes- tator's widow for life, remainder to the testator's children " now living," the children of a son who pre- deceased the testator were held to take. Judge Eed- field^ seems to think that this was properly a case of lapse. The words now living, indeed, do not give vested estates at once to the persons so designated. As to them the will operates, according to the scriptural rule, only from the death of the testator. Yet, the de- cision referred to is an error in the right direction. The next case referred to by the judge — ^Bond's Ap- peal — ^would seem to be still more open to the objec- tion put by the judge, but that the word heirs in America is readily construed as a word of purchase. Latterly, under a gift to one for life,^ and after his death to his children or his heirs, the word " or " is construed literally, so as to render the subsequent gift ' Davis V. Taul, 6 Dana, 51. " Dickenson «. Purvis, 8 8. & B. 71. " West V. Williams, 15 Aik. 682 ; Martha May's Appeal, 41 Penn. St. 513. * 4 Jones Eq. 79. ' Vol. II, 66. " Vanordall ». Van Derventer, 51 Barb. 137 ; 1 Denio, 168 ; 18 N. Y. 418. LAPSE. 425. substitutionajl in case of the lapse of tlie first.^ Such, indeed, is olbviously the natural meaning of the word " or " in most limitations of the kind referred to. How- ever, the courts do not studiously strain against a con- struction which is defeated hj lapse, although they favor the vesting of interests. The distinction is be- tween general rules of construction, and the moulding of these rules by the event. This is never done. Lapse, therefore, never affects construction. ' Finlason v. Tatlock, 18 W. K. 333. CHAPTER XXVII. SUGGESTIONS TO TE8TAMENTAEY DRAPTSMEN. Questions of construction range themselves into one of three classes, according as tlie difficulty relates to the words of direction, the gift, or the beneficiary. A very accurate description of the subject or object of gift is sometimes not in the power of the testator. But he never can have any adequate excuse for using a merely precatory term. Such phraseology should be carefully avoided by him. He should speak with no uncertain sound of desire or suggestion^ but should use the words " will," " give," " devise," or '' bequeath," or all or several of these terms together. Unless the will is thus explicit, and the trusts plainly appear to be imperative, they may be construed, at the present day, as resting in the discretion of the trustee. At all events, a will that is doubtful in this respect is certain to be litigated in the present supposed shifting state of the authorities, both here and in England, respecting the phraseology necessary to create a precatory trust or trust-power. If the testator really wishes to give a trustee a discretion, there is no reason of law or pre- cedence why he should not do so. Only he should then state explicitly that the trust is discretionary, and not imperative. An uncertainty, too, in the words of disposition or in any abstract phrase, such as " property," " effects," &G., is usually much more serious than where the inac- curacy , relates to a concrete subject or object of gift; because ambiguities of the latter kind are open to ■ SUGGESTIONS TO TESTAMBNTABY DEAFTSMEN. 427 parol evidence. Bat no abstract word can be thus ex- plained. The remarks I have suggested respecting the use of disposing terms are also applicable to the other two. sources of difficulty — the subject and object of gift.^ No general rules can dispense with the necessity for great care and attention on the part of the draftsman in respect to each element of the testamentary gift. He sjiould, if possible, leave nothing in doubt. Indeed, each rule of testamentary construction or equitable presumption merely denotes a common class of difficul- ties^ which the courts can repress only by the most rigid fetters. Therefore, all doubt should be precluded as to the parcels or property, whether real or personal, which the testator intended to convey : nor should room be left for litigation upon any one of the points discussed in the preceding chapters. Where the draftsman has time to elaborate the in- strument, he should consult a treatise on wills as to the points most fruitful of litigation in the particular matters he is considering. A reference to the index or table of contents, and, at all events, a very short survey of the text of any of the leading treatises, will give him the necessary information. General rules and celebrated cases are lights and buoys that are only placed near the quicksands where testamentary wrecks are most frequent. A reference to the chart of past accident's is, however, the best means of avoiding disaster in the future. The testamentary draftsman should be cautious in his use of technical terms, especially if the testator is likely to survive f®r any considerable time ;, otherwise, any subsequent change of the will may greatly confuse the preceding limitations, and change terms of purchase into words of limitation, or conversely. ' Srwgra, c. xvii, § 3. 428 SUGGESTIONS TO TESTAMBlSrTART DRATTSMBK. The quantity of estate, and tlie nature of the donee's interest — whether it be legal or equitable, for years, life, in tail, or fee, and whether it be by purchase or limitation — should also be left free from doubt. The subject of gift, if specific, should be accu- rately indicated and carefully defined by exact descrip- tion.^ If the whole of the fund or property be given, this should be clearly expressed.* A reference to the deed under which land was conveyed to the testator or his ancestor is perhaps the best mode of describing an estate, as, for instance : " I devise my estate at Appleton, in as full and ample a manner as it was conveyed to me by a deed bearing date, &c., and made between," &c. The description in the deed will, by this reference, be incorporated with, the will. A reference to occupancy alone is, of course, too precarious, as tenants are often changed. Such allusions, too, are generally incomplete. If a reference of this kind is made, care should be taken to state whether the alleged occupants Lave in their possession all the devised premises or not. The rents and income of tbe testator's property should be expressly disposed of, in case any of the gifts is limited on a contingency which will postpone vesting. A testator should distinctly declare whether he in- tends each devise or bequest to be construed vsdth refer- ence to the date of his will, or of his decease. Where the gift is not of " all goods and effects," the subjects of the special donation should be copiously and accurately enumerated, and nothing should be left to le- gal inference with respect to the nature of the gift, — whether it be specific, demonstrative, or general, or how it is to be affected by ademption, enhancement, or other probable change in the testator's circumstances before his death. ' Supra, c. xxiv, § 2. ' Supra, Part I, 106, 163, et se^. SUaGESTIONS TO TESTAMEHTAET DEAFTSMBN. 429 Where a gift of "furniture," "houseiiold effects," " farming stores," or of any other personal estate, at a particular place, is intended to be general, the testator should add negative words, thus: "I give, all my per- sonal estate at A. to B., and this gift is subject to no exception whatever." Negative words are still more necessary where the sub- ject of a bequest is intended to be exonerated, for the ben- efit of the legatee, from some charge affecting it.^ A pri- mary fund for payment of debts should, therefore, be ac- companied with negative words, exonerating the general personalty, when such is the testator's intention. Espe- cial care should be given to tMs point, and where land is subject to a mortgage or other charge, the devisee's rights in respect to exoneration should be most plainly ex- pressed in both affirmative and negative terms. Devis- ing land "subject to a mortgage" will still, in most of the United States, but not in England, entitle the de- visee to exoneration out of the testator's general person- alty. In proportion as the rule of construction is strong and technical, and approaches the nature of a rule of law, such as the doctrine referred to, or as the rule in Shelley's case is in England, care should be taken to preclude the application of the doctrine, if the devise is intended not to be subject to its influence. The donee should be identified by unmistakable terms. If the testator has a doubt whether his knowl- edge of the donee's person and description is accurate, he should be copious on this head, as the more marks he assigns, the more easily will identification be made, unless — which is very improbable — he is wholly unac- quainted with the person and circumstances of the object of his bounty.^ "Where the testator is leaving a young widow, she " ' Swpra, 239. ""'fimpra, Part I, 167. , 430 SUGGESTIONS TO TESTAMENTAET DBATTSMEN. ought to get but little discretionary power as to the estate. She ought not, however, to be subjected to any restrictions against marriage. Any discretion given her should be exercisable only by will. This would prevent the children, if their shares are made subject to her ap- pointment, from hastily disposing of their property, and, on* the other hand, would prevent the mother from show- ing any undue partiality to such of her children as might combine with her to defeat the rights of their brethren. This is perhaps an improbable contingency, but it should not be ignored. Gifts for the separate use of a married woman should be carefully worded, so as»to exclude "marital rights and anticipation, and to confer a power to appoint only by will, if any apprehension is entertained of encroachments on the part of the husband. The widow or trustees should have the power of advancing a certain proportion of the bequests to the children, for their education, and even for trading pur- poses, after the children reached eighteen. No ambiguity should be apparent in the will as to when the shares of children vest-^ — whether their de- scendants are to take substitutional gifts, in case of lapse or other failure of the children's shares — what failure of issue is contemplated — whether a condition is precedent or subsequent — what is to be the devolution of the property, if the beneficiaries do not survive in the order primarily expected — and to what period the reference to survivorship applies. If the personalty is intended to devolve in strict settlement, the non-vesting clause should be, inserted, so that on the death of any child under age, and without issue, his share should go to the next in remainder under the will, and not to his next of kin.** ' Supra, c. xxiii, §§ 1, 4. « Supra, c. xi. SUGGESTIONS TO TESTAMBNTAEY DBAPTSMBN. 431 Gifts to a class, or the survivors of a class, with or without cross-remainders, should also he carefully ex- pressed, so as to denote the particular objects the tes- tator had in view, and, as in the case of children, whether they are to be those who survive himself, the tenant for life, or other members of the class,^ and whether the issue (if any) of deceased members of the class are to stand in the place of their ancestors under the limita- tion. . Provision should also be made for future children of the testator, or of any such of his donees, if they are objects of the' testator's boiinty, unless their ancestor takes a precedent life interest in the property given to them. Every circumstance likely to occur that may either revoke or materially affect the construction, such as marriage or the birth of a child, should be considered by the testator.^ Codicils should plainly indicate how far the will was intended to be revoked or modified. Nothing should be left in doubt as to whether de- visees take as joint tenants,^ or in common, or in com- mon for life with remainder to the survivor.* The testator himself should be personally consulted before the instructions given to the counsellor-at-law are embodied in the final instrument. It is hardly necessary to add that, besides express- ing the special will of the testator, free and clear of all manner of doubt, the draftsman should take care not to violate any rule of law, but to inform the testa- tor of the extent to which alone his wishes can be car- ried, when these tend to contravene any principle of public policy, rule of law, or any doctrine, that is not a mere rule of construction or administration. ' Supra, c. xvi, § 3. = c. i, § 3. • c. ix. * c. xyi, § 1. INDEX. A. ABATEMENT of legacies on a deficiency of assets, 353. ABOLITION of estates tail by statute, 117. ABSOLUTE interest in personalty, 122. ABSOLUTE trust, when not cut down, to mean a mete request, 227. ABSOLUTELY, meaning of the word, 107, 218. ' ACCIDENT. See Mistake. cannot affect construotion, 52. ACCRUED interests, what words carry, 196. " share and interest," 196. where the property is to devolve in one mass, 196. to the survivor of several doners, 195. not moulded by reference to original shares, 197. ACCRUING shares, relations of, to primary shares, 290. ACCUMULATION, trusts for, 886 et seq. remoteness of, 386. of residue, 388. in New York, 388. ADEMPTION of specific gifts, 18, 19. how affected .by the Wills acts, 19. , is provable by parol evidence, 58. when not effected, 361. See Legacy, Specific Devise, Specific Bequest. of legacies explained, 360. & distributive share does not work an ademption, 367. ADMINISTRATION of realty and personalty j9ar«>a««M, 243. of personalty in cases of election, 250. i ADOPTION, what is an adoption of a mortgage, 233. AFFINITY, connections by, take when, 320, 321. AFTER-ACQUIRED land passes by will, when, 21. passes by republication of will by a codicil, 5. AFTER-BORN children, as regards the rule in Wild's case, 314. 434 INDEX. " AFTEK-PAYMENT of debts," effect of the phrase in charging land, 241. AGE, death under, 125. ALABAMA, conveyancing in, 116. ALIEN, rights of, to proceteds of sale of land, 399. naturalized, 399, 400. devise to, 174. will of land by, 14. of personalty by, 14. ALIENATION, a Testraint against, may be imposed on a tenant for life or years, 389. of property of married woman, 389. of leases, 389. in the various States, 390. restraint against, imposed on a tenant in fee, 391. is in principle illegal, 391. but is allowed in some States, 391 et seq, in mortmain, 392 et seq. ALIEN FRIEND, testamentary rights of, 16. " ALL" construed " any," 38, 196. " ALL and every," meaning of the phrase, 290. ALTERATION of words, when allowed, 38 et seq. AMALGAMATION of estates is favored in law, 131. AMBIGUITY aided by evidence and construction, 47, 49. especially in American courts, 49. several questions in cases of, 49. AMERICAN LAW, principlefs of testamentary, 13, 22 et seq. relations of, to law of England, 22, to English case law, 3. exceptions thereto, 22. in the Supreme Court of the United States, 23. of parol evidence, 21, 51, 53. in cases of fraud, 54. as to the meaning of the terms "real," "personal," "land," " effects," &o., 59. meaning of terms of description in, 65 et seq. as to the rule in Shelley's case, 93, 104. as to the rule in Wild's case, 101. of entails, 116, 117, as to the construction of the phrase " dying without issue," 123, 126. "leaving no issue," 119, 124. INDEX. 435 AMERICAN hkW— Continued. the American statutes on these points differ from the English, 129. of joint tenancy, 137. > of remainders, 140. is the same as that of England as to the primary liability of personalty to debts, 238. in leaning towards the vesting of interests, 256. in favoring the heir, 86. in adopting the rule in Wild's case, lOl. differs from that of England as to the appl'ication of the rule in Shelley's case, :93, 104. semble, also as to the context required to convert property absolutely, 163. as to the rights of the survivor of several benefici- aries, 195, 203. precatory trusts, 214, 217, 219. illusory appointments, 230. the rights of a devisee of a mortgaged estate to ex- oneration, 237. the admission of parol evidence on the question whether a legacy is charged on land, 238-9. the effect of a direction to pay debts in charging lands, 240. marshalling for legatees, 260. vesting" of legacies, 260, 265. trusts for the separate use of a male, 287. gifts to a class, 295. computing survivorship, 296. in regarding heir as a purchaser, 102 eiseq., 304. as to a devise to testator's heir, 400. in not executing charitable uses py pres, 409. in holding that a direction to executors to pay debts does not charge land, 240. unless the devise is " after payment of debts and leg- acies," or these are to be " first" paid, 240. in presuming that a widow elects in favor of the will, 246. as to dower, 248. in admitting parol evidence to raise a case of elec- tion, 248. 436 INDEX, " AND," read " or," 35, 38. ANNUITY survives to executors, 261. bequest of annuity, not existing previously, confers only a , life interest, 91, Aliter, if a fund, such as public stocks, be appro priated for the annuity, 91. charged on land, 178. trustees for, Ih, apportionment of, 242. See Legacy. is primarily payable out of the personalty, 238, even when charged on both realty and personalty, 238, ■with dower, 251 . to be capitalized, when, 157. specifically bequeathed in settlement, 158. APPOINTMENT. See Power, Trust. trust in default of, 224. the first devisee under, takes the legal estate, 174. should not be to trustees, when, 174. . cannot be made to a deceased child, 229. mode of evading this difficulty, 229. and deed creating the power, are but one. integral instru- ment, 94, 95. under a will, construed as part thereof, 9. "APPURTENANCES," meaning of the word, 64, lb. in America, 64. ARTICLES. See Marriage Articles, are expounded like executory trusts in wills, 24. ASSETS, administration of, 353 et seq. distinction between legal aiid equitable assets, 353, abatement if assets are insufficient, 353. no abatement of specific legacy, 356. order of administering, 354, lands are auxiliary, 355-6. when marshalled, 356. test of the right to marshal, 357. • who entitled to marshal, 358-9, ASSIGNMENT, See Alienation. "ASSIGNS," of use in covenants, not in grants, 301. ASSUMPSIT, action of, when available to a legatee, 242, '' AT HOME," when property is said to be, 252, INDEX. 437 B. « BALANCE OF ESTATE," meaning of the phrase, 238. BENEFIT of survivorship, 196. " BEQUEATH," meaning of the term, 62. BEQUEST. See Personalty. to A. for life, and, if he die without issue, over, 154. for a particular purpose, is generally absolute in effect, 224. of mortgages or securities for money, 187. effect of, on devisee of a particular mortgage 187-8. " BESIDES," effect of, 351. BOND, election in case of, 251. bequest of principal of, does not carry interest, 71. is not a novation or fresh adoption of a mortgage, 234. BONUSES. See Dividends. elucidated, 340. BOOKS will not pass manuscripts, 73. may pass under copyright, 73. C. CANAL SHARES are interests in land, 396. are not " securities," 72w CAPACITY TO WILL, how proved, 14. burden of proof of, 15. in eases of fraud, 15. at common law, 13, 14. of married women, 13. as to their separate estate, 13. or under a power, 13. under State laws, 13, 14. question of, is not one of construction, 12. but may indirectly be such, 1 3. CAPITA. See Per Capita. CASE LAW of wills, to be important, must be recent, 48. of England, recognized here, 3. CHARGE. What is a charge of debts, 33. on land, 240 et seq. 438 IKDEX. CHAEGE OF DEBTS passes a fee, when, 81. not if there be an express life estate, 81. always impliedly attaches to the land, if expressly imposed • on devisee, 81. under a charge, 178. its effect on the estate of trustees, 178. effect of, on a general devise, 79. on land, of a certain percentage of the value of the estate, is a general legacy, 339. on gift does not affect vesting, 263. to be raised out of rents and profits, gives a power of sale, 90. especially if the charge is secured by a term of years, 90. aliter, if the payments are not to be made imme- diately, 90. if express, makes the land the primary fund for payment, 232. of a mortgage debt, 235. if these are specified, will bind purchaser from de- visee, 237-8. gives a fee, when, 242, 243. construction of, not affected by State statutes, 243. CHARITABLE USES, statute of, 392. Its relations to mortmain, 392. has not been re-enacted in all the States, 392. but these have a common law jurisdiction to ad- minister charitable uses, 395. in New York, 393, 406. are never void for uncertainty or remoteness, 395. definition of, 401. doctrine of, rests not wholly on the stat. of Eliz;, but also on the common law, 401. are administered by courts of equity, 401. are free from all taint of perpetuity and uncertainty, 401-2. unless when mixed with other uses, 406. appointment to a corporation for, 402. the statute prevails by construction in Massachusetts and Pennsylvania, 402. also in North Carolina and Kentucky, 402. the statute has not been expressly re-enacted in any State, 402. INDEX. 439 CHARITABLE VBES— Continued. and has been repealed in New York and Virginia, 402. examples of, 402 et seq. assets marshalled for, when onljr, 398, 404. no restriction as to bequests for, 405. aliter, as to devises of land, 404. decisions under the stat. of Eliz. are important even in those States where the statute has not been adopted, 405. unappointed gift to, will be appointed by the court, when, 405. not executed py pres, 405. relation of the Constitution to gifts to charitable uses, 407. if void at first, yet may acquire validity by presumption 399,407. examples of uses not charitable, though resembling such, 407-8. surplus for, 409. blank for, invalidates, 409. and causes a resulting trust, 410. charged on realty and personalty, 399. not favored here as much as in England, 21. trusts for, not executed py pres in America, 162. CHATTELS. See Personalty. CHATTELS REAL.. See Term of Years. CHILD. See Children, Illegitimate Children. gift by parent to, 364, 365 et seq. ^ rights of, in respect to revocation of will, 7. " surviving," 205. issue of deceased, favored, 205. mode of appointing to a deceased child, 229. CHILDREN, immediate gifts to, 289, 290. deferred gifts to, 289. when substituted for their parents must survive, the period of distribution, 290. this rule peculiar to gifts to children, 290-1. " without having children," 290. gift of $5,000 to all the children of A., payable when they attain twenty-one, 291. gift of $100 t® each of A.'s cliildren Who shall attain twenty- one, 291. 440 INDEX. CHILDREN— Continued. distinction between the last two gifts, 291. " the present-born children of A." must still survive the tes- tator, 292. to A., " and if he die without children, over," gives A. the absolute property, subject to the contin- gency specified, 293. estates sought to be implied for, 293. gift " to the children of A. on marriage," becomes distrib- utable when any one of them marries, 294. aliter, if the gift is to them at twenty-one, 294. reason of the distinction between the last two in- stances, 294. to A. for life, remainder to the children of B., 294. general rule as to gift to children after a life estate, 294. rents meantime fall to the heir or residuary devisee, 295. "now living" refers to the date of the will, 295. to A.'s children, their heirs and assigns, 296. to grandchildren, on their marriage, 296. take vested interests, when, 297. after born, as regards the rule in Wild's case, 314. if illegitimate, never take if legitimate could have been in- tended, 315. illegitimate take, when, 315, 316. primary meaning of the term in the American Stastes, 310. meaning of the term is controlled by the context, 310. construed as heirs of the body, when, 95. " dying without issue," 126. children, if posthumous, still have plenary rights, 311. adopted, are not the children of the adopter's wife, 311. take per capita, when, 324 et seq. CHOSES IN ACTION, comprised under " property," 61. CIVIL WAR, its relations to testamentary rights, 16. CLASS, members of, how reckoned in America, 295, 296. sometimes means only certain individuals known to testa- tor, 288. ascertained at period of distribution, 288. period for ascertaining under an immediate gift, 288, 289. under a deferred gift, 289. of children, 289 et seq. limitation of a residue to a, 290. INDEX. 441 CLASS— Continued. no general rule as to vesting can be applied to gifts to classes, 290. construed in a peculiar way when " children," " brotheFs," &o., are the beneficiaries, 290. when " all and every " is added, 290. of children substituted for their parents, 290. if the whole charge is increased, the class is computed before the period of distribution arrives, 291. definition of, when there are none at testator's death, 292. interest falls into residue in such case until the first ■ taker appears, 293. CLAUSE, effect will, if possible, be given to each clause in a will, 30, 33. this illustrated by an express ehqrge, 33. ^ last prevails, of several inconsistent ones, 30. will be construed in a reasonable way, 30. effect of a void clause on rest of will, 33. every clause will be rendered effectual, if possible, 39. else the last prevails, 39. the same clause may receive two different interpretations as to realty and personalty, 35. effect of void clause on will, 55. if separable from others, these are valid, 55, 56. CODICIL, republication of will by, 5. effect of. Id. with respect to legacies adeemed or sat- isfied, 5. partial revocation by, 6. effect of, as to republication of will, 9. in England, 9. as to dower, 9. and will are one instrument, as to the rule in Shelley's case, 94. trust in an illegal codicil does not affect prior will, 186. COMMON. See Tenancy in Common. COMMON LAW, doctrines of, are always important, 231. prevails in the United States, 1. how far in Virginia, Ohio and Arkansas, 2. of Louisiana, 2. ' . relations of, to Federal jurisprudence, 2. the heir was not liable to debts at common law, 237. common law title extinguishes equitable one, when, 298. 442 INDEX. ' CONDITION. See Executory Interest, Legacy. was a common law mode of defeating an estate, 267. cannot be reserved on a grant in fee, -267, 275. gives a power of re-entry, 267. cannot transfer an estate in a deed, but can in a will, -267. the ulterior estate is termed a shifting use, executory devise, or conditional limitation, 267. is destroyed by a release for once in some States, 273. this is the common law rule, 273. but is now abrogated in most States, 285. comprising various acts, 273. must be performed within a reasonable time, unless the con- text is to the contrary, 273. if after an estate tail, may be defeated by the tenant in tail, 273. is express or implied, general or special, precedent or sub- sequent, real or personal, '270, 273. distinctions between these, 271, 273-4. when impossible, 274. if repugnant to the nature of the estate, or to its incidents, is void, 274. examples of, 268 ei seq. attached to a 'particular estate may not affect a" remain- der, 269. illegal and void, examples of, 270, 274. binds beneficiary, 270. distinguished from a limitation and a covenant, 270. is virtually a trust, 270. is construed subsequent, if possible, 270. if of the nature of a consideration, is usually precedent, 272. "that beneficiary shall not frequent public houses," is valid, 272. is within the rule against perpetuities, 275. at common law, 268. law of, much altered by construction, 268. in terrorem. 268. when deemed precedent, 272. is restraint of assignment, 274. in case of a fee, 275, 391. against alienation by a male, 278. against aliening when void, 277 et seq. IOT)EX. 443 CO NDITION— Continued. in restraint of marriage, 280 et seq. in the civil law, 281. against the remarriage of a widow, 282. as to land, 282. against celibacy, 283. abridging religious liberty, 283. that legatee shall not dispute will, 284. a legacy to a church, if C. continues its pastor, is valid, but is given on a condition, 412. when relieved against in equity, 285. is apportionable, 285. CONDITIONAL FEE; instances of, 124. CONFLICT OF TESTAMENTARY LAWS arising from various statutes, 8. CONSENT, -what is a sufficient consent to marriage, 284. of husband to wife's will, 13, 14. must be to a particular will (in the concrete), 14. CONSIDERATION invalid, distinguished from invalid covenant, or clause, 56. CONSTITUTION, relations of gifts to corporations to, 406. bequests against the spirit of, are void, 413. CONSTRUCTION, what is testamentary construction, properly so called, 25. cannot be aided by revoked will, 58. has not much altered the old rules respecting general de- vises, 78. rules of, distinguished for presumptions, 160. rules of, distinguished for those of law, 81, 152, 266, 274. rules of, subject to testator's intention, 120. general principles of, 22 et seq. py pres is not adopted in respect to charities, 22. principles of, adopted by Supreme Court of United States, 23. causes of the difficulties relating to testamentary, 27. equitable, 34 ei seq. reason why wills are equitably construed' by all courts, 35. py pres applied to remote limitations, 36. cannot be affected by accident, 52. 444 INDEX. CONSTKUCTION— Continued. is preferred to parol evidence, 53. rules of testamentary construction are essentially the same as those relating to the construction of contracts, 24. principles of American, 22 et seq. has altered the old rules of wills here, 17. secondary and cy pres, 378, 383, 385. not affected by events, 383. fy pres, 63. cannot be directly affected by fraud, 55. CONTEXT may control domiciliary law, in what respects, 1 1 . is the chief guide to the construction of a will, 23. may regulate the meaning of all terms in the will, 62. overrides rules of construction, 130. CONTINGENCY. See Contin&ent [nterbsts, Remainder. may affect a whole series of remainders, 257. rule respecting, 257. relating to donee, 260. to subject of gift, 260. does not prevent the gift from being transmissible, 264. CONTINGENT INTEREST of personalty, 257. examples of, 255. gift to persons living at a certain period is a, 257. substitutional gift is not a, 257. CONTINGENT REMAINDER, often hard to be distinguished from a vested one,. 139. examples of, 140. limitation to trustee to preserve, &c., 139, 140. this limitation is, in principle, itself contingent, 139. the trustee may defeat remainders, 143. meaning of the word "heir " in, 297. in personalty, 153, 154. CONTINGENT RESIDUARY BEQUEST, carries income, when, 347. distinguished from a contingent residuary devise, 348. CONTRACT FOR SALE, effect of rescission of, on devise, 64. CONTRACTS are construed like wills, 24. mDEX. 445 CONVERSION of property explained, 155. when the proceeds of sale are to be divided, the benefici- aries take their shares as personalty, 155. if the trusts fail, the property is still changed from real to personal as directed, 155. money directed to be laid out in land is realty, 155. as to powers arises only under an imperative trust power 156, 157. realty, subject to a discretionary power to conyert, pays no legacy duty, 156. not deemed intended to avoid an illegality, 156, of land into land, 156-7. " with consent," the fund is personal, 157. is only deemed to be for tha particular purposes mentioned in will, 163. unless the pontext is to the contrary, lb. what context is insufficient to repel the presump- tion, 163. senible the American rule is different, 163. does not let in simple contract creditors, unless these have rights otherwise, 164. the beneficiary is entitled to the property at once, 157. when deemed to be made, 158. property retains its character until converted, 158. when may beneficiary elect against the conversion, 159. CONVEYANCING, rules of, how far applicable to wills, 32. CORPORATION, gifts to, 46, 392 et seq. in New York, 393 et seq. devise in trust for, 394. devise to foreign, 16. taking to the use 6f another corporation or of an individual, 174. COURT, access to, open to all, 53. places itself in position of testator, 53., does not discountenance a construction involving a lapse, 425. aliier, if it divests an interest, 425. the distinction explained, 425. inclines against double gifts or portions, 365. inclines to regard interests as vested, 257. and conditions as subsequent, 257. 446 INDEX. " COUSINS," comprises only first cousins, 323. COVENANT, not to execute a power, 208. CREDITOR, gift to, 364. CROSS REMAINDERS. See Remainder. implication of, how precluded, 145. this implication is most convenient, 146. under executory trust, lb. may be implied between classes as well as individuals, 146. implication of, requires subsequent words, 147. " with remainder," sufficient for this purpose, 147. semhle, the implication applies to executory devises in fee and to bequests, 147. contra, Jarman, 147. his opinion on this point examined, 147, 148. CUMULATIVE LEGACY. See Legacy. QY FJRjEJS. See Construction, Will, Intention, Perpetuity. consbruction applied to remote limitations, 36. none for charities, 21, 162, 395, 396. in cases of perpetuity 378, 383. not applicable to personalty, 151, 152. D. DATE) for construing a will, 16. DEATH. See Dying without Issub. limitations dependent upon, 120. DEBTOR, legacy to, 361, 369. " DEBTS," did not bind heir at common law, unless they were special, 237. did not, at common law, bind land, even during debtor's life, 231. this rule altered under Ed. I., lb. bind personalty primarily, 231 . hence, the heir is said to be favored in law, effect of charge of debts on general devise, 79, if charge is imposed on the person of the devisee, and not confined to the land, 79, 80. principle of the distinction, 79. purchaser's liability for, 237-8. trust to pay, 160. estate taken by trustees to pay, 177, 179. INDEX. 447 « DEBTS "— Continued. meaning of the word, 72. passes bonds, bills of exchange, and cash balances in banker's hands, 72. do not pass under " money," 72. charges estates tail, in what States 116, 117. a direction to pay charges any land devised to executors, 240. when paid pari passu, 354. DECEASED. See Child, Issue. declarations subsequent to the res ffestce are admissions, 186. DEEDS are construed like wills, how far, 26. premises of, may be controlled by habendum, 302. uncertainty in, governed by same law as uncertainty in - will, 47. " to A. and his heirs male," in a deed, 299. " right heir," in a deed, merely means " heir," 300. habendum in a deed properly contains the limitation of estate, or quantity of interest conveyed, 301. how far open to a fy pres. construction, 25, 26. DEFAULT, trusts in default of appointment, 224. DEFERRED GIFTS, become all payable together on the first vesting in possession of any one share, 294. ' DEFINITENESS. See Uncertainty, Trust. DEFINITION of a will, 4. DELAWARE, rule in Shelley's case is only a rule of construction in Delaware, 103. DEMONSTRATION. See Description, False Demonstration, Uncertainty. DEMONSTRATIVE. See Legacy. legacy explained and illustrated, 330 et seq. " DESCENDANTS," will not include collateral relations, 307. means issue of every degree, and these take per capita, 307. DESCENT, effect of varying. 111. imperfections of a title by, 113, 114. preferred to purchase, 73, DESCRIPTION, though inaccurate, may be sufficient, 42. rule as to, stated in Smith v.. Smith, lb. DEVISABLE INTEREST, what is a, 19 et seq. test of this question, 19. of bankrupt, 20. 448 , INDEX. DEVISE, meaning of the word, 62. rules as to, ought to be uniform throughout the United States, 77. of wild land in Massachusetts, gives a fee, 77. is ex'ecuted by statute of uses, 173. and may contain any kind of power, 175. but appointee of special power must be an object of the power, 175. Jarman's error as to the statute of uses, " forbidding the limitation of a use," 173. lapse of legal estate in, 173. to aliens or corporations, 174. to uses, passes the legal estate, when, 174. to the use of trustees, does not necessarily give them the legal fee, 174. a general devise confers only a life estate in some States, 75. with words of perpetuity give a fee, 75. or if charged with deaths and annuities, 79. this question not open to parol evidence, 75. '" ^ the statutory presumption not rebutted by a grant for repairs, 76. for life, with power to convey the fee, gives only a life estate, 80. after payment of a charge gives only a life estate, 80. over, on failure of issue, gives a fee, 80. in fe'e, subject to a general devise o'fer, 80, " to A. in trust for B. in fee," gives A. a fee, 80. what is an implied devise in fee, 88. for life, with a power of sale, does not give a fee, 88. of the absolute interest, precludes remainders, 88. to trustees to pay rents, 175. to permit A. to receive rents, 175. to pay, or permit A, &c., 175. of land under a contract for sale, 183. , if contract fails, 183. is not construed by the event, 183. a general devise passes mortgage or trust land, when, 187. of a particular mortgage, 187. when an execution of a power, 208. on limited trusts, with powers of sale or leasing, 1 79. against heir, in New York, 259. of " the plantation on which I now live " 82. INDEX. 449 DEYISTZ— Continued. in fee, subject to an exception, 82. of " my property after my debts are paid," 83. of the use for life, with a power of appointment, gives the fee, 83. " to do and dispose of as he may think proper," gives a fee, 83, 84. of " all the rest " of lands, does not pass a fee, 86. -DEVISEE not liable to debts prior to 3 & 4 W. & M., c. 14, 237. nor to simple contract debts in England until 3 & 4 W. IV., c. 104, 237. even nowhe is only secondarily liable in the United States, 242. ' rights of, when testator has no land, 20. DIRECTION to pay debts, 179. to convert property, 155 et seg. DISCLAIMER consistent with vesting, 259. ' DISCRETION in trustees as to time for converting property, 158. of executors is subject to court, 52. DISCRETIONARY POWER. See Power. does not woric a conversion of property, 1.56-7. > if unexecuted, is inoperative, 156, 211. DISINHERISON. See Heir. DISTINCT GIFTS will be construed as distinct, 33. DISTRIBUTION, period of, 26l el seq., 289 et seq. See Class Children. words of, in relation to the rule in Shelley's case, 153. implied beneficiaries under a power of distribution take in common, 228. ■words of, in respect to issue and heirs of the body, 308. DIVIDENDS belong to tenant for life, 340. to specific legatee, when, 340. DOMICIL, definition of, 11. law of, in respect to wills, 10. semble, does not govern devises, 10. aliter, as to bequests, 10. conflict of authority on these questions, 10. arguments on the point, 10. may be controlled by context, 12, 32. Jarman's opinion as to domiciliary law, in respect to lease- holds, 11. results of change of domicil, 11. 450 INDEX. DOMICIL— Continued. of Origin, 11. of infants, 1 1 , fact of, may be proved by parol evidence, 12. lawt)f as to testamentary capacity, 13. law of, in cases of election, 250. DOWER, favored, 244, 245. when defeated, lb., 246 et seq. test of this, 245. with annuity, 251. DOWER and THIRDS, meaning of, 246. when excluded, lb., 247. not excluded by an annuity, 247. in England, 247. has been much legislated upon in America, 248. "DYING WITHOUT ISSUE "is construed in America as in En- gland, 123, 127. where there is a change of debts, 123. means dying without heirs of the body, when, 123. "leaving no issue," 124. when pointing to a failure at a definite time, 122. limitation dependent on, usually implies an estate tail in previous donee, 118, may render a limitation too remote, 118. where no estate is given to the propositus, 118, 119, in limitations of personalty, 119. of realty, lb. exceptions to rule for construing, 120. reason of the rule for construing " dying without issue " as denoting an indefinite failure of issue, 121. followed by " after his decease," 126. statutory construction of, 125, 129, 130. is open to much difficulty, 130. as interpreted by 1 Vict. c. 26, and the statutes of Virginia, Mississippi, N. Carolina, and New York, 128. when the old rule applies, 128. effect of, still may be determined by the context, 32, 129. to A and his heirs, and, if he die without issue, over ; A. takes an estate tail, 128. American statutes respecting, 129. are controlled by context, 129. in relation to powers, 129. INDEX. 451 E. ECCLESIASTICAL COURTS used to give probate of wills of per- sonalty only, 9. « EFFECTS," meaning of, 62, 67. EJECTMENT, importance of legal estate in, 185. ELECTION, principle of, 249. corresponds to estoppel under a deed, 249. how raised, Ih. when confined to personalty, 70. against conversion, 159. when available, II. its relations to a condition, 252, 253. under will of married woman, 253. margin for, narrowed by statute, 253, by widow,, 246. where there is a general devise, 246, may be raised unconsciously by testator, 250. results of electing against will', 250. » not raised by a general devise, 250. doctrine of, does not apply to creditors, 250. by foreign heir, 250. by next of kin, 251. by dowress, 244 et seq., 251. by infant, 252. how made, 252. under defective will, 252. requisites for, in the United States, 252. cannot be raised by parol evidence, 250. ELEGIT, estate by, is a chattel, 177, 179. ENTAIL, what is a quasi entail, 21. what words necessary to create, in a deed, 26. ENTIRETIES, what is a tenancy by entireties, 93. See Tenancy bt Entirktibs. EQUALITY is equity, 245. especially in America, 245. EQUALLY DIVIDED, 105. "EQUALLY TO BE DIVIDED," does not necessarily imply a fee, 82, 83. but is some evidence thereof, 84, 85. EQUITABLE CONVERSION. See Convbesion. EQUITABLE ESTATES are subject to rule in Shelley's case, 98, devolution of, 20, 452 INDEX. EQUITY, construction of will in, 34. presumptions of, 34. favors a tenancy in common, 134. administers legacies in trust, 329. follows the law, in administering assets, how far, 353. follows the law in deductive, not inductive, respects, 21. maxims of, 155, 174, 185. never wants a trustee, lb. common law jurisdiction of, as to charitable uses, 395. follows the law in presuming a joint tenancy, 134. EQUITY OF REDEMPTION. See Mortgage. does not pass under a previous devise of the mortgage, 182. release of, may be presumed from long possession, 182. " ESTATE," meaning of the word, 60, 80, 81, B3. this word does not imply a charge, 242. devolution of equitable, 20. for years vests in executor, 21. par autre vie vests in executor, when, 21. ESTATE par autre vie. See Tenant par autre vie. ' ESTATE TAIL, nature of, 108 et seq. no merger of, 113. danger of barring by fine, 113. may mean a special entail, 113. often arises from implication, lb. presumption in favor of, 121. how rebutted, lb. is sometimes a more valuable interest than an estate in fee, 121 . supports remainder, 121. none in personalty, 122. as determined by the phrase "dying without issue, 118 et seq, 122. followed by an estate for life, 122. difficult instances of construing, 122, 123. by implication, 167. See Tenant in Tail. ESTOPPEL, corresponds to election under a will, 249. EVENT never controls construction, 338, 383. EXCEPTION giving rise to an implication, 171. operating as an execution of a power, lb. in a will is construed as a grant, 64. effect of, 73. of part of a fee gives a fee in excepted part, 171. INDEX. 453 EXCLUSION of one is the inclusion of another, 25. EXECUTION. See Power. EXECUTORS, to A. for life remainder, to B. or his executors, B. takes the whole interest, 305. to "A. or his representatives," after a life estate, 305. means next of kin, when " share and share alike" is added, 305. equivalent to heirs taking by substitution, 305. " assign," when following " executors," is always a word ot limitation, 307. powers of sale by, 209, 210. rights of, to securities taken upon the sale of land, 164. power of, to sell land, 241. direction to pay debts, 240. does not charge land in the United States, 240. takes only a power, and not an estate, under a direction to pay debts, 179. ' takes no estate under a mere power to divide, 184. aliter, under a power to manage, lb. estate taken by, under a direction to pay debts, 179. appointed by implication, 172. when a legatee, 307. must be an acting executor, to take legacy, 187, 307. effect of legatee being also, 63. to pay rents and profits to devisee, 187. takes legal estate, 187. of debtor, is a trustee of his debt, 187. rights and duties of substituted, 187. discretion given to, cannot supersede litigation, 52. EXECUTORY DEVISE, distinguished from a remainder, 112. EXECUTORY INTERESTS, donees under, are constituted by the court tenants in common, 228, 229. definition of, 135, 141. distinguished from remainders, 138, 139, 141. are exactly the same as uses, 142. of chattels, 142. where these are consumable by use, 142. cannot be defeated, lb. hence arises their great superiority to remainders, 143. are sometimes of the nature of conditions subsequent, 143. are expounded by construction, and not by events, 143. 454 INDEX. EXECUTOEY INTERESTS— Continued. limited on alternative contingencies, 143. ■why subject to the rule against perpetuities, 115, 144. Kent's opinion on this point examined, 115. are not so subject as a trust executed to rule in Shelley's case, 136. nor to the presumption in favor of a joint tenancy, 136. there ipay be several executory interests in chattels altern- ative to a limitation in tail, 153. relations of, to particular estates, 415. EXECUTORY TRUSTS, how far subject to rule in Shelley's case, 98, 99 et seq. EXECUTRIX, testamentary capacity of, 14. EXONERATION, what necessary to exonerate personalty from liability to debts, 235, 239. order of funds liable to exonerate land from mortgage, 234. construction of the English exoneration statute, 235, 236. in the United States, 237. of personalty, 33. in favor of a particular person, 240. devisee of mortgaged estate entitled to, 231 et seq. this presumption how rebutted, 232. may be by implication, 241. EXPERTS, evidence of, as to foreign laws, 12. EXPRESSIONS of endearment are not of much avail for construc- tion, 161. EXPUNGING words, 62. when allowed, 39. EXTRA DIVIDENDS. See Dividends. on testamentkry gifts, 340, E. FACTS, foreign laws are proved as, 12. "FAILURE OF ISSUE," limitations dependant upon, 114. are not too remote after an estate tail, 1 14. unless they are executory, and not remainders, 115. reason of this distinction, 115. FAILURE OF TRUSTS leads to resulting trusts, 161. INDEX. 455 FALSE AFFIRMATION by beneficiary may not affect gift to him, 56. FALSE DEMONSTRATION, is innocuous, when, 42 et seq. " FAMILY," meaning of the word, 46, 313-4. • means children in bequests, 317. means heirs in devises, 817. meaning of, is often determined by the context, 317, 318., FARM, meaning of the word, 65, 66. FEDERAL LAW, its elements, 2. relations of, to the common law, 2. FEE. See Devise, Land, Realty, Will, " Construction." passes under a devise for a permanent purpose, 83. passes by what words, 61, 62, 81, 82. passes by a charge of debts, when, 81. or by the word residue, lb. or by a devise of the rents of the estate, 81. passes when, 75 et seq. when taken by trustees, 174 et seq. when not cut down to an entail, 168. • FEE SIMPLE. See Tenant in Fee Simple. FEE TAIL. See Tenant in Tail. principles for distinguishing fee tail from fee simple, 88. FEUDAL SYSTEM, theory of, as to rights to land, 231. FINE, effect of, 113. FORECLOSURE, devise of equity of redemption acquired by, 182. FOREIGN LAWS, are proved as facts to the court, 12. presumption as to the substance, and provisions of, 12. FORFEITURE, for felony, 16. law of, varies in the different states, 16. " FORTUNE," meaning of the word, 69, FRAUD. See Undue Influence. is not directly connected with cofistruetion, 54. definition of, lb. undue influence is a species of, 54, 55 et seq. its indirect relations to construction, 13. parol evidence is always admissible in questions of, 187. statute of, has been adopted in most of the States, 2. FREEHOLD- See Fee Simple, Realty. FUND, a sole fund for payment of debts, 243. 456 IKDEX. G. GENEEAL DEVISE. See Devise. in the different States, 75, 76. effect of, by statute, 31. * does not pass money secured by mortgage, 61. does not raise a case of election, 250. GENERAL INTENTION, is considered, in order to discriminate void from valid parts of will, 33. GENERAL LEGACIES, are more favored than specific ones, 28. GENERAL WORDS, their nature explained, 63, 349. " GOODS," meaning of the word, 67. worldly goods, 67. at a particular place, 67, 68. other goods, 68. GOODS AND CHATTELS. See Personalty. meaning of the phrase, 68. GOODS AND MOVEABLES, meaning of the phrase, 71. GUARDIAN, in New York, 344. HABENDUM, in a deed may qualify premises, 110. " HEIR," means statutory heir, 297. the meaning of " heir" is not open to parol evidence, 297. when the limitation is a contingent remainder, 297. " and to her heirs " held to be substitutional, 297. the substitutional sense of the word' heir is more likely to be adopted in some States than in others, 298. does not mean devisee, 298. takes by descent rather than by devise, when, 298. sometimes means " next of kin," 298. especially in America, 299. "heir female" may take only an estate for life, 299. " to A. and his heirs male " in a deed, 299. in a will confers an estate tail, 299. distinction between an heir male or female by descent and one by purchase, 299. Sir Ed. Coke's opinion overruled, 300. meaning of the term in Maine, 303. where there is a peculiar local law of descent, 303. where the gift is substitutionary, 303. INDEX. 457 « UEm"— Continued. where "the fund is mixed, 303. applied differently to realty and personalty, 303. such a construction is bold,Vhereno rule of tenure is in question, 303-4. heir-at-law in a hequest means " next of kin," 304. may take a legacy and after-acquired lands, 304. in Pennsylvania, 304. in Maryland, lb. in New Jersey, lb. " to the right heirs of the name of" A. None can claim but one who is both heir general and also of the name of A., 300. " right heir " in a deed means heir, 300. takes a contingent remainder in New York, when, 301. rule in Archer's case, 301. various limitations to, 302. in connexion with personalty sometimes means children, 303. in America, 303. is a purchaser in New York, 102. denotes a substitutional gift, when, 424. where there is a sale, 106. why said to be favored in law, 26, 27, 231, 233. „_; can only be disinherited by plain words, 77. a foreigner, put to his election, 250. under a devise, still takes by descent, 77. in a devise to trustees may be rendered inoperative by the context, 180. bound only by specialty debts at common law, 237. favored more in some instances in the United States than even^in England, 240. in cases of charitable uses, 162. rights of, excluded only by strong implication, 162. resulting trust to 160 et seq. takes realty as a chattel, when, 161, 164. may mean issue, 110. HEIRLOOM, executor not allowed to sell, except to pay debts, 341. " HEIRS AND ASSIGNS," does not necessarily pass the absolute interest, 88. « HEIRS OF THE BODY," sometimes words of purchase, 104. HEREDITAMENT, meaning of the word, 60. HOUSE, meaning of the word, 64, 65. means heirs, 318. 458 INDEX. HOUSEHOLD EFFECTS, meaning of the phrase, 69. HUSBAND AND WIFE, joint will by, 5. gift to, and to a third party, 287. as tenants by entireties, 93. I. IDENTITY, requiring proof of, does not affect vesting, 263. ILLEGALITY, to be proved by parol, must be part of the res gestm, 186. ILLEGAL TRUSTS, not presumed, 156. ILLEGITIMATE CHILDREN. See Children. never take, if legitimate children could have been intended, 315. take, when, 315. cannot take under a general description, 316. never can claim along with legitimate children, unless the context is to that effect, 316. cannot take if there is a question of paternity involved, 317. ILLUSORY APPOINTMENT, now illegal in England, 229. but not in America, 230. IMMEDIATE GIFT, what is an, 290. IMMORAL GIFTS explained, 414. examples of, 415 et seq. IMPERATIVE, what is an imperative direction, 221. IMPLICATION, explanation of, 149, 166 et seq. not open to parol evidence, when, Ih. must be very strong, 166. with respect to precatory powers, 166. precluded by an express gift, 167. of disinherison, 167. from gifts to strangers or to one of several co-heirs, 167, 168. from gifts to testator's heir, 167, 168. of an estate tail, 167. of estates to issue, 168. after an estate for life, 168. rebutted by a residuary devise, 168. of a life interest, 170. in case of personalty, lb. of cross remanders may be between several and even be- tween classes, 145, 146. is unknown in deeds, 149. INDEX. 459 IMPLICATION— Continued. sed qu. as to life estates, even of freehold, 150. arises on a gift to the survivor of a class of donees, 150, is a doctrine not of tenure but of construction, 171. arising from an exception, 171. executor may be appointed by, 172. of powers, 172. may arise from an erroneous reference, 30. •will not control an express limitation, 32. of an intention to exonerate personalty, 241. ofafee, 124. of a fee tail, precluded, when, 125. allowed, when, 126, 128. estates by, 302. applies to personalty as well as realty, 170, 302. of cross remainders, 144 ei seq. under a trust power, 206, 226 et seq. when rebutted, 226, 227. when not rebutted, lb. IMPLIED GIFT, extent of, 224, 226. INCIDENTS of estates, what are, 266. are rules of law, 266. but, the preliminary question under wills is one of construction, 266. INCLUSION of one is the exclusion of another, 41. this maxim not always acted upon, 41. INCOME, when alone recoverable, 344. for maintenance at discretion of trustee, 222. undisposed of, under limitation to survivor, 168. when carried by contingent residuary bequest, 347. INCORPOREAL RIGHTS, grant of, by tenant in tail is void, 109. INCUMBRANCE. See Charge, Mortgage, Registration. INDEFINITENESS. See Unoertaintt. INDESTRUCTIBILITY of a contingent remainder may not have been contemplated by testator, 181. INFANT, land of, sold by court, becomes personalty, 164. damages paid to, for highway, are personalty, lb. court elects for, 252. INHERITANCE. See Heir, Feb, Devise, Implication, Land. words of, in a will, 110. INJUNCTION on behalf of prior equitable owner, 185. INSTRUCTIONS to scrivener, cannot be proved by parol evidence, 57. 460 INBEX. INTENTION yields to precedent, 23. but eontx'ols all rules of construction, 28. though not of law, 29. controls reference of adjective, 28. legal, not actual, hinds, 29. to be inferred from the will only, and the proper parol evi- dence, 30, 31. may prevent last clause from controlling previous ones, 30. must conform to the rules of public policy, 29. applied to separate sound from unsound parts of "will, 33. in a. conflict of inconsistent intentions general intention always prevails, 33, 34, 36, 39, 40, may be directly proved, when, 49. INTEREST, from what time recoverable on a legacy, 343. on specific bequests for infants, 342, 343. on conditional legacies, when, 344. on annuity, 344. tenant for life of, 345. though subjected to a charge, does not prevent vesting, 263. aliter, if contingent on the discretion' of a trustee, unless there is a trust for accumulation, 264. right of infant to, 342. INTEREST AND DIVIDENDS, meaning of the phrase, 72. INTRODUCTORY CLAUSE is a good key to testator's intention 30. but will not pass a fee, 30. INVENTORY required from tenant for Jife, 340. « ISSUE." See " Dtins without Issue." is very different from " such issue," 126. synonymous with " descendants," 307. a word of limitation in wills, 294, 307. when ancestor takes a freehold, 307. but is not so readily thus construed in be- quests, 308. in New York, 307. estates to, by implication, 169. Jarman's opinion on this point examined, 169. as purchasers, 130. distinctions between " issue " and " heirs of the body," 308. " to A. and his issue living at his death," gives A. an estate tail, sed qu., 308. take as joint tenants, 324. if tenants in common, take per capita, 324. INDEX. 461 J. JOINT BENEFICTA.RIES under antagonistic clauses, 40. JOINT TENANCY, incidents of, 131, 132 et seq. a joint tenant can both enfeoff and release, 132. this power was important, Ih. can sever the jointure, 132. is more readily presumed as to realty than as to personalty, 133. presumption of, how rebutted, 133, 136. none between husband and wife, lb. to what the presumption in favor of a joint tenancy extends, 134, 135. in case of lapse or void gift of part, 137. how severed, 137. how regarded in the United States, 137. principle of the right of accruer, or jus accrescendi, 131. is presumed in every possible case, 131 . its peculiar incidents, lb. is very convenient in trust estates, Jb. in tail, when impossible, 93. exceptions to the rule presuming, 133. JOINT TENANT, presumption in favor of a joint tenancy, 200. will by, 21. > under a will or by way of use need not have a unity of time with the other joint tenants, 132. of a class, 132. of realty, 133. JOINTURE, power to, ranks first if there are several powers in the X same will or deed, 208. JURISDICTION of statutory courts, 9. of courts of domicil, 10. L. LAND, meaning of the word, 60, 61, meaning of the word in America, 63. in Massachusetts, lb, contracted to be bought, 63. to be sold, 63. not devisible at common law, 35. may pass here under " appurtenances," 64, 65. aliter, in England, 65.- used in partnership is personalty, 396-7. 462 INDEX. LAND — Continued. rights of alien to, 399. sold, becomes personalty, 164. I directed to be sold, becomes personalty, 156. unless the sale is to be with consent, 156. LAPSE, definition of, 41 et seq. though expressly negatived by testator, when, 317. none in the case of the death of some of several joint ten- ants, 417. aliter, if the tenancy is in common, 417. in the case of a class, 418. is sometimes used to denote any kind of failure in America, 424. aliter in England, 424. where the phrase " now Jiving " is used, 424. prevented by limitation to survivor, 202. question of, under limitation to next of kin of married women, 204, 205. question of, whei-e there is a gift to survivors, 195-6. the' courts do not strain against construing a gift according to the usual rules, even though this leads to a lapse, 425. of estate " to A. or his executors," 305. accelerates estates, 258. its effect on exoneration, 240. of legal estate, unimportant, 173. may befall the equitable or the legal interest only, 418. does not affect charge on the interest lapsed, 418. . lapse of a charge enures for benefit of devisee, 419. or heir, lb. lapse and void devises fall to the residuary devisee, in what States, 419. no lapse, if beneficiary leave issue, in what States, 420. where legatee's death is already known to testator, 421. is the same as invalidity, as regards the residuary devisee, 422. enures, in most States, for the benefit of testator's heir, 422. testator is not presumed to provide for, 423. of a legacy to a debtor, 423. when none, 423. none, of a provision for creditors, 423. presumption of, in France, 423. is provable by parol evidence, 58. LAPSED DEVISES, when comprised in a residuary devise, 346-7. INDEX. 463 LAST CLAUSE, prevails, if several inconsistent ones, 30. LAWS, if foreign, are proved as facts to the court, 12. LEASE. See Term for Years, Personalty, 178. power to, inconsistent -with dower, 247. LEASEHOLD, will pass as "la,nd," when, 61. may pass under a general devise, 63. how affected by domiciliary laws, 1 1 . " LEAVING." See Leaving Issue. LEAVING ISSUE. See Dying without Issue. as to limitations of personalty, 119. points to failure of issue at death of propositus, as to personalty, 119, 124. LEGACY, defined and explained, 328. includes all personal charges, 328. controlled by context,' 328-9. real or personal, 329. not recoverable at common law, 329. unless it is specific and the executors have assented thereto, 329. these rules much altered by statute, 329. if in trust, must be administered by a court of equitable jurisdiction, 329. is either general, demonstrative, or specific, 330. these kinds explained and distinguished, 330 ei seq. a demonstrative legacy is the best kind of gift, 331. a specific legacy is usually prefixed with the word " my " or " the," 332. a legacy of money may be specific, 332. courts lean against construing a legacy as specific, 333. examples of specific legacies, 334. , annuity charged only on land is specific, 334-5. of stock in general, 333 et seq. security for future, 339, 342. of chattels consumable by use, 342. abatement of, on a deficiency of assets, 342. payment of, not until after a twelvemonth from testator's death, 343. if subject to a condition precedent, 343. if charged on law, does not vest until it is payable, 259. unless the postponement is for the convenience of the estate, 259. payable out of realty and personalty, is partly real and partly personal in its incidents, 259. 464 INDEX. LEGACY— Coritinued. assets not marshalled for legatee, when, 260. to one when he attains age, is Vested, 260. to be raised at a certain date, is vested, 260. if charged on land, is construed as a disposition of realty, 260. yet, if payable out of the proceeds of a sale, is vested, 260-1. when cumulative, 350 et seq. where there is a repetition of several gifts, 361. specific legacies cannot be cumulative, 352. summary of rule respecting cumulative legacies, 352. courts incline against accumulation, 352. parol evidence respecting accumulation of legacies, 352. personalty is primarily liable for legacies, even when charged on land, 242. do not charge land, 238. what charges a legacy on land, 241. on specific devises, 241. when charged along with debts, 241. adeemed or satisfied, how aflfected by republication of will ♦ by codicil, 5. election against, by next of kin, 251. a doubtful charge is construed against the legatee, 238. forfeiture of, 268. threat of forfeiture of, is sometimes merely in terrorem, 268. "to A. at twenty-one," is not vested until then, 261. but " for A. to be paid to him at twenty-one," is vested at once, 261. when recoverable by assumpsit, 242. when demonstrative, 244. when in its nature real, 244. LEGAL AGE, how computed, 13. LEGAL ESTATE, passes under a general devise, 187. executors take, when, 187. is of no value as to title, in States or districts having regis- tries of titles, 185. its only use, 185. presumed to be surrendered, when long outstanding, 186. test of, as regards trustees, 164, 176. distinction between paying rents and permitting another to receive them, 175. INDEX. 465 « LEGAL REPRESENTATIVES » means next of kin, 306. sometimes means children, 312. " next legal representative " does not mean executor or ad- ministrator, 306. LIFE. See Tenant fob Life, Estate. LIMITATION, words of, in respect to the rule in Shelley's case, 102 «t aeq., 309. LOT, mfeaning of the word, 66. LOUISIANA is still bound by its old common law, 2, M. MAINE, estate taken by trustees in, 181-2. meaning of the term heir, in Maine, 303. MAINTENANCE, trust for, does not authorize a sale, 211. " MALE DESCENDANT," title of, 300. MANORS must be as old as the statute Quia empiores, 17 Ed. I, 267. MANUSCRIPTS, will not pass under " books," 73. MARRIAGE revokes wiU oi feme sole,,'!. its effects as a revocation, in Virginia, 7. MARRIAGE ARTICLES explained with respect to the rule in Shelley's case, 100. MARSHALLING. See Assets. of assets, explained, 356 et seq. not enforced in certain cases, 360. where there is a charge of debts, 243. is not allowed for charitable uses, 398. MASSACHUSETTS, construction in, 162. constitution of, adopted the common law, 1. wills in, speak from date, 17. devise of wild land in, 75, 76. peculiar rules of, as to devises, 77. rights of widow in, 245. charitable us»s in, 402. MAXIM, when the equities are eqijal the law will prevail, 185. • hence, the importance of the legal estate in non- register districts, 185. MEANING. See Words. MERGER, origin of the doctrine, 131. results of, are incurable at law, 235. MICHIGAN, perpetuities in, 385. " MILL," meaning of the word, 66. 466 rSTDEX. MISDESCRIPTION, when inoperative, 42 et seq. See " Description," " UNCKBTAOTTr," " Demonstration," " Parol Evidbncb," MISNOMER is usually innocuous, 43 et seq. MISTAKE as to character of beneficiary, 56. if patent, is rectified, 56. if latent, is not rectified, 57. when remediable by parol evidence, 57. MOMENTARY SEISIN. See Seisin. MONEY, meaning of the word, 69, 70, 71. ' MORTGAGE is a chattel, and will not pass under a general devise, unless the will is otherwise so far inop- erative, 182. money secured by, does not pass under a general devise, 61. rights of a particular devisee of, 187. beneficial interest in, will pass, under a gift of debts and securities for money, 71. but not under a specific or general devise of land, 182 3. unless the testator is in possession, or puts the land in settlement, 183. passes under personalty, 71. legal estate in, does jaot pass under " securities for money," 71. what passes under, 71 et seq. rights of devisee of, in the United States are not the same as as in England, 232, 237. devise of land " subject to," 232. in America, lb. when not contracted by testator, but had by descent, 233. what acts amount to an adoption of, 233. order of marshalling, or of exoneration, 234. when it belongs to owner of land, it is presumed to be ex- tinguished, 235. « this presumptiop rebutted — when, 235. construction of the exoneration statute in England, 239*. exoneration in the United States, 237. MORTGAGOR, when also Mortgagee, 235. See Mortgage. MORTMAIN, alienation in, explained, 392 et seq. how affected by the law of charitable uses, 392 ei seq. INDEX. 467 N, NAME, meaning of, 321. assumption of, by license, 321. mistake in 43, 45 et seq. by repute is a sufBcient designation, 46. ' may be ascertained by parol evidence. In what cases, 47. NATURALIZATION, effect of, 339, 400. "NEAR "relatives, 321. NEPHEW, includes such relatives by affinity, 310. NET INCOME, example of, 172. See Income. NET PROFITS are equivalent to the land, 89. « NET RENTS." See Rents. different from " rents " in its effect on the legal estate, 175, NEW YORK, constitution of, adopted the common law, 1 . revocation of will in, 6, 8, 9, legal age in, 13. testamentary power in, 19, 76, 85. executory devises in, 87. rule in Shelley's case has been abrogated in, 102. remainders in, 138. charitable uses in, 406. perpetuities in, 385. NEXT prefixed to representative, 306. NEXT OF KIN, meaning of the pljrase, 319 et seq. take as joint tenants, 319. but next of kin under the statute take as tenants in common, 319. rule in Spink v. Lewis, 319. rule in Gundry v. Pinniger, 319. more favored than heir as to vesting. of gifts, 2^7. are as favored in America as the heir, as regards all rules of construction, 232. not barred by mere words of negation, 252. preferred to strangers in a doubtful case, 34. of married women, bequest to, 205. of the male line denote relatives on the father's side, 320. resulting trust to, 160 et seq. take per stirpes, 326, NON- VESTING CLAUSE, its use, in settlements of personalty, 151, 152. 468 INDEX. NOTICE of contents of will is presumed on the part of the testator, 54' of a charge affects registration by the person getting notice, 185. NOVATION of a debt, 233. * " NOW," " now living," construction of, 18. O. • OBJECT, uncertainty of, 45 et seq. instances of, 45. OCCUPANCY, a reference to, is mere description, 65. request concerning a tenant's, 223. « OCCUPY," meaning of the word, 65. OMISSION in will, effect of, 57. distinguished from implication, 40. OE, read " and," 38. may indicate a substitutional gift, 425. OEDEE of funds liable to exonerate land subject to a mortgage, 234. " OTHEE " sometimes synonymous with " survivor," 193, 196. a strange decision concerning, 312. " OTHEE GOODS," meaning of the phrase, 68, PAEENT, when donee of a power, 227. PAEOL EVIDENCE. See Index to Part I, jiassim, is more freely admitted here than in England, 3, 21, 50; is sought latterly to be excluded by construction, 53. as to the res gestae of a will, 4. is not admissible to rebut the presumption of a revocation of a will, when, 6. of domicil, 12. ^ inadmissible as to the date whence the will speaks, 18. is admitted in most cases of uncertain description, 47, 53. is admissible to induce an operation of the rule in Wild's case, 50. is not admitted now as freely as formerly, 50. yet certain abstract phases are not held void now as former- ly, 48, 49. when not received, 50, 51. of intent, 50. American rules, as to, 51, 53. serrible, rules of, not altered by Wills acts, 51. INDEX. 469 PAROL EVIDENCE— CojUmwed. not -admissible to rectify mistake of fact, but only of descrip- tion, 57. not admissible to prove directions to scrivener, 57. may show that a clause has been improperly inserted, 58. but not that a clause has been omitted, 58. admissible to explain the meaning of the word " farm," 66. not admissible in questions of resulting trust, 160, 165. principle of this rule, lb. not admissible in questions of implication, when, 166. reason of this rule, Ih. cannot be given of the meaning of the word " heir," 297. nor that a legacy was intended to be substitutional, 352. test for the applicability oi, 374. ■ " admissible to prove a secret illegal trust, 186. or any fraud, 187. as to whether a legacy is charged on land, 238. to raise a case of election, sed qu., 248, 250. PARTNERS, gift to, 45. are not presumed to be joint tenants, 133. PATERNITY, any question of, invalidates bequest, 317. PAYABLE, importance of the word in questions of vesting, 262. PENNSYLVANIA, testamentary power in, 78. charitable uses in, 402. survivorship in, 194. PER CAPITA, taking, explained, 324 et seq. a mistake of Toller and Williams, corrected by V. C. Wickens, '326. issue take, when, 324. a class taking, in default of appointment, 226. " PERPETUAL," meaning of the word, 85, 86. , PERPETUITY, none at common law, according to Lord St. Leonards, sed qu., 375, 376. contra, Fearne, Preston, and Jarman, 377. the qiiestion stated, 377, powers of sale or exchange not open to, 378, 382. rarely occurs in a gift to testator's issue, 380, 381. Jarman's argument respecting the possible remoteness of remainders, 379. applies to the vesting not the possession of estates, 383. often cured by a ^y pres construction, 378, 383. See Remoteness, Exbcutoey Interest. 470 INDEX. PEEPETUITY— Continued. instances of, 115. as to income, 386 et seq. in New York, 385, 388. in Michigan, 385. / rule against, applies to executory interests only, 144. PERSONAL covenant not a real charge, 234. " personal representatives " sometimes means " next of kin," 306. * property, 59, 60. See Personalty, Realty. ^ PERSONALTY, what is, 69. wills of, were expounded by the ecclesiastical courts, 35. are more literally interpreted, perhaps, than de- vises, lb. bequest of, is not an execution of a general power, 52. what is, determined by context, 59, 60. is subject to the rule in Shelley's case, 94. limitations of personalty are sometimes construed different- ly from those of land, 94, 119. is subject td rule in Wild's case, 101. estate tail in, gives the whole interest, 101, 151. as to the phrase "dying without issue," 118 et seq. limitation of, to the survivor " in default of issue, 129. not so readily deemed, as realty, to be owned in joint tenancy, 133, 134. settlements of, 151 et seq. not subject to the fy pres rule, 151, 152. cannot devolve as an heirloom, 152. and land contribute jointly, when, 356. primary fund for payment of debts, 231, 355. when the secondary fund, 231, 232 et seq., 244.- specifically bequeathed, 233. when mortgage descended on testator, 233. in respect to, pecuniary legacies, 233. by direct contract, 233, 234. by clause in will, 234 et seq. what context necessary for this purpose, 235. when the realty is directed to be sold to pay debts and the residue is to " be added to the testator's personal estate," 239. INDEX. 471 PERSONALTY, primary fund for payment of debts — Continued. when the land is charged and the whole per- sonalty is specifically bequeathed, 240. may he exonerated from debts by implication, 241. but not by doubtful words, 243. specific portion of a primary fiind, 243. • when not at all liable, 244. in case of election by foreign heir, 250. gift of; contingent where gift of realty would be vested, 259. land directed to be sold and terms ofyears are personalty, 259. alone passes, as a rule, under general personal terms, 63. especially if the legatee is also executor, lb. its relations to domiciliary law, 11. general bequest not an execution of a power, 208-9. exoneration of, 33. why less specific than lan3, 341. contingent limitation of, will not afiect the estate taken by a trustee, 181. securities for debt are in equity only chattels, 177. PUB STIBPHS, next of kin claiming, 226. PLANTATION, meaning of the word in Ohio, 82. PLANTATIONS in the West Indies, a devise of, carries stock with it, 62. PLEDGE of specific legacy, 341. POLI(^ under "debts," 72. POSSESSION at law belongs to him who has the legal estate, 185. aliter in equity, 185. qu, whether some of the registry acts do not give even the legal estate to the first registered owner or incum- brancer, 185. POSSIBILITY, if coupled with an interest, is devisable, 19. if bare, is not devisable in some States, 20. upon a possibility, illegal, 145. this doctrine examined, lb. POSTHUMOUS CHILD, rights of, 7, 360. has the rights of a child, 311. POSTPONEMENT of vesting, 265. See Vesting. of payment does not enlarge class of beneficiaries, 291 . POWER to appoint by will, 9. See Appointment. 472 INDEX. VO^'ESi— Continued. three kinds of, 206. suspension and extinguishment of, 206. may be both appendant and collateral, lb. peculiar legal value of, 206. wken in trust, cannot be su.spended or extinguished, 207. if discretionary, and fairly exercised, not interfered with by the court, 207, 217, if general, is not a trust, 207. may be reserved in deed of bargain and sale, or covenant to stand seized, 207, note, but a general power cannot be reserved in a coven- ant to stand seized, lb. aliter in a will, 207. executed after covenant not to do so, 208. the case of Learned v. Tallmadge appears to have been decided on sound principles, 208. order of priority of various powers, 208. when executed by a general devise, 208. of married women, 13, 14, 208, 253. not executed by a general bequest of personalty, 209. Qii, ? as to realty in those States where devises speak only from date of testator's death, 209. to executors to sell does not convey any estate to them, 209. of sale by implication, 210, 211. of sale to several is well executed by the sole acting exec- utor, 211. if subject to conditions, these must be complied with, 211. of sale attached to a life estate does not give a fee, 88. to general devisee, of disposition generally, gives a fee, 88. aliter, if he only takes a life estate, until he appoints to him- self in fee, 88. if discretionary and unexecuted, is totally inoperative, 216. donee of, may take jointly with the objects of the power, 227. of selection distinguished from power of distribution, 225-6. exeroisible by will only, 225. executed by the court among a class, per capita, 226. appointments under special, 175. if in trust, or of selection, is rarely void for uncertainty, 45. period for exercising, 158. grantof a power precludes presumption of a feeor fee tail, 121. INDEX. 473 PQWER OF SALE not a perpetuity, 378, 382. implied in a direction to pay debts, 179. PREAMBLE, effect of, 63. PRECATORY TRUST, questions of, are rare under deeds, 311, 213. explained, 211 et seq. by implication distinguished from a trust power, 212, 228. rule of precatory trusts stated, 213. law of, is in a state of transition, 213. requires three elements of certainty, 213, 216. tendencies of the courts respecting, 216, 217. elucidates testamentary difficulties, 216. English law of, 219, 220. authorities relating to, 221. terms of request, 221 et seq. what expressions raise, 221. do not raise, 222, 224. as to definiteness of subject matter, 223. See Trust. PRECEDENTS are paramount to all supposed rules of law or con- struction, 23. " PREMISES," meaning of the word, 65. PRESUMPTION, what kind of, is open to parol evidence, 160! that personalty is primary fund for payment of debts, 231. how rebutted, 232. - need not be strictly necessary, 163. but must be strong, lb. favors next of kin as well as heir, lb. , as to when a will speaks, 17. that testator speaks with reference to the State of his per- sonalty at the time of his death, 330. respecting double legacies, 330 et seq. of ademption, 365. that testa;tor foresees change in the law, 297. that a legal title is better than a contractual one, 298. that a testator did not mean to provide for lapse, 205. against revocation, 6. in favor of a joint tenancy, 131. vested and common law interests, 139, 141. of equity, as to double gifts, 34. conclusive as to the estate taken by trustees, 174. PRIMARY GIFT, relations of, to ulterior limitations, 415. PRIMARY LIABILITY, when created by statute, 236-7. 474 . INDEX. PRINCIPAL, bequest of, does not carry interest, when, 71. PRINCIPLES OF PUBLIC POLICY cannot be controlled by tes- tator, 32. PRIORITY of various powers, 208. PROBATE, is conclusive of the testamentary character of the docu- ment proved, 9, is not conclusive as to ultimate rights of the parties, 9; statutory courts of, in United States and England, 9. jurisdiction of, 9. PROCEEDS of sale, bequest of, 164. are personalty in the case of an absolute conversion, 164. , part excepted from, belongs to heir or residuary devisee, , , 164. PliODU'CE, a gift of produce is a gift of the fund itself, 91. PROMISSORY NOTES pass under "money," 70. '"PROPERTY," meaning of the word, 61, 69. PUNCTUATION, how far a guide to the construction, 28. is no guide, if it is itself the source of difficulty, 29. PURCHASE, distinguished from descent, 299.' estate by, is better than one by descent, 93. estates by, in America, 182. example of heir taking by, 176. words of, in Kentucky, 104. PURCHASER, liability of, for debts, 243. liable to look to the application of purchase money, if debts are specified, 237. . Aliter, if the charge is general, 237. the heir a purchaser in New York, 102. ' Q. Q UASI ENTAIL, what is a, 93. , in personalty, 152. may be barred, how, 21, 109, 110. R. READING of will to testator is not indispensable, 55. " READY MONEY," meaning of the phrase, 70. " REAL CHARGES," what are, 244, 342. REAL ESTATE. See Realty, Fee Simple. INDEX. 475 "REALTY." See Personalty. is sometimes read " personalty," 59. real and personal terms may be rendered convertible by context, 59. passes under general words, 62. principles for construing will of, 17, 35. semble, is not placed to all intents on the same footing as personalty, as regards the statutes that make wills speak' from testator's death, 51, 52. appointed under a general devise, lb. will of, 7, 9, 10. probate of, 9. by what court to be granted, 9. how construed, 10. its legal relations to domicil, 10, 11. is subject to rule in Shelley's case and in Wild's case, 101. settlements of, are construed differently from those of per- sonalty, 119 et aeq. a joint tenancy is presumed in realty more readily than in personalty, 134. exoneration of, in oases of mortgage, 231 et seq. when administered pari passu with personalty in discharge of debts, 243. sometimes the sole fund for payment of debts and real charges, 244. in case of election by foreign heir, 250. devise by married woman, 13, 14. EECITAL in will is an estoppelj 249. may pass as interest, 172. even when false, 172. RECOVERY is the means for changing an entail into a fee, 101. effect of a, 113. RE-ENTRY, conditions for, are very useful, 268. REGISTRATION prevents tacking, and deprives the legal estate of all value, 185. is notice to all the world, 185. "RELATIONS" means next of kin according to the statute of distri- bution, 320. but never includes husband, or wife, or relatives by affinity, 320. 476 INDEX. RELATIONS— Continued. meaning of the word further considered, 321, 322. "near," "deserving," "poor," 321, a gift to " poor relations " is sometimes construed as a char- itable use, 321. M power of selecting, 322. distributing amongst, 322. relatives or connections, 823. RELIGIOUS USES, what are, 411 et seq. how far recognized by the Constitution, 411. examples of, 410 et seq. REMAINDER described, 138. distinguished from an executory interest, 138, 139. incidents of, in New York, 138. . is either vested or contingent, lb. examples of these, lb. presumption in favor of, 139. law of, important even under wills, 139. defect of, may be provided for, 139. not bound by acts of particular tenant, 162. when not accelerated, if preceding estate is void, lb. under a devise " to A. at twenty ^ne, and if he die under age, to B." the heir takes until A. attains twenty-one, 162. relations of, to particular estate, 162. cannot be too remote, 115. may have been intended by testator to be destructible, sed qu., 181. this question affects the estate taken by trustees, 181. none after a vested entail of personalty, 151. construed here as in England, 182. of an annuity, 91. when vested, 256. See Cross-Remainders. cross-remainders explained, 144. cross-remainders may be implied between more than two, 144. reasons for the contrary opinion, 145. the implication of cross-remainders is not affected by any statutory meaning of the word " issue," 144. REMITTER, what is &, 109. ISDBX. 477 REMOTENESS. See Perpetuitt. explained, 374 et seq. of limitations after a general failure of issue, 168. rule as to, stated, 118, 119 «; seq. See Void Gifts. cannot affect remainders after an estate tail, 1 14. RENEWABLE LEASES, likely to become general here, 21. RENT, a devise of, is equivalent to a devise of land, 345. power to pay gives legal estate, 175. may be reserved on a grant in fee, 267. RENT CHARGE, by a tenant in tail is void after his death, 108. estate in, is, in equity, only a chattel, 177. mortgages, rents charge, and other securities for money are chattels in equity, 177. "RENTS AND PROFITS," equivalent to land, 61, 88. authorizes a sale, 89. change in the law on this point, 89. RENTS IN ARREAR, what are, 71. REPRESENTATIONS, in Connecticut, 312. in North Carolina, 312. " REPRESENTATIVE." See Legal. Rbpresbntativb. primary meaning of, is administrator, 306. REPUBLICATION of will by codicil, 5. under New York revised statutes, 9. REPUGNANCY, in a deed, 118. is differently construed from that in a will, 118. of clauses, how sought to be remedied, 35 et seq. REQUEST, what is a legal, 221. BUS GEST^, domicil is part of, 12. provable by parol evidence, 186. what is relevant evidence of, 186. RESIDUARY BEQUEST, comprises lapsed and void bequests, 349. given by what words, 349. sometimes means only a particular legacy, 350. RESIDUARY DEVISE, does not comprise lapsed or void devises, 346. except by statute, 347. rebuts implication, when, 169. accompanied with a particular devise, 170. not favored, 170. distinguished from an implied life estate in personalty, l7l. RESIDUARY LEGATEE, must answer the description in will at the time of testator's death, 290. 478 INDEX. " EESIDUE " meaning of, 73, 74. what passes under, lb. comprises lapsed and void bequests, lb. result of a failure of a portion of, 74. qu.t as to America, Ih. abatement of, 74. of realty, 164. will not pass by a general bfequest of personalty, when, lb. qu.? does this nde hold in America, lb. retains its original character, in cases of conversion for special purposes, 164. rights of devisee of, 164. may pass defeasible fee, 87. rights of tenant for life of, 152 sed qu. of certain stocks is a general legacy, 339. courts lean to the vesting of, 264. "to be divided," 257. " to be divided after youngest child attains age," 184. RESULTING TRUST arises, when, 160 et seq. question of, sometimes difficult, 160. under a trust to pay debts, 166. not open to parol evidence, lb. where declared trusts are inapplicable to all the property, 84, 161. or are not co-extensive therewith, 161. doctrine of, is the converse of implication, lb. arises, unless the construction is clear to the contrary, 161. from a direction to convert, 157 et seq. of realty, if there is a devise of such, but the trusts are in- applicable, 84. from a gift void for uncertainty, 227. « REVERSION," meaning of the word, 61, 227. devise of, expectant on estate tail, 125. difficulty as to, lb. REVISED STATUTES of New York, 346. do not apply to previous or foreigh wills, 9. repiiblication under, 9. of Massachusetts, 346. REVOCATION, partial, by codicil, 6. implied, 6. not caused by a contract to sell, 6. INDEX. 479 REVOCATION— Continued. by transfer, 6. ia Pennsylvania and Delaware, 6. in Ohio, Indiana, Illinois, and Connecticut, 7. under New York revised statutes, 6, 8. in the other States, 7. RIGrHT HEIRS. See Heir. iNiRODtroTioN to Part I. RULE of law, what is, 24. distinguished from one of construction, 266. RULE in Shelley's case, reason of, 93, 131. discountenanced in America, 21. States in which it prevails, 102. has been abrogated, 102. as to the words " son," « child," « family," 103, 104. " to A, for life, and after his death to his children," the children take by purchase, 104, 105. in England, 107. has been sometimes indiscreetly substituted for a fy pres construction, 36. is an exception to third class of remainders, 93. summary thereof, lb. an estate by purchase is more valuable than one under the rule, 94. has little operation in America, 93. is only a rule of construction, not of law, 93. applies to shares in certain companies, 94. and to personalty, 94. perverted in Perrin v. Blake, 95. is still perverted in England, 96 et seq. not in America, -96 e< seq. precluded by a superadded limitation to different heirs, 96. not by a tenancy in common, 96. Jarman's opinion as to, qu. ? 97. in deeds, 98. applies to equitable estates, 98. and partly to executory trusts, 98, 99. under direction, "as counsel shalladvise," 99. is stronger in wills than in marriage articles, 99. not controlled by words of distribution in settlements of / personalty, 153. sed qu. in the United States generally, 96 et seq. does not apply, unless both particular estate and remainder are both legal or both equitable, 176. 480 INDEX. SAILORS' wills, how construed, 33, SALE, power of, 209 et seq. in New York, 211. not a perpetuity, 378, 382. implied in a direction to pay renewal fines, when, 238. implied in a direction to pay debts, 179. fund for payment of debts, 243. SECONDARY sense of phrases, when only adopted, 245. " SECURITIES for money," meaning of the phrase, 71, 72. does not pass a legal estate, 187. SECURITY by tenant for life, 340. taken upon the sale of land is personalty aiad belongs to executor, 164. SEISIN, wheil only a momentary seisin is taken by trustees, 176. , its relations to appointments, and rule in Shelley's case, 95. SEPARATE USE. See Trust for Separate Use, 286. will of property settled to, 14. " SERVANTS," what are, 323. comjirises only domestics hired at a yearly stipend, 324. SETTLEMENTS of personalty, 151 et seq. how to be framed, lb. SHARE, when first share becomes payable, the whole fund must be distributed, 292. unless the context is to the contrary, 292. ' in certain companies are subject to rule in Shelley's case, 94. See Lkgaot, Land, Devise. " SHARES," will not comprise a policy of insurance, 72. " SON " is a word of purchase, 307. but is often construed as a word of limitation by force of the context, 307. SPECIFICALLY, meaning of the word, 74. See Legacy. SPECIFIC CHARGE lapses for benefit of heir, 347. SPECIFIC DEVISE, all devises of land are specific, 345. effect of recent legislation on this rule, 346. may be residuary, 346. followed by a change of interest, 346. SPECIFIC DEVISEE taking only a partial interest, 347. SPECIFIC LEGACY explained and illustrated, 331 et seq. when alternative, 337. not favored in construction, 333, 337. points to date of will, 18. INDEX. • 481 SPECIFIC LEGACY, points to date of wWl— Continued. hence arises the doctrine of ademption, 18. conversion and ademption of, 18, 19, 340. distinguished from a gift of " all personalty," 341. STATES vary as to laws of testamentary capacity, 14^ STATUTE MERCHANT, estate l)y, 178. STATUTES of England, if old, public, and general, obtain here, 1. declaratory of common law, 3, of most of the States require wills to be in writing, 3. analogous to 1 Vict. c. xxvi, prevail in several States, 3. ' what statute governs wills, 8. of wills, 13, 17. as to " dying without issue," 128,- 129. STIRPES. See Pkk Stirpes. STOCKS may pass under " money," 69. per stirpes explained, 324 et sej. STRANGER postponed to next of kin in a doubtful case of con- struction, 34. cannot take advantage of breach ef a condition subsequent, 271. " SUBJECT TO DEBTS," construction of, in England and the United States, 232. SUBSTITUTIONAL GIFT to heir, 424. indicated by the word " or," 425. not necessarily contingent, 257. legacies to children are construed in a peculiar way, 290. " SUCH ISSUE," different in eifect, from issue, 309-10. explanation of, 126. SUGGESTIONS to testamentary draftsmen, 426. for assimilating. law of personalty to that of realty, 67. See Issue, ," Dtino wiTftotJT Issue." SUPPLYING WORDS, in what sense this is done, 40 et seq. SUPREME COURT of the United States, its principles of adjudi- cation, 23. SURPLUS, meaning of the word, 218. when held by trustee for his own use, 160. belongs to the heir, when, 161. " SURVIVOR," three leading questions respecting the legal effect of this word, 189 et seq. Rule in Ferguson v. Dunbar, 189. 482 IITDEX, "SURVIVOE," Rule in Ferguson v. BuvhiLT— Continued. its inconvenience, 191. is an exception to the rule that allows cross-re- mainders, 191. has been weakened by late decisions in England, 192. though not in America, lb. how affected by a collateral contingency, 192. Rule ought to be changed, 192. construed too technically, 191. is sometimes construed "other," 193, 196. reason for this construction, lb. when used with reference to a class as a word of limitation, 194. in Pennsylvania, 194. gift to, does not carry accrued shares, 195. of a class, 195. rights of, to accrued shares, 196. period for ascertaining the survivor, 197 etseq. under a tenancy in common, 197. after an estate for life, 19§. reason why the testator's death was regarded as the period for computing survivorship, 198. survivorship may be computed in four different ways, 198. different results of these modes of computation, 199. under a bequest, as distinguished froin a devise, 1 99, 200. where there is a substitutional bequest, 200. or a contingency, 200-2. limitation to, in order to prevent lapse, 201. of children, 202-3, 205. survivorship when shown to be indefinite, 203. results pi the eases, 203. doctrines respecting survivorship likely in the future to be much discussed in America, 203. meaning of the term in New York, 204. when executor of a deceased legatee, 205. how survivorship is computed in America, 296. income undisposed of under limitation to, 168. what are children of a " surviving grandchild," 170. a gift to the survivor of several persons does not necessarily give estates to all by implication, 171. INDEX. 483 T. TACKING, explanation of, 185. TAIL, joint tenancy in, impossible, when, 93. See Tenant in Tail. TECHNICAL PHRASEOLOGY, construction of, 37. is construed technically, if context is silent on the point, 24. TENANCY BY ENTIRETIES, incidents of, 133. TENANCY IN COMMON, by what words ereated, 136. lapse or invalidity of a gift in common operates for the benefit of the heir, 137. aliter in cases of joint tenancy, lb. in equity, 133, 135. held to be inconsistent with rule in Shelley's case in America, 95. aliter in England, 96. exists in equity among persons who contribute unequally to a joint undertaking, 134.. TENANT who has not attorned to assignee of reversion, 185. TENANT FOR LIEE, of chattels, 142. consumable by use, lb. after an estate- tail, 122. of a specific legacy, 339. rights and duties of, 339, 340. TENANT IN COMMON cannot defeat an express right of sur- vivorship, 197. implied beneficiaries under a power of distribution, are tenants in common, 228. gift to individuals as tenants in common lapses pro tanio on the death of a beneficiary, 229. when is there not a lapse, 228. See Power, Illubokt AppoiNiMBNa'. TENANT IN FEE cannot be prevented from assigning, 29. subject to an executory devise is still entitled to curtesy, &c., 143. TENANT IN TAIL, words for creating, by will, 110. cannot be prevented from disentailing and selling the land, 29. sometimes mistaken for a tenant in fee simple, 1 12. general nature of an estate tail, 108 et seq. in America, 116, 117. has no devising power, 108. 484 INDEX. TENANT IN TAIL— Continued. cannot encumber, 108. how differs from tenant in fee, lb. may bar the entailby fine or recovery, 108. distinctions between these two modes of convey- ance, 108. three classes of charges by — void, voidable, and indefeasi- ble, 109. by levying a fine confirms his previous incumbrances, 109. settlements by, 109. words for creating by deed, 109, llO. other conditions for constituting, 109. special or male, 110. has unlimited power to commit waste, 110. rights and duties of, 110, 117. after possibility, &c., can never acquire fee by recovery, 101, of personalty has the whole interest, lb. TENANT ^ar autre vie, cannot create an entail, 109. but only a quasi entail, Jb. TENANTS BY ENTIRETIES, what are, 93. TENEMENT, meaning of the word, 60. does not pass a fee, 85. TEEM of years described, 177. indefinite terms to trustees, 177. all interests created out of terms of years are chattels also, 182. vests primarily in the executor, 21. TESTAMENTARY draftsmen, suggestions to, 426. law of America and England, 3, power of bankrupt, 120. power in New York, 19,76, 85. TESTATOR presumed to- if now contents of will, 54, 55. this presumption shifts if he was of weak mind, 54. who has not read will, is still bound thereby, 55, TIME means a reasonable period, when, 158. TRANSFER, revocation by, 6. TRANSPOSITION. See Words. of words, 35. when allowed, 37 et seq. ■at law and in equity, 34. INDEX. 485 TRUST. See Trustee, Resulting Trust, Fraud, Equity, Con- struction. when satisfied, legal estate for, is valueless, 185-6. trustee compelled to discharge trusts, 186. an illegal secret trust may be proved by parol, 186. unless it be subsequent to the making of the will^ 186. may be engrafted on will by parol, when, 9. if bare, is not within the statute of descents of New Jersey, 304. TRUSTEE takes legal estate, when, 174 et seq., 177. to pay rents, 175. " to permit A. to receive rents," 175. " to pay or permit," &c., 175. taking legal estate only during the life of the particular tenant, 176. takes sometimes only a term during the minority of cestui que trust, 176. to preserve contingent remainders, holds the legal estate, 176, 179. " unto and to the use of," 177. test of extent of estate of trustees, 174, 177. 'takes only a term under a trust for debts, when, 177. may take a fee under a general devise, 177. takes a determinable fee, when, 177. takes legal estate, when, 174 et seq. takfes only a. momentary seisin, when, 176. estate of, is affected by there being contingent remainders in in the will, 181. when the property is personal, lb. estate taken by, under limited trusts, with powers of sale or leasing, 179. no fee taken by, when, 179. the question of the estate taken by, under will, is construed liberally, 179. when empowered merely to convey the fee, 179. estate taken by trustees to preserve contingent remain- ders, 179. for limited purposes, with power to appoint the fee, 180. to appoint the fee, has an executory power, 180. express fee of, reduced by context, 177. devise of land to trustees and their heirs, with power of sale, does not necessarily give them the fee, 180. 486 INDEX. TRUSTEE— Continued. estate of, in Maine, 181-2, in the States generally, 182. American law as to the estate taken by trustee, coincides with that of England, 182. also as to uses and remainders, lb. and nearly so as to limitations by way of pur- chase, lb. law of, has been recently much altered in England, 184. this legislation has led to decisions that are of use here, 185. questions respecting the estate taken by trustee, are more important in England than here, 185. not allowed to abuse his discretion, 186. not deprived of a fair discretion, 186. test"of the estate taken by, 174. semble, under special powers, takes, a power of curator- ship, 17'5. with a discretion to convert, 157. discretion of, as to income for maintenance, 224. discretion of, in cases of conversion, 158. TRUSTEE TO PRESERVE CONTINGENT REMAINDERS, use of this limitation, 139. ' TRUST ESTATES should be in joint tenancy, 131. TRUST FOR SEPARATE USE, is usual in America; 286. what words will create, 286. not create, 286. the appointment of a trustee for, is unnecessary, 287. for a man is void, 287. TRXJST-POWER. See Power, Trust. implies a gift in default of appointment, 129. U. UNCERTAINTY. See Description, Misdescription, False De- monstration, Parol Evidence. what is, 223. in the late cases has been open to parol, in most instances, 44, 223, 225. is usually powerless to defeat a gift by will, 43 ei seq., 369 et seq. of description of subject or object, 43, 45 e( seq. sometimes leads to a failure of the gift, 44. INDEX. 487 UNCERTAINTY— Continued. arising from misdescription, 371. examples of, 225, 372. of object, 373. when curable by parol, 374. resulting trust under cases of, 227. does not apply to objects of a charitable use, 228, 401. seeming, but not real, 370, 371. UNDUE INFLUENCE. See Fraud. by a strainger distinguished from that by a relative, 54. American rule as to, 54. clause void on account of undue influence may not affect rest of will, 55. ' aliter, in certain cases, lb. USES. See Charitable Usbs, Trustee, Perpetuity. ■what uses alone are executed by the statute, 414. their relations to devises, 173. ■what interests are not within the statute of, 175. construed in America as in England, 182. UTENSILS, what pass as, 72. V. VENTRE SA MERE, 311. See Posthumous Child. VERMONT has a statutory system of conveyance, 103. VESTED INTEREST, its incidents, 259. definition of a vested remainder, 254. sometimes means vested in possession, 254, 259. after failure of issue, 255. distinguished from contingent interests, 254, 255, 259. courts incline to hold interests vested, 256. an estate when not, 256. VESTING, in civil law, different from ours, 261. •is not suspended by the postponement of division until a future period, 262. of interests in land, 254 et seq. de^vise afterpayment of debts does not postpone, 256. of charges of portions, 258. ■ does not prevent disclaimer, 259. of legacies charged on land, 259. general rule, 259. when postponed, lb. if payment is dependent on a contingency, this renders the legacy contingent, 262. 488 INDEX. VESTING— Continued. indicated by a gift of interest meantime, 262. " to A. ' upon,' ' at,' ' when,' or ' if ' he attain age or marry," is contingent, 62. the question in such cases is whether the gift and ^ time of payment are distinct, 262. implied in accumulation, 263. to A. " when the youngest child attains twenty-one," post- pones vesting until then, 263. not affected by requiring proof of identity, 263. may not be in legatee's lifetime, 263. not affected by a charge on gift, 263. VOID CLAUSE does not necessarily invalidate remainder of will, 33- VOID DEVISE, when comprised in a residuary devise, 346-7. VOID GIFT, 369 et seg. gifts are at present rarely void for uncertainty, 369. effect of, on will, 33, 55. principle of this rule, 55. VOLUNTARY SOCIETY, what is a, 45. W. WIDOW, rights of, to personalty, 247. rights of, how affected by a gift of personalty, 248. in Illinois, 246. in Massachusetts, 245. presumed to elect in favor of will, 245. WIFE, what is a, 323. WILD'S CASE, rule in, 36, is an exception to rule in Shelley's case, 101. prevails in America, 101. is not applied to after-born children, if those living at the time of the will shall die, 314. WILL. See Constkuction, Lkgact, Realty, Personalty, Power, Trust. suggestions for drawing, 426 et seg. must in most States be written, 3. is goTerned in most States by statutes analogous to 1 Vict. c. xxvi, 3. defined and explained, 4, distinguished from a deed, 4, 27. may in some States consist of any document, such as a re- ceipt for stock, note, bond, &c., 4. INDEX. 489 WILL — Coniinued. need not he read to testator, 55. effect of, being numbered in sections, 41, parol evidence respecting the date and other. res gestm of, 4, 49, 58, 118, See Index to Part I., Passim. made during the civil war, 16. of alien, 14, 16. gift to foreign corporation under a, 16. date' by which it is construed, 16. now regulated by statute in most States, 16, speaks from testator's death, in what States, 17, 347. speaks from date, in wliat States, 17. effect of, in Ikglish law, has, been varied by construction in some States, 17. what ma,y be disposed of, by, 19. by joint tenant, 21. principles for construing wall of land, 17, 35, 75 et seq. of land was not allowed at common law, 35- of land not owned by testator, 20. passes afier acq^uired land., when, '21. may be construed partly as a deed, 27. intention of testator to be looked for more liberally than under a deed, 27. of sailor, 32. uncertainty in, 43 et seq. governed by same law as uncertaanty m deed, 47, 49. « construction oi^ not eontroMed by accident, 52. of personalty is construed according to the civil law, 264. of realty according to the common law, 264-5. •■ (€ personalty in New York, 259. last clause in, prevails, 39, 302. effect of void clause in, 33, 55. if revoked, cannot be afterwards read in aid of construction, 58. may -be annulled, but not reformed, by parol evidence, 58. and codicil »re one instrument within the meaning of the rule in Shelley's case, 94. how affected by the Me in Shelley's case, 92 et seq. is constraed as a use, 135. proof and record of, in New York, 259. 490 INDEX, WILL — Continued. hj husband and wife, 5. republication of, by codicil, 5. effect of, on legacies, adeemed or satisfied, 5. revocation of, by /eme sole, 7. revocation of, under New York revised statutes, 6, 8. revocation of, in the various States, 6, 7, 8, in respect to a conflict of laws, 8. containing gift to witness, 400. State laws, respecting, 400. WITHOUT ANTICIPATION. This clause in the case of a male is void, 287. in the case of a female is valid, 286-7. WITNESS, effect of gift to, on will, 400v devise to, 15. or to husband, wife, or child of, 16. its relations- to validity of willj 15. competency of, how affected by ademption, 15. WORDS, general effect of, 63. are to be understood in their primary sense, as a rule, 28. when only is a secondary sense allawable. Part I„ 103, 106. primary meaning of, is=always controlled by context, 59. are taken strongly against the grantor in a will as in a deed, 26. alteration of, 38 et seq. supplied by construction, 40 et seq., 171. but sparingly, 41. ,♦ transposition of, 26, 34, 35, 3T et seq. when not allowed, 35. Sfee Uncebtaintt, Void Girr, Transposition, Parol EviDKNCS. • what is neceisary for transposition of, 37. expunging, 36, 37, 39 et seq. if technical, are construed technically, 36. mistakes in use of 37. of uncertain signification, 45 et seq^ Y, YOUNGER CHILD, what is a, 25, 3JL3. becoming elder, 313. rights of, 34K KF 755 036 Author Vol. 0* Kara, John P Title Copy A Treatise on the interpreta- tlcn of wlllB Khuwiiig Ihe po.nts of resemblance and Date , , Borrower's Name