Lessee of Smith v. Folwell 1 Binn. 546

Lessee of Smith against Folwell.

Saturday, April 1st.

A. devises all his real estate to his son B., and his heirs lawfully begotten; and in case of his death without suc.h issue, he orders C. his executors and administrators to sell the real estate within two years after (he son’s death-; and hebcqueaths the proceeds thereof to his brothers and sisters by name, and their heirs forever, or such of them as shall be living at tlie death of the son, to be divided between them in equal proportions, share and share alike. All tile brothers and sisters die, leaving issue. Then C. dies, and afterwards B , the son, without issue. Heirs is a word of limitation; and none of the brothers and sisters being alive at the death of B., the object of the power to sell, has failed; their issue are not entitled; and a sale by the executors of C. conveys no title.

A power to C. and his executors to sell, may be executed by the executors of C.’s exe - cutor, if the object of sale continues. .

TH* JECTMENT for a messuage and lot in the city of Philadelphia, in which the following case was stated, to be considered as a special verdict.

“ John Bleakley the elder, being seised in fee of the premises in the declaration mentioned, on the 8th day of August 1768, duly made and executed his last will in writing of that date, and thereby devised as follows: “ As for and concerning my “ worldy estate, I give, devise, and bequeath, the same in “ manner following, &c. I give and bequeath to my brother “ David Bleakley, living in the north of Ireland,, the sum of 10/. “ sterling. Also, I give and bequeath to my brother William “ Bleakley, living near Dungannon, the sum of 10/. sterling. “ Also I give and bequeath to my sister Margaret Harkness, “ of Dungannon, the sum of 100/. sterling. Also I give and “ bequeath to my sister Sarah Boyle, wife of the rev. Mr. Boyle, “ the sum of 10/. sterling. Also, I give to my cousin Archibald “ Young, of Philadelphia, an annuity of 30/. Pennsylvania mo- “ ney, to be paid him out of the rents and profits of my real *547“ estate, on the 25th day of March in every year, during the “joint lives of him the said Archibald Young, and my son “ John Bleakley or his heirs lawfully begotten; but in case of “ the decease of my said son without issue lawfully begotten as “ aforesaid, in the lifetime of the said Archibald Young, then the “ said annuity is to cease, and in lieu thereof I give and bequeath “ unto the said Archibald Young and his assigns the sum of “ 400/. sterling, payable out of the proceeds of my real estate, “ xvhen the same is sold and disposed of according to the inten- “ tion of this my will hereinafter mentioned, and before any “ dividend is made of the proceeds of my said estate; and this “ legacy or bequest is made to my said cousin A. Y. not only “ for the natural affection I have and bear to him as a relation, “ but also as a fidl compensation for the services he has already “ rendered me, and in lieu of his commission for the trouble “ he may hereafter have in the execution of this my will. All “ the rest and residue of my estate real and personal, &c. I “ give, devise, and bequeath to my son John Bleakley and his “ heirs lawfully begotten; and in case of the decease of my said “ son without such issue, then I do direct and order my said “ cousin Archibald Young, his executors or administrators, to “ sell and dispose of my real estate within tzvo years after “ the decease of my said son John Bleakley, to the best advan- “ tage; and I do hereby give and bequeath the proceeds thereof “ to my said brothers David Bleakley and William Bleakley, “ and my said sisters Margaret Harkness and Sarah Boyle, “ and their heirs forever, or such of them as shall be living at “ the decease of my said son, to be divided between them in equal “proportions, share and share alike, after deducting out of “ such proceeds the sum of 400/. sterling, herein before given “ and bequeathed to the said A. Y. immediately on the decease “ of my said son without issue, in lieu of the annuity above “ mentioned; and in case my said son should die before he at- “ tains the age of 21 years without issue lawfully begotten as “ aforesaid, then my will and mind is, that the remainder of “ my personal estate hereby intended for my said son at his “ own disposal, if he should live to attain the age of 21 years, “ shall go and be divided amongst my said brothers and sisters “ zvith the proceeds of my real estate, as is herein before direct- “ ed to be divided,.” The testator then appointed Archibald Young his executor, and in the same year died seised.”

*548“ John Bleakley the younger, the devisee named in the said will, afterwards, to wit, in the same year, entered into possession of the premises therein mentioned, of which the premises named in the declaration are part, and held and enjoyed the same until the 3d day of September, 1802, when he died of full age and without issue, after having duly made his last will in writing, bearing date the 19th of April, 1802, and thereby appointed Joseph Parker Norris his executor.” (By this will the testator directed his real and personal estate to be sold, and the proceeds, after paying legacies, to be divided among certain of his relations share and share alike.)

“ On the 25th day 'of May, 1803, the said Joseph Parker Norris, executor as aforesaid, in consideration of 7000 dolls, lawful money of the United States, to him paid by William Folxuell, the defendant in this action, bargained and sold the said premises to the said William Folwell and his heirs.”

“ The following legatees, named in the will of the said John Bleakley the elder, and who were next of kin to him, as well as to John Bleakley the younger, died at the following periods, that is to say, Sarah Boyle between the years 1760 and 1770, leaving issue who are still alive; William Bleakley in the year 1775, leaving issue who are still alive; David Bleakley in the year 1790, leaving issue who are still alive; and Margaret Hark?iess in the year 1794, leaving issue who are still alive.”

“ The said Archibald Young', executor of the will of the said John Bleakley the elder, on the 3d of May 1782, duly made and executed his last will in writing; and thereof appointed Robert Correy his executor, and died on the 27th of May in the same year, without having disposed of the premises in the declaration mentioned.”

“ On the 24th of April, 1797, the said Robert Correy duly made and executed his last will in writing, and thereof appointed Eleanor Correy and James Boyde executors, and after-wards died, to wit, on the 1st day of June 1802, without having disposed of the premises in the declaration mentioned.”

“'On the 1st day of February, 1805, the said Eleanor Correy and James Boyde, executors as aforesaid, for a valuable consideration in lawful money to them paid by James Smith, the lessor of the plaintiff, bargained and sold to him and his heirs the premises in the declaration mentioned. The said James Smith, at the time of the said purchase, had notice of *549the deaths of the said D. Bleakley, W. Bleakley, S. Boyle, and M. Darkness; and that they died before the decease of the said John Bleakley the younger. He also had notice, at the time of his said purchase, of the said deed by Joseph P. Norris to W. FolwellP

“ If on these facts the law be with the plaintiff, then judgment to be entered for him, with 6 cents damages, and-6 cents costs; but if the law be with the defendant, judgment to be entered for him.”

The case was argued at last December term before the whole court.

Dallas for the plaintiff.

The personal representatives of the brothers and sisters of Bleakley the father, are entitled to the proceeds of the real estate; and not the devisees of Bleakley the son. By the father’s will, the son has a clear estate tail in the realty; the reversion in fee descends to him, subject to a power in Toung and his executors to sell, upon his dying without issue living at the time of his death; and by this sale, the fee is transferred to the vendee. Lancaster v. Thornton (a) and Warneford v. Thompson (b) . There are but two questions. 1. Whether the facts establish the existence of a power to sell. 2. Whether there is any object for the exercise of the power.

1. The existence of the power depends upon two circumstances; the son’s dying without issue living at the time of his death, and the continuance of the authority up to the time of sale. That the life of Archibald Toung is not essential to the raising of the power, is evident for various reasons: he is a mere instrument; his death is provided for by the substitution of his representatives; the clause which commutes the annuity for 400/., makes it depend upon his being alive at the death of the son without issue, but the clause which directs the sale, makes it depend solely upon the death of the son without issue; the brothers and sisters are the second object of the testator’s bounty, and to make a power for their benefit hang upon the life of an indifferent person, is absurd. Then as to the continuance of the authority: The direction is to Young, his executors and administrators; and the executors of the executor may perform it. Shep. Touch. 464. 8 Viner, 465. pl. 3. 467. pl. 16. 2 Brownl. 194. Keihvay 44. Co. Litt. 113. a. note 146. Tenant *550v. Brown (a) . There can be no objection from the remoteness ^le power. The sale must be made within two years after the son’s decease; and the division is to be between such as are living at the decease; therefore the power is to arise upon t^ie death of the son without issue living at the time of his death.

2. With respect to the objects of the power, the material inquiry is the testator’s intention. The land which is ordered to be sold is to be considered as money, 1 Fonbl. 414; and it is to be divided between the brothers and sisters, or such of them as were living at the son’s death, and their heirs. Heirs is not of necessity a word of limitation. Bamfield v. Popham (b). It is often used as a designation of the person. Burchell v. Durdant (c). The intent of the testator being the principal rule for the exposition of the will, he is excused from using the strict and proper terms of law; it is enough, if he has sufficiently declared his intent. Heirs is not necessaril}- a word of limitation here, because the property being money, an absolute estate passes without it: a principle of which the testator was aware, when in a certain event he devised his personalty to his brothers and sisters, without more. It must be used therefore to bring in the issue, who are generally called heirs, and not to qualify the estate. The testator could never have intended to make the sale and distribution of his estate depend upon his old brothers and sisters surviving his young son; the event was too improbable. But it is reasonable to attribute to him an affection for the stock, which, upon the failure of his own, he wished to advance; and an intention, that the heirs of such as should be dead, that, is their issue, should take per stirpes. Construing the term as a limitation, his object as to the heirs is defeated; treating it as a word of purchase, and a designation of the legal representatives, the whole will is supported; and this result is a sufficient justification for laying aside the technical meaning. Darbison v. Beaumont (d) . The death of the brothers and sisters before the son, is therefore immaterial, as their issue were living at the son’s death, to come in under the description of heirs. But granting that they must take in the quality of heirs, we contend that they can take. The brothers and sisters were either to take by way of executory devise, or they had a contingency coupled with an *551interest, which was both devisable and descendible. As an ex-ecutory devise, Porter v. Bradley (a) is in point, that although they died before the contingency, their children take; so is Gurnell v. Wood (b) . As a "contingency coupled with an interest, the right of their representatives is clearly supported by King v. Withers (c). There a devise was of 2500/. to a daughter, at 21 or marriage; and if a son should die without issue male living at his death, she was to have 3500/. more at 21 or marriage; and if the son’s death did not happen before 21 or marriage, she was to have the money whenever it did happen. She died before the son, who afterwards died without issue male; and her administrator took. The principle, that these possibilities coupled with an interest, descend, and may be devised, has been settled law since Selwyn v. Selwyn (d) . So are Goring v. Bickerstoffe, (e) Knight v. Knight, (f) Roe v. Jones, (g) and Perry v. Phillips (h) . All that is necessary is that there should be somebody ready to take when the contingency occurs.

Rarole, for defendant,

made three points. 1. That the will contained a clear devise of all the realty to the son in tail. 2. That a power was limited to arise on a contingency, depending upon the events, first, of John Bleakley the son’s dying without issue living at the time of his death; and secondly, of the brothers and sisters, or some of them, surviving the son so dying; which last event not happening, the power never arose. 3. That the fee which descended to the son, was unaffected by the power, and passed by his will to his executor, who sold to the defendant. The first point, he said, was incontrovertible; and the third was settled by the second; of course he confined himself to the second point, upon which he argued as follows. The son must die without issue living at the time of his death, before the estate goes over; and when it does go, it goes to the brothers and sisters and their heirs, or such of them as are living at the son’s death. The first question is as to the meaning of the word heirs. The general rule, that it is a word of limitation, is not to be questioned. There is even an anxiety in courts that the heirs shall take by descent, and not by purchase, as appears from *552 Shelly’s case (a) , Coulson v. Coulson (b) , and Hodgson v. Ambrose (c). In Brett v. Bigden (d) rather than construe heirs to be words of purchase, the devise was suffered to lapse. If a testator uses technical words only, courts are bound to understand them in a legal sense; if he connects them with words which shew a different meaning, his intention prevails. But there are no such words here. What, however, are the consequences of considering the term as a description of the person, and allowing the heirs to take by purchase? Manifestly,that they cannot take per stirpes, which is argued to have been the testator’s design. Purchasers must take per capita; and then if one brother be dead leaving nine children, they will take three fourths of the whole estate, and the surviving brothers and sisters one twelfth each. Was this the intent of the testator? Clearly not; the division is to be share and share alike. There is no alternative then but to consider heirs, not as a description of the person, but as a word of limitation. And this is confirmed by the contingent devise of the personal property, which is to be divided among the brothers and sisters,-with'the proceeds of the real estate, as before directed; and to which the issue could not make a pretension upon the death of the ancestor before the contingency. It is confirmed also by this, that if it is a word of purchase, it does not qualify the estate of the brothers and sis-ters; and then the testator must have intended them merely a life estate, which is impossible. Being a word of limitation, if the ancestor took nothing, nothing comes to the heir, Moorhouse v. Wainhouse; (e) and the only remaining question is, whether the ancestor did take any thing. In this case every thing is contingent: the person to take, the time, and the quantity. A division is ordered among such as shall be living at the death of the son; that is, such of the brothers and sisters. Every thing depends upon that contingency; it is therefore a bare possibility that any one of them shall take. There is no interest coupled with it, to devise or transmit; for every thing depends upon the party’s being himself in esse. This distinguishes it from all the cases read. In Porter v. Bradley, there was no contingency that the persons who were to take should be alive at the death of the first devisee without issue. There was a general limitation over to the daughters and their issue, upon the *553death of the son without issue living at his death; and no collateral event was required to exist at the same time. So was Gurnell v. Wood, King v. Withers, and the rest.

If the proceeds are personalty, the legacy is lapsed; for in a devise of personal property, heirs, and heirs of the body, are rejected; the legatee takes absolutely, and his executor, not his heir. Leonard Lovie's case (a), Robinson v. Fitzherbert (b), Webb v. Webb (c) . If the devise had been to the brothers and sisters and their executors, or such of them as should be living, &c. where would have been the doubt?

There being no person entitled to receive the proceeds, no sale can be made against the interest of the heir at law, for whom equity will restrain the trustee, Bradley v. Powell (d) Yates v. Phettiplace (e) , Tournay v. Tournay (f) , Roper v. Radclijfe (g) , Croft v. Lee (h). The object ceasing, the power ceases; and the purchaser from the trustee with notice, like the lessor of the plaintiff, becomes himself trustee for the cestui que trust, or in this case, for the devisees and vendees under the son’s will. Saunders v. Dehew (i), Mansell v. Mansell (k) .

Tilghman on the same side.

The heir is the favourite of the law of England, and not to be disinherited but by express words, or necessary implication. He should be still a greater favourite here, where all the children make but one heir, and in this case, where the son was totus hceres. It is agreed he took an estate tail by devise, and the fee by descent; he must therefore have a right to dispose of the fee by will, unless prevented by the plain and legal intent of the father. It is said he is prevented by a sale under a power in the father’s will; and the only questions are, 1. Whether such a power ever existed. 2. Whether there ever existed any objects for the exercise of it.

1. If the power is to arise after an indefinite failure of the son’s issue, it is too remote. If no time is fixed, it is bad, for uncertainty. If any time is fixed, I submit, that it is the death of Bleakley the son without issue, living Archibald Toung. Toung was to have the annuity of 30/. as long as he and the *554son, or he and the son’s issue lived; but if the son died without ^ssue h* the lifetime of Young, he was to have 400/. out of the proceeds of the real estate, and before any dividend was made. This shews that the real estate was to be sold only in a case in Young was to have 400/. Further; by the first part of the will, the gross sum is to be paid upon the son’s dying without issue in the life of Young; and by the latter part, the sale is directed upon the death of the son without such issue, that is, in the life of Young. I agree that his executors and administrators were to sell, provided the power arose by his surviving the son, and dying before the two years; and hence their introduction. The testator might have supposed that the son would come of age in Young’s life, and that if he outlived Young, he would do what was right himself; therefore the life of Young, however immaterial per se, was not so in connexion with the son’s life, but was likely to be a proper circumstance by which to limit the raising of the power. The disposition of the personalty shews that the testator considered Young as surviving. The son was to have it on attaining 21; but it was to be divided with the real estate, if the son died before 21 without issue lawfully begotten as aforesaid, that is, living Young. No one can have the proceeds until Young’s 400/. are paid; it is a compensation for his trouble in selling and remitting; there can be no sale without it. Was it the testator’s intention to prevent the son from alienating during his whole life after Young’s death? It cannot be. But it might be proper to restrain him during the probable period of Young’s life; and therefore that life is essential to the power.

2. If the power arose, was there any object in whose favour it could be legally or equitably executed? It is agreed that the' whole was contingent. Whoever was to take was to be alive at the son’s death. We say brothers and sisters; they say, and the children of such as were dead. As to their being purchasers and taking per stirpes, Mr. Rawle’s argument is conclusive; and yet it is clear they cannot take in any other way; therefore they cannot take at all. Such of them cannot mean of the heirs, but of the brothers and sisters; otherwise, there is a double contingency, which is bad. The event is clearly doubtful. If heirs are meant, the persons are doubtful also; and then there is one contingency upon another. 1 Fearne 378. Heirs *555cannot take by purchase unless there is descriptio persona; this rule is unquestionable. Now suppose the brothers and had died in the life of the testator; it cannot be argued that their children would take; but there is no reason against it, •except that they would derive nothing from their ancestors; and this is conclusive to shew there is no descriptio persona.

As to the power of the executor to sell, the general principle is plain. But at law, the executor derives merely from his testator. Young never had authority to sell, as he died before the son; and therefore his executor derived at law no power from him. Then, though equity might order an execution of the power by Young’s executor, or even by the heir, it will never do it, where nobody is entitled to the proceeds, and there is a bona fide purchaser from the heir. The sale under Young’s will is therefore bad both in law and equity.

Lewis in reply.

If Bleakley the son did not die in the life of Youngs there was no reason for Young’s having the 400i.; and therefore when his compensation is spoken of, the testator gives it only in case of his son’s death without issue “ in the “ lifetime of the said Archibald Young;” but when the devise is made to the brothers and sisters, Young’s life is not required, but the duty is to be performed by him or his representatives. Neither is any thing said of his survivorship in the devise of the personalty. His life therefore is not essential to the power. If it is, two consequences follow, which are quite improbable: first, that the testator intended to benefit his brothers only in the event of a stranger’s death; and secondly, that if Young died before the son, and the son died afterwards under age and without issue, nothing was intended to pass under the will, but the heir at law was to take the whole. I contend that the death of the son without issue, is all that is necessary to raise the power; and that the land is to be sold absolutely upon that event, without regard to any other. Whoever may own the proceeds, the lessor of the plaintiff owns the land. The sale is to be made within two years after the son’s death without issue. Of course the failure of issue is referible to that time. Under what circumstances is it to be made? As to Young, his life was immaterial; he was a mere instrument. It is said his executors are substituted, because he might survive the son, and die before *556the sale. But in such an event the substitution would be use^ess> equity would make it for the testator, the power having arisen. The only design of the substitution was to provide for the power in the event that has happened: a dying before the son* As to the brothers and sisters, the direction to sell is distinct from the division between them and their heirs: the one is peremptory, the other is conditional. It does not follow because the property is sold, that the proceeds must go to them. The testator did a discreet thing in merely changing the property, and permitting the law to distribute. Had he stopt at the order to sell, there could have been no doubt; and in effect he has stopt there; for he does not couple the order with the distribution, by saying that for the purpose of dividing he directs the sale, or to the intent, or in order to, divide; but there are two distinct and independent orders, one to sell, and the other to divide. But supposing objects of sale to be necessary, we say they exist. One question on this part of the case is, whether the children take by descent or purchase. I agree the general rule; but heirs certainly may be a word of purchase, if it is so intended. The brothers and sisters were advanced in life when old Bleakley made his will; the son was young; and therefore there was a probability of their death before his; in which event it was his desire that their children should take, and hence the word heirs. The effect of the term is to be limited according to his intent; he did not know the legal meaning of descent or purchase; his design was that the children should stand in loco parentis throughout. I see the difficulty of their taking by purchase, where one brother is dead leaving children; but it is obviated by assigning to him the intention, not that they should take technically either by descent or purchase, but that they should stand exactly as their parent would have stood. But if this will not hold, then the authorities of Mr. Dallas do shew that a contingent executory interest commenced in the brothel's and sisters, which was transmitted to the children, and became consummate in them iipon the son’s death without issue. It is exactly the case of Pinbury v. Elkin: (a) where one made his wife executrix, and gave her all his goods and chattels, provided she died without issue *557by the testator, in which event after her decease, 80/. was to remain to A.; A. died before the testator’s wife, and his representatives took. So a devise to A. and his heirs, and if he dies before 21, to B. and his heirs. A. dies before 21, and B. dies before him; B.’s heirs take. 8 Finer 112.pl. 38. 377.pl. 11. 2 Fentr. 347.

Cur. adv. vult.