THIS case was brought up by writ of error from the circuit court of the United States for the district of Massachusetts.
The part of the will which gave rise to the question is stated in the opinion of the court.
It was admitted by the parties that said testator died in the year 1775; that his will was duly proved August 5, 1776; that his two sons, John Kittredge and Jacob Kittredge, survived him; that said John Kittredge died in the year 1826, never having been married; that said Jacob Kittredge died in the lifetime of his brother John, on July 15, 1807, leaving the following children, namely: John Kittredge, his oldest child, who died, without ever having had issue, on the 10th of January, 1823; Jacob Kittredge, his next oldest child, who died December 18, 1831, having had issue one child, who is the demandant, Hannah Kittredge Abbott; Thomas W. Kittredge, his next child, who is now alive; Hannah Kittredge, his next child, who died intestate on the 28th of October, 1815, never having had issue; George W. Kittredge, his next child, who died July 4, 1836, intestate, having had issue one child, Jacob Kittredge, who is now alive; and William H. Kittredge, his last child, who died intestate on the 1st of October, 1849, never having had issue. The marriage of the demandants was also admitted, and that the surviving son of Jacob Kittredge, the devisee named in said will, and also his surviving grandchild, had, before the commencement of the suit, released and conveyed to demandants all their interest and title in the demanded premises.
The demandants thereupon submitted, and requested the judge to instruct the jury, that, by the said will of John Kittredge, his two sons John and Jacob, therein named, took and became seised as to the real estate therein devised to them in equal moieties of an estate tail general, with cross remainder in fee-simple, it being material and necessary, to enable the demandants to maintain the issue on their part, to prove that estates tail as aforesaid were so devised by the said will. But the judge refused so to instruct the jury, but did instruct them that, under said will, the testator's said sons, John Kittredge and Jacob Kittredge, took and became seised of an estate in fee simple, and that the share of the one of the said sons who should first die without issue in the lifetime of the other of said sons, would in that event go over to said other son by way of executory devise.
A writ of error brought up this ruling for review.
The case was argued by Mr. Abbott and Mr. Fessenden, for the plaintiffs in error, and Mr. Merwin and Mr. Loring, for the defendants.
The points made by the counsel for the plaintiffs in error were the following, namely:––
The plaintiffs in error claim that the estate which the two sons, John and Jacob, took under this will were estates in fee tail general, with cross remainders in fee-simple.
The rule by which this court is to be governed, in the interpretation of this will, is the rule of law which has been established by the highest judicial tribunal of the State or district in which the land lies, or the suit originated. Hinde v. Vattier, 5 Pet. U. S. Rep. 397; Jackson v. Chew, 12 Wheat. 153; Bank of the United States v. Daniels, 12 Pet. 33; Webster v. Cooper, 14 How. 488.
1. The testator, by the first clause in the will, gave to John and Jacob an estate for life only; and, although he directed the executor, John, to see that the debts and legacies were paid out of that part of the estate given to John and Jacob, this was a charge upon the estate or fund given to John and Jacob, and not upon the sole executor personally; and therefore the charge does not enlarge the estate for life to an estate in fee-simple. 2 Jarman on Wills, 126, and note; Denn v. Slater, 5 D. & E. 335; Doe v. Owens, 1 Barn. & Adolph. 318; Denn v. Mellor, 5 D. & E. 558; Clark v. Clark, 1 Crompt. & Mees. 39; Lithgow v. Kavanagh, 9 Mass. 161; Cook v. Holmes, 11 Mass. 528; Wait v. Belding, 24 Pick. 129; Parker v. Parker, 5 Met. 134; Gardner v. Gardner, 3 Mason, 209; Legh v. Warrington, 1 Br. Parl. C. 511; Williams v. Chitty, 3 Ves. jr. 552; Miles v. Leigh, 1 Atk. 573.
2. Having given each of his two sons an estate for life, the next item in the will (namely, the proviso 'that if either of said sons, John or Jacob, should happen to die without any lawful heirs of their own,') enlarges the estate for life to an estate tail in each of the two sons; and, by the use of such language, the testator intended an indefinite failure of issue. Purefoy v. Rogers, 2 Saunders, 380; Sonday's Case, 9 Coke, 127; King v. Rumball, Cro. Jac. 448; Chaddock v. Crowley, Cro. Jac. 695; Holmes v. Meynel, T. Ray. 452; Forth v. Chapman, 1 P. Will. 663; Brice v. Smith, Willes's Rep. 1; Hope v. Taylor, 1 Burr, 268; Doe v. Fonnereau, Doug. 504; Denn v. Slater, 5 Term Rep. 335; Doe v. Rivers, 7 Ibid. 276; Doe v. Ellis, 9 East, 382; Goodridge v. Goodridge, 7 Mod. 453; Tenney v. Agar, 12 East, 253; Kirkpatrick v. Kirkpatrick, 13 Ves. jr. 476; Barlow v. Slater, 17 Ves. 479; Romily v. James, 6 Taunt. 263; Atkinson v. Hutchinson, 3 P. Will. 258; Sheffield v. Orrery, 3 Atk. 282; Lampley v. Blower, Ibid. 396; Shepperd v. Lessingham, Amb. 122; Gordon v. Adolphus, 3 Bro. P. C. 306; Geering v. Shenton, Cowper, 410; Peake v. Pegden, 2 T. R. 720; Cadogan v. Ewart, 7 Ad. & E. 636; Walter v. Drew, Com. Rep. 292; Dansey v. Griffiths, 4 M. & S. 61; Wallers v. Andrews, 2 Bing. 196; Crooke v. De Vandes, 9 Ves. 197; Elton v. Eason, 19 Ves. 77; Todd v. Duesbury, 8 M. & W. 514; Sampson v. Sampson, 4 N. C. 333; 2 Fearne, Ex. Dev. 5 Ed. 200; Bamford v. Lord, 14 Com. Bench, 707; Newton v. Griffiths, 1 Har. & Gill. 111; Bells v. Gillespie, 5 Rand, 273; Broaddus v. Turner, Ibid. 308; Sydnor v. Sydnor, 2 Munf. 263; Cruger v. Hayward, 2 Dessaus, 94; Erwin v. Dunwood, 17 Serg. & Rawle, 61; Caskey v. Brewer, Ibid. 441; Heffner v. Knepper, 6 Watts, 18; Patterson v. Ellis, 11 Wend. 259; Hunter v. Haynes, 1 Wash. 71; Lillebridge v. Adie, 1 Mason, 235; Dallam v. Dallam, 7 Harr. & John. 220; Eichelberger v. Barnitz, 9 Watts, 447; Waples v. Harmon, 1 Harring. 223; Jiggetts v. Davis, 1 Leigh. 368; Ide v. Ide, 5 Mass. 500; Hawley v. Northampton, 8 Mass. 3; Nightingale v. Burrill, 15 Pick. 104; Adams v. Cruft, 14 Pick. 25; Parker v. Parker, 5 Met. 134; Wight v. Thayer, 1 Gray, 286.
3. Where, by one clause in a will, an estate for life, or an estate in fee-simple, is given by plain words, if it appear in other parts of the will, by explanatory words or by implication, that it was the intent of the testator in such devise that the issue should take the estate in succession after him, then the life estate is enlarged in the one case, and the estate in fee reduced in the other, to an estate tail. Nightingale v. Burrill, 15 Pick. 104; Parker v. Parker, 5 Met. 134.
4. The words 'lawful heirs of their own,' mean 'heirs of the body lawfully begotten;' and in this will they are technical, and used as words of limitation, restraining the devise to a certain class of heirs, namely, the heirs of the body of either John or Jacob. See authorities under second proposition.
5. That the meaning and intention of the testator, by the use of the words 'first decease,' was, the one that should so first decease; namely, should first decease without heirs of the body lawfully begotten.
6. The testator, by the use of the words 'other survivor,' meant and intended 'other' simply, and thereby showed his especial reference to the children or heirs of the body of either of the devisees; meaning and intending, if either left heirs of the body at any time, they were to take their father's estate according to the will of the testator. 2 Jarman on Wills, 609, 735; Doe v. Wainewright, 5 Durn. & E. 427; Anderson v. Jackson, 16 Johns. 415; Cole v. Sewall, 2 Conn. & Law. 344; Aiton v. Brooks, 7 Sim. 204; Harmon v. Dickinson, 1 Brown C. C. 82.
7. In a devise of real and personal property, the law makes a distinction as to the two estates, in the construction of devisees; and, when technical language is used, the devisee takes an absolute estate in the personal, and a limited estate, or an estate tail, in the real property. Forth v. Chapman, 1 P. Will. 663; Bamford v. Lord, 14 Com. Bench, 707, in which all the English cases are collated; Hawley v. Northampton, 8 Mass. 3; Nightingale v. Burrill, 15 Pick. 104; Adams v. Cruft, 14 Pick. 25; Parker v. Parker, 5 Met. 134.
8. The use of the word 'estate' in the first clause, or in other parts of the will, is not for any technical or specific purpose, but simply directory and descriptive. It was used to designate the fund only out of which the debts and legacies were to be paid. Gardner v. Gardner, 3 Mason, 209, and other authorities cited under first proposition.
9. If the testator had not referred to John and Jacob any further than to have given them all his land, &c., to be equally divided between them, and directed John to see that the debts and legacies were paid, they might each have taken a fee-simple by implication; but, having controlled this intent by the proviso in the will, that if either should happen to die without heirs of the body, this creates an estate tail in each son, with cross remainders in fee-simple absolute. Parker v. Parker, 5 Met. 134; Bells v. Gillespie, 5 Rand. 273; Caskey v. Brewer, 17 Serg. & Rawle, 441.
10. If the testator's sons, John and Jacob, took and became seised of an estate in fee-simple, the share of him who should first die without issue would, in that event, go to the other, if living, by way of executory devise; and if the other son was not living, it would go to his heirs.
Points of Defendants in Error.
The defendants submit, as the proper construction of this will, that it gave to the two sons a fee-simple conditional, with executory devises over, and not an estate tail general, with cross remainders in fee.
That each son took a fee-simple, upon this single contingency: that if the son who died first left no issue, then that his share was to pass to the surviving brother, by way of executory devise.
I. By the first clause, independent of that which devised the estate over, a fee-simple absolute was given to the two sons.
1. Although the devising clause contains no words of inheritance, yet it charges personally one of the devisees with the payment of debts and legacies, by reason of the estate devised, and therefore carries a fee by implication. Lithgow v. Kavenagh, 9 Mass. 165, 166; Wait v. Belding, 24 Pick. 139.
And as the intent of the testator is clear, that both sons should take the same estate, if John, the executor, took a fee, then Jacob did also. Roe v. Dow, 3 M. & S. 518. sy(a.) The direction to pay the debts and legacies out of the estate devised, creates a charge upon the devisee personally, as well as upon the estate. Doe v. Richardson, 3 Term R. 356; Doe v. Snelling, 5 Ibid. 87; Spraker v. Van Alystyne, 18 Wend. 205; Gardner v. Gardner, 3 Mason, 178; 2 Jarman on Wills, 172.
(b.) Moreover, the charge is here imposed 'in consideration of what is given the said sons,' clearly importing that a personal liability was intended.
(c.) The rule is the same, although the devisee charged is named as executor. Goodtitle v. Maddern, 4 East, 496; Doe v. Holmes, 8 Term R. 1; Doe v. Phillips, 3 B. & Adolph. 753; Dolton v. Hewer, 6 Madd. Ch. R. 9; 2 Jarman on Wills, 172.
2. One of the legacies given is the maintenance of Sarah Dwinnel, a granddaughter, 'out of that part of my estate I give to my sons, John and Jacob Kittredge, until she arrives to the age of eighteen years.' (Record, p. 6.)
If life estates only were given to the two sons, then the manifest intention of the testator might be defeated, by their dying before she reached that age.
3. The testator directs the legacies to be paid 'out of that part of my estate I have given to my two sons.'
It is well settled, that a devise of one's 'estate' includes all the testator's interest in the subject devised; and this is true, although it is accompanied with words descriptive only of the corpus of the property. Godfrey v. Humphrey, 18 Pick. 537; Paris v. Miller, 5 M. & S. 408; Gardner v. Harding, 3 J. B. Moore, 565; 2 Jarman on Wills, 181, 182.
If then, this expression, 'this part of my estate,' &c., had been used in the clause making the gift, it would clearly have carried a fee.
But the testator's intention to give a fee is as fairly inferable from his subsequently describing what he has given, as 'that part of my estate,' &c., as if he ...