Daly's Leasee v. James/Opinion of the Court
As a limitation, the life of his brothers and sisters, who were in esse, would answer equally well as the life of A. Young. But, it must be admitted, that there is no express limitation of that kind in the will. And it would follow, that if there be not a limitation to the life of A. Y., there is none at all.
Under this head, however, I shall contend, (1) That the distribution was to be made among such of the brothers and sisters as should be living at the time when the contingency happened. (2) As none were then living, and A. Young was dead, there was no object for the exercise of the power, and, therefore, the power was never brought into existence.
Such was the opinion of a majority of the Judges of the State Court; and it is the natural and obvious reading of the will. The proceeds are given to the brothers and sisters by name, to be divided between them in equal proportions, share and share alike; which imports, that he had some definite idea, whom it was to be divided amongst. But, if there were any doubt, the bequest of the personal estate, which refers to the former, makes it quite plain. The legal construction is the same; for it cannot be denied, that heirs is, generally, a word of limitation, and only descriptive of the quantity of estate meant to be given. Strike out the words 'and their heirs for ever,' and all doubt is dissipated. Strike out the words of contingency; 'or such of them as shall be living at the decease of my said son;' and would not the whole vest in the ancestor, and the heir take by descent? In either case, suppose one to die in the lifetime of the testator, would not the legacy lapse? But the words 'for ever,' unequivocally stamps the character of limitation. The supposition that heirs is to be a word of purchase, in one event only, goes on the ground, that the same word is to be construed, according to circumstances, in senses entirely different. That is to say, that in the mind of the testator, and at the time of making the will, it was understood to be a word both of limitation and of purchase. It would follow, then, that if one of the brothers and sisters died in the lifetime of the testator, the heir would take by purchase. There could, therefore, be no such thing as a lapsed legacy or devise, if the word heirs be used; and some new mode must be invented of describing the quantity of the estate.
This construction is liable to another objection, that it strikes out an entire clause. It is manifest enough, that the testator thought it was real estate, and, therefore, used the word heirs. He might well think so, as it was to be real estate up to a certain point. How this estate was to be regarded, might not have been generally understood at the time when this will was made. It was, probably, Lord Hardwicke who first decided, that land to be converted into money, or money to be laid out in land, were to be considered 'by the transmutation of a Court of equity.'  Besides, the legatee might, in such case, perhaps, have an election.  At law, it is still real estate; that is, supposing A. Young to be either dead, or his legacy paid. And it deserves to be remarked, that the testator drops these words, when he speaks of what he himself deems personal estate.
Our construction is the only reasonable and practicable one. Heirs, standing alone, is never a word of purchase; and when it is a word of purchase, it always means, that the heir is to take in exclusion of the ancestor.  Thus, where an estate is given to the ancestor for life, the heir may take by purchase, so that the estates will not unite. Where the ancestor takes no estate at all, an heir may take by purchase, as the first taker; the word heir being then a descriptio personce, or individual designation.
But, supposing it to be otherwise, we must take one of two alternatives: (1) That if some of the brothers and sisters were living, and some dead, those who were living, and the heirs of those who were dead, should take. In that case, the heirs must take per capita as purchasers. (2) That if the brothers and sisters were all dead, the heirs of all would take. In this case, also, they must take per capita. That could not be the intention. But even as words of purchase, heirs, standing alone, and without qualification, is a designation only of the person or persons who, by law, are heirs. It can never mean children or issue.  Then, what heir is it to be? The heir by the law of Ireland, of England, or of Pennsylvania? If restricted to the issue of the brothers and sisters, (which is a still further construction,) and all are to take equally, then there might be every possible variety in the circumstances and character of these children, which must have been unknown to the testator, and are unknown to the Court. But there is a flat legal bar to such a construction; struction; and that is, that the limitation to the children would be upon a double contingency, which is bad.
But, it is said, that the contingent interest is descendible, and would go to the children. Doubtless it might; but that must depend upon the nature of the contingency.
If, then, A. Young being dead, and all the brothers and sisters being dead, there was no object remaining for the power, did the power itself ever come into existence? It never existed in A. Y., because he died before the contingency happened; and, it could not be derived from him to his executors or administrators. But supposing it might; then, at law, it expired at the end of two years from the death of J. Bleakley, jun., and before the deed to Smith.  To be sure, equity would not suffer it to perish, if there were objects for its exercise. But, even in equity, it expired with the expiration of its object.  Here all the objects were completely at an end.
It is, however, contended, that the use is subordinate to the power, and the sale is to be made at all events. But that makes the end subservient to the means. The purpose was contingent, and, therefore, the power was made contingent. No good purpose is to be answered by prolonging the existence of the power. It may, perhaps, only be meant, that the whole is to be considered as the personal estate of the testator, and go according to the statute of distributions. The consequence would then be, that he would die intestate. But there is no case which goes so far, and no reason for it. If it were personal estate at the death of Bleakley, jun., then it all goes to him by will; and he surviving A. Young, and the brothers and sisters of the testator, took the whole absolutely in possession. He would have the right of election, and he makes his election by his will.
Mr. D. B. Ogden, for the plaintiff, in reply, argued, that the adjudication in the State Court had no other authority here, than the opinion of the same learned men would have upon any other question of general law. It was not conclusive, as a res judicata, even in the State Court; and by what magic could the doctrines on which it was founded, be considered as conclusive in another forum? A judgment in ejectment is never conclusive at law; and how can a decision in another suit, on the same devise, or another devise, be considered as conclusive on a tribunal having concurrent jurisdiction? The question was not upon the local law, of which the State Courts are the exclusive expounders; it arose not upon the statute, or the common law of Pennsylvania, (if any such there be,) but upon that law which is expounded at Westminster and at Washington.
The intention of the testator is the great polar star in the interpretation of wills. If there be ambiguity in the particular words used by the testator, you may not only look at the general scope and design of the will, as manifested on its face; but you may go out of the will, and inquire into the state of the testator's family, in order to ascertain whether particular persons might probably be the objects of his bounty.  It would be strange, indeed, if wills were the only writings in which the necessary imperfection of human language might not be supplied by a view of all those extrinsic considerations which may be supposed to have influenced the writer's mind, and caused him to use words in one sense or another. It appears in the case, that the testator had just left his relations in Ireland, his native country, where his brothers and sisters, and their children, then were, the latter being of age, or nearly so, and that his will was made in London, on his way to this, his adopted country. Next to his son, his brothers and sisters and nephews and nieces, were probably nearest his heart.
It is admitted, that the son took an estate tail. The question has been supposed to be, what became of the reversion on the failure of issue? But whether it descended on the son, or was devised to the testator's brothers and sisters is immaterial; because, the question is, whether the fee, in whomsoever it may now be, is still subject to the power of sale created by the will. He might charge the reversion after the estate tail had expired. And he has not only empowered, but ordered and directed A. Young, his executors, &c. to sell. His object, doubtless, was, to convert the real property into money, in order that it might go to his relations in Ireland, who would, probably, never come to this country. If a testator says, 'I will my heir shall sell the land, and does not mention for what purpose, it is in the breast of the heir at law whether he will sell it or no, &c. But when a testator appoints an executor to sell, his office shows, that it is intended to be turned into personal assets, without leaving any resulting trust in the heir.' 
It is apparent, that the testator considered himself as disposing of personal property. The subsequent legacy of his personal estate shows, that he considered it as one common fund. It is a mistake to suppose, that Lord Hardwicke established, for the first time, in 1746, the rule of equity, that land devised to be sold and converted into money, shall be considered as personal property. Such had always been the doctrine of the Court of Chancery. The order to sell is absolute, not coupled with any condition whatsoever, nor depending on the lives of his brothers and sisters. If nothing had been said about the distribution of the proceeds, they would go of course to the personal representatives. The subsequent clause is merely intended to describe how the proceeds were to be divided, and not to indicate the quantity of interest in what had thus become personal property by its very destination before it had been actually sold. As to the word heirs, it must surrender its ordinary technical meaning in order to subserve the intention. And it is clear, that it may be a word of purchase wherever it is necessary for that purpose. Thus, it sometimes means children, and sometimes issue indefinitely.  If the words 'their heirs,' were stricken out of this clause, the property being personal, would be vested absolutely in the brothers and sisters. The words, therefore, must have been added for some other purpose than to create a limitation. All the legatees, except one, and probably that one, were alive at the death of the testator. There was, then, no lapsed legacy. There was a clear contingent remainder to the brothers and sisters, which was transmissible to their representatives. The words, 'their heirs for ever,' were intended as words of purchase, and to substitute the children or grandchildren for the original parents, in order to effect the great intention of the testator, which was, to keep the estate in his own family. He supposed he had prevented his son from aliening it by the entail, and that he had provided for the case of his son's dying without issue, by the direction to sell, and the disposition of the proceeds. All his intentions are to be frustrated by the construction contended for on the other side.
As to the supposed difficulties about the distribution of the proceeds among those who are entitled, that question is not now before the Court. It is sufficient that there is an object for the present exercise of the power. It is immaterial in what proportions those who are entitled are to take. When they shall file their bill on the equity side of the Court, it will be time enough to consider that question.
The case cited from the Year Book, 15 Hen. VII. has nothing to do with the present question. That was a feoffment, on condition that the feoffee, who was the party in interest, should aliene; and not the case of a trust. The time within which the power was to be executed is immaterial, it being merely incidental to the general object of the testator. Suppose the executor of A. Young, and all the others by whom the power was to have been executed, had neglected or refused; are the cestuis que trust to be disappointed? Would not a Court of equity compel the execution, or supply the defective execution? And if so, will it not confirm what has been already done? It may indeed be admitted, that the trust will not be enforced, or the execution of it confirmed, if the object for which it was created no longer exists. But here the first object was to convert the real property into money, and then to distribute it. But if the property is to be considered as real estate, it would vest in him who was heir at law of the original donor, at the time of the expiration of the particular estate. J. Bleakley, jun., had indeed a right to dispose of this reversionary interest, but he never exercised that right. There is nothing in his will showing an intention to devise it. 
Mr. Justice WASHINGTON delivered the opinion of the Court; and, after stating the case, proceeded as follows:
The material question to be decided is, whether the power given to A. Young, his executors and administrators, to sell the real estate of the testator, was legally exercised? If it was not, then the plaintiff in error, who claims under a sale made by the executor of Young, acquired no title under it, and the judgment below is right.
It was contended by the counsel for the defendant, that by the death of Young, as well as of the brothers and sisters of the testator, in the lifetime of John Bleakley, the son, the devises to them to arise out of the power to sell never took effect; and, consequently, there being no person in existence, at the death of the son, to receive the proceeds of the sale, or any part of them, the power was unduly exercised. The premises upon which the above argument is founded, as well as the conclusion drawn from them, being controverted by the counsel on the other side, our inquiries will be confined to those two points.
With respect to the devise of the 400 pounds to A. Young, a majority of the Court is of opinion, that by the words, as well as from the obvious intention of the testator, that sum was not to be raised except in the event of the death of John Bleakley, the son, without issue, in the lifetime of Young. During the joint lives of the son, or his issue, and Young, the latter was to receive an annuity of 30 pounds out of the rents and profits of the real estate. But if the son should die without issue in the lifetime of the said Young, the annuity was, in that event, to cease, and the 400 pounds was to be raised for his use, out of the proceeds of the real estate, when the same should be sold, according to the intention of the will, as thereafter mentioned. The contingency on which the devise of the 400 pounds was to take effect, is in no respect connected with that on which the devise of the proceeds to the brothers and sisters was to depend. The 400 pounds is expressly given in lieu of the annuity, in case Young should survive the son, without issue, in which event it was to cease.
The contingency upon which the devise of the proceeds of the real estate to the brothers and sisters was to take effect, was the death of the son without issue; and since it was possible that the particular estate of the son might endure beyond the life of Young, the power to sell, for the benefit of the brothers and sisters, is extended to his executors and administrators. It is true, that by the clause which gives the power to sell, taken independent of the devise to Young, it would seem as if the 400 pounds was, at all events, to be first deducted out of the proceeds of the sale, and paid to him, in the same event as the residue was to be paid to the brothers and sisters, that is, on the death of the son without issue. But the two clauses must of necessity be taken in connexion with each other, the one as containing the bequest to Young, and the contingency upon which it was to take effect; and the other, as pointing out the fund out of which it was to be satisfied. If the former never took effect, it is clear that the latter was relieved from the burthen imposed upon it.
A very good reason appears for making the devise of the 400 pounds to Young, to depend upon his surviving the son without issue, since it would be in that event only that he would want it; the annuity, which it was intended to replace, continuing until that event happened. But no reason is perceived why the devise over to the brothers and sisters of the testator, or the execution of the power for their benefit, should have been made to depend on the same event; a trustee to sell being provided in the executors of Young, in case he should die before the power could be executed.
Having shown, it is believed, that the devise of the 400 pounds to Young never took effect, in consequence of his death in the lifetime of John Bleakley, the son, it becomes important to inquire, whether the devise to the brothers and sisters of the testator failed, in consequence of their having all died in the lifetime of the son. The operative words of the will are, 'I give the proceeds thereof [of his real estate] to my said brothers and sisters, and their heirs, for ever, or such of them as shall be living at the decease of my son, to be divided between them in equal proportions, share and share alike.'
The Court has felt considerable difficulty in construing the above clause, with a view to the intention of the testator, to be collected from the whole of the will, and of the circumstances stated in the special verdict. Some of the Judges are of opinion, that the devise is confined, both by the words and by the apparent intention of the testator, to the brothers and sisters who should be living at the death of the son without issue, considering the word 'heirs' as a word of limitation, according to its general import, and that there is no evidence of an intention in the testator to give the part of a deceased brother or sister to his or her children, which ought to control the legal meaning of that word, when used as it is in this clause. On the contrary, they think, that the use of it in the devise of the proceeds of the real estate, and the omission of it in the devise of the personal estate, and yet declaring that the latter is to be divided amongst his brothers and sisters, with the proceeds of his real estate as therein before directed to be divided, strongly indicates the intention of the testator to give the proceeds of the real estate to the same persons who were to take the personal estate. Others of the Judges are of opinion, that an intention to give the proceeds of the real estate to the children of a deceased brother or sister, as representing their ancestor, is fairly to be collected from the will, which strongly intimates that the testator did not mean to die intestate, as to any part of his real or personal estate.
Upon a question of so much doubt, this Court, which always listens with respect to the adjudications of the Courts of the different States, where they apply, is disposed, upon this point, to acquiesce in the decision of the Supreme Court of Pennsylvania, in the case of Smith's lessee v. Folwell, (1 Bin. 546.) that the word heirs is to be construed to be a word of limitation, and, consequently, that the devise to the brothers and sisters failed to take effect by their deaths in the lifetime of the son.
Whether the conclusion to which that Court came, and which was pressed upon us by the plaintiff's counsel, that the contingencies on which the power to sell was to arise, having never happened, the sale under the power was without authority, is well founded in a Court of law, need not be decided in this case, because the majority of the Court are of opinion, that, by the express words of the will, the sale was limited to the period of two years after the decease of John Bleakley, the son. The circumstance of time was no doubt considered by the testator as being of some consequence, or else it is not likely that he would so have restricted the exercise of the power. But whether it was so or not, such was the will and pleasure of the creator of the power, and that will could only be fulfilled by a precise and literal exercise of the power. The trustee acts, and could act, only in virtue of a special authority conferred upon him by the will; he must act, then, in the way, and under the restrictions which accompany the authority. If an adjudication were wanted to sanction so plain and obvious a principle of law, it is to be found in a case reported in the Year Book, 15 Hen. VII. 11, 12.
Under what circumstances a Court of equity might relieve, in case the trustee should refuse to exercise the power within the prescribed period, or should exercise the same after that period, need not be adverted to in this case, since this is a question arising in a case purely at law.
The sale in this case, then, having been made about eighteen years after the death of John Bleakley, the son, the trustee acted without authority, and the sale and conveyance was absolutely void at law.
Mr. Justice JOHNSON.
I have no hesitation in conceding, that if all the objects had failed, for which the power in this will was created, the power itself ceased, both at law, and in equity. Those objects were,
1. The raising of the legacy of 400 pounds for Young.
2. The sale and distribution of the testator's estate among his own relatives.
If neither of these objects remained to be effected, the power, under which the plaintiff makes title, was at an end.
The words on which the legacy depends are these: 'but in case of the decease of my said son, without issue, 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 A. Y., and his assigns, the sum of 400 pounds sterling, payable out of the proceeds of my real estate, when the same is sold and disposed of according to the intention of this my will herein after mentioned, and before any dividend is made of my said estate.'
The question which this clause presents is, whether the legacy was given upon the single contingency of the son's death without issue, or upon the double contingency of his death without issue, in the lifetime of A. Y.
This question appears to me to be settled by the testator himself; for in a subsequent part of the will, speaking of this same legacy, and of course with reference to the clause bequeathing it, he says, 'the sum of 400 pounds sterling, herein before given and bequeathed to the said A. Y., immediately on the decease of my said son without issue.' The testator, then, has attached this construction to his own words; and that the clause containing this bequest will well admit of that construction is obvious; for there is no necessity for joining the first member of the sentence, which contains the double contingency, to the last member, which contains the bequest. And the effect of the will, without this connexion, (which I cannot but think forced and unnecessary,) will be, to give the pecuniary legacy absolutely on the event of the son's death without issue, but at the same time to declare, that the annuity should no longer run on, whenever this bequest took effect. This would literally be giving it in lieu of the annuity, and would fully satisfy those words in the will.
Indeed, this construction appears irresistible, when we consider another part of the will.
The power to sell is extended to the executors and administrators of A. Y. They, therefore, were authorized to sell, in the event of the death of the son without issue, although he should survive A. Y. Yet, we find the testator, when obviously contemplating the event of the son's surviving Young, expressly directing the payment of this legacy, before the proceeds should be distributed among his devisees over. This could only be consistent with a bequest upon the single contingency of the son's death without issue, independently of Young's survivorship.
Nor is there the least ground for contending, that this bequest is upon a contingency too remote, since the sale and devise over are expressly limited to take effect upon the death of the son, thereby restricting the generality of the words issue and heirs, so as to mean issue living at his death. This, too, is consistent with those acknowledgments of the testator of a debt of gratitude to A. Y., and not only of a debt to accrue, but of a subsisting debt. The annuity is given in presenti; and so is its substitute, the legacy. The words are, 'I give and bequeath,' thus vesting a present interest, although the payment is deferred to a future time and event. The views of the testator are easily explained: if his son or his issue took the estate, his bounty to Young was to be limited to the annuity. But if it should go over to his collateral kindred, the testator enlarges his bounty, and gives this substitute for the annuity, at the same time that he frees his estate from a charge that would embarrass the sale.
Nor can I possibly admit the doctrine, that the power to sell was either at law, or in equity, limited to the duration of two years after the death of the son without issue. The words are, 'then I direct and order my said cousin, A. Y., his executors and administrators, to sell and dispose of my real estate within two years after the decease of my said son.' Here the words are clearly imperative, and their effect is, both to confer the power generally, and to exact the execution of it in two years. The intention of the testator must prevail, both at law and in equity, in construing his words; and when they will admit of a construction which will make the power commensurate with the views of the testator in creating it, I hold that to be the true construction both in law and equity. It is only when the power given admits not of this latitude by construction, that the aid of Courts of equity is resorted to, in order to carry into effect the views of the testator. By possibility, the executors of A. Young may have been minors, or may not have proved his will until the two years had expired, or a sale during that time may have been stayed by injunction, or by the want of purchasers; and it would be difficult to show why, in any one of these events, the power should have ceased. Certainly no reason can be extracted from the provisions of the will, whence an intention could be inferred to restrict the power to sell to the period of two years. Every thing favours the contrary conclusion. For whose benefit was this injunction to sell within the specified period imposed upon the executor? Clearly for that of the brothers and sisters, in order that, under it, they may have compelled the executor to proceed to sale within the time limited. It would be strange, then, if a provision so clearly intended for their interests, should have put it in the power of the executor, either wilfully, or by laches, to defeat their interests, and let in the heir at law.
This is not the case of a mere naked power: it is a power coupled with a trust. The executor was to sell, that he might possess himself of the value in money, and distribute it among the cestuis que trust. In such cases, it has been well observed, that 'the substantial part is to do the thing,' and that 'powers of this kind have a favourable construction in law, and are not resembled to conditions, which are strictly expounded.'
I am, therefore, of opinion, that the words creating this power will well admit of being construed into a general devise of the power, and that the object intended to be answered, necessarily requires that construction.
The dictum cited from the Year Books, therefore, (besides that it has not been very correctly translated,) has no application to this case; since it supposes the actual restriction under the will, which I deny to be imposed in the present instance, upon the true construction of its words.
Being, therefore, of opinion, that both the legacy to Young, and the power to sell, subsisted at the date of the sale to the plaintiff, these views of the case are sufficient to sustain the sale to the plaintiff; and the subsequent questions would arise, only upon the distribution of the remainder of the purchase money, after satisfying the legacy. Nevertheless, I will make a few remarks upon that part of the will which relates to the devise over to the testator's family, since it serves to elucidate, by another application, the principle upon which I have formed my opinion respecting the legacy to A. Young.
On the subject of the devise over to his brothers and sisters, the testator has again been his own expositor. It is very clear, that if the words, 'or such of them as shall be living at the decease of my said son,' stood alone and unexplained, the relative them might be applied grammatically with more propriety to the word 'heirs,' than to the words 'brothers and sisters;' and thus, perhaps, give those words the effect of words of purchase. But the testator himself gives these words a distinct application, in the latter part of his will, when disposing of his personal estate; concerning which he says, that it shall be 'divided among my brothers and sisters, with the proceeds of my real estate, as herein before directed to be divided.' Under the words here used by the testator, it is clear, that the brothers and sisters only could take, and not the brothers' and sisters' children, thus restricting the word 'heir' to its natural and appropriate signification; from which, it can be converted into a word of purchase, only by the clear and controlling intent of the testator. This construction is further supported by those words which require a distribution of the proceeds of the real estate equally, share and share alike, to the legatees; a distribution which could not take place per stirpes, or in the event of one or more brothers surviving, and the death of the rest, leaving issue, living at the death of the son.
On this point, therefore, I concur with the Supreme Court of Pennsylvania; and only regret that I cannot concur both with that Court and this on the other bequest.
Upon the question so solemnly pressed upon this Court in the argument, how far the decision of the Court of Pennsylvania ought to have been considered as obligatory on this Court, I would be understood as entertaining the following views: As precedents entitled to high respect, the decisions of the State Courts will always be considered; and in all cases of local law, we acknowledge an established and uniform course of decisions of the State Courts, in the respective States, as the law of this Court; that is to say, that such decisions will be as obligatory upon this Court as they would be acknowledged to be in their own Courts. But a single decision on the construction of a will, cannot be acknowledged as of binding efficacy, however it may be respected as a precedent. In the present instance, I feel myself sustained in my opinion upon the legacy to A. Y., by the opinion of one of the three learned Judges who composed the State Court.
^7 3 Atk. 256.
^8 1 Madd. 395. 1 P. Wms. 130. 389.
^9 Powell. Dev. 236, 237, 239. 241.
^10 Powell, 242, 243.
^11 15 Hen. VII. fol. 12.
^12 Sugd. Powers, 459, 460. 258. 470. Bradley v. Powell, Cas. Temp. Talb. 193. Yates v. Phettiplace, 2 Vern. 416. Tournay v. Tournay, Prec. Ch. 290. Roper v. Radcliffe, 9 Mod. 171. Croft v. Lee, 4 Ves. jr. 60.
^13 1 Ball & Beatty, 431.
^14 2 Atk. 568.
^15 Fearne, 466.
^16 Watk. Desc. 110, 153.