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In this there is no inconsistency whatever, though a different construction is given to limitations of the different kinds of property by the same language. Full effect is given to the limitations as applicable to personal as well as to real estate. When personal estate is given to a man and to his heirs, or to the heirs of his body, in reference to that estate, the issue capable of taking fails at his death. When real estate is given in like manner, there is issue capable of taking, whilst there are descendants in existence. It is manifest, therefore, when a devise was made of real and personal estate in the same will to one for life, and after his death without issue then to another, that the issue would fail and the limitation over take effect in reference to the real estate after an indefinite failure of issue, in reference to the personal at the death of the first taker, that is, the line capable of taking would fail in the one case sooner than in the other.
There are a great number of cases which proceed upon the distinction of Forth v. Chapman, and in which a limitation, which would be construed as creating an estate tail in realty, is in its application to personal property restrained to an estate for life, because the intention does not require an estate to be raised by implication, and an estate tail if implied would defeat the limitation. The distinction is truly set forth in Atkinson v. Hutchinson,' where a devise of a term was to A for life, remainder to such children as the testator shall leave at his death; and if all his children die without leaving issue, then to B. The children die with out leaving any issue living at the time of their death; this is a good devise over to B. Lord Chancellor Talbot said, " When the words of a will, when used with regard to a freehold, give an express estate tail, then the same words applied to a term will pass the whole interest in such term: as if a term for years be devised to A and the heirs of his body, remainder to B, in such case the remainder is void.
13 P. Wms. R. 258.
So if the devise of a term were to A for life, remainder to the heirs of his body, remainder over to B, such remainder would be void causa qua supra.
But in the principal case, the words of the will would, if used with respect to a freehold or real estate, pass an entail only by construction and implication ; and that these should carry the absolute interest in the term is no necessary consequence.”
The same doctrine was held in Sabburton v. Sabburton, and in Pelham v. Gregory.'
In Target v. Gaunt,' testatrix devised the term to A for life, remainder to such of his issue as she shall appoint, and if A die without issue, remainder to B. This is a good devise to B, but it would have been otherwise, if the devise had been to A generally.
But in the earl of Chatham v. Tothill,' A by will gave bank stock, &c., to B. for life, and after B's decease to the heirs male of B's body, lawfully begotten forever, and for want of such issue, to C for life. B takes the absolute interest, and therefore the limitation over is too remote, though to one for life.
In Chandless v. Price, a limitation of personal property after a disposition that would raise an entail, express or implied, in real estate, was held to be void; and that the person who would be tenant in tail, should take the absolute interest. Lord Rosslyn thought that the distinction taken by lord Talbot in Atkinson 3. Hutchinson, that when the words would give an express estate tail, the construction of law must obtain, but when only an implied estate tail it should not, was exploded in lord Chatham v. Tothill. But that case is entirely different in its circumstances from Atkinson v. Hutchinson. In the latter case there was no devise to the issue. They would take nothing except by implication.
Cas. Temp. Talb. 254. 3 1 P. Wms. R. 432. 5 3 Ves. R. 99.
2 3 Bro. P. C. 204.
In the former case there was an express devise to the heirs of the body, so that by a rule of construction analogous to that in Shelley's case, the first taker would have an estate tail and consequently the absolute property. The case was substantially the same as Higgens v. Derby,' where a trust of a term for years was to the husband for life, remainder to the first son of their bodies, and the heirs male of his body, and in default of issue male of the body of the said husband, then to the daughters, therefore the husband took an estate tail, and the limitations were held void, being after an estate tail.
In Lyde v. Lyde,' a term was bequeathed to G. L. for life, and after his decease to M. his wife for life, and after the decease of the survivor, to the children of G. L., share and share alike, and if G. L. die without issue of his body, then to R. L. for life, and after his decease to Mary his wife for life, with remainder over : the limitation to Mary was held good in the event provided for. Buller J. said “that the second distinction which was taken by lord Macclesfield is between an express and an implied estate tail in the case of a bequest of a term; whether that distinction had been shaken, or whether it was wise to depart from it after it became a rule, it is unnecessary now to determine, because the intention is plain in this case. It was not an estate tail even if the limitations were applied to a freehold, on the construction of the words share and share ,alike,' an estate tail being to the heirs of the body in succession."
Mr. Justice Buller, it would seem, was not inclined to admit that the principle established in Atkinson v. Hutchinson was overruled, and certainly the case which has been supposed to have overthrown the doctrine in that case is of a character entirely different.
When personal estate is limited to a man, and if he dies without issue, then to another, there is no doubt that the
11 Salk. R. 156.
2 1 Term R. 593.
natural and obvious reference of the words is to the time of the death. As in the construction of devises, the intention of the testator is always sought for, the words would be understood in that sense, if the rules of law or a paramount intention did not require a different interpretation. If it is supposed that such a paramount intention must be implied, and that the rule of law is therefore imperative, we are met by the construction, that the intention cannot be carried into effect, because the issue cannot in any event take, but the property must take a different devolution. How can it be said in such cases, that it was the design of the testator to give an estate tail when the law does not admit of it? Shall ignorance of the law be presumed? Or shall an intent be implied that can have no other effect than to limit the property in a manner directly opposite to what the testator designed. It is to be observed that in all such limitations, whether of real or personal property, when the testator is ignorant of the rules of law, the probable intention is to use the words in their common and vulgar sense, and the law gives them a different interpretation for the purpose of sustaining the whole will in cases where the implication of law can be carried into effect.
When two constructions are admissible, either may be adopted, but when one construction only can be made which is consistent with the will, it would seem that that should prevail, and not another which would overthrow the will. A limitation to the issue, if implied, would not only fail of vesting any estate in the heirs of the body, but would prevent the limitation over from vesting in any event.
It seems very apparent, therefore, that the true doctrine was adopted in the case of Atkinson v. Hutchinson, and if that doctrine has indeed been overthrown, the framers of the statute might very properly have restored the rule pronounced by lord Macclesfield and approved by lord Talbot and Mr. Justice Buller. They might also have provided,
that in all cases in which there was a limitation over after a failure of issue, the terms employed to denote that circumstance should be construed to refer to a dying without issue living at the time of the death of the ancestor, when the intention was to give an estate for life only to the first taker. But the general provision made by the Revised Statutes is, that in all cases the words shall have that construction; so that in all cases, whatever may have been the intention, the first taker has only an estate for life.
In many of the reported cases, the intention was clear, to give to the first legatee the full disposition of the property, and to give a remainder in personal property if the legatee failed to dispose of it. It is probable that the statute would be construed to apply to all such cases; and that notwithstanding the inconsistency of the bequest, a uniform construction must be given, without regard to the intent as manifested on a view of the whole will taken together.
S. F. D.
ART. IV.-ON THE PRESENT STATE OF CRIMINAL LEGISLA
TION IN GERMANY.
[By professor C. J. A. Mittermaier, of Heidelberg.] The criminal law is a branch of jurisprudence, which, more than any other, is influenced, in its development, by the peculiar habits and character of the people where it exists. It happens, therefore, where a people is of a practical turn, and disposed to regard things chiefly with a view to immediate utility, that this subject is considered only in that way and to that extent, which are calculated to have a direct bearing upon society. Little resort is had to the principles or conclusions of science, and little is said about them; but that law is treated as well founded which seems to be useful. On the other hand, where the spirit of scientific specu