King v. Ackerman

• Decision Date: 01 December 1862
• Citation: 17 L.Ed. 292,2 Black 408,67 U.S. 408
• Parties: KING v. ACKERMAN
• Court: U.S. Supreme Court

67 U.S. 408

2 Black 408

17 L.Ed. 292

KING v. ACKERMAN.

December Term, 1862

This case came up on a writ of error to the Circuit Court for the Southern District of New York. It was an ejectment for certain lots now within the limits of the city, and formerly part of the estate of Lawrence Benson, deceased.

Lawrence Benson, at the time of his death, had two tracts of land, which he held in fee, one occupied by himself and one by George Williams. He had one son and two grand-daughters, the children of a deceased daughter. He died in 1822, having made the will copied in the opinion of the Court, by which he gave the Williams' place to his son Benjamin, 'to do and dispose of as he may think proper;' and the Homestead, without words of limitation, charging the devisee with the payment of $1,500, to his grand-children. The lots in controversy were part of the Homestead. The plaintiff, after the death of Benjamin Benson, claimed an interest therein, as one of the heirs-at-law of Lawrence Benson. The defendant asserted his right under conveyances made by Benjamin Benson in his lifetime. The question was, whether the will gave Benjamin a fee in the Homestead, or only a life estate.

On the trial before the Circuit Court, the plaintiff offered evidence, to show that the Williams' place, at the date of the will, and ever afterwards, was worth greatly more than the sum charged upon the devisee in favor of the testator's grandchildren. This evidence was rejected, and Mr. Justice Nelson held that, by the legal and true construction of the will, Benjamin Benson took a fee in both places. Whereupon the plaintiff sued out this writ of error.

Mr. Cutler, of New York, and Mr. Black, of Pennsylvania, for the plaintiff in error, argued that the will, properly construed, according to the law of New York, as it stood in 1822, gave Benjamin Benson no more than a life estate in the Homestead place; that the fee simple remained undisposed of, and descended to the testator's heirs-at-law, of whom the plaintiff was one, and that she had a right, after the life estate terminated, by the death of Benjamin, to recover her share in it.

It is undeniable that a devise of real property, to do and dispose of it as the devisee may think proper, creates an estate in fee. It is equally clear that, by the common law, a devise of land without words which in any way denote the quantity of a donation of the estate, passes nothing but an estate for life. Benjamin, therefore, took a fee in the Williams' place, and by the words of the will, giving him the Homestead, he could have only a life estate in that.

It is also admitted, that where a testator gives land without words of limitation, as in this devise of the Homestead, and therefore, by the words of the devise, gives a life estate only, such life estate will be enlarged to a fee if the same will imposes upon the devisee a personal charge with respect to the estate devised. This rule is founded on the natural presumption, that no testator would expose his devisee to the possible danger of becoming a loser by his bounty. The testator, in such a case, must have meant to give a fee; because, if it were a life estate, the devisee would, by accepting it, render himself personally liable for the sum charged on him, and he might die before the profits would be equal to the charge.

But there is no case in the books like this. Here were two devises, to the same person, of two different pieces of land, both of them greatly exceeding in value the amount of the personal charge upon the devisee. One is in fee, and the other for life. The devisee could take what was given by the words of the will; he could assume the charge, and he could not possibly be a loser, though he should die the next instant. To avoid the danger of a loss, it was not necessary to presume that a fee should be given in both places. The testator had provided against that danger by simply giving his son a fee in one of them.

But it is suggested that the farm in which a fee was given might possibly not be equal in value to the charge, and if that be the case, then a loss might possibly ensue to the devisee, by his death, before he could make the deficiency out of the life estate in the other. Surely the principle of no decided case, nor no logic that is sound, can justify this argument. Where a testator gives land without saying for what estate, the Courts must ascertain his actual intent as well as they can. From the naked devise the inference is, that he meant a life estate only; but if a personal charge in respect of it be imposed, you infer fairly and naturally that he meant a fee, because nothing less than a fee can make the devisee absolutely safe. You reason here, as in other cases, from a fact that is known to another fact which is not known. But if you infer the testator's intent from the supposed inadequacy of the fee simple, you reason to one unknown fact from another fact equally unknown. To justify a Court in saying that the testator meant to give a fee without saying so, it is necessary that the possibility of loss should be clearly and plainly established as an undisputed fact. It is not to be assumed and imagined, and then made the basis of presumption for another fact.

That the possibility of loss to the devisee is established here as a known fact, will hardly be contended; nor can we suppose that the Court will consider it even probable in the face of the plaintiff's rejected offer to prove the contrary.

The presumption that a testator meant a fee, because the devise is coupled with a charge, is not a presumption of law, but of fact; not legal and conclusive, but natural and open to be repelled by counter proof. It was, therefore, erroneous to reject the plaintiff's evidence.

But the plaintiff did not need the evidence. It was for the defendant to show that the Williams' place was worth less than the charge. The error of the Circuit Court consisted in assuming the possibility of loss to the devisee when that fact was not proved, and upon evidence which shewed it to be at least as probably false as true.

Again, it will be agreed that if the testator's intent to give no more than a life estate is apparent on the face of the will, it will not be enlarged to a fee by implication from a personal charge. In this case it is clear that he could have intended no more than a life estate. He gave one place with words of perpetuity and followed it with a gift of another omitting those words, and omitting all words of equivalent import. I give Benjamin the Homestead to dispose of as he thinks proper, and I give him the Williams' place. Is not this as clear as if he had said I give him the Homestead and the Williams' place, and as to the former he may do with that as he pleases? Is not the omission of the enlarging words in the latter devise as plain an indication of the testator's intention to make it a life estate as if he had expressed it in words?

Mr. O'Conor, for New York, for Defendant in Error.

This case does not differ in principle from other cases in which the Courts have held it to be settled law that a devise of an estate in land without words of perpetuity is enlarged to a fee by charging the person of the devisee with the payment of money. The fact that other property was given in fee by the same will to the same person may furnish the ground for an argument, but not for a sound distinction.

It was not the intention of the testator that Benjamin should take the property in question with the power of alienating it; but as it had come to him from his father, he meant that it should pass from his son to his heirs. The words connected with the other devise, 'to do and dispose of,' &c., were intended to give the power of alienation, not to increase the estate. To give was, in his mind, to give absolutely and forever, and 'to do and dispose of as he might think proper,' could add nothing to the duration of the estate bestowed in the Williams' place, and the absence of those words in the devise of the Homestead would not make the estate in that any less. The supposed necessity for the use of those words arose out of the testator's opinion that in the case of a family estate the right to alienate did not legally exist as an incident of ownership, but must be created by superadded words expressly giving the power.

It is not denied that where property is given in a will without words of limitation, the donee can by...