Mason v. Baily

• Citation: 6 Del.Ch. 129,14 A. 309
• Court: Court of Chancery of Delaware
• Decision Date: 27 March 1888
• Parties: SIDNEY B. MASON, Trustee, v. JOSEPH H. BAILY et al

14 A. 309

6 Del.Ch. 129

SIDNEY B. MASON, Trustee, v. JOSEPH H. BAILY et al

Court of Chancery of Delaware, New Castle

March 27, 1888

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

BILL FOR THE CONSTRUCTION OF A WILL.--The facts of the case and the material portions of the will in question are set forth in the opinion.

W. C Spruance and Charles M. Curtis, for Arthur H. Grimshaw, one of the defendants:

By the purchase of a burial lot in a cemetery, the lot holder acquires no interest or estate in the land, but acquires only a license or privilege to make interment and erect monuments etc. Kincaid's Appeal, 66 Pa. 411; People v. St. Patrick's Cathedral, 21 Hun, 184; Buffalo City Cemetery v. Buffalo, 46 N.Y. 503; Partridge v. First Independent Church, 39 Md. 631.

Nor will a lot holder acquire any interest in the soil, although the certificate given him by the cemetery company styles him as "proprietor," and although it purport on its face to be a conveyance to him and his heirs forever. Partridge v. First Independent Church, supra; Richards v. Nortwest Protestant Dutch Church, 32 Barb. 42.

Such a right is neither land, tenement, nor hereditament. Ibid.

The right of burial is not an estate, but a contract privilege. Craig v. First Presby. Church, 88 Pa. 42, 54.

The privilege of burial comes to the family of the deceased lot holder, not as property or by virtue of any principles of law applicable to descent of the property of a dead person, but because such was the contract between the lot holder and cemetery company; viz., that a burial place should be secured for the lot holder and his family. Cases, supra. Therefore the trust fund consisted of personalty alone.

Whether the gift be original or substitutional, a bequest of personal property to the "heirs of A" is a gift to those who would be entitled to personal estate under the Statute of Distributions. Houghton v. Kendall, 7 Allen, 76; Scudder v. Vanarsdale, 2 Beas. 109; Welsh v. Crater, 32 N.J.Eq. 177; Ferguson v. Stuart, 14 Ohio 140; Corbitt v. Corbitt, 1 Jones, Eq. 117; Nelson v. Blue, 63 N.C. 660; Evans v. Hartlee, 9 Rich. L. 501; Eddings v. Long, 10 Ala. 203; Haschall v. Cox, 49 Mich. 435.

In those States where the husband is, by the Statute of Distributions, entitled to succeed to the personal estate of his deceased wife in case she dies intestate, he will be entitled to a bequest to the "heirs" of his wife. Gibbons v. Fairlamb, 26 Pa. 218; Sweet v. Dutton, 109 Mass. 589; Eby's Appeal, 84 Pa. 241; Richards v. Miller, 62 Ill. 417; Eddings v. Long, 10 Ala. 203.

By the Statute of Distributions of Delaware, "if the intestate be a married woman at the time of her death, her husband shall be entitled to the whole of such residue." Rev. Code, chap. 89, § 32, p. 548.

In this State the husband is recognized as an "heir" of his deceased wife as to personal property, because he is as much a distributee as a child or father. 14 Del. Laws, chap. 550, § 5, Rev. Code, p. 479.

Assuming it to be a mixed fund, by the terms of the will Mrs. Grimshaw took in her lifetime, by the operation of the rule in Shelley's Case, an equitable estate in fee simple in so much of the fund as was real estate, and became the absolute owner of so much of the fund as was personal estate; and upon her death intestate her said equitable estate in the land descended under the intestate laws of this State, and the personalty belongs to her administrator.

This is not a rule of intention, but an inexorable rule of law which operates "notwithstanding the clearest indication of the intention of the donor to the contrary." Jordan v. Adams, 9 C. B. N. S. 497.

The rule was recognized and declared to be the law in Griffith v. Derringer, 5 Harrington, 284.

The rule also applies to a bequest of personal property with similar words, indicating an intention to vest in the first taker a life estate, with a remainder to his heirs. Elton v. Eason, 19 Ves. Jr. 78; Williams v. Lewis, 6 H. L. Cas. 10, 13; Coon v. Rice, 7 Ired. L. 217; Horne v. Lyeth, 4 Harr. & J. 431.

The rule in Shelley's Case applies to equitable as well as legal estates; but the estate of the ancestor and the limitation to the heirs must be of the same quality, i. e., both legal or both equitable. 2 Jarm. Wills, 335 et seq.

The Statute of Uses does not apply where the trustee is invested with any active duty. Barker v. Greenwood, 4 Mees. & W. 429; Ware v. Richardson, 3 Md. 508.

Courts will always, if possible, vest the legal estate in the trustee, in the cases where the beneficiary is a married woman, so that the Statute of Uses will not convey the legal estate to her and so bring the estate within the control of her husband. Ware v. Richardson, 3 Md. 505; Bowen v. Chase, 94 U.S. 812, 24 L.Ed 184; Harton v. Harton, 7 T. R. 652.

The trust for the use of a married woman requires the legal estate to be in the trustee throughout, i. e., both during the life estate and the estate in remainder. Harton v. Harton, supra; Brown v. Whiteway, 8 Hare, 145.

Applying either or both of these rules to this case, the legal estate would vest throughout in the trustee, and Mrs. Grimshaw would take an equitable life estate followed by an equitable limitation to her heirs in remainder, which would vest in her an equitable estate in fee simple.

A trust "to convey" is an active, special trust, which requires that the legal estate should vest in the trustee. Shelley v. Edlin, 4 Ad. & El. 582; Barker v. Greenwood, 4 Mees. & W. 429; Garth v. Baldwin, 2 Ves. Sr. 646; Booth v. Field, 2 Barn. & Ad. 564; Noble v. Bolton, 11 Ad. & El. 188; Sears v. Russell, 8 Gray, 89; Ware v. Richardson, 3 Md. 505; Kirkland v. Cox, 94 Ill. 400.

A trust for one for life, with remainder to such persons as the life tenant should by will appoint, is such an active trust as requires that the legal estate should vest in the trustee throughout. Doe v. Hicks, 7 T. R. 433; Brown v. Whiteway, 8 Hare, 145; Shelley v. Edlin, supra.

The Statute of Uses in force in Delaware is as follows: the legal estate shall accompany the use and pass with it. Rev. Code, p. 500.

The courts have, to some extent, applied to trusts of personalty the rule applicable to trusts of realty, and have held that the statute transferred the use into possession. Yet if the trust be an active trust, the statute does not apply. Harley v. Platts, 6 Rich. L. 310-315; Denton v. Denton, 17 Md. 403.

The same rule of law must be applied to realty and personalty when in a given case they are given together by a general gift of residue. Elton v. Eason, 19 Ves. Jr. 73; King v. Beck, 12 Ohio 390; Aker v. Aker, 23 N.J.Eq. 26; Cockins' Appeal, 1 Cent. Rep. 890, 111 Pa. 26.

In such case when the rule in Shelley's Case applies the absolute interest in the personalty goes to the life tenant, and at his death intestate his administrator will be absolutely entitled. Elton v. Eason, and King v. Beck, supra.

By the law in relation to the property of married women in Delaware, Dr. Grimshaw is entitled to one half of all his wife's real estate for his life. 15 Del. Laws, chap. 550, § 5, passed April 9, 1873.

In construing the words of the trust "to convey to the right heirs of the said Ann Elizabeth Grimshaw, their heirs and assigns forever," the words "their heirs and assigns forever" are to be regarded as superfluous.

Superadded words of limitation are not sufficient to convert words of limitation to which they are added into words of purchase. 2 Jarm. Wills; Physick's Appeal, 50 Pa. 128; Nice's Appeal, Id. 143.

The intervention of the power did not affect the operation of the rule; and since the power was not exercised it is as if it had not been inserted at all. Brown v. Whiteway, 8 Hare, 145; Physick's Appeal, supra; Doe v. Martin, 4 T. R. 64; Brown v. Renshaw, 57 Md. 67.

Willard Saulsbury, Jr., for Joseph H. Baily, Edith B. Value, Sidney B. Mason, and Henry B. Nones, guardian ad litem of James E. Baily, defendants:

The intention of the testator, gathered from the whole will and the circumstances under which he made it, is to govern the construction.

Even though unreasonable, the intention of the testator, if it violates no principle of law or morality, is the guide in giving effect to a will. Den v. McMurtrie, 15 N. J. L. 287; 4 Kent, Com. 535, 537; Smith v. Bell, 31 U.S. 6 Pet. 75, 8 L.Ed 325; Welch v. Huse, 49 Cal. 501, 509.

The words "right heirs" should have their strict technical meaning. Theob. Wills, 273; Burges v. Thompson, 13 R. I. 712; 4 Kent, Com. 551 note (a); 1 Co. Litt. * 503, and cases hereafter cited.

Technical words must be taken in their technical sense, in the absence of explanation on the face of the will. Wigram, First Proposition, p. 58, § 21; Id. Second Proposition, p. 66; § 24; Clark v. Mosely, Rich. Eq. 396, 400-402; Luce v. Dunham, 69 N.Y. 39; Mounsey v. Blamire, 4 Russ. 384-387; Brearley v. Brearley, 1 Stockt. 24, 25; Shore v. Wilson, 9 Clark & F. 525.

This, however, is not to override the testator's intention, but to effectuate that intention. Langham v. Sanford, 2 Meriv. 22.

Our courts have thus taken technical words in construing wills. Kean v. Hoffecker, 2 Harrington, 103-116

If from the words of a will the intention is a matter of doubt, the words must be construed according to their legal import. Annable v. Patch, 3 Pick. 360, 363.

Specific words in a will must have the technical effect derived from usage and sanctioned by decisions. Hawley v. North Hampton, 8 Mass. 3, 38, 39; Ide v. Ide, 5 Mass. 500; Myers v. Eddy, 47 Barb. 263-266.

Heirs are those of the kindred of a decedent upon whom the law casts the inheritance immediately upon his decease. Dodge's Appeal, 106 Pa. 220; 2 Bl. Com. 201; Williamson v. Williamson, 18 B. Mon. 329; Smith v Butcher,...