
    James Jackson, ex dem. Richard F. Nicoll, vs. Brown and others.
    NEW YORK,
    May, 1835.
    Where a testator, by will made in 1778, devised lands to his son S. B. during his natural life, with remainder to the first son of his son S. B. for life, with remainder to the first and every other son and sons of the eldt/vst son of his son S. B. successively, to hold the same in tail male; and the son only was living at the death of the testator, and he unmarried, though he subsequently married and had a son, which son also married and had a son, so that there was a son, grandson and great grandson of the testator; it was held, that the son took a life estate in the premises that tile limitation to the grandson was good, although he was unborn, at the death of the testator, but that the,limitation over to the great grandson was void ; and such limitation tieing void, the grandson, instead of taking a life estate in the premises according to the terms of the devise, took an estate in tail, which, by the statute abolishing entails was converted into an estate of inheritance in fee simple; and consequently that the grandson was entitled to maintain ejectment against his sisters, who had entered into possession of the premises by virtue of a devise to them, contained in. the last will and testament of their father, the son of the first testator.
    Where the disposition made by a testator of his property is contrary to the rules of law, as to the estates granted by him, courts, for the purpose of carrying into effect the general intent of the testator as far as possible, (cy pres) adopt that construction of the devise which will most nearly conform to the general intent of the testator, though in part it •defeats his particular intent; thus, in this case the particular intent was to give the grandson only a life estate, but inasmuch as the remainder over to the great grandson was void, the court, for the purpose of effecting the general intent of the testator, the continuing the estate in his descendants as long as the rules of law would permit, gave such a construction to the devise as to give a life estate to the son, and an estate in tail to the grandson of the testator.
    This was an action of ejectment, tried at the Suffolk circuit in May, 1831, before the Hon. Ogden Edwards, one of the circuit judges.
    The plaintiff claimed the premises in question under the last will and testament of his grand-father William Nicoll, bearing date 19th August, 1778, and who died seized and possessed of the same in March, 1780. The clause of the will under which the plaintiff claims is in these words: “ Item. I give and devise unto my said son Samuel Benjamin Nicoll all my lands, rights and hereditaments on West Neck and Sachem Neck, on Shelter Island, not hereinafter given to my three daughters, for and during his natural life, without impeac-hment for waste, (with remainder to G. D. L. &. W. H. and their heirs, during the life of my said son Samuel Benjamin, to preserve the contingent remainders hereinafter limited,) with remainder to the first son of my said son Samuel Benjamin for life, (with remainder to the said trustees and their heirs during the life of the said son of my said son Samuel Benjamin, to preserve the contingent' remainders hereinafter mentioned, to wit,) with remainder to the first and every other son and sons of the eldest son of my said son Samuel Benjamin successively, according to their seniority, the elder to be preferred before the younger, to hold the same in tail male.” In case of the death of the first son of his son Samuel Benjamin without issue, he gives the estate to the second son of his son Samuel Benjamin for life, with a tail to his issue male successively, and so to every son of his son Samuel Benjamin, and the issue of such son successively, with like devises to trustees, to preserve contingent remainders. The will then proceeds as follow: “ And in default of the issue male of my said son Samuel Benjamin, I devise the said remainder to the first or eldest daughter of my said son Samuel Benjamin for life, without impeachment of waste, (with remainder during the life of such first daughter to the said trustees and their heirs in trust, to preserve the contingent remainders hereinafter mentioned,) with remainder to the first and every other son and sons of my said son’s first or eldest daughter successively, according to seniority, the elder to be preferred before the younger, to hold the same in tail male.” In case of the death of the first daughter of Samuel Benjamin without such issue, the testator gives the estate to the second daughter of Samuel Benjamin, and the issue male of of such daughter, and thus goes on from daughter to daughter, and their issue male successively; and in default of issue male and female of his son Samuel Benjamin and their male issue, the testator gives the estate to his own son, William Nicoll, for life ; and then, after ringing the same changes of remainders through the sons of his son William, he gives the estate, on failure of male issue of William, to his own three daughters and their issues male, &c. Then follows a clause in these words : “ That my meaning may be the better understood, and to give a key for the more certain exposition of my will, I think proper to declare, that after considering my estate and family, I think it will be best not only to entail the estate, but to prevent the hasty d ocking of such entail, and therefore it is my general intent to continue the estate at Islip first in the male descendants of my son William, (the testator having, by his wi\\,previous to the devise to his son Samuel Benjamin, as above stated, devised his estate at Islip to his son William,) then in the male of his daughters, and then in the male issue of my son Samuel Benjamin, and then in the male issue of my own three daughters in severalty, and upon failure of such male issue, then to their issue female in severalty; and that it shall not be in the power of any of my descendants before my great grand children to cut off the entail. And I think proper further to declare, that the same key and exposition of my will which I have above given relating to my estate at Islip, is meant by me to extend, and shall be construed in every article, matter and thing, to extend to my estate on Shelter Island, (mutatis mutandis) as fully as if I had actually repeated and applied the same key of my will to Shelter Island estate.” Samuel Benjamin, at the death of his father, entered and was possessed of the premises by virtue of the devise; he was then under sixteen years of age, and unmarried; he subsequently married, and on the 15th September, 1785, his first or eldest son, Richard F. Nicoll, the lessor of the plaintiff in this cause, was born. On the 12th June, 1813, a son was born to Richard F. Nicoll; which son was the great grandson of William Nicoll, the testator under whom the lessor of the plaintiff claimed. On the part of the defendants, it was shown that, on the 6th December, 1827, Samuel Benjamin Nicoll (the father the lessor of the plaintiff) made his last will and testament, and thereby devised all his real estate to three daughters, who are the defendants in this cause, and were in possession of the premises at the commencement of this suit. Samuel Benjamin Nicoll died in possession of the premises in September, 1828. It was also shown that, on the 14th October, 1830, Richard F. Nicoll, the lessor of the plaintiff, executed an assignment, as an insolvent debtor, of all his estate, real and personal, to one J. C. Albertson, in trust for his creditors ; the action in this case having been commenced in 1829.
    The above facts were found by a special verdict. The cause was submitted, on elaborate written arguments, by
    
      G. Miller, for the plaintiff, and
    S. A. Talcott, for the defendant.
   By the court,

Savage, Ch. J.

The counsel for the plaintiff makes three general points : 1. That Richard F. Nicoll, the lessor, took an estate for life by express limitation under the will of his grand-father; 2. That the lessor, the first son of Samuel Benjamin and the grandson of the testator, to effect the plain and manifest general intent of the testator, took an estate in tail male, under the will of his grand-father; 3. That the lessor took an estate in tail male by implication.

The leading point of the defence is, that Samuel Benjamin Nicoll took an estate tail by implication, which was converted by our statute into an estate in fee simple; and that the premises in question, therefore, passed to the defendants as residuary devisees under the will of their father, Samuel Benjamin Nicoll.

It is an established principle, in the decission of questions arising under wills, that the intention of the testator shall be effectuated, in so far as such intention is consistent with the rules of law. It is a principle of law, that perpetuities shall not be permitted to exist-—real estates shall not be so conveyed or devised as to be inalienable beyond a certain period, because such perpetuities tend to the inconvenience and prejudice of commerce and of society. In Long v. Blackall,7 T. R. 102, Lord Kenyon says that the rules respecting executory devises and common law conveyances are similar, and cannot be rendered inalienable by the former longer than by the latter ; that in marriage settlements, the estate may be limited to the first and other sons in tail; and until the person to whom the last remainder is limited shall be of age, the estate is inalienable. The courts have allowed executory devises to extend as far, He adds, “ It is an established rule, ecutory devise is good if it must necessarily happen within a life or lives in being and twenty-one years, and the fraction of another year, allowing for the time of gestation.” Where perpetuities have been attempted by means of estates tail, they have been defected by fines and common recoveries; but where an attempt is made to perpetuate an estate by means of executory devises, neither fine nor common recovery can bar such an estate. An executory devise cannot be barred by fine, because the title of the executory devisee is not through, or as privy to the first taker, but quite independent of him; it cannot be barred by common recovery, because the recompense, which in supposition of law is the ground of barring the issue in tail and those in reversion and remain-that an ex-der, does not extend to an executory devise. Hence it became necessary for the courts to prescribe limits to this new species of settlement; and it has been established as a rule, both in law and equity, that such estates shall not be rendered inal- ‘ ienable for a longer period than that above mentioned; that being in analogy to the case of strict entails, which cannot be protected from fines and recoveries longer than the life of the tenant for life in possession, and the attainment of twenty-one by the first issue in tail, to which are added, in executory devises, a few months for the case of a posthumous child. Fearne,444, n. Hargrave's Law Tracts, 518. It follows that an executory devise cannot be limited upon an indefinite failure of issue.

By means of an executory devise, an estate may be devised to any number of persons for life successively, if in esse at the death of the testator—to infants in venire sa mere, and to persons unborn. Such is the law in England, and such it is here, with the exception that, by our revised statutes, 1 R. S. 723, § 15, 16, 17, successive estates for life shall not be limited to more than two persons in being at the creation thereof; and if limited to more than two, all the life estates subsequent to the two first entitled shall be void. That an estate for life may be limited to an unborn infant, has been decided in a case arising under the identical will upon which this case de 3 Johns. Cas. 18. It seems to have been doubted ponnei.jy w]ie^ier a limitation for life to an unborn person was good ; but it is now well settled that it is, and also that an esiate limited to the issue of such unborn person to take as purchasers would be void, being a possibility upon a possibility, or, as Mr. Ju st ice Wilmot expresses it in Chapman v. Brown, 3 Burr. 1635, a nonentity upon a nonentity,” which the law will not admit. 4 Cruise, 423. 1 East, 452. 3 T. R. 83. 2 Fearne, 502. Thus, if an estate be limited in succession, first to a person in being for life, and after his decease to his unborn children, and afterwards to the children of such unborn children, this last remainder is absolutely void, and there is no carrying the estate to them but by comprising them in the extent of the estate limited to their parents, namely, to the unborn children of the person in being; that is, by giving-such unborn children of the person in esse an estate of inheritance which is an estate tail. Fearne, 502. The same principle prevails in marriage settlements; for though an unborn child mayr take an estate for life as well as an estate tail, yet such estate would not descend to the issue of such child; and no estate limited to such issue as purchasers would be good. Fearne, 503, and cases there cited.

In the case of Chapman v. Brown, 3 Burr. 1626, one Joshua Brown, by will, devised certain premises, first to his wife for life; then to his brother Thomas until the eldest son of another brother, Reginald Brown, should attain the age of 24; then to such eldest son, whose name was William, for his life; then to the first son of William, and the heirs male of his body; and for want of such issue, the second, third, and every other-son of William and their heirs male; and for wantof such issue of William, then to the second son of Reginald Brown for life, and to the first son of the body of such second son and his heirs male, <fcc. He continues the divises further in the families of his other brothers, and declares his intention to be, to have the estate continue in his name and blood so long as it shall please God to permit the same. The several estates were enjoyed by the widow; by Thomas, the father of William ; and by William, the nephew of the testator. After the testator’s death, his brother Reginald had a son born, which was his second son, whose name was Thomas. William ed leaving issue a daughter; upon his death, Thomas, the second son of Reginald, entered and suffered a common recovery. He devised to the defendant. The lessor of the plaintiff was the heir at law of William, and also of the testator. The question was, whether Thomas, the second son of Reginald (which Thomas was not born till after the death of the testator) took an estate tail under the will, or only an estate for life. The court held that Thomas, the second son of Reginald, as the will stood, took an estate tail; an estate for life was devised to him, then to the first son of his body and his heirs male. The court laid down the proposition that the unborn son of an unborn son could not take, and that to effectuate the general intent of the testator, the word son should be construed a word of limitation, and an estate tail given to the second son of Reginald. Lord Mansfield said, that for the purpose of attaining the intent, words of limitationshall operate as wordsofpurchase; implications shall supply verbal omissions; the letter shall give way ; every inaccuracy of grammar, every impropriety of terms, shall be corrected by the general meaning, if that be clear and manifest. Mr. Justice Wilmot said, the question is, what this testator intended, and whether we can give it effect in part. At the time of the testator’s death, William, the first son of Reginald, was born ; Thomas, the second, was not born. He certainly meant the same estate to Thomas as to William; but that intention cannot take effect, according to the rules of law; you cannot limit a nonentity upon a nonentity—a possibility upon a possibility. It was necessary that the second son of Reginald should be tenant in tail, in order to give the intention of the testator effect. If the devise to the son of Reginald’s second son should be a nullity, the general heirs at law of the testator would take, though never so many heirs male from Reginald should be living. Let his intention, therefore, take place as far as it can go, but no farther. He also adds, that words in a will are to be construed words of limitation or of purchase, as they will best effectuate the intention of the testator. The divise was held to convey an estate tail. This decision was affirmed by the house of lords. This case has been relied on by the counsel for both parties now before the court. As I understand it, it is an authority for the plaintiff. It proves that the unborn son of an unborn son cannot take as a purchaser, but only as heir : and therefore, to effectuate ' the general intent of the testator, to wit, to continue the.es-, tate in the family as long" as possible, an estate tail must be; given to the immediate ancestor of such unborn son of án nn-j born son, who in that case was the second son of Reginald' Brown. In the case now under, consideration, the lessor of the plaintiff was the son of Samuel Benjamin, the first devisee, for life. He, Samuel Benjamin, was living at his father’s death ; the devise to him for life was good; the devise to the lessor being the unborn son of a person m being at the testator’s death, was also good ; but the unborn son of the lessor cannot take as a purchaser; as to him, therefore, the word son must be construed a word of limitation, and not of purchase, which gives to his father, the lessor, an estate tail. The testator has declared his general intent to be, to continue the estate in his family, so that the entail could not be docked until the estate came to his great grandson. In the language of Mr. Justice Wilmot: “ Let his intention, therefore, take place as far as it can go, but it can go no farther.’’ Humberston v. Humberston, P. Wms. 332, was similar in principle. Humberston, the testator, devised his estate to the Draper’s Company, in trust to convey the premises to his godson, Matthew Humberston, for life ; and after his death, to his first son for life ; and so on to about fifty first sons, without malting any disposition of the fee. Lord Chancellor Cowper said, that though an attempt to make a perpetuity for successive heirs be vain, yet, so far as is consistent with the rules of law, it ought to be complied with; and therefore let all the sons of these several Humberstons that are already born taire estates for their lives; but when the limitation is to the first son unborn, then the limitation to such unborn son shall be in tail male. An application of this case to the case now before us will produce this result—the life estate to Samuel Benjamin, he being born before the death of the testator, was good as an estate for life; but when the limitation is to the first unborn son, (the lessor,) such limitation shall be in tail male; and. having an estate tail, our statute gave him an estate in i • i * u 5 , ice simple. It cannot be necessary to cite more cases, although there are many more in books ; but I will refer to a learned note of Mr. Butler, to page 203, of the 8th ed. of Fear ne., for a full explanation of the doctrine of approximation, or as it is called the cypres doctrine, which the courts in their construction of wills have long adopted, and in some instances carried very far. It has been adopted in cases where the testator clearly intended to give estates which were contrary to the rules of law ; and in construing such devises, the courts primary object was to give effect to the general intent of the testator, which was, that the issue of the devisee should take the land, and that the mode in which the issue should take, was his secondary object, or his particular intent. In order, therefore, to effect the testator's intent as far as possible, {cy pres,) the courts adopt that construction of the devise, which, by including ths issue of the devisee, satisfied the testator’s general intent, that the issue should take; but which in part defeated his particular intent, by giving to his issue estates different from those intended by the testator.

Perhaps it might have been sufficient, for the decision of this case, to have relied upon the case of Sledfast v. Nicoll, 3 Johns. Cas. 18, which arose upon the devise to the testator’s eldest son, William, who had two sons, William and Henry. Upon the death of the testator, William the son entered and died; upon his death, William the grandson entered. He died, leaving his wife enseint with a son; but as there was no son of William at his death, his brother Henry (who by the will was entitled in default of issue male of William) entered, and was defendant in that suit. It was held that the posthumous son of William should take in the same manner as though he had been born in his father’s lifetime. Whether such posthumous son could take in that case, was the principal question before the court; but the general validity of the devise was not questioned. Kent, justice, says that the posthumous son of the grandson, if he takes at all, must take as a purchaser; that the son and grandson took only estates for life : they were both living at the death of the testator ; and the court, in that case, declared that the unborn great grand-should also take as a purchaser in tail male. The posthumous son in that case was considered as in esse, and as asifhe had been bom in the lifetime of his father. He was one degree farther removed from the testator; but in so far as the nature of the estate which he took is concerned, he occupied the same place as the lessor in this case. His father was living in the life of the testator ; he was therefore the first unborn son of a tenant for life who was living before the death of the testator, and the court said he was tenant in tail: he took as if he had been born at his father’s death. So also, in accordance with the cases which I have cited, the lessor being the first unborn son of a tenant for life, who was living at the death of the testator, he should take an estate tail.

The defendants’ counsel concedes several of the positions above assumed. He admits that a devise to unborn children of unborn children is void; that the first estate of inheritance limited by the will being void, the lands cannot descend in the manner intended by the testator in tail male, without enlarging one of the previous estates for life, and converting it into an estate tail male ; that the rules of law require this to be done to cany into effect the general intent of the testator, although at the expense of defeating the particular intent-; and that this may be accomplished, by giving an estate in tail male to Samuel Benjamin, or by giving him an estate for life, with remainder to his sons in tail male in succession ; and he insists that the intention of the testator will be best promoted by raising an estate tail in Samuel Benjamin. He relies upon the language of the devise over to the eldest daughter of Samuel Benjamin, in default of issue male. It is as follows: “And in default of the issue maleofmysaidson Samuel Benjamin, I devise the said remainder to the first or eldest daughter of my said son Samuel Benjamin for life,” &c. This, it is insisted, means an indefinite failure of issue; that the word 'issue is used as the designation of a class of heirs who take in unlimited succession, and not as adesignatiopersonarumreferring to particular individuals. It is also contended, that the expression such issue in the clause, limiting the estate over to the son of the son of Samuel Benjamin is a designatio persones, and not nomen collect hum, and that therefore an estate tail cannot be properly raised upon that limitation, but upon that, devising the estate to the daughters upon the failure of male issue. I do not think it necessary to go at large into the abstruce learning upon these peculiar expressions, contenting myself with following the general principles applicable to the construction of wills, viz. first ascertain the general intent of the testator, and then carry that intent into effect as far as the mies of law will permit. There cannot be a doubt that the word son, as used in the will before us, is to be considered as a word of purchase, a designatio personen ; and the words issue, or such issue, refer to the son or sons previously mentioned, and not to heirs as a class. Such is the plain intent of the testator; and whatever may be the strict gramatical construction, we are bound, in the language of Lord Mansfield, to give such construction, that “ every inaccuracy of grammar, every impropriety of terms, shall be corrected by the general meaning, if that be clear and manifest.” See Rogers v. Rogers 3 Wendell, 503. By raising the estate tail in Samuel Benjamin, we should defeat the general intent of the testator, to wit, that of continuing the estate in his descendants as long as the rules of law will permit. If the will gave Samuel Benjamin an estate tail, our statute converted it into an estate in fee simple ; but if Samuel Benjamin took only an estate for life, then the perpetuity is carried one degree farther in the family of the testator. If the law will permit that to be done, then it is the duty of the court to do it, as more nearly effecting the intention of the testator. The will in question is drawn much like those in the cases above alluded to, particularly Chapman v. Brown; but neither in that case nor in the others was such a question agitated.

It is not necessary to find in the will words conveying the idea of an indefinite failure of issue, in order to defeat the perpetuity by raising an estate tail; an estate in fee is given by implication of law to prevent a perpetuity. The plain and declared intent of the testator was, to give Jife estates only to his own son Samuel Benjamin, to Samuel Benjamin’s sons and his grandsons in succession. The sons were intended to take as purchasers, and not as heirs. The word issue clearly related to the word sons. There is, therefore, no ground for construing the failure of sons to mean an indefinite failure °f issue. The testator intended that the lessor should take as purchaser, and not as heir. This intention is consistent £^e mIes °f law, and should be carried into effect. It was also the testator’s intention that the lessor should take an estate for life only. Thai intention is contrary to the rules of law, as tending to a perpetuity ; that intention the court cannot effectuate. But to execute the general intent as far as possible, the lessor must take an estate of inheritance&emdash;a fee simple. He is therefore entitled to judgment.  