I am utterly unprepared to overturn the common law, as understood by Littleton, Coke, Shepherd, Cruise, Blackstone, Kent, and all the judges who have administered it for three centuries, and to adopt the dogma, that intention, not expression, is hereafter to be the guide in the construction of deeds. That would be as unwarrantable as dangerous.
Under this deed, Mrs. Adams took an estate for life, which was not enlarged by the subsequent limitation to a fee tail. The remainder vested in Anna Adams, the child of the marriage, for life, subject to open and let in after-born children to the same estate.
The deed operated as a covenant to stand seized. The proper and technical words of such a conveyance are, stand seized to the use of, etc.; but any other words will have the same effect, if it appear to have been the intention of the parties to use them for that purpose. The words bargain and sell, give, grant, and confirm, have been allowed so to operate. 4 Cruise, tit. 32, c. 10, §§ 1, 2.
By such a covenant, an estate may be limited to a person not in esse, if within the considerations of blood or marriage. Fearne on Rem. 288; 1 Rep. 154, a; 1 Preston on Est. 172, 176; 4 T. Rep. 39; Doe v. Martin.
This deed, on the face of it, expresses the considerations of natural love and affection, as well as the money consideration of one dollar.
It follows, from these considerations, that Adams is not entitled to curtesy in the lands on surviving his wife. The mortgage to Ross created no valid charge on the estate against Mrs. Adams, she being a minor when it was executed.
Mrs. Adams, interest in the land was subject to the provisions of the act for the better securing the property of married woman, passed March 25th, 1852; the deed to her was after this act passed.
This was clearly a gift or grant, within the meaning of the act. The legislature did not intend to limit the benefits of the act to property conveyed by a deed operating as a gift or grant; all the ordinary modes of acquiring property by deed were intended by the use of the terms gift, grant. The reasoning of Justice Vredenburgh upon this joint is conclusive. Upon the determination of the respective life estates, the land reverts to Miss Traphagen.
The judgment of the Supreme Court must be reversed. The money in court must be invested for the benefit of Mrs. Adams for life, and after her death for the benefit of the surviving children of the marriage, in equal shares, during their respective lives, and at their deaths respectively; their several shares must be paid to Miss. Traphagen, or if she be then dead, to her heirs or devisees.1
54 New Hampshire, 242. - 1874.
Bill in equity by Cole to procure the reformation of a certain lease and to enjoin the defendants from interfering with certain structures erected by plaintiff, which (as he claims), he would have had a right to erect had the written lease conformed to the intention of the parties. The court below decreed that the lease be reformed and granted the injunction. A further question arises in this court as to whether the instrument as reformed is a lease '' at will " or " for life," or whether it is to be taken as a lease in fee, reserving a fee-farm rent. This court holds that it is not at will. The discussion as to whether it is for life or in fee will be found in that part of the opinion which is reported below, together with the essential facts.2
Ladd, J. - * * * The word "heirs" does not appear in the lease. The defendants thereupon contend that, at most, it conveys only a life estate to the lessees. The plaintiff claims that the whole instrument read together is sufficient to give a perpetual right to take and use the water upon the terms and conditions therein specified, - that is, a fee, - but at the same time moves that in case the court should be of a different opinion, the lease may be reformed by inserting the proper words of inheritance, so as to express in legal language the actual contract of the parties according to their intention when it was made.
Before proceeding to consider the question thus raised, we may as well say, that, from an examination of the lease alone, without resorting to extrinsic evidence at all, we entertain no doubt that the understanding and contract of the parties were as claimed by the plaintiff. The defendants demised and leased to the plaintiff and others the right to draw a certain quantity of water from their canal through a flume to the plaintiff's mills and buildings on certain land, for the use and operation of the plaintiff's mills and machinery; gave the plaintiff the right to maintain the flume and keep it in repair, and for that purpose to enter upon the defendants' land, "to have and to hold said demised premises to the said lessees, paying a certain yearly rent." Everything included in those stipulations " shall extend to and bind their legal representatives; " the fair meaning of which is that every right of the parties under the instrument shall extend to their legal representatives. This is all expressed in the common language of the country. No technical words, presumed to be used in a settled, technical, legal sense, are employed. The intention of the parties is therefore to be found in the ordinary, natural, and popular signification of the written language in which they choose to express themselves. In point of fact, there is nothing for construction here at all, for it is a primary maxim that it is not permitted to interpret what has no need of interpretation. It is not permitted to the court to defeat the plainly expressed intention of the parties, by distorting, explaining away, or wresting from its commonly received import the language they have used, under the name and guise of construction.
1 It would seem that technical words of limitation are still required to pass a fee in Maine, Vermont, Massachusetts (see below, p. 496, and Sedgwick v. Laflin, 10 Allen 430), Rhode Island, Connecticut, Pennsylvania, New Jersey. Delaware, South Carolina, Florida, Ohio and Wyoming. For the New Hampshire common-law rule, see below, Cole v. The Lake Co., p. 489. - Ed.