The testator's widow died in 1874. His daughter Margaret thereafter married the plaintiff. Foley died in 1876, and Margaret died in 1878, leaving no issue surviving Margaret, prior to her death, conveyed the premises to one Battersberry, who conveyed to plaintiff. In an action of partition between the heirs of John Foley, defendant was appointed receiver.
Finch, J. - The general intention of the testator, in this case, is very plain. Having a wife, and an unmarried daughter, he desired to secure to them during their lives the full benefit of the use and income of his property; but dreading the influence and possible selfishness of a husband of either, he aimed at a disposition which would make it impossible for such husband to obtain any interest in, or control over, the estate devised. To effect this purpose, he took from the widow, in the event of her remarriage, the management of the property and also the guardianship of his daughter and vested both in his executors. In the event of the daughter's marriage, he provided that her husband should not inherit the property, nor any part thereof, and, as a mode of securing that result, he gave no estate to the daughter in express terms, but directed that upon her death it should go to her issue then living, or, in default of such issue, then to the testator's nephew, John Foley. The will was evidently intended to bar the possible interest of a successor, or son-in-law, and keep from the hands of strangers, not of the testator's blood, the property gained by his care and labor. Whatever else may be true of the case, this purpose and intention is distinct and plain, and must have its proper weight in determining the construction of the will. The claim of the plaintiff, if sustained, overrides that intention, and renders nugatory and useless the precautions of the testator; for it is the husband of the daughter who now claims the absolute ownership of the estate and seeks to wrest it from the possession of the children of the nephew.
As to the proper construction of the will the parties differ widely. The theory of the plaintiff is, that the widow had a life estate, and the daughter, Margaret, took the fee by descent, such fee subject, however, to be determined by the presence of issue living at her death, or in default of such issue living at that date, subject to the right of Foley to take the fee if he should be living at the death of Margaret; but that in case both of the prescribed failure of issue, and the survivorship of Foley at the happening of that contingency, the fee inherited by Margaret lost its base or determinable quality, and became a fee simple absolute, which, through Margaret's deed in her lifetime, passed as such to her husband. In this view of the will the devise to Foley is deemed a contingent remainder, vesting neither in interest nor possession until the happening of two uncertain events, viz., the death of Margaret without issue living, and the survival of Foley at the date of such death. This construction bars utterly the heirs of Foley, and reduces his right to a mere possibility of acquiring an estate, which lapsed by his death in the lifetime of Margaret.
The theory of the defendant is that the widow took a life estate, then Margaret a life estate, with remainder in fee to John Foley, vesting in interest at the death of the testator, and in possession at the death of Margaret without issue living, but liable to be divested by the existence of such issue living at her death. The estate of Foley is claimed to be a vested remainder, affected in no manner by his death before Margaret, but in that event descending to his heirs who thereby took the entire estate.
The argument on both sides draws largely upon the provisions of the common law, as explanatory of the changes effected by the Revised Statutes, and some brief consideration of what would have been the operation of the former upon the devise in question may aid us in the application of the modified enactments.
The first difficulty in the defendant's position, as affected by the language of the will, would have arisen in the absence of a precedent estate to support the remainder to Foley. The general rule was that no remainder could be created without a particular estate to support it, and must have been so limited as to take effect on the regular and natural determination of the precedent estate. 2 Washb. R. E. 503. That rule would be fatal in the present case to the remainder of Foley, if the sole estate preceding it was the life estate of the widow, for that estate might end, and in fact did end, before the daughter, Margaret, died, and, therefore, before the contingency upon which Foley's estate depended had occurred. If to meet this difficulty resort is had to the plaintiff's theory, that besides the life estate of the widow, there was in Margaret a qualified, base or determinable fee, coming to her by descent, we are baffled by another rule of the common law that a remainder could not be limited on a base or determinable fee which had vested in interest. Lalor, 65. It is possible, however, that a just construction of the will would give to Margaret a life estate by implication. The use of the property, until her death, was probably intended for her as well as her mother. While the widow lived she was to have the use of the property for the joint benefit of herself and her daughter, unless she remarried. In that event the executors were to have the control of the estate. This provision was evidently aimed at the protection of Margaret, and indicates a purpose to secure her maintenance out of the income. It may be possible, therefore, to say, as the respondent contends, that after the death of the widow, the right of Margaret to the income and profits of the estate for her support and maintenance remained. In that event, the difficulty we have mentioned would disappear, because a precedent life estate in Margaret would have remained until her death, and sustained the remainder to her issue or to Foley. If it be then objected that such devise to the daughter for life, with remainder to her issue is, at common law, turned into a fee in the daughter by the operation of the rule in She/ley's Case, upon the ground that the word issue is used as the equivalent of heirs, and is here a word of limitation and not of purchase In re Sanders, 4 Paige, 293; 2 Washb. on Real Prop. 569, the answer is that the rule applied only to the case of the first taker, and not to the use of the word in a case like the present. Cushney v. Henry, 4 Paige, 345, citing Finch's Ch. 280, and Coke's, 263, note 15.