BUCK v. LINCOLN

By his will, executed in 1875, a testator gave the use of certain real estate to his widow for life, and then to E, his son's wife, for her life. In the next sentence he provided that "in case" the son survived E he was to have the use of the property during his life, "and the balance or residue of said property after such users have terminated, I give, devise and bequeath to the heirs at law" of said son. In a suit to construe the will it was held: — 1. That the devise in remainder to the heirs of the son could not properly be regarded as contingent upon his surviving his wife, but must be construed as an independent and absolute gift as fully as if it had been the subject of a separate sentence. 2. That inasmuch as the son's "heirs" might be other than his "immediate issue or descendants," the devise in remainder was void under the then existing statute against perpetuities (Rev. 1875, p. 352, § 3).

BALDWIN, J.

The devise in remainder to the heirs at law of Charles R. Ashley cannot properly be regarded as contingent upon his surviving his wife. The provision that it was to take effect in enjoyment only after all the "users" previously given (two of which had no connection with that contingency) had terminated, and the presumption that the testator intended to dispose of his entire estate, show that it should be construed as an independent and absolute gift as fully as if it had been the subject of a separate sentence.

This remainder took effect in right, if at all, on the death of the testator. It was created in favor of the heirs at law of a person then in being. As they could not be ascertained until the death of that person, and might be other than his children, it is settled by a long line of decisions that the devise was void under the then existing statute against perpetuities. Tingier v. Chamberlin, 71 Conn. 466, 469. This did not impair the validity of the several life estates in the Willimantic lands; but the remainder limited after them being one that could not lawfully be created, the reversion in those lands, and in the residue of his real estate, became intestate estate of Walter Ashley upon his decease. As such the title passed to his two children in equal shares.

This result frustrated the main scheme of the will, which was to give, after his wife's decease, the Willimantic property and half the residue of his estate to his son, or those claiming under him. To divide the reversion as intestate estate would be to give to Mrs. Shew, besides her own testamentary share, half of that intended for her brother and his family.

Whether the doctrine applies that, where it is impossible to execute the main purpose of a will, by reason of the failure of a provision for one line of natural descent, and gross inequality would result were the provisions for other lines to be allowed to stand, all must fall together so as to let the law work out, by the rules of inheritance and distribution, that equality which the will was designed but failed to secure (see White v. Allen, post, p. 185), there is no occasion to enquire, for whatever Mrs. Shew inherited, as well as all that she may have acquired by devise, she conveyed in fee simple to her brother. At the date of that conveyance, and before its execution, he and she together owned, either in reversion or remainder, or in both ways, all of the testator's lands. The deed therefore invested him with an absolute title to them, subject to the life estates. His will gave to his wife, in fee simple, all the real estate of which he should die seized and possessed, or to which he might be entitled at the time of his decease. These terms covered all the Willimantic lands.

For the reasons above stated, the Superior Court is advised that said lands passed to the widow of Charles R. Ashley under said devise, and upon her decease became part of her estate.