:MYRICK
'11.
HEARD.
241
MYRICK v. HEARD. «(Jitrcuit (Jourt, 8. D. Georgia, E. D. April 80,1887.)
1. 2.
FEDERAL COURTS-STATE DECISIONS.
Where a question involving the title to land in a state is well settled by the decision of its court of last resort, it will be followed by the courts of the United States, even though they may have understood the law otherwise.
SAME:...LCONFLICTING STATE DECISION.
The courts of the United States will follow the .latest, settled adjudicatipn,' llut they cannot be expected to follow osqillations in the process of llettlemeJ;lt.
8.
WILLS-CONSTRUCTION-TESTATOR'S INTENTION.
4.
A cardinal rule for construction of wills in Georgia is to seek diligently for the intention of the testator, regardless of technical'rules, and, when such in'tllntion is ascertained, to allow its full operation, provided it does not con',travene anylaw or public policy. In a clause of a will in these words: "To hold.in trust for my niece Abi¥,ail Nelson, the daughter of my sister Elizabeth Nelson, and her heirs, and If she, the said Abigail, should die without issue living at her death, then, in default of such issue, to my sister Elizabeth Nelson,themother of 'said Abi· gail;' for life, remahider in' fee-simple to my nephews Augustus, Francis, Sheldon, and Mitchell Doughtery, the sons of my brother Lemuel Doughtery, and their heirs, "-the word "heirs, " as used, is a mere descriptio personarum of the issue of the life-tenant living at the time of her death. This clause does not create a perpetuity, but provides simply for the root of a new inheritance. It is tantamount to "heirs of the body," and indicates persons'intended to take the estate.
SAME-'LIFE-EsTATE.
5.
SAME-PERPETUITIES.
This clause casts the title on the plaintiff, the only child of the life-tenant the time of her death, and excludes the husband of the life-tenant, who claims by virtue of his marital rights. (Syllabus by the Oourt.)
6.
SAME-MARITAL RIGHTS OF LIFE-TENANT's HUSBAND.
At Law.
Motion to direct a verdict in an action of Ejectment.
John M. Guerrord and Oharles N. West, for plaintiff. DeU « Wade and Lester &: Ravenel, for .defendant.
SPEER,J. The plaintiff' in ejectment, having introduced her evidence, rested, and the defendant moved the court to direct a verdict in his favor, and the question depends on the construction of the following clause in the will of Mary Ann Murray, that is to say: "I give and bequeath," etc., "to hold in trust for my niece Abigail Nelson,
the daughter of my sister Elizabeth Nelson, and her heirs, and if she, the said Abigail, should die without issue living at her death, thell, in default of such issue, to my sister Elizabeth Nelson, the mother of the said Abigail, for life, remainder in fee-simple to my nephews Augustus, Francis, Sheldon, and Mitchell Doughtery, the sons of my brother Lemuel Doughtery, and their heirs."
At'the death ofAbigail Nelson, the plaintiff, her daughter,and the only child, was living. It is insisted by counsel for the defendant that Abigail took, under this devise, the fee, determinable upon her dying withOl1t issue living at the time of her death; and, as this contingency did v.31F.no.5-16
242
REfORTER.
not happen, the fee at the death of Abigail vested in her husband, under whom the defendant holds.. It is insisted by counsel for plaintiff that the words "heirs" and "issue" as used in the clause are synonymous; that they are words of" ip .the broadest sensE;) of that term; and that the plaintiff, as the "issue" of Abigail, took the title upon the death of the latter. I may say of the argument, as 'Was said by Chief Justice LUMPKIN, in v: MdUery, 4 Ga. 60, on the same question by members ofthis bar whose memories are among its cherished traditions: "It haa:elicited Buchan admil'apleexhibition of complex and multifarious learnintby We erudite and ingen1()uscounsel that·it is not too much to say My Lord COKE himself, were he in might derive both pleasure and profit from it." . . . . There'httve been many cases in Georgia upon this most difficult and intricate doctrine of the law, and'many elsewhere. As !'laid by Chief Justice KENT, in delivering the opinion of the court in of Moffa.t v. Strong, 10 ,Johns. 12: difficulty that arises in. stating the maiA for consideration being confounded by th.e.lliultitude of cases. and, they Lord THURLOW said· that he had .fo1Uld ,fifty cases up to his have multiplied exceedingly sincetheIL" In Burton v. Black, 30 LINTON in delivering the opinion of the court, stated: u cases which haveCaUB,$j:}S?,chdifficulty and contlictofdecisioDs are those where the persons intehdM to take the property are to be: ascertained. Dot by designation in the conv;eyance, but by ,inference." There however, singular conflicts of authority upon. language the construction of which is identical in the pases reported. The counsel for the plaintiff rely with great confidence upon Wetter v. Hydraulic CottonPre88 Co., 75 Ga. 540, (decided by the Sup. Ct. of Georgia at Marchterm{1886.). The chief justice having been disqualified, the decision of the court was pronounood by the Hon, MARSHALLJ. CLARKE, a judge of the superior court, who for ,that case was acting as justice of the supreme court. The clause of the will there construed was in these words: 'lItis my will that if my'daughter should depart this life leaving no lineal heirs living at the time of her death," that the estate should go over, etc. There was a lineal heir, the grandchild of the testatrix, living at the death of the testatrix; and the court held that these words created a r,emainder in fee in the lineal heir, and that it did not invest the daughter, who was the first taker, with the fee determinable upon her dyingwith'out issue. The counsel for the defendant rely with equal upon Pill v. Alford, 46 Ga. 247, The clause of the will renderiI1g .thedecision, was: there cons.trued, Chief Justice "Should all my children die without leaving at the time of their the. estate shall go over, etc. It wasthereinsisted that the intention of the testator by this clause was to provide for his grarnchildren, if, in life at the time of the death of his children, the first takers, but the court declare: "There are no words in the will which.will author-
MYRICK V. HEARD.
243
ize the court to say SOj" and the ruling of the circuit court, which was that the grandchildren "took an estate in remainder in fee," was reversed. This court is notable to reconcile these decisions, although it was stated in the argument that they were reconcilable. Where a question of this character is well settled by the decisions of the highest court of the state, it will be followed by the United States courts, even though they may have understood the law otherwise. Green v. Neal's Lessee, 6 Pet. 291, ,U. S. v. Morrison, 4 Pet. 135. They will follow the latest settled adjudications, (UjJingwell v. Warren, 2 Black, 599 j) but they cannot be expected to follow oscillations in the pr,ocess of settlement, (Gelpcke v. Dub'!.UJ:UC, 1 Wall. 175; Green G>. v. G>nners, 109 U. S. 104, 3 Sup. Ct. Rep. 69.) Besides, it may well be doubted whether the supreme court of Georgia regard this question as settled. Central R. Co. v. Roach, 70 Ga. 434, HALL, J.: "Wherl;l a principle has been by a unanimous judgment of a full bench, without any observance of the conditions of section 217 of the Code, or witnout any reference to the first judgment, as sometimes unavoidably happens, we do not intimate an' apinion as to which ruling, the first or the last, we would be obliged to follow." Deprived, therefore, upon the consideration of this question, of that lucid and decisive declaration of legal principles which is usually found in the reports of that elevated tribunal, this court must depend upon decisions and authority t:lsewhere found for the construction of this will. The cardinal rule of construction of force in this state is expressed in sections 2248, 2456, Code. It is to seek diligently for the intention of the testator, regardless of technical rulesj and, when such intention is ascertained, to allow its, full operation, provided it does, not contravene any law or public policy. ' Now, what was the intention of the testatrix It will be necessary to call attention briefly to certain facts in evidence. The will was made in 1851. The chief or first object of its bounty was Abigail Nelson, the niece of the testatrix. She was the daughter of Elizabeth Nelson, and, as she then bore her maiden name, presumably she was not married at that time. She afterwards married one Williams. The bequest of almost the entire estate was to Abigail and her heirs, and, if "she should die without issue living at her death then, "in default of such issue," to her mother, Elizabeth Nelson, the sister of the testatrix, for life, remainder in fee-simple to a sister, nephews, etc. Now, in what sense were the words Hheirs," "issue," and "in default of such issue," used? We have great assistance in this determination from very high authority. In 00",18 How. 215, Mr. Justice GRIER for the court says: "It remains to Consider the effect of the second clause of the will, which is ,in these It ismy will that, if either of my sai<Jsons, namely, John or Jacob, shonld happen to die without any lawful heirs of their own,then the share of him who may first decease shall accrue to the other survivor, and his heirs. Viewing this clause free from the confusion of mind produced by the
244
FEDERAL REPORTER.
numerous coJifiicting decisions of courts, we think no two courts could differ as to the clear intention of the testator. By lawful heirs of their own, he evidently means lineal heirs or issue." See, also, the opinion of Lord MANSFIELD in Davie v. Stev£m8, 1 Doug. 321. This would seem the only intelligent view which will give effect to every effective word·in the clause, and this, the court must do if possible. Had the testatrix reference to any heirs who were not to be the issue of Abigail's? If so, why use the defining word "issue," and the alternative phrase, "in default of BUch Had she perceived the future husband of Abigail in the horizon of her benefaction, she would not have used the phrase" heirs," because by the law as it then stood the husband,hyvirtue of hiemaritlilrights,',wasthe sole 4eir, no matter how many children may have been born to Abigail. The bequest was to Abigail's "heirs,"and ill default ofsuch issue, th,en over to the sister, with remainder to the'sons ofabrother; blftno fair or reasonable of this clause can compass within it as one of the heirs of A,.big/lil a hmband of ",hom ,had probably never heard. Such a. conjecture isdistinctlyJ.at varian,ee,wit4t4e entire testamentary scheme of Mrs. Murray. Had she designed a benefit for the husband, t4e issue of the marriage would. not have. been considered or over to her sister, with remainmentioned, and certainly the der in fee to her nephews, would I hold, therefore, that the term" heirs," as used in this clause; is'not used in that technical sehee which would cast the estate upon the husband of Abiliving gail, but thatit is a mere descriptio personarum of Abigail's at the time her death. This will not tend to create a perpetuity, but simply the root of a new inheritance. It is tantamount to heirs of the body, and indicates the persons intended to take the estate. 4 Kent, Comm. 221. This construction will exclud,e the husband of Abigail, and will, in the opinion of the court, cast the title on the plaintiff, her only child living at Abigail's death. The motion to direct a verdict for the defendant is therefore denied.
or
COLLINS v. WELLINGTON and others. ' (Oi"cuit Oourt, D. Oonnecucut. Mpv 20, lBe7,) 1. REMOVAL OF CAUSES-SHAM DEFENDANT-MUNlV"IPAL CORPORATIONS.
Plaintiff, a citizen of Connecticut. brought in R state conrt' of Connecticut an action of assumpsit against several non·resiuents, and the borough of Danburf' a municipal corporation of Connecticut. A motion to remand will bit dellled where the corporation defendant has been made'such without, according to the testhnony of the plaintiff. and each of the defendants, so far as they have testified, any legal claim against it in such action, and where it appears that the corporation is in fact a sham defendant, though not made so for fraudulent purposes.