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January 1, 1830


ERROR to the district court of the United States for the western district of Virginia.

This was an ejectment brought in the district court of the western district of Virginia, and the question involved in the suit was the construction to be given to the will of William King, deceased, formerly of Washington county in Virginia.

The cause was argued in the court below, on the following case agreed; and the judgment of that court being in favour of the defendant in error, the plaintiffs brought the case into this court.

The following is the case agreed:

We agree that William King departed this life on the 8th day of October 1808, having first duly made and published his last will and testament, which was afterwards admitted to record in the county court of Washington county in Virginia, where he had resided, and is in the words and figures following:

'Meditating on the uncertainty of human life, I, William King, have thought proper to make and ordain this to be my last will and testament, leaving and bequeathing my worldly estate in the manner following, to wit:

'To my beloved wife Mary, in addition to her legal dower of all my estate, the dwelling house and other buildings on lot number ten in Abingdon, where I now reside, together with the garden, orchard, and that part of my fruit hill plantation south of the great road and lands adjacent to Abingdon, now rented to C. Finlay and Co., and at my father's decease, including those in his occupancy on the north side of the great road, for her natural life.

'I also will and declare, that in case my beloved wife Mary hath hereafter a child or children by me, that the said child or children is and are to be sole heirs of my whole estate, real and personal; excepting one-third part of specified legacies and appropriations hereinafter mentioned; which, in case of my having children, will reduce each legacy hereinafter mentioned to one-third part of the amount hereafter specified, and the disposition of the real estate, as hereafter mentioned in that case wholly void.

'In case of having no children, I then leave and bequeath all my real estate at the death of my wife to William King, son of brother James King, on condition of his marrying a daughter of William Trigg's and my niece Rachel his wife, lately Rachel Finlay, in trust for the eldest son or issue of said marriage; and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said William and Rachel Trigg that will marry a child of my brother James King's or of sister Elizabeth's, wife to John Mitchell, and to their issue–and during the life time of my wife, it is my intention and request, that William Trigg, James King and her do carry on my business in copartnership, both saltworks and merchandizing, each equal shares, and that in consideration of the use of my capital they pay out of the same the following legacies:

'To John Mitchell, on condition of his assisting and carrying on business with them at the usual salary as formerly, viz. $1,000 per year, for from two to five years, as they may wish his assistance. An additional sum of $10,000, payable five years after my decease, and to each of his children upon coming of age $1,000 more than the general legacy hereafter mentioned.

'To Connally Finlay a like sum of $10,000, payable in five years.

'To my nieces Elizabeth Finlay and Elizabeth Mitchell (being called for my grandmother with whom I was brought up) $10,000 in twelve months after marriage, provided they are then eighteen years of age; if not, at the age of eighteen; to each of my other nephews and nieces at the age of eighteen, that is children of my brother James, sisters Nancy and Elizabeth, $1,000 each–to each of the children of my half-brother Samuel and half-sister Hannah $300 each, as aforesaid; to my said sister Hannah, in two years after my decease $1,000; and to my said half-brother Samuel, in case of personal application to the manager at Saltville or to my executors in Abingdon, on the 1st day of January annually during his life $150; if not called for on said day to be void for that year, and receipt to be personally given.

'It is my wish and request that my wife, William Trigg, and James King, or any two of them that shall concur in carrying on the business, should either join all the young men that my reside with me and be assisting me in my decease, that are worthy; or furnish them with four or five thousand dollars worth of goods at a reasonable advance, on a credit of from three to five years, taking bonds with interest from one year after supply.

'In case my brother James should prefer continuing partnership with Charles S. Carson, (in place of closing the business of King, Carson and King, as soon as legal and convenient;) then my will is that William Trigg and my wife carry on the business, one-third of each for their own account, and the remaining third to be equally divided between the children of my brother James and sister Nancy and Elizabeth.

'To my father, Thomas King, I leave during his life the houses he now resides in and occupies at Fruit hill, together with that part of my land in said tract north of the great road that he chooses to farm, with what fruit he may want from the orchard; the spring house being intended for a wash house with the appurtenances, subject to the direction of my beloved wife Mary, as also the orchard, except as aforesaid. I also leave and bequeath to my father the sum of two hundred dollars per annum during his life, and if, accidentally, fire should destroy his Fincastle house and buildings, a further sum of two hundred dollars per annum while his income from there would cease.

'I also leave and bequeath to the Abingdon academy the sum of $10,000, payable to the trustees in the year 1816, or lands to that amount, to be vested in said academy with the interest or rents thereon for ever.

'Abingdon, Virginia, 3d of March 1806.




'I hereby appoint William Trigg of Abingdon and James King of Nashville executors of my last will and testament enclosed, written by my own hand and signed this 3d day of March 1806.


'The other wills of previous dates to said 3d of March 1806, being void.


We agree that William King, at the time of his death, was seised and possessed of seventy-six tracts of land in the said county of Washington, containing in the whole 19,473 acres of land, on one of which tracts is the saltworks, which have, since his death, been leased for years, at the annual rent of thirty thousand dollars; also of nineteen lots in the town of Abingdon in Washington county, nine of which produced an annual rent of six hundred and sixty dollars; also of fourteen tracts of land in the county of Wythe, containing 3,494 1/2; also of eighteen tracts of land in the state of Tennessee, containing in the whole 10,880; also of shares in town lots in several of the towns in the said state of Tennessee. We also agree that the said William King survived his father in the will mentioned; that the said William King had brothers and sisters, to wit: James King, a brother of the whole blood; Nancy, a sister of the whole blood, the wife of Connally Finlay in the will mentioned; Samuel King, a brother of the half blood; Hannah, a sister of the half blood, the wife of John Allen; all of which brothers and sisters before named, survived the said William King; that another sister of the said William King, of the whole blood, died before him, and was named Elizabeth, the wife of John Mitchell, who is mentioned in the will.

We agree that William King, the lessor of the plaintiff, is the same William King, the son of James King, brother of the testator, mentioned by him in the will.

We further agree that William Trigg, in the will mentioned, departed this life on the 4th of August 1813, leaving Rachel Trigg, in the will mentioned, his widow, and four sons, the said Rachel having borne them to the said William Trigg, and not having borne any daughter to him the said William Trigg, at any time, which said sons are now living; that Mary, who was the wife of the said William King, is still living, aged forty-three years, and is now the wife of Francis Smith.

We further agree that William King, the lessor of the plaintiff, is married to Sarah Bekem; that James King had only one daughter, named Rachel Mary Eliza, who is now the wife of Alexander M'Call; and that Elizabeth, the wife of John Mitchell, had only two daughters, to wit: Elizabeth, who is now the wife of William Heiskill, and Polly, who is now the wife of Abraham B. Trigg.

We agree that William King the testator died seised and possessed of the house and lot in the declaration mentioned. We agree the lease entry and ouster in the declaration supposed; and that the defendants are in possession of the house and lot in the declaration mentioned.

If upon this state of facts, the lessor of the plaintiff ought to recover at this time, we agree that judgment shall be entered for him; and that if the court shall be of opinion that he ought not to recover until after the death of Mary, the wife of Francis Smith, or that he ought not at any time to recover, judgment shall be entered in favour of the defendants. We also agree that the property in controversy is worth more than two thousand dollars.

The case was argued for the plaintiff in error, by Mr Sheffy; and by Mr Smyth and Mr Webster, for the defendant, at the last term; and was held under advisement by the court.

Mr Sheffy proposed to consider the case under two general aspects.

1. Has the defendant in error any title to the estate in question, regarding the devise as personal to himself.

2. Has he any title, should the devise be considered as a trust.

It is contended, that he has no title. That no interest whatever vested in him, because the condition presented by the testator has not been performed. He has not married a daughter of William Trigg and Rachel his wife.

This has a condition precedent, without the performance of which no right could vest in the devisee.

If the will is construed literally, the words employed by the testator are as strong as they can be. He gives the estate 'on condition' that the devisee shall marry a person not in being, but expected to come into existence, the offspring of his wife's brother and his own niece. He anticipates that such a marriage may not take place. In this event he directs that his whole real estate shall go to such other persons, among certain collateral relations, as shall give effect to the object he had in view.

But it is admitted that the question, whether the condition is precedent or subsequent, does not depend on any form of expression. It depends on the testator's intention. He has a right to bestow his estate on whom, and on what condition he pleases, so that he violates no established rule of law. To ascertain that intention, we must be governed by those rules of construction which have been established by a series of judicial decisions.

These decisions enable us to determine the general principles which give a character to conditions in contracts, and devises and bequests; either as conditions precedent or subsequent. So far as the present question is concerned, they establish, that where the testator requires the devisee to do an act which he regards as important to be accomplished; or where he prescribes a qualification which the devisee is to acquire; the performance of the act, and the attainment of the qualification, will be regarded as conditions precedent, unless a manifest intention to the contrary is apparent.

In the case before the court, the testator had no children. He had a strong desire to effect a union between the family of his wife and his own. In the disposition of his real estate, he contemplated the attainment of that object as paramount to all personal considerations. There is no reason to believe that his nephew William King was the object of his peculiar attachment. So far from it, he withholds from his (though he bore his own name) even the smallest bounty, unless he should become instrumental in the accomplishment of his primary purpose. Looking to his marriage with a daughter of William Trigg and Rachel his wife, as an event which might never happen; he endeavoured to stimulate others, standing in the same relation to him, to effect the desired union of the two families. He did not dedicate his estate to gratify a particular personal attachment, or to promote individual interests; but to bring about an event which he strongly desired.

The case of Bertie vs. Falkland, 2 Vernon, 333, strongly supports the construction contended for by the plaintiff in error. There the testator devised an estate to Elizabeth Willoughby, an infant of ten years old 'in case she married lord Guilford within three years from his death.' The marriage did not take place, though there was no fault on the part of the devisee. The marriage was held to be a condition precedent. Lord chief justice Treby, in delivering the opinion of the court, says, 'that the defendant Elizabeth's being willing and consenting, or endeavouring to bring about the marriage, could not be of any avail or moment in this case; for that the will was formed not on the endeavours or agreement of the parties to marry, but on the event. In Acherley vs. Vernon, P. W. Rep. 783, the case in Vernon is referred to by lord chief justice Wills, and considered by him as settling the law. The case before him involved the same principle. The question was whether the performance of an act required by the testator from his sister, was a condition precedent on which her title to a legacy depended, or whether the legacy vested at her brother's death. It was decided that the act being an object with the testator, and desired by him, was the consideration of the legacy, and therefore a condition precedent.

A great variety of authorities might be cited, all tending to establishing the same principle. It is sufficient to refer the court to the following: Creagh vs. Wilson, 2 Vernon, 572. Elton vs. Elton, 1 Ves. Sen. 4. Gillet vs. Wray, 1 P. Williams, 284. Craydon vs. Graydon, 2 Atkins, 16. Reynish vs. Martin, 3 Atkins, 333. Grascott vs. Warren, 12 Modern, 128. Harvey & Wife vs. Aston, 1 Atkins, 361. Randal vs. Payne, 1 Bron. Cha. Rep. 55, and 2 Atkins, 151. 2 Powell on Devises, 252. 2 Cruise, 20.

The intention of the testator, that nothing should vest until the condition should be performed, is further manifest, as the will postpones all right of the devisee of the real estate until the death of his wife. She was at the date of the will not more than twenty-five years of age, and he reasonably supposed that a marriage such as he wished to effect, would take place before her death. In the mean time, the legal estate descended to the heirs at law, who could hold it until the event contemplated by the testator should happen. Fearne on Remainder, 513, 516. 2 Fonb. Eq. 93.

It will probably be said that though the intent of the devisee is postponed in terms until the death of the testator's wife, yet that it ought to be construed into an immediate interest by implication. Such was the opinion of the court below. Courts have sometimes allowed implications when they are very apparent, in order to give effect to the intention of the testator. But they must be necessary, not probable implications; for the title of the heir at law being plain and obvious, no words in a will ought to be construed to defeat it, if they can have any other signification. Cruise, title Devise, 205.

But the devise over shows in the strongest light that the testator did not intend to part with the estate, unless the event which he sought to bring about should happen. He directs that 'in case such marriage should not take place, then I leave and bequeath the said estate to any child of the said William and Rachel Trigg, that will marry a child of brother James King or of sister Elizabeth.' It is immaterial whether the devise could take effect according to law, or not; the testator thought in could, and intended that the estate should pass to others in the event mentioned in his will. According to the pretensions of the defendant, it never could pass, though the event mentioned in the clause referred to should happen; and though it should be decided that the devise was within the legal limitation. For the ground on which he rests his claim (as is understood) is, that on the death of the testator he took a vested contingent fee, which would become absolute on the marriage with a daughter of William Trigg and Rachel his wife; that as there never was any such person, he could not perform the condition, and is therefore absolved from it, and holds the estate absolutely. If then a son of William Trigg and Rachel his wife, had intermarried with a daughter of James King or Elizabeth Mitchell, the defendant would have kept the estate against the express intention of the testator. This cannot be law, because it is contrary to all reason. It would be sporting with the right which the law guarantees to the citizen to dispose of his property to whom and on what condition he pleases, so that he violates no established rule of public policy.

But it is contended, that, if the estate vested in the defendant at the death of the testator, that all right in him became extinguished on the death of William Trigg. That event placed it beyond all doubt, that such a marriage as the testator wished to promote, could not take place. As to the defendant, therefore, his title ceased with the possibility of his becoming instrumental in uniting the two families.

But it will be contended, that, if the marriage of William King with a daughter of William and Rachel Trigg is a condition subsequent, then the estate is discharged from the condition; it being impossible to perform it; the correctness of the conclusion is not admitted.

If the testator's primary legal object was the union of the two families, and if he devised the estate to the defendant, on condition that he should become instrumental in effecting that object; it is immaterial whether the condition is precedent or subsequent, or whether the failure to accomplish the purpose desired, is owing to one cause or another. The question still recurs, did the testator intend that his nephew should have his whole estate, whether the marriage prescribed should take place or not, provided the failure was not attributable to him? Suppose the testator had declared that on his death his nephew should have his whole estate, in fee, on condition that he married a daughter of William and Rachel Trigg; but that whenever it was ascertained that such marriage could not take place, from any cause whatever, that all his right should cease, and that the estate should go to such person as is actually designated in the will. Could it be seriously argued that the impossibility of such a marriage, on the part of the defendant, would render the estate absolute in him, against the express intention of the testator? It is believed it could not: and yet this is the very case before the court, if the defendant had a vested interest at the death of the testator.

The argument that the defendant acquired an absolute estate, whenever it become impossible to perform the condition of the devise on his part, has no other support except the idea that the devise over was intended as a penalty on him for not doing what the testator desired, and that there can be no penalty when there is no fault. This is a perversion of the obvious meaning of the will. The testator was fully acquainted with all the circumstances; he knew that William and Rachel Trigg had no daughter, and consequently foresaw that it was possible that such a marriage could not take place. In this state of things, if he had intended that his nephew should have the estate, unless he was guilty of a fault in disobeying his wishes, would he not have restricted the devise even to the occurrence of such fault? Would he not have indicated that it was resistance or indifference to his views, that should take the estate from the party in fault, and place it at the disposal of others. The testator never thought of any such thing. He wished to effect an object dear to his heart. If that object was not effected, he cared not for the cause. Individual personal attachment had no share in the purpose. The act which united the two families was the meritorious and only consideration with him.

In this view of the subject, it is not material whether the condition was, at the date of the will, or afterwards became impossible. But if it was, it could be easily shown that this condition falls within neither of the classes mentioned in the books where performance is excused. It was not a condition impossible at the date of the will; on the contrary, it was quite probable that William Trigg and Rachel his wife, who were both very young, would have a daughter to whom the defendant could be united in matrimony. An impossible condition, which is considered as void, is of this character; that at the time it is required to be performed, nothing short of a miracle could accomplish its performance. It is laid down in 5 Viner's Abridgment, 111, that if the condition be that a person shall go to Rome in a day, it is impossible; but if the condition be that the Pope shall be at Westminster to-morrow, this is not impossible condition, though the event is highly improbable. If a person should be required by a testator to qualify himself for and take holy orders by the time he should arrive at the age of twenty-five years, on the condition and consideration of a legacy, and that the interest should be paid to him in the mean time, (which would make it a vested legacy), would it be an excuse for the legatee to allege, that his intellect was unequal to the attainment of the necessary learning and the performance of the ecclesiastical functions, and that therefore it was an impossible condition? Most assuredly not.

This is not a condition which became impossible after the death of the testator, the non-performance of which will be excused. Those conditions belong to cases where all the means to accomplish the testator's purpose are in his view and in being; but when subsequent events change the existing state of things so essentially as to render the performance impossible, for instance, if a devise be made on condition that the devisee consent to marry a particular person, and that person dies, the performance is rendered impossible by the happening of an event subsequently, which the testator never contemplated; and where the estate had previously vested it, will become absolute by the death of such person.

The leading case for the defendant, and which will be doubtless relied upon, is the case of Thomas vs. Howell, 4 Mod. Rep. 66. But that case is essentially different from the one before this court. There the testator devised to his daughter Jane an estate called Lawhorn, on condition that she, at or before the age of twenty-one years, 'do consent' to marry Theophilus Thomas, who was the testator's nephew. Then he devised other estates to his two remaining daughters, and then follows this proviso: 'And my will is, that in case my daughter Jane shall refuse to consent to marry my nephew Theophilus Thomas, at or before she shall be of the age of twenty-one years, or in the mean time shall marry another person, the devise shall be void.' He proceeds to devise Lawhorn to his other daughters in succession, on the same condition; and then adds, 'but in case neither of my said daughters marry my said nephew, then the estate given them in Lawhorn shall be void;' and devises the estate over to trustees.

Theophilus Thomas died at the age of twelve years; Jane never refused to marry him, and after his death, at the age of seventeen, married another person. She had entered on Lawhorn on the death of her father, and the question was, whether the estate was divested, the contemplated marriage never having taken effect.

Three judges to one were of opinion, that under the first proviso to divest the estate, Jane must have 'refused to consent' to marry Theophilus Thomas; that what followed in the subsequent clause had reference to the same proviso, and ought not to be taken in a larger sense than the proviso itself; and upon this ground decided that the estate of Jane was absolute.

This case, instead of being an authority for the defendant, bears strongly against his pretensions. It shows that the court decided the case on the proviso, which made the refusal of Jane to 'consent to marry' Theophilus Thomas the basis on which the devise over should take effect. And then arises an irresistible implication from the opinion of the court, that if the case had rested on the last clause, the estate would have gone to the trustees.

To establish that, in the case now before the court, the defendant acquired a title which can be defeated only by his voluntary default, would overthrow the principle well established in many cases of conditional devises and limitations. For example: A testator devises to A. an estate for the term of thirty years, and if at the end of the term he has a child living, to A. in fee, but if he should have no child living, then to B. It might not be the fault of A. that he had no child living at the end of the term, and yet it has never been questioned that B. would take the estate.

Again: suppose a case, which is very common. A testator devises an estate to A. and his heirs; but if A. shall die without issue living at his death, then to B. and his heirs; would the heir at law of A. be permitted to keep the estate on the ground that his ancestor had committed no fault, and that therefore the estate became absolute? Such a defence has never been offered.

It is contended, in the second place, that the defendant has no title if we regard the devise as a trust.

There is nothing in this case which authorizes the belief, that the testator had any personal predilection for the defendant. He mentions him as the son of his brother James King; but there is nothing peculiar in that, as he likewise refers, and with the same view, to all the other children of James King, and those of his sister Elizabeth. If we confine ourselves to the words employed, all idea of any beneficial interest being intended for William King, is excluded. He is to take the estate on condition that a certain marriage shall take effect; but it is 'in trust for the eldest son or issue of the said marriage.' If we regard the union of the two families as the great object which the testator sought to bring about; then those in whom should be united the blood of both, must have been the objects of his peculiar favour.

The testator probably thought that a person not in being could not take the estate, unless it was through the instrumentality of a trustee. He regarded his nephew merely as a conduit, through whom his bounty should flow to those whom he considered as pre-eminent; because they would inherit the blood of both families.

If the devise is to be considered as a trust, then the question arises whether any trust interest vested on the death of the testator, or whether it was to arise when the marriage took effect? No immediate interest is expressly devised; on the contrary, the words used are, 'at the death of my wife.' There is no reason to support an immediate interest by implication, because there was no necessity for it; as the beneficial interest could not vest, until those who were to enjoy it would come into existence. Besides, the statute of uses makes a devise to A. to the use of B. the same as a devise to B. so that this devise is in point of law to 'the eldest son or issue of the marriage.' The doctrine is well established that in such a case the legal title descends to the heir at law, and remains until the birth of the issue, when it vests in him. In this case, there being no possibility of any such issue, the title in the heirs at law is no longer in trust for the purposes of the will, but is absolute in themselves.

But admitting, for argument sake, that the trust vested on the death of the testator; it is urged, that whenever the possibility of a marriage between the testator's nephew and a daughter of William ...

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