Noah Haynes Swayne

Name: Doe Lessee of Poor v. Considine — Opinion of the Court
Author: Noah Haynes Swayne

Summary

“Doe Lessee of Poor v. Considine — Opinion of the Court”, is a work by Noah Haynes Swayne. It explores elements such as remainder, estate and testator.

Quotes from Doe Lessee of Poor v. Considine… (Noah Haynes Swayne)

Noah Haynes Swayne, Doe Lessee of Poor v. Considine…

“ Issue is the only term which will represent the will of the testator in every situation. Thus, in the trust to support and educate the children of John M. Barr charged on Maria Barr's life estate, grandchildren were doubtless also intended, and issue in its strict sense would embrace them.
Now, when is the failure of issue contemplated by the testator when he says, 'Should my said son John M. Barr die without leaving any issue of his body, then and in that case I do give and devise the remainder of my estate in the said farm to my said sons-in-law, &c., and their heirs forever'-to take place? ”

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Source: Wikisource

Noah Haynes Swayne, Doe Lessee of Poor v. Considine…

“ It would be a monstrous perversion to accept and sustain a rule, no matter by whom devised, or by whom or how many adopted, the obvious effect of which would be to defeat the intention of the devisor. The rule, as it is called, that holds a remainder vested even by forcing the language, has its origin in a purpose to save, not to defeat, the intent of the grantor or devisor by saving the remainder from many of the accidents which destroy it if contingent. [3] Yet, even in these cases, the early vesting of a remainder is not an end, but a means ”

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Source: Wikisource

Noah Haynes Swayne, Doe Lessee of Poor v. Considine…

“ Adverbs of time-as where, there, after, from, &c.-in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not the time of the vesting in interest. [16]
Where there is a devise to a class of persons to take effect in enjoyment at a future period, the estate vests in the persons as they come in esse, subject to open and let in others as they are born afterward. [17]
An estate once vested will not be devested unless the intent to devest clearly appears. ”

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Source: Wikisource

Noah Haynes Swayne, Doe Lessee of Poor v. Considine…

“ The last would bs t conform to legal rules, and also much the best to the general intent of the testator. There can be no rational object in fixing it at any other time or the happening of any other event, and the court habitually moulds adverbs of time, and phrases implying time, to meet the intent of testators, and subserve the ends of justice. [2] Such adverbs and such phrases generally relate to the taking effect in possession, not in estate, in case of a devise in remainder, so as to make it vested rather than contingent. ”

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Source: Wikisource

Noah Haynes Swayne, Doe Lessee of Poor v. Considine…

“ When a trust has been created, it is to be held large enough to enable the trustee to accomplish the objects of its creation. If a fee simple estate be necessary, it will be held to exist though no words of limitation be found in the instrument by which the title was passed to the trustee, and the estate created. ”

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Source: Wikisource

Noah Haynes Swayne, Doe Lessee of Poor v. Considine…

“ A contingent remainder, if it amount to a freehold, cannot be limited on an estate for years, nor any estate less than freehold. A contingent remainder may be defeated by the determination or destruction of the particular estate before the contingency happens. Hence, trustees are appointed to preserve such remainders.
An executory devise is such a disposition of real property by will that no estate vests thereby at the death of the devisor, but only on a future contingency. ”

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Source: Wikisource

Noah Haynes Swayne, Doe Lessee of Poor v. Considine…

“ Now, although the mechanical structure of the different parts of the act is such that the successive priorities in favor of one class of legal representatives of an intestate over another, is generally indicated by the successive order observed in the structure of the act, yet that is not, upon any sound principle, such a circumstance as should have a controlling effect, or subvert a manifest intention otherwise apparent. ”

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Source: Wikisource

Noah Haynes Swayne, Doe Lessee of Poor v. Considine…

“ If it tend to defeat the paramount end-that end for the effecting of which all rules were adopted-it must be rejected as an error and a mischief.
This case is subject to none of the casualties attending remote remainders against which early vesting was intended to guard. ”

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Source: Wikisource

Noah Haynes Swayne, Doe Lessee of Poor v. Considine…

“ Under the instructions given to the jury, they found for the defendants, and judgment was rendered accordingly.
The plaintiff excepted to the instructions, and this writ was prosecuted upon the ground that they were erroneous.
William Barr, Senior, died on the 15th of May, 1816, leaving a will duly admitted to probate in Hamilton County, Ohio. It was out of the will that the controversy arose.
The testator left three daughters: Mary, the wife of William Barr; Susan, the wife of John B. Enness; and Mary B., the wife of James Keys. ”

Noah Haynes Swayne

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