McKeon v. Whitney.

form as if he had been the original lessee. Nor does the distinction referred to appear to be supported by authority. Archbold, on the contrary, expressly says that the action will lie by the lessor against the assignee of the term, (p. 148, 150,) and I have found nothing in conflict with his position. In Wilkins v. Wingate, above cited, the question arose on a demurrer, and it was held that debt would lie for use and occupation generally; and the reasoning of Lord Denman in Gibson v. Kirk applies as well to an occupation by an assignee as by the original lessee. See also Ibbs v. Richardson, (9 Adol. & Ellis, 849,) where the action was in debt against an assignee of a term holding over.

Assuming then the rule to be general, I have no doubt of the defendant's liability. His occupation was fully established by the evidence which has been already referred to for the purpose of showing him an assignee of the terms demised.

It remains then to be considered whether the proceedings under the statute, by which the defendant was dispossessed, barred the plaintiff's right of recovery for the rent previously accrued. This question was distinctly presented to the supreme court in Hinsdale v. White, (6 Hill, 507.) The whole subject was elaborately and very ably examined, and the views presented by the court appear to me so sound and conclusive that any effort on my part to add to their force would be futile. It is sufficient to say that I concur in those views and in their construction of the statute, the result of which is declared to be as stated by President King, of a like statute in Pennsylvania, that "the landlord undoubtedly has his remedy for the recovery of his rent, although he may be thus repossessed of his property, and he may prosecute it as he could any other claim in the suitable and appropriate forum." (Rubicum v. Williams, 1 Ashm. 235.) The same principle is established in Hartshorne v. Watson, (4 Bing. N. C. 178.)

There is no color for treating the proceeding in this case as an eviction by the landlord without legal process. The officer putting him in possession acted under a judicial warrant, regular on its face, issued by an officer who had acquired jurisdiction

McKeon v. Whitney.

of the subject matter, and whose judgment cannot be collaterally impeached in this action, and for whose acts the plaintiff cannot be held liable. But if it were otherwise, it would not affect this suit. The fact is wholly immaterial. The re-entry did not take place until the fourteenth day of May, 1842, which was after the rent in question became due. If, therefore, it be considered an eviction, it could only suspend the accruing rent, and did not discharge that which had previously accrued. (Salmon v. Smith, 1 Saund. 204, and note 2; Gill. Ev. by Loft, 335; Bac. Abr. tit. Rent, l; Pendleton v. Dyett, 4 Cowen, 581; Archb. Land. & Ten. 144, 155; Cruise's Dig. 28, tit. Rents, ch. 3, 1, 2.)

In the course of the trial, Reywood, one of the lessees in the unsealed lease, was released by the plaintiff to qualify him to be sworn as a witness, and it was thereupon insisted that this act discharged the defendant from his liability for the rent mentioned in that lease. I am of opinion that no such effect was produced. The defendant was liable only on account of the privity of estate, and for his use and occupation of the premises. That liability was entirely distinct from that of Reywood, who was liable only on his contract.

Upon every view of this case I am satisfied that the judgment is right, and ought to be affirmed.

SPENCER, Senator, also delivered a written opinion in favor of affirming the judgment, upon the same grounds stated in the opinion of Senator Lott.

On the question being put, "Shall this judgment be reversed?" all the members of the court present, who had heard the argument, viz: The PRESIDENT, and Senators BARLOW, EMMONS, HAND, HARD, JOHNSON, LOTT, MITCHELL, PORTER, SANFORD, J. B. SMITH, S. SMITH, SPENCER, TALCOTT, WHEELER and WRIGHT, (16,) voted in favor of affirmance.

Judgment affirmed.

VOL. III.*

58

Areson v. Areson.

ARESON VS. ARESON.

The will of a testator, who died seized and possessed of real and personal estate leaving a wife and children, contained a clause in these words: "I give and bequeath unto my beloved wife, all my real estate, one clock, and the interest of five hundred dollars during her lifetime;" and other parts of the will disposed of the residue of the property among the children, but the real estate was not again mentioned. Held, that the words "during her lifetime" qualified all the subjects antecedently mentioned in the sentence, and that the widow cons?quently took an estate for life only in the lands.

ON error from the supreme court. John R. Areson prose cuted Benjamin R. Areson in the court below in ejectment, for one undivided fifth part of certain lands in Flatbush, in the county of Queens. The jury found a special verdict, and the court rendered judgment for the defendant. For a statement of the facts and the opinion of the supreme court, see 5 Hill, 410. In order to understand the discussion here it will be sufficient to state that the plaintiff claimed title as one of the heirs at law of Benjamin Areson deceased, who died seized, in 1841, having shortly before his death made his will, containing the following clause: "Second. I give and bequeath unto my beloved wife, Mary, all my real estate, one clock, and the interest of five hundred dollars during her lifetime." The remainder of the will contained sundry dispositions of personal estate, which are sufficiently stated in the opinions given in this court; but no further notice was taken of the testator's lands. The widow died in 1842, and unless she took an estate in fee under the will, the plaintiff was entitled to recover.

W. J. Cogswell & D. Wood, for the plaintiff in error.

J. W. Gerard, for the defendant in error.

BARLOW, Senator. In considering this case, both the supreme court and the defendant's counsel seem to render the uncertainty

Areson v. Areson.

of the law more uncertain, by resorting to the speculative and uncertain rules of grammar.

It would appear as if the law of the land and the principles of grammatical construction were identical; for if we wish to know the law governing a will, we are told to look for the intent of the testator; and if we would be instructed how to parse or punctuate the same document according to the rules of syntax, we should be directed first to seek the meaning of the testator. Punctuation determines nothing. It is true that by it sentences are assorted, and the intent is more readily presented to the eye; or it may be it is entirely perverted and destroyed. All depends upon the intent of the writer. Intent is every thing; and very little reliance should be placed upon the capricious rules of grammar. By travelling this road to declare and carry out the law of the land, we associate in one grand group of oracles, not only the profound jurists of former and present ages, but also the grammarians and critics of the present day, with all their learning in regard to commas, semicolons, &c.; and the strife comes up between the schools of Coke and Murray. The learned chief justice in his opinion says: "The grammatical construction of the language proves the claim of the plaintiff." If by this he means that the grammatical construction of the will carries out the true intent of the testator, then there can be no question as to the law, if we agree with him in this view. If the clause ran thus: "I give to my wife all my real estate one clock and the interest of five hundred dollars during her lifetime," it seems very plain that all would agree that only a life estate was given. The language would not be broken by any punctuation, and the mind would not be arrested by any philological speculations. But it is said that a comma is used after the word clock, and that the words of limitation have reference back only to the first preceding antecedent, the interest of five hundred dollars. But certainly no rules of grammar will justify any such view. The words of limitation refer to all the antecedents, as the easiest sense to the reader, and this is the sense which should govern us. But to carry out the construction given by the supreme court, there

Areson v. Areson.

should be a conjunction after the word estate, to arrest the further continuation of the same sense beyond the word clock; and then commence the limited and new sense by another conjunction, with different punctuation or no punctuation at all; thus, "I give to my wife all my real estate and one clock, and the interest of five hundred dollars during her lifetime."

Thus much for the grammatical construction of the sentence, which I think is obviously against the views of the supreme

court.

But there are some other considerations bearing upon the subject. The widow would, by law, if no will had been made, have had a life estate and no more, in one-third of the real estate. We may well suppose that the testator thought best to let her have the use of it all-the clock in the homestead and the interest of five hundred dollars during her lifetime, and on her decease to have it go to his heirs.

I am therefore of the opinion that she took only a life estate in the lands devised, and that the judgment of the supreme court should be reversed.

HARD, Senator. The words in the will in question necessary to be considered in determining this case are the following: "I give and bequeath unto my beloved wife Mary, all my real estate, one clock, and the interest of five hundred dollars during her life." The question is whether Mary Areson, the wife of the testator, takes a life estate or a fee simple in the real property. The court below held that she took the latter estate. I agree with the learned justice who delivered the opinion of the court below, that "The grammatical construction of the language proves the claim of the plaintiff." But when he says, "I think the words 'during her lifetime,' should be restricted in their application to the last preceding subject, 'the interest of five hundred dollars,'" I think he does violence not only to the plainest rules of grammar but to the common rules of construction. Having arrived at the true grammatical construction of the instrument, the presumption is that we have discovered the intention of the testator; and any further speculation is precluded.