Majority
p. 333Charles Wilkes and The President, Directors, and Company of the Bank of New York, plaintiffs in error. against Edward Lion, ex dem. Medcef Eden and John Wood, otherwise called John Wood, Junior, assignee of Medcef Eden, defendant in error.
Headnote
E. died in September, 1798, having, by his last will, dated August 29,1798, devised lands to his son Joseph, hi fee ; and other lands to his son Medcef, in fee; and added, “ It is my will, and I do order and appoint, that if either of my said sons should depart this life, without lawful issue, his share or part shall go to the survivor ; and, in ease of both their deaths, without lawful issue, then I give all the property, &c. to my brother John E. of, &c. and sister Hannah J. of, &c. and their heirs.” Joseph, one of the sons, died in August, 1812, without lawful issue, leaving his brother M. surviving, who afterwards died on the 26th July, 1819, without lawful issue: Held, that on the death of the testator’s son Joseph, the limitation over, which was good as an executory devise, vested in M. the surviving son:And per Sanford, Chancellor, concurring with the Court below, the devise in his favor, having taken effect, ceased to be executory, and he became seised in fee tail, by necessary implication of law, with a remainder expectant in favor of John E. and Hannah J. the brother and sister of the testator; and by virtue of the statute of the 23d of February, 1786, abolishing estates tail, M. became seised, in fee simple absolute, of all the estate devised to his brother Joseph.
But per Cramer, Senator, the devise to John E. and Hannah J. was originally limited upon too remote a contingency, to wit, an indefinite failure of issue in the two previous devisees. This not being qualified, like the
p. 334
devise over to Medeef, by the word survivor, the last devise was void for this reason.
No division of the Court was taken as to the ground upon which they denied operation to the last devise; but they voted generally, to affirm the judgment below.
A person holding land by deforcement merely, cannot levy a fine so as to affect or bar a stranger to it: .
And, accordingly, B. having purchased Joseph’s interest in his lifetime, and levied a fine thereof; held, that this would not bar the right of Medeef.
When the first of several executory devises vests in possession, those which follow, vest in interest at the same time, and ceasing to be executory, become vested remainders, subject to all the incidents of remainders. Per Sanford, Chancellor.
No remainder can exist without a preceding estate to support it. Id.
Whenever a devise of a future interest can take effect as a remainder, it shall be so considered, and not as an executory devise. Id.
Our laws allow the owner of lands to devise them according to his affections or his pleasure. Id.
Rule recognized, that an executory devise shall not prevail, when it extends beyond a life or lives in being, and 21 years and 9 months afterwards. Id.
All dispositions in the nature of entails are opposed to the policy of our institutions.
It seems, that estates tail are not simply abolished and thrown back to fees conditional at the common law, either by the statute of 1782, the statute of 1786, (vid. 1 Greenleaf, 205. 1 Kent & Radcliff, 44. 1 Woodworth & Van Ness, 52,) or by the statute of 1788, repealing all the English acts, (Vid. 2 Greenleaf, 116, s. 37. 1 Kent & Radcliff, 358, s. 28, 1 Wood-worth & Van Ness, 526, s. 30.) But these statutes suffer the estate tail to arise, and then change it into a fee simple.
The maxim stare decisis considered, arguendo, by counsel; by Root, President, Sanford, Chancellor, and Wheeler, Senator, in the course of discussion ; and by Cramer, Senator, in delivering his final opinion in the cause.
Construction of devise. Authorities cited that a will must be construed throughout as it should have been at the instant of the testator’s death, and cannot be varied by subsequent circumstances. Per Jones, counsel, immediately after the close of the attorney general’s argument.
Seisin of the devisor. Authorities cited showing that he must be seised at the time of his death; otherwise devise cannot take effect. Id.
Ejectment. Authorities cited, that if the interest of the plaintiff’s lessor expire after the commencement of the suit, and before judgment, he shall have judgment and execution for his damages, but not for the land. Id.
Ejectment. Authorities cited and considered, which show the exceptions tc the rule that the defendant may protect himself by showing an outstanding title. Burr, counsel, arguendo. Answer by Jones, counsel, at the close of his reply.
p. 335
Evidence. Authorities cited, showing that after a man’s absence for seven years without being heard of, he shall be presumed dead. Burr, counsel, arguendo.
Error from the Supreme Court. This was one among several causes, the fate of which was supposed to have been fixed by the decision in Anderson v. Jackson, ( 16 John. Rep. 382 .) The present cause related to the same subject matter, and involved a construction of the same will, which called forth such elaborate discussion in that cause, not only from the counsel but the Court of Errors. (Yid. the opinion of Yates, Senator, id. 435 , and the dissenting opinions of the late Chancellor Kent, and Hammond, Senator, id. 397, 424 .) Speaking of the prominent point in that case, Chancellor Kent remarked, “ This may well be considered a grave and important question, demanding the utmost care and attention on the part of this Court; for it was said, on the argument, that property, to the value of half a million of dollars, depended upon the decision to be made in this case.”
The circumstances out of which this litigation arose, are briefly these: Medcef Eden, the elder, being seised in fee of the premises in question, and having two sons, Joseph and Medcef, made his will, dated August 29th, 1798, by which he devised certain real estate in the city of New York and its vicinity, including the premises in question, to Joseph and his heirs, <fec., and assigns ; and certain other real estate to Medcef and his heirs, &c., and assigns; and then added, “ If either of my said sons should depart this life without lawful issue, his share or part shall go to the survivor—and in case of both their deaths without lawful issue, then I give all' the property aforesaid to my brother, John Eden, of Loftus in Cleveland, in Yorkshire, and my sister, Hannah Johnson, of Whitby, in Yorkshire, and their heirs.”
Medcef Eden, the elder and devisor, died seised, September 8, 1798, and his son Joseph took possession, as devisee. Between the 16th of May, 1801, and his death, all his interest under the deyise passed into other hands by a sale upon several writs of fi. fa. against him, the Bank of New York, one of the plaintiffs in error, being the prizicipal pur
p. 336
chaser. A part of this interest came to Anderson. Joseph died on the 20th August, 1813, without lawful issue.
On the 16th April, 1816, the Bank of New York conveyed the subject of their purchase by deed of bargain and sale in fee simple to one Goelet, to make him a tenant to the praecipe, in order to levy a fine which was completed January term, 1817. The writ of covenant was tested January 13th, 1816, the first proclamation was in May term, 1816, and the last in January term, 1817.
One question in this suit was, whether this fine was not void, because the parties thereto had no estate in the premises.
The claim of Anderson had been determined against him, independent of this last point, in Anderson v. Jackson, on error, January, 1819.
May 16th, 1819, Medcef, the younger, entered to avoid the fine, and demised to Lion, the defendant in error.
It was supposed that Anderson v. Jackson had settled the controversy in relation to the entire subject of the devise to Joseph; but before the trial of this cause, (Dec. 2d, 1820,) Medcef, the younger, died without issue, having made a will, Ac., which gave rise to the additional question, whether the premises had not passed, by the ulterior devise, to John Eden and Hannah Johnson.
This suit was on the demise of Medcef Eden, the younger, to Lion, in the lifetime of the former, for 15 years from the 6th May, 1819. The lease was actually executed as laid in the declaration. At the trial, a special verdict was found containing the material facts as above stated, on which the Supreme Court gave judgment for the plaintiff, January term, 1823.
The reasons for this judgment were assigned as in 20 John. Rep. 486 to 492.
For a more particular account of the facts, see 20 John. Rep. 483 , (S. C.) and Anderson v. Jackson ( 16 John. Rep. 382 .)
Talcott, (Attorney General,) for the plaintiffs in error stated the following points;
p. 3371. That Joseph Eden was seised of an estate in fe.e simple, absolute in the premises in question, at the time the judgments against him, under which the title of the plaintiffs in error is derived, were docketed ; and the plaintiffs in error, or those under whom they hold by the Sheriff’s sale and conveyances by virtue of the executions on those judgments, acquired a valid and effectual title to the premises in fee simple. 2. That the estate of Medcef Eden, the younger in the premises in question, if he had any estate or interest therein, was (in the events that happened) an estate for life, which was terminated by his death. His interest, if he had any interest in the premises, being at most, that of a tenant under an executory devise, determinable by his death without issue ; and he having died without issue, his title, and that of all persons claiming title from or under him, was determined. 3. That the fine barred all the right of Medcef Eden, the younger, to the premises in question, if he ever had any right thereto. 4. That the plaintiff in the suits in the Supreme Court was not entitled to any judgment on the special verdict in the cause; or if he was entitled to any judgment, he could only be entitled under the circumstances of the case, to judgment for the damages found by the jury, and hot to judgment for the term, or any estate or interest in the premises in question. 5. That the judgment of the Supreme Court is erroneous and ought to be reversed. 1. For the situation of real titles in England, before the statute de donis, the Court are referred to 1 Reeve’s History of the Common Law, 294. The case of a conditional fee is there stated much like the present. I refer to this author, because Bláckstone[159] has limited his attention principally to that class of conditional fees at which the statute de do nis was particularly aimed, and which were changed by it into estates tail.[160] These were estates to a man and the heirs of his body, or the heirs male of his body, &c., or to the heirs of his body and on failure of these then over; in
p. 338which cases, on the donee having issue, the estate became absolute, and he might convey. Reeve[161] states a variety of other cases. The statute of Westminster, 2, recited the mischief which attended these fees conditional, and provided that the will of the donor should henceforth be observed, by the reverter of the estate on failure of issue.[162] Upon the construction of this act; says Blackstone,[163] the Judges “ divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated afee tail; and vesting in the donor the ultimate fee simple of the land, expectant on the failure of issueand they admitted of no such .thing as a fee conditional.[164] After the statute of wills,[165] the doctrine of the statute de donis was transferred to these; that is to say, the intent was to be pursued; but on this head the Courts have found very great difficulty in construing the intention. One rule which they have adopted is, that where the testator appeared to have one great general intent, the particular intent shall yield to it. This rule as to the question whether the devisee shall take an estate tail, is exemplified in Robinson v. Robinson,[166] Driver v. Standring & Hoole,[167] Roe v. Jeffrey,[168] and Doe v. Cooper.[169] Now, there were two objects to be accomplished by this limitation: One was to provide for the issue of Joseph indefinitely, which could be accomplished only by the creation of an estate tail; another was a limitation over to Medcef on the failure of Joseph’s issue, with the same object of providing indefinitely for the issue of the latter. A devise in fee simple generally would have defeated the intent by placing the subject in the power of the first taker, or if in fee tail, the contingency was too remote to warrant a limitation over. If we are correct in saying that the testator intended to provide for the issue of the first taker indefinitely, then, whatever estate may have been created by these words under our law, it cannot go over; and it must share the same fate, if it amounted to an estate tail. The words dying without issue, import an indefinite failure of issue, not only in their legal and technical sense, but
p. 339such was probably the ancient popular meaning of the phrase. The writ of formedon in the remainder always alleged that the donee died without heir of his body issumg ;[170] and the allegation was satisfied by proof that issue failed either at his death, or at any time afterwards. It is a general principle in the construction of wills, that when a testator uses words which have been defined by judicial decision, he must be considered as speaking conform-ably to legal definition, unless there are other circumstances clearly indicative of a different intent.[171] It is material, then, ts see whether there is, by the English decisions, any set-tied construction of the words, dying without issue ; and of this there is no doubt. It is perfectly well established there, that these words, uncontrolled, give an estate tail to the first taker, and the limitation over is a remainder ;[172] and, though, in common conversation, they might mean a failure of issue, living at the time of the donee’s death, yet unless this meaning is plain from other words of parts of the will, the ancient signification must prevail. We admit that these words are not absolute and uncontrollable; but are there any circumstances here to take them out of the general rule ? The first devise is of one piece of property to Joseph, his heirs and assigns ; the second of another and separate piece to Medcefj his heirs and assigns. Though these words purport to give a fee simple ; yet if the limitation over is understood to be upon an indefinite failure of issue, they create but a fee tail. In Doe v. Ellis,[173] Lord Ellenborough, Ch. J. says of a will, containing a disposition similar to the one under consideration, that “the premises, however large, may be restrained by the context, as premises, however narrow, may be enlarged by it.” That the word assigns is added, does not vary the case.[174] In Doe v. Ellis, the Ch. J. says, “ as to the word assigns, which follows heirs, we cannot collect any different intention from the addition of it, than if the word heirs alone had been used. Whether an estate be given to a man and his heirs, or to him and his heirs and assigns, must be the same thing in legal construction.” The words, depart this life, without, &c. are of precisely the same
p. 340legal import as the more usual words shall dio, without &c,[149] In Roe v. Jeffrey,[150] the words were precisely the same as used here, yet the words depart this life were not rejied upon as varying the technical import. Here, then, is nothing to take these words out of the gen* era-l mK except the single word survivor ; which is relied on to show that Joseph took a fee simple determinable by ,. . , . . . ... , ' his death, without issue then living, and that the estate, therefore, passed oyer as a contingent remainder. wished to be informed whether counsel proposed to question the case of Anderson v. Jackson ? ( 16 John. 382 .) This must depend upon the Court. It was there solemnly settled, that the limitation over from Joseph to Medcef, was an executory devise. Perhaps hundreds of wills may have been drawn in reference to that very decision. Will not the barely allowing it to be questioned, impair that confidence in your stability which sh°u^ he jealously maintained 7 It was but the other day that you stopped counsel upon the same ground ;[151] telling them that a point once settled by this Court was not again to be questioned here. Permitting a contrary course would be alarming in the highest degree. What case can be relied on as fixing the law of the land 7 (same side.) The first point made by the plaintiffs in error is, that Joseph Eden had a fee simple absolute, and it is now proposed to infer this from the fact that the operative words would have created an estate tail under the statute do donis. Now, we say, that matter is not to be debated. It is not open. It was closed in Jackson v. Anderson. It was there decided, in so many words, that the phrase in question would not have created a fee tail, but that it did create a fee simple, determinable upon Joseph’s death, without issue. This was the precise point determined, arising too upon this very will. To prove the -importance of adhering to an uniform rule of decision, be read from
A. Burr, for the defendant in error,
Talcott.
Burr.
M. Van Buren,
p. 3411 Bl. Com. 10. 11; and he remarked, that in Foley v. Burnell,[152] the House of Lords pursued the same course which this Court lately took in The New York Insurance Company v. De Wolf. He also referred to the concluding part of Goodyer St. John v. Bishop of Winchester.[130] Again, this was not made a point in the Court below. Whatever may be the rule of the Lords, I hope the time may not arrive, when this Court will refuse to correct an error, which it shall be satisfied is a gross one. The common law of England, in 1775, was made the law of this state, by the constitution,[153] and if this Court have erred in pronouncing that law, they owe it to their oaths and the constitution to correct the decision. This Court have reviewed their decisions. Yates v. The People,[154] was not only questioned on the argument, but partially overruled in Yates v. Lansing.[155] We are told stare decisis. Why not apply this rule to the decisions in the English books, which preceded the case of Anderson v. Jackson, and which form the law of the land 1 But we propose, not merely, to question that case. We also mean to show that the words of the will would, under the statute, de donis, create an estate tail in Medcef Eden, and that the decision in Anderson v. Jackson, if correct in the result, will, when referred to its true reason, carry over a conditional fee to Medcef Eden, which, for the same reason, passed, on his death, without issue, to John Eden and Hannah Johnson. What we say, then, will be equally applicable to the question upon the ulterior limitation. (same side.) The opening has led collaterally to this discussion, and the Court cannot, of course, so fully understand our views, as if we had pursued the argument without interruption. My associate was proceeding to show, that by the English law this would be an estate tail in Joseph Eden, and if not so considered" here it must be upon principles peculiar to this state ; and that, taking this to be the law, upon those new principles, it carries over the devise
Talcott.
S. Jones,
p. 342as a fee determinable, from Medcef Eden to John Eden and Hannah Johnson. But this Court have reviewed their own decision. In the late case of New York Insurance Company v. De Wolf they merely said they would look to the question, and unless there were strong reasons for a review, they would not allow it to proceed. In both views, we propose to show that the word survivor does not take the phrase out of the general rule. It is true, that in The New York Insurance Company v. De Wolf we did refuse to hear an argument as to one of the points, which had been passed upon by this Court in Vandenheuvel v. The United Insurance Company,[156] and I assent to all that has been said, in this case, as to the impropriety of opening decisions plainly and solemnly made. I do not, at present, understand how far the case of Anderson v. Jackson may be considered as settling any point in this cause, in the view which counsel propose to take. Occasions may arise when this Court ought to review their decisions. If, on examining Anderson v. Jackson, I find that it decides precisely the first point now taken, I shall yield it reluctantly. In The New York Insurance Company v. De Wolf an order was made that I should stop counsel on a particular point; but here I should be at a loss in directing the counsel how far he should go. I should suppose counsel would not question any point plainly decided in Anderson v. Jackson, both in its principle and object. But it is proposed to distinguish the principle upon which that case proceeded, and other and ulterior objects are avowed. In this view of the question, I cannot give directions even upon the maxim stare decisis. I have no doubt this Court will determine to abide by their former decision, provided they find they first point settled in Anderson v. Jackson. We propose, then, to show that the case of Anderson v. Jackson could not have been decided upon the
Talcott.
The Chancellor.
Root, President.
p. 343word survivor, and that, being independent of that word, both limitations over must be governed by the same rule, that if the first is to take effect the second must go over upon the same principle.0 The case which has been followed by the authorities relied upon against us is that of Pells v. Brown,[157] where the testator devised to “ Thomas, his son and his heirs forever, paying to his brother Richard £20 at the age of 21 years ; and if Thomas died without issue, living William his brother, that then William his brother should have those lands to him, his heirs and assigns forever, paying the said sum, as Thomas should have paid.” Thomas died without issue, living William, and it was holden that this was a contingent fee to William by way of executory devise. Now it is important to inquire what reliance can be placed upon this case as depending on the word survivor. Three years before, m King v. Rumball,[158] a devise to three daughters, and if they all died without issue, then over, was holden to create an estate tail. In Webb v. Hearing,[159] a similar decision was made upon words to the same effect with the last. And it is remarkable, that only four years after Pells v. Brown, the same Court, composed of three of the same Judges (Doderidge, Houghton & Chamberlain) who decided that case, gave a’ construction to this word survivor with reference to the very effect claimed for it here. I allude to the case of Chadock v. Cowley.[160] The testator devised all his lands in Bradmere to Thomas his son and his heirs forever, and his lands in East Leak to Francis his son and his heirs forever, and then added, “ Item. I will that the survivor of them shall be heir to the other, if either of them die without issue.” And the sole question was whether this devise created an estate tail to Thomas, or only a contingent estate if he died without issue in the life of his brother. And it was holden by all the Court (in the'absence of Lea, Ch. J.) that it was an estate tail in Thomas. The case proceeds in this manner: “ Although it were objected that the words, the survivor shall be heir to the other, if he die without issue, are idle, for it doth not appear that he had any other children; and then, when the one dies'without issue, the other is his heir by the law, and so he wills no more than the law appoints : sed non alloca
p. 344to ; for ?zore constat, but that he might have other children, and that by several venters; and by the devise he intended to give, it to the others by way of devise if he died without issue. Secondly ; for the words, thdt.the survivor.shall be heir if he dies without issue, they seem to be an estate tail. But if the devise had been, that if he died without issue in the life of the other, or before such an age, that then it shall remain to the other; then peradyenture it should be a com tingent devise in tail, if it should happen and not otherwise ; but being that the survivor shall be heir to the other, if he die without issue, that, in his intent, is an absolute estate tail immediately, and the remainder limited over. And that here, although the first part of the will gives a fee, the second part corrects it and makes it but an estate tail.” The Court thus distinguish as to the word survivor, and rely upon this as creating, not preventing an estate tail. Again, in Hope v. Taylor,[161] there was a devise to W. T. and others ; ‘‘ and if either of the persons before named die without issue lawfully begotten the said legacy shall be equally divided between them that are left alive,” (i. e. survivors,) and held that W. T. took an estate tail; and the word survivors was not even relied upon, Ifi Roe v. Jeffrey,[162] the devise was in fee, and in .cas.e the first .taker should depart this life and leave- no issue, then over to three others or the survivor or survivors of them. The first taker .did n.o.t have an estate tail it is true, but this was not on account of the word survivor, <fcc., but because the ulterior limitation was of a life estate merely. So in Toovey et al. v. Bassett et al.[163] the devise was to the grand-children in fee, with a limitation to the survivors on a dying without issue, &c., but there was no stress laid on the word survivors. The remarks of Mr. Justice Story in Lillibridge v. Adie,[164] have a.direct application to this case; and what he says of Porter v. Bradley,[165] and Roe v. Jeffrey,[166] shows that the term survivot can have no influence in com trolling the generality of the clause. His words aré these; ■’ In respect to terms of years and other personal estate, Courts have very much inclined to lay hold of a ny words to tie up the generality of the expression, dying without issue, and confine it to dying without issue living at the time
p. 345of the person's decease. But in respect to freeholds, the rule’ has been rigidly enforced,- and rarely broken in upon, unless there were strong circumstances to repel it.[167] The cases of Porter v. Bradley[168] and Roe v. Jeffrey,[169] have gone a great way, but they turn on distinctions, which though nice, clearly recognize the general rule. In the first case, the devise was “ to my son A. and his heirs and assigns, and in case he should happen to die, leaving no issue behind him, then to my wife B. during her widowhood, and after her decease or marriage, to my son C. his heirs and assigns forever.” Great stress was laid upon the words leaving no issue behind him, and upon the circumstance of there being a life estate to B. as confining the contingency to the death of A., and the Court held that A. took a fee, and that the .devise over was a good executory devise. In the last case, the devise was “ to my grandson A. and his heirs forever, but in case A. should depart this life and leave no issue, then the premises shall return unto my grand-daughters, B., C., D., or the survivor or survivors of them, to be equally divided betwixt them, share and share alike.” The Court held that A. took a fee, and that the executory devise over was good, the contingency being confined to a life then in esse. Great stress was laid upon the circumstance, that the grand-daughters were then living, and only took estates for life. If the estates over in this last case had been in fee,- it seemed admitted that the other words would not have pointed to any other period than an indefinite failure of issue ; and consequently to support the limitation over, it must have been held that A. took an estate tail only. In Wooley v. Norwood,[170] the devise was to the testator’s three nephews, and then to the survivors, on any one of them dying Without issue ; and the words survivors is not made a ground for argument or decision as tending at all to give a character to their estate. And in Barlow v. Salter,[171] this word survivors was relied upon, but it was expressly determined by the master of the rolls, that it did not vary the case. He says “ the word Survivors as here used, has the same sense as the word others, as has been frequently decided.”[172] Roe v. Scott & Smart,[173] presents precisely the case under consideration.
p. 346The testator devised certain lands to his son James, to hold to frjg heirs and assigns forever; other .lands to his son John, to hold to him and.his heirs and assigns forever; and other lands to his son Thomas, and his heirs and assigns forever. He then added, that if either of his three sons should depart this life without issue of his or their bodies, then the estate or estates of such sons should go to the survivors or survivor ; and if all his three sons should happen to die without such issue, then he devised all the said premises to his four daughters and their heirs and assigns forever. The three sons' survived the testator and entered, and John died, unmarried, some time after the intestate. Thomas died, leaving a daughter who died without issue ; and the question was whether Thomas took in fee or in tail. If in fee the estate would go to'the heirs of the daughter; but if in tail to James the then survivor of the three brothers. The author considers the force of the several words assigns, depart this life, and the words survivors or survivor, as apparently carrying an estate to them or him for life only, which he says, furnishes a reasonable ground to confine the contingency, in construction, to a death without issue during the lives in being; which has been held in executory devises to be a reasonable construction, if it falls within the limits of ever so many lives in being at the same time. Yet the words were holden, to carry an estate tail to Thomas, which on the death of the daughter, went over to James. This very case also came under consideration in Denn v. More.[174] and it was decided that the first taker was entitled xz to an estate tail. This last case was first decided by the Supreme Court; and afterwards on Error to the Governor and Council, the judgment was affirmed. It is true, there has been an English case,[149] in which a h60!1168* °f personal property to the survivor upon a dying without issue, has been holden limited, by this word survivor, to a dying without issue living at the death of the first taker. But there is a distinction between real and personal property. One Judge has given a restrictive operation to this word, in cases of personal estate ;[150] but there is a difference: even *n this case.[151] In relation to real property, how
p. 347ever, there never was any difference in the English cases. Real estate would descend to the heir, and the intent of the testator to control the descent, so as to bestow a personal favor by the limitation over, should be plain beyond a doubt. It is different in regard to goods and chattels. But even in the latter case where there is an intent to provide for the issue indefinitely, the general rule prevails and declares a limitation over void, as dependant upon too remote a contingency. In Massey v. Hudson,[152] the Master of the Rolls says, “ If a bequest to A. in case B. shall die without issue be allowed, A.’s representative would be entitled to take at whatever time the issue might fail. It is for that reason that it is held too remote. But if A. is personally to take the legacy, then the presumption is strong that an indefinite failure of issue could not be in the testator’s contemplation. Prima facie, a bequest over to the survivor of two persons, after the death of one without issue, furnishes this presumption; for it will be intended that the survivor was meant individually and personally to enjoy the legacy, and not merely to take a vested interest which might or might not be accompanied with actual possession. For if the survivorship be necessary only to vest the interest and to render it transmissible, the objection of remoteness is not at all obviated, and the restrictive presumption does not arise. Now the addition of the words, executors, administrators or assigns, excludes the presumption that it was a mere personal benefit that was intended for the survivor. For though there should be no such failure of issue as could enable him personally to take, yet his representatives would be entitled to claim in his right whensoever the failure of issue should happen.” He proceeds to question the case of Nicholls v. Skinner,[153] as repugnant to every principle upon which it professes to proceed ; and that the limitation over after a dying without issue could not have been taken out of the general rule by the words survivor and his heirs. And it appears at the close of the opinion, in Massey v. Hudson,[154] that the master of the rolls had compared the report of Nicholls v. Skinner, with the registry book and found, contrary to the report, that the bequest over was holden void.
p. 348In the case under consideration, it is agreed on all hands that the devise to Medcef Eden was transmissible to his issue; not restrained with a view to his personal benefit. The devise extends to all the estate in the lands The words of devise to Medcef are as broad as those used, either in Doe v. Stopford,[155] Toovey et al. v. Basset et al.[156] Jackson v. Merril,[157] or in Jackson v. Staats.[158] In the last case, Spencer, J. says,[159] that in Jackson v. Merril, it was decided that “ the deviseo ver of their parts, which in the hands of the first devisees was considered in fee, necessarily referred to the estate or interest before devised; and that the ulterior devise was clearly intended to be as extensive as the antecedent one.” In this case, there was a fee, a transmissible estate, devised to Joseph; this, in the language of Spencer, J. went over to Medcef -; and if so, even if we apply the doetrine relative to the limitation of personal estates, it is not taken out of the general rule. Clache’s case,[160] when taken in connection with what Ld. Elden says, in Doe v. Wetton,[161] explanatory of the first case, would establish, that the devise to Joseph was a fee tail, and that to Medcef, a fee simple determinable on a definite failure of issue. Thus the case of Anderson v. Jackson, overrules the English common law ; but I trust we have shown that this could not have been upon the ground of survivor. It was on the ground, that, under our local policy and the statute turning estates tail into fee simple, no man should be construed to mean an estate tail unless he says so in terms ; or in other words, that these estates ate no longer to be implied. Then if the devise to Joseph,- and the one to Medcef which followed, are to be construed according to Anderson v. Jackson, on the death of Medcef without issue, the whole estate went over to the English devisees, John Eden and Hannah Johnson. In determining the case of Anderson v. Jackson, the Court cite Fosdick v. Cornell,[162] Jackson v.
p. 349Blanshan,[163] Moffatt v. Strong,[164] and Jackson v. Staats,[165] as sustaining the decision; but all these cases may be reconciled with the English authorities. In Fosdick v. Cornell, a new devisee, Mary, not named among the first takers, is introduced in the devise over. Jackson v. Blanshan presents the case of a definite failure, within Right v. Day.[166] Moffatt v. Strong, is a case of personal property; beside containing the additional provision, in case either of the first takers should die leaving a wife behind him- In Jackson v. Staats, the case of Fosdick v. Cornell is relied upon as deciding the principal point. Spencer, J. says, “ what weighed much with the Court in that case exists here ; the devise over was to the surviving devisees in his will, among whom were his daughters to whom he had devised no part of his real estate.” In this he was mistaken as to the fact; but it shows, what he understood to be the law, and the real ground upon which Fosdick v. Cornell proceeded. Indeed, until Anderson v. Jackson, the consideration of the word survivor was never, in any of our decided cases, necessary to restrain the generality of the limitation. There was always enough without this word; and even in that case, the Court do not entirely rely upon it as the ground of decision. Yates, Senator, who delivered the opinion of the Court, speaks, generally, of the cases. He says,[167] “The testator clearly intended, that if either of his two sons should die without lawful issue, the survivor should take the whole which was devised to both; and the only question is, whether there is any inflexible, rigid rule of law to wrest the plain and manifest intention of the testator to a purpose altogether different from what he intended. I am unacquainted with any such rule ; nor do I consider the cases cited, when collectively taken, to establish such a position. But if there are any such cases, let it be remarked, that the policy and genius of the British government are, in some respects, opposed to our own; they encourage and support estates tail, as being important in forming family settlements ; they always lean in favor of the eldest son, as heir at law; and to oust the devisee, they invariably incline to maintain some of the features of the feudal system,
p. 350which are so intimately connected with the splendor of a monarchy, and the wealth and dignity of an overgrown nobility. On the contrary, it is the policy and genius of our republican institutions, to consider all the children of a parent as placed on an equal footing, and to discountenance an aristocracy of wealth and influence.” He notices what Kent, Ch. J. said in Moffatt v. Strong ; “ that the intent of the testator, according to the settled legal construction of terms, was to provide for the surviving sons, on the contingency of either of the sons dying, leaving no isssue at his death.” I have noticed this, and the cases which preceded it, sufficiently to show that it did not, and could not go upon the word survivor, but rather upon the presumption of a wish in the testator to use words which the law will not defeat. If this be the true principle which fixed the character of the devise to Joseph, we have a right to carry it over, to the devise under which Medcef claimed. The testator acted here in view to the same statute against entails, which governed his ideas of the first devise. Then, having established the position that these words, without issue, simply, and independent of the word survivor, mean a definite failure of issue; the words afterwards used to pass the estate over to John Eden and Hannah Johnson, are substantially the same. . The testator having used words which amount to a definite failure ; when he uses the same words in the same will and in the sentence immediately following, the presumption is that he used them with the same meaning; and this will carry the estate over to the ultimate devisees. Otherwise you must say, that having the same purpose in favor of them, he yet, wilfully and knowingly uses words to defeat his own intent. A fee simple defeasable goes to Joseph, say the Court, and by the devise over all his estate (share or part) goes to Medcef. What was this share or part—this estate which is passed over to Medcef ? It is the fee simple of Joseph. And yet shall we be told that in the hands of Medcef it was not a fee simple, but a fee tail ? Medcef held under the separate devise to him, precisely as Joseph held. Did Medcef's estate, in this share,
p. 351cease also on his death ? If not, if the whole is to he deemed an estate tail in Medcef, the entire devise over to John Eden and Hannah Johnson becomes inapplicable and must be defeated and destroyed at his birth, contrary to the views of the testator. It is said the whole is converted into an estate tail by the words of the devise. This cannot be. The words in the second devise mean the same thing as those in the first; or the last is nugatory. The words are, “ in case of both of their deaths without lawful issue, then I give all the property aforesaid,” to the English devisees. This never can apply to one devise in one sense, and to another in a different sense. If so, they never could both die without issue ; and the testator is made, absurdly, to say, “ I will send the estate over, though I have first provided that it never should go over.” This rule that the same words used in different parts of the same devise, shall be construed to mean the same thing, is supported by authority. Fearne.[168] in commenting on the case, of Atkinson v. Hutchinson,[169] says', “ It is further observable that there was .a preceding limitation, upon the death of either of the children, without leaving issue, to the survivors of them. Now this, strictly, was not applicable to an indefinite failure of issue, because confined to a survivor ; and it was but reasonable to give the same words the same construction in the subsequent limitation, which they m,ust bear in a limitation immediately preceding,'applied to the same subject.” In Beauclerk v. Dormer,[170] Lord Hardwicke says of the same case, “ Atkinson v. Hutchinson is plainly different from this; though the plaintiff’s counsel insist-that the last contingency in that case, is expressed as generally as the contingency in the present; and taking it as a single independent sentence, it is an authority; but the whole must be coupled together, and then the words, if both die without issue, must be construed in the same manner as the Court construed the former clause.” Sheppard v. Lessingham,[171] was a devise of bank stock, the first moiety whereof was limited over, expressly, on a dying without issue at the death of B.; and as to the other moiety, it was bequeathed to the daughter for life, remainder to such child or children of her, as should be living at her death:
p. 352and if she should not leave any child, or if all the children die without issue, then to J. S. The daughter had a son born, at the time of making the will. Ld. Hardwicke said.[172] “ there is a different penning in the limitation or the last moiety. It is after a dying without issue generally j but 1 am of opinion the same construction is to be put on those words, as on the words without leaving issue, in the other moiety, I consider, in general, that a limitation of a. personalty after a dying without issue, is void; but the court will put a construction on those words, (and Pleydell v. Pleydell, 1 Wms. 748 is material for that purpose, though the reasoning of the Lord Chancellor is ill reported; for he considered the dying without issue as if it had been without such son before described) and support the limitation over if possible.” This case of Sheppard v. Lessingham was afterwards recognized and acted upon, and governed Kirkpatrick v. Kirkpatrick,[173] and in Right v. Day, (16 East, 67) where the first devise was properly limited, but, the following one was on an indefinite failure of issue, Bayley, J. said, “ the words dying without issue, as they occur in this will, do not mean a dying without issue indefinitely,” and he held that the last limitation would be valid. There is no exception to the rule, quoted from Fearne, that the construction of two several successive limitations, though the first be definite and the last indefinite, must be the same. Unless this be so, we have shown that a variety of strange inconsistencies are deducible from the case under consideration; and in England, even without these peculiarities, the rule is the same. 6 Thus, in either event; whether Joseph’s estate was a fee tail and became absolute by our statute changing it into a fee simple; or if Anderson v. Jackson be correct, the plaintiff in Error must succeed. In the latter event, judgment can only be for damages and costs ; but not for the term. There can be no change of possession. But the-late Ch. Justice, in delivering the opinion of the Court below, avoided the point, whether the last limitation over was or was riot dependant on a defihite or indefinite failure of Medcef’s issue, as unnecessary to be discussed, be
p. 353cause the vesting of the first limitation in possession turned the subsequent one into a vested remainder; and he cites[174] 2 Saund. 388 b., where Serjeant Williams says, in a note, “ With regard to executory devises, it is a rule that wherever one limitation of a devise is taken to be executory, all subsequent limitations must likewise be so taken. However, it seems to be established, that wherever the first limitation vests in possession, those that follow vest in interest at the same time, and cease to be excutory and become mere vested remainders, subject to all the incidents of remainders.” He refers, says the Ch. Justice, to Stephens v. Stephens, (Cas. Temp. Talb. 228,) Hopkins v. Hopkins, (1 Atk. 581,) and Doe v. Fonnereau, (Doug. 487.) “ Cruise, (vol. 6, 517, tit. 38, ch. s. 26, 28,) and Fearne, (411,419,420, 6 ed. 526,) concurs in this opinion, and the adjudged cases fully support the rule as laid down by these learned commentators. The case of Brownsword v. Edwards, (2 Ves. Sen. 243,) contains the same doctrine. The estate, then, of John Eden and Hannah Johnson, was turned into a remainder when the executory devise took effect in favor of Medcef Eden. The devise to them, then ceasing to be executory, Medcef became seised in fee tail, by necessary implication of law, with remainder expectant in favor of John Eden and Hannah Johnson.” Now, in order to comprehend this, we must understand, in the first place, that at common law, no remainder can be limited after a fee; and the Court say, “ because John Eden and Hannah Johnson’s estate must be a remainder, we will turn Medcef’s into an estate tail in order to support it.” While the first limitation is executory all the subsequent ones must continue so, because all depend on the first. The other rule is, that the subsequent estates are remainders in those cases only where they follow an estate which admits a remainder after it.[149] The authorities cited by the Chief Justice establish this, and nothing more. In Stephens v. Stephens, the remainder followed a fee tail. A series of estates in tail male, are limited to the testator’s grand-children, and these admit of a remainder. These limitations vested as remainders, and so it would have been if the precedent devise had not been executory, but had vested im
p. 354mediately. The Court will find all the cases cited, to be of the same character. If the succeeding estate be, like the present, a fee, it cannot be whittled down to an estate tail, in order to give effect to a still subsequent estate, as a remainder. But the Chief Justice turns the estate of Joseph into a fee tail to make it support a remainder. It was once, as he admits, within the case of Anderson v. Jackson a fee simple, determinable on a contingency, and accordingly he starts it as a fee simple from Joseph; but when it comes from him to Medcef, it is a fee simple absolute in Medcef under our statute ;[150] and at the same time a fee tail, for the purpose of supporting a remainder over to the brother and sister of the testator. It is more than fish at one time, and flesh at another; it is fish and flesh, at the same time. I am at a loss to perceive how such an absurdity was arrived at, unless upon the principle with which the learned Judge set out, that “ we have, fortunately, little experience with regard to estates tail.” Between the years 1782 and 1786 words might be used creating an estate tail; but by the act of 1786 the statute de donis was repealed. Estates tail were abolished in terms, (1 Greenleaf’s Laws, 205,) and in 1788 a statute passed abolishing and repealing generally all the statute laws of England, which ever had any force in the state, (2 Greenleaf, 116, s. 37.) This will was not made till 1798. Then how could there ‘be an estate tail created by this will which might be turned into a fee simple ? How could the Court make an estate tail after the repeal of the statute de donis 7 The substratum fails. In all the previous cases, involving this point, the wills were made previous to 1786, like that in Jackson v. Billinger.[151] No such thing as an estate tail was known at the execution of Eden’s will. In Cruger v. Heyward,[152] the devise over was after the general words; dying without issue, and there was no qualifying clause; yet it was holden that the estate went over, upon the ground that, in South Carolina, there was no statute de donis—that the first devisee, therefore, took a fee conditional at the common law, leaving a reversion in the deviso^ of which he had a right to dispose.[153]
p. 355here expressed his determination to abide by the decision in Anderson v. Jackson. He now understood that case, distinctly to fix a construction upon the clause which devises to Joseph Eden; and was prepared to say that it did not carry an estate tail, but a fee, determinable on his death without issue then living. It appears to me, the ground we took in The New York Fireman Insurance Company v. De Wolf ¡ settles the course which we should pursue in this case. I think it difficult to sa.y with what force Anderson v. Jackson may he brought to hear upon the subsequent clauses in this will, devising over from Medcef; and for this reason, I am opposed to, entirely, excluding that case from the consideration of the Court.] 1. To show that a will must always be construed as it should have been at the testator’s death, he cited Doe v. Fonnereau, (Doug. 494, n. (1) there, per Ld. Mansfield, in reply to Rooke, arg.) Bagshaw v. Spencer, (1 Ves. Sen. 153, per Ld. Hardwicke,) Evans v. Astley, (3 Burr. 1581, per Ld. Mansfield,) and Jackson v. Billinger, ( 18 John. 381 , per Spencer, Ch. J.) 2. To show that the will of Medcef Eden, the younger, was inoperative as to the premises in question, they being lands of which he was not seised at the time of his death, he cited Bunker v. Cook, (Gilb. Dev. 126, 136,) Rob. on Wills, 297, 8, 9, and the cases there cited ; Goodright v. Forrester, (1 Taunt. 578,) Roe v. Griffits, (4 Burr. 1961,) Bac. Abr. Maintenance (E) Phil. ed. 1813; Campbell v. Sandys, (1 Sch. & Lef. 294,) Nichols v. Nichols, (Plowd. 485,) 6 Cruise, tit. 38, ch. 3, s. 26, 28, p. 28, 29; Pow. on Dev. 184, 5, Phil. ed. 1822, p. 24, 154; 11 Mod. 128, (per Holt, Ch. J. in Bunker v. Cook,) 1 Rep. 153, and Goodright v. Forrester, et al. (8 East, 552, 563, 4, &c.) 3. To show that, if the interest of the lessor expired since suit brought, he can recover his damages alone, but not the
[The Chancellor,
Wheeler, Senator.
Root, President.
S. Jones,
(same side with the Attorney General,) here referred the Court to several cases :
p. 356term, he referred the Court to Runn. on Ej. 404 ; England v. Slade, (4 T. R. 682, 683,) Co. Litt. 285, a.; Adams on Ej. 306, ed. of 1821, by Mr. Ruggles ; Doe v. Bluck, (3 Camp. 447,) and Thrustout v. Grey, et al. (2 Str. 1056.) For the affirmance of the judgment below, we rely on the following among other grounds: 1. It having been settled in the case of Anderson v, Jackson, by the judgment of the Supreme Court affirmed in this Court, that on the death of Joseph Eden, that part of the estate which was devised to him, vested in his brother Medcef, that point cannot now be questioned here; more especially, as it was not made a point, or in any way raised for the consideration of the Supreme Court, but on the contrary was admitted by both parties to be the settled law, 2. That the devise, on the death of Joseph without issue vested in Medcef Eden an estate in fee simple. 3. The devise over to John Eden and. Hannah Johnson is inoperative and void. 4. It is not allowed to the plaintiffs m Error to set up such an outstanding title as they claim that of John Eden and Hannah Johnson to' be. 5. That the fine with proclamation, set up by the plaintiffs in Error, was void and inoperative; and that if it were valid, its operation was avoided by the entry. 6. That it does not appear, from the verdict, that John Eden and Hannah Johnson are now, or were a.t the death of Medcef Eden the younger, alive ; and after the lapse of more than twenty years, the contrary is to be presumed. Whether there was a possession, adverse to the claim of Medcef Eden, so as to prevent the operation of his will, cannot be drawn in question here. The demise is not from him alone; but from Wood, also, his assignee. In truth Frier v. Jackson,[154] settles this point. Whether we are to have, both the term and-damages, c the latter only, depends principally upon the general que. tions in the cause.
M. Van Buren, for the defendant in Error.
p. 357The general questions are among the most dry and intrt fcate in the law. They are, of tjiemselves, intrinsically difficult, and are rendered much more so, in some of their branches, by the mass of comment and refinement in which they are involved. It is important that they should be fully apprehended by the Court; and my object, therefore, shall be plainness and perspicuity. Medcef Eden the elder, his sons, and his brother and sister, are the persons before the Court. Medcef the elder died seised, in 1798 ; having the same year devised the great bulk of his property, in separate parcels, to his two sons, Joseph and Medcef, their heirs and assigns respectively. He then says, “ Item. It is my will, and I do order and appoint, that if either of my said sons should depart this life, without lawful issue, his share or part shall go to the survivor ; and in case of both of their deaths, without lawful issue, then I give all the property aforesaid to my brother, John Eden, of Loftus, &e., and my sister, Hannah Johnson, of Whitby, &e., and their heirs.” Some years ago, Joseph died without issue, and Medcef, the younger, claimed the share devised to his deceased brother, as the survivor of that brother. The plaintiffs in Error resisted that claim, on the ground that the devise was void, as being limited on an indefinite failure of issue, a contingency which was too'remote in the eye of the law. We said no—that the devise was good—that the testator intended the estate for Medcef in the event which had happened, to wit, a definite failure of issue. This brings us to the first point of inquiry ; whether the devise to Medcef, the younger, being on a definite failure of Joseph’s issue, is not good by way of executory devise. At common law no man could devise, and this continued so till about, the middle of the 16th century, when statutes[155] were passed conferring this right. Soon after, questions arose upon its extent, and the Courts were disposed to lean in favor of dispositions by will. At common law, one difficulty in conveyancing was that no fee could be limited after a afee. That law was averse to a perpetuity, on principles of correct policy. It checked commerce and improvement by tying up estates in particular families.[156] Nor could a fee
p. 358be limited to vest in futuro, unless based on a previous par ticular estate reaching to the point of its commencement. To remove these difficulties in favor of wills it was declared that a devisor might do either by way of executory devise. This was at first severely litigated, as tending to create a perpetuity ; and hence the discrepancy between some of the earlier cases. But towards the close of the 16th century, the point was settled in favor of these devises, with proper limits to guard against a perpetuity,[157] and has not since been questioned. If the limitation is in such terms, that it must, at all events, take effect within a life or lives in being and 21 years and 9 months afterwards, it is good ; otherwise void. Within this rule an estate could not be limited to one on another’s dying without issue ; for these words had a technical meaning, at common law, signifying an indefinite failure of his issue ; that is, the estate could not go over until his children, and his children’s children, &c., to the remotest generation, were dead. To constitute this indefinite failure of issue, his whole family must have been extinct before the estate could go over. .Thus an absolute perpetuity might be created. The old alarm arose, which had restrained conveyances at common law. Policy was violated by allowing an undefined latitude to the devisor. But there is a definite failure of issue, which is when a man dies without issue living at the time of his death. From the time when the statute of wills passed, to 1620, the question was often up, as to what the words dying without issue signified ; that is to say, whether they meant a definite or indefinite failure of issue. When these words stood alone, it was universally agreed that they meant an indefinite failure; and the devise over depending upon it was void ; and if there is nothing more in this case, to give us the land would be uprooting the law from where it has stood for centuries. If the limitation is to be read simply, “If Joseph dies without issue, then to Medcef and his heirs,” our claim is gone. But there is more : it goes to the survivor of the two sons, and it can go to him only in the event of his surviving. Then you are free from the ob jection that here is an indefinite failure of issue, because the devise shows a clear intent that the question of failure should be decided at Joseph’s death. On this word we rely, and
p. 359unless authorities are overturned, this word must preserve us to the end. This cause was brought before the Supreme Court, and the questions which it involved, upon the limitations over, were considered of a familiar every day character; but in Anderson v. Jackson, they were, for the first time, brought before this Court.' Gentlemen were then heard upon them, in another man’s cause depending upon the identical clause now under discussion ; and the decision of the Supreme Court, in our favor, was affirmed, upon the very principle involved in the first point, to wit: that the woid survivor restrained the generality of the words to issue living dX the death of Joseph. The dispute thus being, as we had supposed, settled in our favor, we called for the residue of the property not acted directly upon by the suit of Anderson v. Jackson. But our claim was still resisted. We commenced this, with other ejectment suits, for the recovery of that residue. Pending these suits Medcef Eden, the younger, died; having devised to his wife and her daughters. In the first place, the old ground is taken, which we had litigated in Anderson v. Jackson. The decision there is said to have been erroneous; and that is the great and only material question in this cause. The decision I am called upon to support, and I proceed to do it with the greatest pleasure, because this court consent to hear me. It is perhaps proper ; as the late Chancellor Kent gave a very long and learned opinion, sustained by a respectable minority, against the majority who gave the judgment. I also owe it as a matter of respect to this Court, to show that its decision is not to be shaken. To do this, we must briefly review the history of the principle involved in that cause. The point is, simply whether a limitation to the survivor or survivors of two or more persons, on the other or others dying without issue, is definite or indefinite. This question came before the Supreme Court for the first time in 1806.[158] It was upon a will which contained the following clause: “ Further my mind and will is, that if any of my said sons, William, Jacob, Thomas and John,
p. 360In 1808,[161] the question is again presented. Here, as in England after Pells v. Brown, the question is brought up, and the proposition again contested. The cause was argued, and the opinion of the Court was delivered by Kent, Ch. J. who decided that the word survivor quallified the general words. ■ In 1813[162] the question is again discussed; and Kent, Ch. J. again delivers the opinion of the Court in favor of the same construction. . But opposition was not yet subdued. In 1814,[163] the question was repeated, distinctly; and Spencer, J. delivered the opinion. He says, “ I believe none oí us have ever doubted the
or my daughter Mary, shall happen to die without heirs male of their own bodies that then the lands shall return to the survivors, to be equally divided between them.” This limitation was after a devise of part of his lands to his son William, and his heirs forever, and other lands to the other sons of the testator and this daughter Elizabeth, in fee simple. With a small material exception, that was precisely this will. The cause was fully discussed. A leader in that discussion, against the estate tail, was one of the gentlemen who oppose me here. ' Mr. Jones, for the plaintiff, there said,[159] “ It is true, that if the devise over was on the indefinite failure of issue, the contingency would be too remote to render it an executory devise. (2 Fearne, 4th ed. p. 118.) But a contingency, that if a person die without sons or male issue, would be sufficiently near and probable ; and in this case the event must happen within the lives of some or one of the devisees, as the remainder is to the survivors and not their heirs.” The Court decided that the limitation over was valid as being on a definite failure of issue; and their ' reasoning is based on Hughes v. Sayer,[160] that the immediate limitation over was to the surviving devisee. Mr. Justice Thompson, who delivered the opinion of the Court, entered very fully into the English cases, as he ought, it being a question raised here for the first time; and he finally, with the unanimous concurrence of the Court, decides the very same question we are now considering. That decision was submitted to. No writ of error was brought.
p. 361correctness of the decision in Fosdick v. Cornell ; and it would be a waste of time to review the authorities there cited.” In 1816, our rights became important; and in the course ■ of vindicating these rights we were brought .into this Court, in 1818. We had then before us 13 years of unbroken adjudication, in affirmance of our rights, upon which we reposed with the greatest confidence. We were not deceived; for, in Anderson v. Jackson, this Court gave sanction to our claim upon the point now in controversy. But, we shall be told, the decision in Anderson v. Jackson was not unanimous. True, it was not so—a fact which we looked upon as somewhat strange ; for we had supposed the principle of that case as well settled as any one in the law. And it was peculiarly unfortunate that the opposition should come from that very quarter in which we had reposed our rights. Yes, the late Chief Justice (then Chancellor) Kent, gives an opinion, which occupies nearly 30 pages in the report,[164] to show that the decision of the Supreme Court had been grossly erroneous ! How stood the point, upon authority, on coming into this Court ? The parties came here, to litigate upon a principle so fully and plainly established in the Supreme Court, that the decision of the cause there, though involving a large amount of property, was not deemed worth reporting. You saw that principle concurred in by Kent, Ch. X, Thompson, Ch. X, and Spencer, Tan Ness, Yates and Platt, Justices; after a series of discussion almost unparalleled in the history of any principle in our law. You saw the same questions arising, and the same principle established in neighboring states. From every source, opposition was hushed; not only with men of books, but in the common walks of life. You knew that thousands of wills had been made upon that very principle, and that, if you unsettled the rule, you opened Pandora’s box. - You knew it more important that the law should be settled, than how it should be settled. You secured to us a principle which had been established in the mind of every man for a longtime; and you were right, for the contrary would have been incalculably mischievous.
p. 362But the propriety of your course was questioned by a long opinion from the late Chancellor, professing to show this series of adjudications, by the most enlightened tribunals in the state, legal heresy. It is my duty to examine that opinion. I confess I do this with reluctance. It was this, and not any fears from its effect, which led me to join in the preliminary objection, made by my associate, against this point being heard. In this we were overruled. The opinion lies m our way, and we must travel over it. With deference; it is an opinion inconclusive in all its parts ; and of the 26 cases upon which it is founded, there is but one which gives color to it. It contains an apology, and this was obviously right. An apology was due, for attempting to overturn a rule, after having suffered our citizens to go on, for years, settling their property under it; a rule, too, which the learned Chancellor himself, more than any other Judge had contributed to establish. “ But if,” (says Chancellor Kent,) “ the decisions have been as settled and uniform as I have stated, it may be asked, how came the Supreme Court to make such a decision, as that now under review 1 I answer, that the present case was decided without going into any discussion of the merits, and by a reference merely to one or two former cases in the Supreme Court, all of which rested upon the case of Fosdick v. Cornell, ( 1 John. Rep. 440 ,) decided by that court in August, 1806. I was at that time Chief Justice of the Supreme Court; and though I did not give the opinion, I will not shelter myself under that silence. I am free to say, that I partook of its error. But I should be unworthy' of public confidence, if, with more experience and more examination, having detected myself in an error, I should now be ashamed to confess it. I discovered, years ago, that the case of Fosdick v. Cornell, was decided upon mistaken grounds. The Court, however, have this apology for themselves, that without much examination, and without looking, as they ought to have done, deeply into the subject, they were led astray out of the beaten track, by such a distinguished leader as Lord Kenyon. The cases of Porter v. Bradley, (3 Term Rep. 143,) and of Roe v. Jeffrey, (7 Term Rep. 589,) were the blind guides
p. 363Jiat misled them. I say this, confidently; for the Court do nothing more, in the whole opinion, than repeat what Lord Kenyon had spoken.” In the decision of 1813,[165] the same Chancellor (then Ch. Justice Kent) says, “ if the limitation rested solely on the words dying without issue, we have seen that it would fail ; but the will proceeds, and gives the part of the son dying without issue, to the survi-. vors, except the portion which was to go to the wife. The term survivors will be found to rescue the limitation from the operation of the general principle, and to bring it within the reach of other cases which have adjudged that expression to be the cause of a different construction ; and, for the reason that it could not have been intended that the survivor was to take only after an indefinite failure of issue, as that event might not happen until long after the death of all the survivors.” This goes, in words and letters, to the precise point now under consideration. But in the decision of this and the previous cases, the authorities were not fully looked into. Was this so ? Fosdick v. Cornell, was argued by as able counsel as any in the state. The report shows the ability with which it was examined. Thompson, J. goes into all the English decisions. To Jackson v. Blanshan, Jackson v. Staats and Moffat v. Strong, similar remarks may be applied. In all these cases the subject is gone over, not only by the ablest counsel, but by the ablest Judges, with the same result; and is it to be tolerated that this result shall now be questioned ? Is any one to be tolerated in telling us that all these decisions were lightly considered ? I wish the expression were not in the book. But, “ Lord Kenyon and the cases of Porter v. Bradley and Roe v. Jeffrey, were the blind guides which misled them.” No. If you look into the opinions of the then Ch. Justice, Kent, you will see how fully he considers them. The leading case is Pells v. Brown.[166] True, this case was once questioned; but for more than 200 years it has not even been doubted, in any book of any country. It was treated by Lord Kenyon, by our' Supreme Court, and by other Courts as the Magna Charta of the law on this question. But Chancellor Kent dissents from it. With the ex
p. 364ception of two or three nearly simultaneous cases, it never was questioned. Now we are to be told that Lord Kenyon was deceived and’ misled in his eulogium. There is not one case questioning that, which has not been overruled again and again; and no lawyer would now be heard to question it, in Westminster Hall. It was at least to have been expected from the late Chancellor that he would have shed a new ray of light upon the question, putting doubt at defiance. But, I repeat it; out of 26 cases relied upon by him, Chadock v. Cowley,[167] alone,, is against us. What is the point of inquiry 1 Is there something in this limitation which restrains the’ general words to a definite failure of issue 1 We say survivor does. The book of Assise[168] is first quoted by the Chancellor. But nothing was pretended in that case, to qualify the limitation. It was not to the survivor. In King v. Rumball,[169] the limitation was not to the survivor. Pells v. Brown is the next. Holmes v. Meynel[170] was in other respects much like the present case, but this word survivor was omitted, in the limitation over. Forth v. Chapman[171] was-a question as to personal property bequeathed upon the general words; and these, alone, were limited to a definite failure in such a case. In Brice v. Smith,[172] the word survivor does not occur ; and Hope v. Taylor[173] was not a question as to a devise over. The first taker had issue which clearly gave an estate tail. In Doe v. Fonnereau[174] Ld. Mansfield asked Serjeant Hill whether he had ever been able to find-any case of real property, where the Court, on the words in default of such issue, had implied a restriction to issue living at the death of the father ; and he said he had not met with any. And it is very true that no such case can be found. We do not contend for a-limitation of these words, by mere implication arising from the words themselves. Denn v. Slater,[149] the word survivor is not used, nor was there any provision that B. should die without issue in the life of C. So of Doe v. Rivers,[150] . so of Doe v. Ellis,[151] but this case pre-supposes that the general words may be restrained by im
p. 365plication from other parts of the will. Tenny v. Agar,[152] goes upon the general, unrestrained words. The devise over, was not to the survivor, but to a cousin who had not been before introduced. The Chancellor’s cases do not apply. It is singular that not one of them can even be distorted into an application to the point in question. Kirkpatrick v. Kilpatrick,[153] the Chancellor admits is against him ; and in Barlow v. Slater,[154] there were nó restrictive words. The limitation over to one of the nieces for life, iri that case, does not necessarily imply an intent that there should be a definite failure. This was the only point decided there. In Romilly v. James,[130] also, there were no words of restraint; and this a sufficient answer. “ I have thus,” (says the Chancellor) “ continued the history of the English decisions, from the time that we abolished estates tail, down to the present moment; and it must have been perceived that there is one undisturbed current of authority, as well since, as before our statute, declaring and establishing that such words as are used in the will of Medcef Eden, the elder, do create an estate tail; that they do mean an indefinite failure of issue.” Chadwick v. Cowley, decided about 200 years ago, I admit may be a case against us; but if it does interfere with Pells v. Brown it has gone to the shades! The latter case hás been conceded to be the law, till questioned by Chancellor Kent in this Court. If, in a few instances about the time when it was decided, it was questioned, it has outrode the storm. Even Chadwick v. Cowley is reducible to questions peculiar to itself, arid was capable of decision without interfering with Pells v. Brown. Intent is the polar star which guides in the construction of wills. Little, indefinable circumstances will sometimes indicate the intent and conflict with general rules. This consideration has led a learned Judge in Pennsylvania to say, that unless authorities' on the construction of wills are in point upon every particular, they cannot govern.[155] The father had disinherited his eldest son ; and the Court leaned in favor of a construction which would defeat his will. And this is
p. 366the key to the case of Chadwick v. Cowley. The Court say,(a:) “ For the words that the survivor shall be heir to the other if he dies without issue, they seem to be an estate tail. But if the devise had been that if he died without issue in the life of the other, or before such an age, that then it shall remain to the other ; then peradventure it should be a contingent devise in tail if it should happen, and not otherwise ; but being, that the survivor shall be heir to the other, if he die without issue, that in his intent is an absolute estate tail immediately, and remainder limited over.” And that case may, even now, be law with the qualification which the ■ Court give to it, without impugning Pells v. Brown. The Chancellor next proceeds to review some of the American cases. That of Richardson v. Noyes.[157] is in our favor. The words survivor or survivors were used to designate the second takers ; and these, among other words, are relied on for the very purpose that we urge them here ; and the limitation over was holden valid. Ray v. Enslin,[158] is inapplicable, but the Court recognize the doctrine, in the abstract, which we contend for. Ide v. Ide,[159] does not touch the point; but the Chancellor says, “Hauer v. Shitz,[160] turned upon the construction of peculiar provisions in a will, which are not at all analogous ;” but the truth is, we could not have found a stronger case in our favor. The word survivor is expressly relied upon by the Court. Hunters v. Haynes,[161] turned upon the general words alone, had no application for the Chancellor’s purpose, but is in point against the premises passing to the English devisees. The same remark applies to Royall v. Eppes ;[162] and Denn,ex dem. Button and wife, v. Wood.[163] “In Keating v. Reynolds,”[164] (says the Chancellor,) “it was admitted, that the general words, that if either should die without lawful heirs of their bodies, appeared to look to an indefinite failure' of issue, but they held that the subsequent words”—What words 1 These words says the Chancellor, without lawful heirs of their bodies to live, “controlled the general words, and made a good limitation over by way of executory devise.” This was not so. The bequest over was “ equally to be divided between the survivors.*
p. 367This word survivors is relied upon by the Court as restraining the general words. “ This term survivor,” say the Court, “ is a term of much import here. It carries with it the idea of the longest liver, provided the other sister should leave no children behind her; that is, none living at the time of her death.” The case is directly against the Chancellor, and in point for us. The same remarks apply to Jones v. Rice.[165] Now then, how stands the question ? Does not the word survivor, rescue this case from the general principle? Is it not clearly so ? This Court, then, decided right in Anderson v. Jackson. For four years the law has been fixed by a Court of dernier resort. Men have gone to their graves after having settled their estates upon the principles which you have promulgated. If erroneous, it is because the decision was made by men. You ought not to affirm it so much because it was right, as because it was law. There is hardly a will settling real estate, which does not contain the .disposition in question. It is the most common case in a devise. You have not the moral power to change your ground; because it is not right. Who can know what the law of this state is, unless your decision is final ? Shall we look into your decisions under the idea that they are to be overturned by a new set of men, who shall come here tomorrow? A change of decision with a change of men, would be a less evil in the Supreme Court of this state, or of the United States, because from the tenure of the Judges’ office, frequent changes are not to be looked for. This Court may change once in four years. Are we, barely, enabled to say “ these words meant a definite failure of issue yesterday: but whether this will be law next year, I will tell you after election?” The law of discretion, with the best of men and the best of Judges, is more or less the creature of prejudice or passion. Your decisions should be as stable as the constitution : They should be so in order that the suitor may, at least, see one spot where there is an end of uncertainty. 2. The simple devise over from Joseph to Medcef, under the word survivor, would have given the latter a life estate only. But- it is just as well settled as that two and two
p. 368make four, that a devise over, as here, to John Eden and Hannah Johnson on both sons’ dying without issue generally, makes, by implication, an estate tail out of the preceding estate. Here, then, would have been an estate tail in Medcef Eden, had it not been for the statute of 1786.[166] This act declares, “ that all estates tail shall be and hereby are abolished; and that in all cases where any person or persons now is, or are, or if the act hereinafter mentioned and repealed (act of 1782,) had not been passed, would now be seised in fee tail, of any lands, tenements of hereditaments, by virtue of any devise, gift* grant or other conveyance, heretofore made, or hereafter to be made, or by any other means whatsoever, such person and persons, instead of becoming seised thereof in fee tail, shall be deemed and adjudged to be seised thereof in fee simple absolute.” The legislature thus lay down the rule, which governs this case, in terms. The estate to Medcef would have been in fee tail if the statute had not been passed. Having passed, it is transmuted into afee simple; Here we are met with this difficulty; that as the statute de donis was repealed before the will was made, no estate tail could exist; and, therefore, the statute does not operate upon this will. But the answer is very-simple and obvious, At common law, a fee conditional to A. and certain heirs became absolute on the birth of heirs. This was put down at a very early period by the statute de donis, which it is said was repealed here in 1786. But this is a mistake. The statute de donis was not repealed; • but its Operation was changed; and the estates created or to be created under it are construed into a fee simple. Otherwise, we are thrown back to the old fee conditional. No such thing was intended. The legislature of this state in 1788, repealed, as mentioned on the other side, all the statutes of England, knowing that the statute de doñis had been re-enacted by this state in a modified form.[167] 3. The plaintiffs in error do not stánd in á situation to avail themselves of the devise over to John Eden and Hannah Johnson, even supposing it to be operative. Claiming adversely to the original source of title, they have no business with the right of third persons* who mixst rely for
p. 369that right upon the will, in defiance of which our antagonists hold on upon this property. But the limitation was destroyed by the statute of fee simple. It is singular that after struggling for years to show, that we were cut of by the general words—that a limitation to us as survivor could not save us—gentlemen should now contend, that even without this word, or any other qualifying circumstance, the estate should go over to collateral relations of the testator. Our answer is, that the devise over to them is void. Gentlemen, themselves, have shown it. All the cases cited show it. Jackson v. Billinger,[168] dec ides the very point. Such a limitation was overruled in that case for want of the qualifying word survivor. If the rule is to be altered, the legislature must do it, You must administer the law as you find it. But it is said, that the devise over to John Eden and Hannah Johnson, being in the immediate neighborhood of the first limitation over, and following this, is to be taken as part of the same clause; and, as such, it is controlled by the word survivor, in common with the first part. Our answer is, that it cannot be taken as a part of the same clause, but is plainly and substantially distinct, not only in fact but within the reasonable intention of the. testator. The subject matter is different. This is a devise of the whole. The first was only of a part. The ultimate devisees stand in a different relation to. the testator. The former were sons ; the latter a brother and sister. The feelings which governed the devisor were different in the two cases. Nothing is more rational than that before he would take the estate away from his lineal descendants, they should be finally exhausted; and to provide for this the words of the condition must have been used in their largest sense, which imports an indefinite failure. The word then, in this devise, will not operate to restrict the meaning.[169] But the reasoning on the other side overturns this claim. The testator uses words having a legal and fixed meaning. ' Their contiguity to the previous words shows that this was intentionally so. But whether intentionally or otherwise
p. 370makes no difference. Suppose á devise of Black Acre to A, and his heirs, and of White Acre to B., without adding his heirs; and admit that these last words are omitted accidentally ; would the Court dare to say that both devises are in fee 7 They might as well repeal the statute of wills, According to the case from Hobart,[170] the Court will adopt the technical meaning, because these are no words indicating a different intent. Ld. Hardwicke, in Garth v. Baldwin,[171] refers to the words of the marginal note to Hobart, which, he says,[172] were known to be his words and in his emphatic style; and following him, remarks; “ I am not in a Court of Equity to overrule the legal construction of the limitation, unless the intent of the testator or author of the trust, appears by declaration plain ;[130] that is, not saying it in so many words, but plain expression or necessary implication of his intent, which is the same thing.” Is the mere location of the words in question-, to change their legal and palpable intention 7 There are a few cases cited on the other side to this point.[173] Atkinson v. Hutchinson was mis-reported ;[174] but there is this general answer to them all. They relate to personal property, the rule in relation to which is different, on the head we are considering. The presumption need not be so strong as to carry over a bequest of personal property as a devise of real estate. You cannot entail personalty, and the Courts will seize upon almost any ground, however slight, to restrain the general expression. This distinction may be seen in Fearne.[149] In 1720,[150] both real and personal estate, were devised over in the same clause, after an indefinite failure of issue slightly qualified, and the clause was holden void as to the real, but good as to the personal property. In 1742,[151] Ld. Hardwicke says, that case was not decided upon a distinction'between real and personal property, and it is indeed difficult to tell where the Courts have left this question in relation to the latter. In Sperling v. Toll,[152] the
p. 371Master of the Rolls, again, glances at this distinction. This was in 1747. But as to real estate, the rule has never been disturbed; and the ultimate devise over is unquestionably void. The reasoning of the Master of the Rolls in Sperling v. Toll, is directly applicable. That was a devise to three nephews during their respective lives, as tenants in common ; but if either died without issue living at his death, his part to go to the survivors, then over to 10 others. Two of the nephews died in the testatrix’s lifetime, and the survivor left a son, who.claimed the whole estate against the devisees over, on the ground of intent that nothing should go to the latter, till-a failure of issue of all the nephews; but the Master of the Rolls speaks of it in this manner: “ It is said, the intent was, that while there was issue of the three nephews, it should not go over; and that being executory, it should be so directed. The Court will always go as far as possible to support the intent; but that intent must appear from the words of the will. There are few cases, where evidence of the intent will be allowed out of the words. It only will where there is a doubt to whom the residue is given, or for ascertaining the nature of the legacy or the person of the legatee. If, then, the Court is so very cautious where there is evidence to prove the intent, much more ought it to be so, where that evidence arises only from the surmise of counsel or of the party. The Court is to carry the will into execution ; not to make one for the party, or to give that construction which the Court should think most proper. If this matter was laid before the testatrix, she might think it reasonable, that it should not go over, while there was issue ; and it might be very proper: but that does not appear from the words ; rather the contrary. The plain construction carries it after the death of each respectively: and not to give a survivorship on the death of one without issue; for it is given in common, and survivorship was in the contemplation of the testatrix, as appears from her directing a survivorship for life; and having omitted it in the direction of the inheritance, it is reasonable to suppose that she did not intend it.” The amount of these remarks is, that she had no survivorship in her eye, in the ultimate devise; and her
p. 372intention cannot be disregarded. Now can we extend the force of the term survivor to John Eden and Hannah Johnson when the word is not there ? That part of the Chief Justice’s opinion has been assailed, which declares the limitation over to John Eden and Han. nah Johnson to have been changed into a vested remainder on the previous limitation to Medcef becoming vested in possession; and we are told that there can in no case be a remainder where the previous estate is a fee simple, or will not admit of a remainder after it. True, when you have a remainder, you don’t want an executory devise; nor can you have one. The office of an executory devise, is to carry over an estate, in those cases, only, where a remainder. cannot do it: and wherever a limitation can have effect as a remainder it supersedes this office.[154] Now this devise over from Joseph to Medcef was not, in terms, either a fee simple or a fee tail. It would have been a mere estate for life, had not the words of limitation to John Eden and Hannah Johnson enlarged it into a fee tail,[155] which admits of a vested remainder after it.[156] Then here was a fee tail vested in Medcef, and what before followed it as an executory devise now followed as a vested remainder; or in the language of the Chief Justice, “ The estate, then, of John Eden and Hannah Johnson was turned into a remainder, when the executory devise took effect in favor of Medcef Eden. The devise to them then ceasing to be executory, Medcef became seised in fee tail by necessary implication of law, with a remainder expectant in favor of John Eden and Hannah Johnson.” This was the state and shape of the limitations under the common law, and the statute de donis, which, we have seen, still exists for the purpose of bringing about this state of things. It is enough that the right of Medcef- Eden would-have been an estate tail, previous to the statute, (1 N. R. L. 52.) It is then taken hold of by this statute and transmuted into a fee simple, as I have formerly shown. At common law, it might, as the Chief Justice remarks, have been destroyed, or made absolute in Medcef by a fine or recovery; in place of which our statute of fee simple steps in, and reaches this object without that ceremony.
p. 373Craig v. Stacey[130] coincides "with the Supreme Court, and decides, in terms, that when an executory devise becomes vested in possession, the limitations depending upon it change their nature and become vested remainders. (same side,) said, he should add but little on the three first points of the defence. The ability with which all the points had been examined by his associate, forbade his saying much in relation to either. He regretted that the decision in Anderson v. Jackson should be opened. He feared that even the stand then taken by the minority against that decision might with some of them have been owing to Mr. Eden’s unfortunate selection of one of his counsel; but he was happy in the belief that he had nothing like prejudice or feeling to encounter in this Court. On Joseph’s death, the case of Anderson v. Jackson carried all the estate devised to him, over to his brother Medcefi That case, however, merely settled the point; it did not act upon all the land ; and instead of abiding that result, and surrendering the residue peaceably, the possessors determined that we should fight them in detail. It is the disposition of man to hold property, during his life, above control; but to shackle it forever afterwards. Having children, he will give it to them for life, and confining it to his lineal descendants as long as possible, then over. But the law will not allow you to limit on an event beyond a life or lives m being and 21 years and 9 months afterwards, for fear of a perpetuity. This is a worse evil than an entail, for the latter may be docked by a fine or recovery. This remedy will never reach an executory devise. Once fix a principle which shall carry over this estate to John Eden and Hannah Johnson, and you establish an entail which no power can cut off. The contingency upon which it turns, is too remote. You will not allow the limitation, because there is no limitation to it. It was given to the sons and their heirs, and it was his obvious intent that their issue or descendants should enjoy to a period indefinitely remote. Suppose they had died immediately after the testator, leaving issue, (which latter is always a
A. Burr,
p. 374probable event in this kind of limitations,) it was his intent to carry it to the issue, their children and children’s children, till they should fail; thus confining it in the family, and shackling it against the freedom of alienation, for ages» The time when it should pass over to the ultimate devisees, or their heirs, was undefined, and the fee simple of the estate might have been in abeyance for a long time, because it could have no absolute owner. No one could purchase it. This is the evil intended to be reached by Jackson v. Billinger.[157] The plaintiffs in Error repose themselves, entirely, upon the further question, growing out of Medcef Eden’s death ; and they say it is only in reference to this that they have reviewed Anderson v. Jackson. They say, “ True, we have no title; but John Eden and Hannah Johnson of England have. They are the owners and we claim to hold against all the world ekcept them.” But what is the reason of this rule? It is that the possessors should be subjected to damages and costs but once; and that rule is satisfied in this case. They would have been shielded by surrendering to Medcef Eden and paying his costs and damages for the time during which they admit his estate to have continued. They purchased Joseph Eden’s life estate which expired many years ago. The title of John Eden and Hannah Johnson, if they have any, arose only in 1819, and had the plaintiffs in Error surrendered the whole land then, as in duty bound to do, they could not have been subjected to any further action at the suit of the English claimants. They attempt to avail themselves of the rule, in their own wrong. It is their fault if suits are to be multiplied, upon them. There are various principles upon which this cause must be decided against them, even conceding the title which they set up in the English devisees. In the first place, to avail thmselves of a title in third persons, they must show themselves connected with that title.[158] The question is, who has the better title between these parties ? This is a familiar principle in the writ of right.[159] An ejectment being a mere substitute for the writ of right it would be an absurdity that on a special verdict, in that action, the rule should be dif
p. 375ferent; and it is really the same in both.[160] Jackson v. Davenport[161] does not form a rule for this case ; because the defendant not only showed that the life estate upon which the plaintiff sought to recover had expired, but he went further and showed a title to the reversion in himself ;[162] and the opinion of Ld. Kenyon, in England v. Slade,[163] cited on the other side, has been overruled both in England and this country. It is inconsistent with Jackson v. M'Cleod,[164] decided by the Suprem~e Court of this state. Again : the plaintiffs in Error entered under an estate in privity with the successive estates of Medeef Eden, and 3ohn Eden and Hannah Johnson, to whom, according to their own ground, the reversion has successively passed. On the expiration of Joseph Eden's life estate, which they purchased, they were the tenants of Medeef Eden, and are es-topped from questioning his title, although it may have expired. They must surrender the possession; and then the rights of third persons may be litigated. They have no right to set them up, in this form. They come directly within the principle of Jackson v. Steward,[165] The same v. M'Cleod,[166] and Jackson v. Ayers, ( 14 John. 224 .) They held in trust for Medcef after his brother's death ; and he may call upon them at all events to surrender the trust. That they had no more than Joseph’s life estate, was expressly decided by the Court below, and has not yet been questioned here. They do not pretend to hold under the authority or grant of the English devisees. The lease to Lion was not a fiction, as is usual in ejectments. It was an actual lease for 15 years, executed on the' premises when entry was made to avoid the fine. This is a good and subsisting title or interest against all the world except the reversioners. The lessee has a right to his possession till disturbed by those having the inheritance. He was rightfully in possession under the title of the lessors ; and this prior rightful possession cannot be questioned by the plaintiffs in Error, who are no more than mere strangers to the reversioners, beside being shackled by an estoppel arising from their privity with the lessors of the plaintiff. None but the reversioners can be heard. Till avoided by them,
p. 376the lease to Lion remains good. It is Medcef Eden’s lease, an¿ ¡le an(j his heirs might avow upon a distress for rent under. it.[167] It was not void, but merely voidable by the act °f the reversioners, and might have been affirmed by their act. A variety of cases to this effect are collected in Bar. Ab. Leases and Terms for yeays (D.).[168] The English Courts, refuse to act upon the rights of third persons, when they are not before the Court. A husband, during coverture, gives a lease of his, wife's, land; if the wife dies without issue by. him, the husband's title is gone, but n~ on~ except the reversioner can avoid the lease. The lessee cannot do it, because the lease was drawn out of the .ceisin of the wife.[169] Lion, the lesse~, holds for. the next person in interest after his lessor. Thus the relations in which the plaintiffs in Error stand, forbid this defence. But it is said this is z~ limitation to Joseph Eden and Hannah Johnson, upon the condition that Medcef should die without issue in their lifetime. To arrive at this, in positive violence to all meaning, you are asked to misplace the word survivor in the sentence, to put this word in, wh~re it was purposely omitted. Having gone thus far, and said that the ultimate devisees were en~it1ed as ~survivors; you are then asked to go a still greater length of absurdity by saying they are alive-thai they did survive-and thus bring them within the terms you have manufactured; and this too, without one particle of proof that they have ever been heard of since the year 1708. They were aliv~, it seems, when the will of Medcef Eden, the elder, was made, and this is the last we hear of them. You know nothing that they survived. One not heard of in 7 years shall be presumed dead, in analogy to the statute ofbigamy.[170] In Doe v. Jesson,[171] Ld. Ellenborough said, "As to the period when the brother might be supposed to, have died, according to the statutes (19 Car. 2, c. 5) with respect to leases dependent on lives;[172] and also according to the statute of bigamy, (1 Jac. 1, c. 11,)[173] the presumption of the duratipn of life, with respect to persons of whom no. account can be given, ends at the expiration of 7 years from the time when they were last known to be living. Therefore, in the absence of all other evidence, to show that he was living at a later period.
p. 377there was fair ground for the jury to presume that he was dead at the end of 7 years from the time when he went to sea on his second voyage, which seems to be the last account of him.” Why then is survivorship not on the record ? It lay with the other side to show this fact to bring the case within their own terms. Without this, their limitation fails for want of lives to support it. Admit that the limitation vested in them during their lives : if they died before Medcef Eden, this reversion descended to him, as their nephew and heir. He is the nearest connection appearing on the récord ; and the Court cannot intend that any oné of the blood of the devisor stood between him and the ultimate devisees. The great features of this cause, as to fact, are in a narrow compass. Oh the death of Medcef Eden, the elder, the two sons entered, and were deemed seised in fee simple absolute. Joseph Eden’s estate was sold to bóna fide purchasers, upon judgments obtained against him. These purchasers bought upon the faith of a valid title in fee. The representatives of the debtor himself, now come to tear this estate from us ; and whatever oiir claim may be, I trust that such claimants will not find countenance in this Court. • The whole question arises on the words of the limitation. The testator devised certain parcels of land to each of his sons, Joseph and Medcef, in fee. Joseph entered, died without issue, and you said his estate went over to Medcef. He also died without issue ; and where is the foundation for the pretence that it does not go over to John Eden and Hannah Johnson 1 In common sense the words of both limitations are plain. According to this, the whole estate is gone over from Joseph and Medcef, and we are to remain in possession till one comes who has right. If the plaintiff recover, some technical rule must be applied in order to exclude us. It is said that the technical meaning of these words, dying without issue, is an indefinite failure of issue. But they have two meanings. One is the natural import, a failure of issue at the devisee’s death. . This is the meaning which we apply in talking of our common affairs. On the other hand,
8. Jones, in reply.
p. 378it is said technically to mean an indefinite failure; that is, SUpp0se the devise to have a family, and that family to continue down for ages : the devise looks to such an event. I is immaterial to us which is meant:, if an indefinite failure the whole vested in the first devisee ': if definite, the whole goes to the devisees in England. You are examining the question of intent, as gentlemen have proved from Garth v. Baldwin.[174] You never go to the technical meaning, unless the case is stripped of every circumstance by which you can infer that the testator intended ’to depart from that meaning. And is it possible, when he says, that if both these sons die without lawful issue, then over, he means it shall not go over ; though immediately before he so expressed himself in the same words as to carry over the same estate to the intermediate devisee ? The whole is in the same single clause. If the estate of Joseph does not go over, what is the effect of the clause 7 This estate starts, on the testator’s death, as a fee simple, and comes as such to Joseph ; but on his death the same estate goes over to Medcef as a fee tail. Can you limit an estate tail upon a fee simple 7 A fee tail is sometimes lim ited over from one to another; but then it is a fee tail from the beginning. That it should start a fee simple and end a fee tail, is a thing unheard of. The operation of this clause is the same on the estate originally devised to Medcef Eden. Both must go over, if either does. You cannot separate them. Their destination is the same. One cannot go, and the other be retained. Joseph became invested with a fee, subject to the contingency of dying without lawful issue. Having issue, his estate would become a fee simple absolute., Not having issue, you said in Anderson v. Jackson, that it was a fee simple conditional, and you carried it over to Medcef. Now you are asked to change it into a fee tail. But take the last limitation, per se. It is in case both die without issue, either definitely or indefinitely. It is the. same as to both. Now suppose one to have died without, and the other with issue ; is it to be construed definite as to one, and indefinite as to the other 7 Shall one half go over and one half remain 7 Is this an executory devise as to
p. 379one half, and as to the other an estate tail ? Take the case put by the late Chancellor in Anderson v. Jackson.[149] Suppose the two sons had died leaving lawful issue which had died a few days after their deaths : the estate could not go over. The words have the same sense in both members of the sentence. If there was issue, it remained; if none, it went over. It must either be an estate for life with cross remainders, in fee tail, or an executory devise. You cannot give this effect to one part of the phrase, and withhold it as to the' other. How is it made out an executory devise as between the sons, and not as between Medcef Eden and the ultimate devisees 7 Survivor is not, of itself, a word of limitation. Dying without issue are the words of limitation ; and this, it is said, was restrained and made definite by the word survivor. But why may it not apply to the survivorship of Joseph, either with or without a child 7 If it does restrain the import of the general words, it is by way of showing the intent. The whole . operation is upon the meaning. This being ascertained, what will you say of the same expression, in the same sentence ; and in relation to the same estate 7 Could the testator speak, would he say, “ I meant one thing by these words till I came to Medcef Eden, and another by the same words in the same sentence, in relation to the same subject matter, when I came to the final devisees 7 These words cannot be disconnected. The fallacy is, in considering the second dying without issue a different event from the first. The testator speaks first of either of his sons dying without issue, and in the same sentence of their both dying without issue ; and the latter is connected in sense, as well as in phrase, with the first. Without a contradictory sense, you cannot sustain the judgment of the Court below. The well settled rule is, that you are to construe the will according to the circumstances, as they exist at the testator’s death. The estate, as it started at the death of the testator, was plainly one in fee simple. Look to the period of his death. Is there any doubt of this ? He then says, “ I give A. to Joseph and B. to Medcef, each in fee ; but if one die without issue, his share to the other ; and if both die without issue, the whole to John and Han
p. 380nah.” Are not these executory devises ? If they are not no estate can g0 over, jn virtue of these words. The qnly reason Why a devise like this is ever construed to create ati estate tail, is in order to support an ulterior vested remainder, because you can find no other particular estate to-support it. Yet the Court below say, you cannot construe this limitation over, an executory devise, because the second was an estate tail, which was turned into a fee by the statute. This was calling it an estate tail, for the very purpose of destroying the limitation over, which should have been sustained if possible. Slight words indeed are enough to restrain the generality of the expression dying without issue. In Pinbury v. Elkin.[150] the bequest was, if she shall die without issue, by the said testator, then after her decease, £80 shall remain over; and the Lord Chancellor seized on the word then to carry over the bequest. That word is here. The phrase is, “ and in case of both their deaths, without lawful issue, then I give all the property aforesaid to’ my brother,” &c. The case cited shows what slight circumstances the Court will seize upon in order to give effect to a devise. The argument cited froth Hargrave’s Law Tracts, (523,) admits our general ground; but it is a sufficient answer that this argument was overruled in the very casé where it was put forward. The authorities cited in the opening, are abundant td show that the whole phrase must be taken together ; that the same words in the same phrase must be understood in the same sense. There is ho magic in the word survivor. The word other would have been enough ; as if the testator had said m case either die without issue, then to the other.[151] In Kirkpatrick v. Kilpatrick,[152] the Lord Chancellor says; “ the question upon the limitation over of this personal property, in the event of both dying without issue, under the age of 21, is a mere question of intention as it may be judicially collected from the whole will. If that limitation was intended to take effect after an indefinite failure of issue, it is too remote; if the failure df issue was confined to the death df the survivor, the limitation is valid.” The reason that the words, dying without issue, in Forth v. Chapman,
p. 381[153] were construed differently in the same sentence was because they referred to different subject matters; that is, to real and personal property respectively. As to Sperling v. Toll,[154] there was no intention of survivorship beyond the life estates; but the word survivor is used here t o . , what is meant by the general words ; and it comes back to the question ; with what intention were the same words used subsequently 1 If the estate were open, I should contend that this was an estate tail from the beginning; but I shall not, after what has fallen from the Court, press a re-consideration of Anderson v. Jackson. Though I agree, that security is found in uniformity of judicial decision; that this is the ark of our safety; that the maxim stare decisis should, generally, be applied ; yet I do adjure this Court never to forego the practice of reviewing their decisions, where they have committed a plain error. Refuse to hear an argument, if there is even doubt on looking into the case; but where a great and alarming evil is to grow out of a monstrous error, the Court ought, unhesitatingly, to revise and correct it. This is the law of the House of Lords and of this Court. It is due to the Chancellor, who dissented in Anderson v. Jackson, to say that the mere word survivor would not affect the technical meaning of the words dying without issue. There were no cases to this purpose produced upon the argument of that cause, except Porter v. Bradley,[155] and Roe v. Jeffery,[156] decided by Ld. Kenyon, since the revoIution, and some of our own cases bottomed on the authority of these. The two cases decided by Ld. Kenyon, were professedly grounded upon Pells v. Brown,[157] but were not supported by it; and the constant tenor of the previous decisions were opposed to him. We now produce two cases from Croke, which are pointedly against him, and one of them (Chadwick v. Cowley)[158] is admitted to be so. The same question had been before agitated, and received a corresponding decision in Clache's case ;[159] and Chadwick v. Cowley is cited as law in Fortescue v. Abbott,[160]
p. 382Roe v. Scott Smart, in Easter Term, 27 Geo. 3,[161] reject’ ed the word survivor as having nc influence in a similar case. Indeed, it is my entire conviction, that if this question were res integra, the devise to Joseph Eden would be holden an estate tail. The very consequence of this being an estate ta^ in Medcef Eden, had it been foreseen, would have been a most conclusive argument in favor of the first limitation being so too. The contingency is the death of both. Suppose Joseph to have had issue who had died after his death, would not this still be an estate tail in Medcef. Would not both estates go over on the double contingency ? If you mean this as to one estate, you must mean it as to the other. Then there was a condition on the devisor’s death, that on both dying without issue indefinitely, the whole should go over ; but you are called upon to change the nature of the event; to vary the meaning of the will and disappoint the remainderman, upon the mere ground that the estate has changed hands; to make it a fee simple at one time, and a fee tail at another. We now no longer ask the aid of the rule which would make this an estate tail in Joseph. The moment you séttled in Anderson v. Jackson that it was an executory devise, it carries us to the same point. You have changed the whole face of the will, and made it executory in all its parts ; and there is no other way but by carrying it over, that you can rescue the will from contradiction and absurdity. We might adduce many American cases to show the strong leaning of the Courts in favor of the natural meaning of the phrase dying without issue. The English Judges have used strong expressions to the same effect. In Bigge v. Bensley,[162] Lord Thurlow said to the Attorney Genera]j i: j agree with you, that the general sense of dying without issue, is at the time of the death. That is the grammatical construction, and is the sense, in general, of those who use the words and Ld. Hardwicke said there was no doubt of the real intention in Beauclerk v. Dormer,[163] though he held it different from the technical one. In Porter v. Bradley,[164] and Roe v. Jeffrey,[165] Ld. Kenyon expressed himself to the same effect; and the whole was
p. 383treated as mere matter of intention. In Anderson v. Jackson, the same doctrine is advanced as the principal ground of the decision; and no very particular reliance was there placed upon the word survivor. One mode, by which to avoid the natural meaning of the words, would have been by giving to Joseph and Medcef estates for life, which would have supported the limitation over as a remainder; but these estates were expressly, in fee, which were carried over to the survivor by the words Ms share or part shall go, &c. In Jackson v. Merrill, the words their part carried over an estate as extensive as the preceding one, which was, in that case, a fee simple. So here the whole interest necessarily goes over, as well as the subject of that interest. But if it is to be considered a life estate, it was only so in Joseph’s part. Medcef’s estate remained a fee simple; and you cannot avoid the absurdity of limiting a remainder in tail upon an antecedent fee, if you affirm this judgment of the Supreme Court. Their opinion was probably with us, upon the point which they mentioned; “ that as the whole devise is in one sentence, and the devise over to persons in esse, the same common intent is applicable to the limitation over to the brother and sister of the devisor, if both his sons should die without issue; and that the same consequence would follow.” But they cautiously omitted deciding this point; going on other and erroneous grounds. The decision of that point would have settled the whole matter; but they chose to go upon a point in relation to which we were not heard before them. The ulterior remainder was to persons in esse ; and the word survivor would have been nonsense. The devisor must have intended throughout the whole devise, either a definite or indefinite failure of issue. There is no doubt what their opinion must have been upon this point. The Court below, put themselves on the ground, that the estate of John Eden and Hannah Johnson was turned into a remainder, when the executory devise took effect in favor of Medcef Eden. Now an executory devise, limited upon a previous devise in fee simple, never can turn into
p. 384a remainder; nor did a devise, executory m its own nature, eTer un¿¡erg0 Such a change. It either fails for want of the condition happening, or it continues executory. After a vested fee, as here, the limitation over must, in its nature, be executory. When Joseph died, he had a fee simple, which was defeated by his death without issue.. The estate did not vanish, but went over to Medcef. It must, according to the Supreme Court, have vested in Medcef Eden before it could change into a remainder—upon what ? Why, Upon Joseph’s estate in fee simple." Medcef had a part of the lands in fee upon the first devise; and as to the other half, this being an executory devise, was also vested in him as such. The Supreme Court agree that the limitation over from Joseph to Medcef was an executory devise. Now the authorities cited to show that on the vesting of the first estate the limitations over became also ves ted as remainders, relate to that kind of remainders which ■ are executory devises, not in their own nature, but for a time ; as where the limitation was to A. for life, with remainder to his unborn son in tail; then to the unborn son of B., for life, remainder to his unborn son’s son in tail, remainder to the unborn son of C. in tail, &c., and then over in fee. This was the case of Hopkins v. Hopkins,[166] cited by the Supreme Court and Serjeant Williams. It was agreed that if A. had lived and come to his life estate, the following estates would have been contingent remainders; but he having died before the testator, they were executory devises. Upon the same principle that they would have been contingent, they would have been vested remainders on the first estate coming to A., if there had been any of the ulterior devisees for life, &c., in esse. It happened in that case, that none of the takers, previous to the ' ultimate devisee, were born at the time of the testator’s death; and the right of the last devisee was adopted as an estate of necessity to supply the vacancy. The whole estate went to him ad interim ; and the previous estates were executory only as being supended. They were, in their nature, remainders. Stephens v. Stephens[167] is still less in point. There the limitation was to A. and his heirs; and. if he should die before 21 years of age, then to such son of B. as should
p. 385attain 21 years, and the heirs male of his body; and in default of his having a son, who should attain that age, then to such daughter or daughters of his as should attain that age, and the heirs of their bodies; and in default of these then over to C. in fee. The whole question was whether the devise to the son who was afterwards born, but had not attained 21 years of age, or to the daughters, &c., was not too remote. In Doe v. Fonnereau,[168] the estate was conveyed by the testator to his eldest son for life; and he afterwards devised it, from and after his decease, to the heirs male of his body, and in default of such issue to his other sons, &c., in tail male, and for want of such issue to bis right heirs ; and all the Court say is, that the life estate conveyed to the son, and the after devise to the heirs male of his body, did not unite so as to form an estate tail in him—that if he had a son the subsequent devise in tail would vest as a remainder, but not having a son, it was an executory devise according to the event. They were not contingent fee simples, and executory devises in their own nature, as here. There was no change. They began and continued estates tail throughout, and were in their nature capable of being sustained as vested remainders. The Court below relied upon Williams’ note to 2 Saunders, 388 h; but this commentary misled them as to the nature of the limitation. Williams uses the language cited by the Court, but by referring to the note, it will be seen to correspond with what we contend for. It is founded on the three cases which I have considered, and refers to the nature of the estate. I challenge the production of any case where a devise, in its own nature executory, was ever turned into a remainder. Something of this kind was contended in Craig v. Stacey.[169] There, in the first place, estates tail were, apparently, limited upon a contingent fee. The estate was devised to an unborn child, if a female, and her heirs; but if she die before marriage, then to A., and the heirs of her body; and on the failure of them to B., and the heirs of her body, &c. A female child was born, who died immarried. A. died leaving two daughters, who died without issue, and the estate was claimed by B. The objection
p. 386was made that the limitation to her was on a contingency too remote, viz. the indefinite failure of A.’s .issue; and it was said that, in the three cases, from Atkyns, Cas. Temp. Talbot and Douglass, there was no previous limitation of the entire fee, as in that case; the very objection we make here. The Court admit the distinction, saying that the first devise was not a fee simple, but was equivalent to a fee tail. The Court doubted throughout, whether the whole were not to be considered an estate tail ab initio ; but the estate tail having clearly vested in the daughters of A., it removed the difficulty; for both the precedent and subsequent estates then in question were estates tail, and capable of subsisting together as concurrent vested remainders. Both Fearne[170] and Cruise,[171] also relied upon by the Supreme Court, must be taken with the same qualification. Suppose a devise to A. in fee, and if he die without issue living B., then to B. in fee; and if he die without issue living C., then to C. in fee. These are plain executory devises throughout. Now suppose A. dies, living B., who takes the estate as owner? Does C.’s estate turn into a remainder ? On what ? On B.’s . executory devise ? That would be a remainder on a fee. The case supposed is precisely the one now under consideration. The Supreme Court turn the devise over to the English heirs into a remainder on Medcef Eden’s fee. It is singular that the statute of 1786, should be eulogized, if it has the strange operation of changing the devise into an estate tail, for the purpose in a round about way, of making it a fee simple in Medcef Eden. An executory devise of this nature always passes over, or becomes a fee. It never becomes a fee tail. A limitation is always, strictly speaking, of remainders. We speak improperly when we say, limitation of executory devises. They come in by way of substitution. If one does not take effect, the other'comes in its place ; and this is the reason why it is not destructible by fine or recovery. A fine by destroying the first estate, destroys all the remainders limited upon it. Not so as to executory devises, for there is no connection or dependence between the estates. The case of Right v. Day,[172] as it is stated in the marginal note, amounts to this: A devise to the son in fee, and if he die before 21, and should leave no issue, then to
p. 387the daughter and her heirs male or female; and in case both die leaving no issue, then to his cousin and his heirs: the son takes a fee with an executory devise to the daughter, with another executory devise over. These are thus considered executory devises throughout, being such in their own nature, although the first estate had vested. The case of Right v. Day is also in point, to show what slight words will qualify the meaning of the general words, dying without issue. There was merely a slight alteration in the phraseology, leave or leaving no issue ; and on these’ words, leave and leaving, it was said the estate might go over. Bayley, J. spoke generally, and said, “ the words dying without issue, as they occur in this will, do not mean a dying without issue indefinitely, but under such special circumstances, as would enable the estates to go over to the daughter after the son’s death; that is, in case he died under 21, and without issue ; and to the cousin after the death of the daughter without issue.” The whole are evidently continued along as executory devises, upon these slight words, although the estate had actually vested in the son. But there is no longer any such thing as an estate tail in this country. Until lately, I did suppose with the opposing counsel, that the acts of 1782, and 1786, instead of simply repealing the statute de donis, had qualified or introduced a new rule founded upon that statute; that is to say, they had suffered an estate tail to arise, and then turned it into an estate in fee simple; and the words of the two acts would probably justify such an inference. But two years after the statute of 1786, all the English acts were repealed.[173] Then there was an end of the statute de donis. Estates tail were , . gone. 1 hey were no longer to be converted into fees simple. They were left, as at common law, to become absolute on the birth of issue; and even a limitation over on a conditional fee, was an executory devise, in its own nature, and must continue so. Medcef Eden, then, according to the reasoning of the Supreme Court, had conditional fees in himself; and on his death without issue, the whole went over in this point of view. The whole is reduced to the common law estate. The moment issue is born to the holder of this
p. 388estate, it becomes absolute and the taker may alien; and oniy cl0g js a want of ability to alien till this event. Mere estates, with us, are thus placed upon the same ground as *n South Carolina. Being thrown back to the common law conditional fee, there is no longer any doubt. The very point has been decided in that state. These words, dying without issue, about which we are contending, whatever may be their construction in reference to a fee simple or fee tail, there is no doubt that they are sufficiently definite and limited, in themselves, to carry over a fee conditional. This was the very point argued and decided in Cruger and others v. Heyward,[174] and is placed by Chancellor Rutledge on grounds which cannot be shaken. But it is said we have no right to shelter ourselves under the title of John Eden and Hannah Johnson. It is enough that we are in possession. We are assailed by one who has no title whatever, and shall he be permitted to say, “ I will turn you out, though I am just as much a wrong doer as you, because I choose to fight their battle myself?” If the devisees of Medcef, the younger, claim under him as the heir of the English devisees, we know how to meet them; but how are you to arrive at the facts which are to defeat us on this ground ? You must presume that John Eden and Hannah Johnson died before Médcef, the younger. Here is a special verdict. If this was the fact, the plaintiff below should have put it before the jury. If absent, and not heard of for 7 years, this should have been shown. For aught that appears, both those devisees are, and have been, for years, resident in this country. When one claims as heir, he must show the death of the ancestor—not call for proof from the opposite party that he is alive upon the presumption that he is dead. The plaintiff in ejectment must recover upon the superior strength of his own title; but the other side would reverse the rule. It is said, the defendant cannot shield himself by his possession, and that such is the rule in a writ of right. This we deny. In a writ of right, as well as in ejectment, theplaintiffmust show a right primafacie, and then the issue is on the superior right. How is it possible that this should
p. 389be othevwise ? Even a sub-lessee may show the title of his lessor at an end. But it is said that Medcef, the younger, made an actual entry; and this is claimed as a prior possession. That entry was with a view to avoid the fine; and did not give him possession. .If one is in possession, he may hold against a stranger. Here, we may hold against the plaintiff, till the heir or devisee comes, as the plaintiff might do against us, if he were in possession.
This Court has heretofore determined, in the case of Anderson v. Jackson, that the devise of the share of either of these two brothers, when either should die without issue, to the survivor of them, was valid as an executory devise; and that Medcef Eden the younger, on the death of his brother Joseph, took the lands devised to Joseph. But this Court did not, in that case, decide, what estate Medcef Eden the younger took, in these lands. The cause now before us, renders it necessary to determine the nature and extent of his estate.
What Anderson v. Jackson decided.
When Medcef Eden, the younger, came into possession of these lands, the first of "the two executory devises took effect. That devise then ceased to be executoiy, and the estate which it conveyed vested in possession.
When 1st ex-toTk^etThi M. E.
The Supreme Court hold, that when the first of several executory devises vests in possession, those which follow , . . , A, _ . vest m interest, at the same time, ana ceasing to be executory, become vested remainders, subject to all the incidents of remainders. This doctrine is sufficiently supported by the cases cited by the. Supreme Court, and it is clearly supported by the opinions of Fearne, Williams and Cruise, in their commentaries on this branch of the law.
when 1st ex-ecut0I7 de,vise vests, those following are vested remam-
The doctrine itself seems conformable to some other principles. It is a rule that no remainder can exist, without a preceding estate to support it; and by another rule, whenever a devise of a future interest can take effect, as a remainder, it shall be so considered. It is entirely agreeable to these tules, that when the first devise becomes executed and form
This conforms to °ther ru'#s‘
p. 390
a particular estate capable of supporting a remainder, succee¿ing devises shall be considered as remainders.
considered.’0118
The objection to this doctrine is, that it may often defeat the intentions of the devisor. The essential difference between a remainder and an executory devise, being, that a remainder may be destroyed, and that an executory devise is protected; the real effect of this doctrine is, in some degree to narrow the operation of executory devises. If in a series of contingent devises of the same land, all which succeed the first, are considered as becoming remainders, when the first is executed and vests in possession; these succeeding remainders may be destroyed, and the intention of the devisor, in making the more remote dispositions may be frustrated. But these remainders can be defeated only by the owner of the preceding estate in possession; when this is done, the interest of a distant devisee is extinguished for the benefit of a prior devisee. Such an ex-tinguishment cannot, in general, take place, until a considerable time after the death of the devisor, when the characters, situations or necessities of the devisees, may be very different from those which the devisor regarded as probable; ■ and though the intention-of the devisor, may be sometimes defeated, they are contravened only in favor of a nearer object of his affections, and for the purpose of unfettering the land from future interests long postponed. Our laws allow the owner of lands to devise them, according to his affections or his pleasure, when he gives his own absolute property in them: but when he devises a title which is absolute in himself, to different persons in succession, upon events and contingencies, which cannot occur, until long after his death, he seeks to establish a special course of succession and to give law to posterity. These contingent dispositions, when confined within moderate limits of of time, are without objection, and are often very suitable provisions for the reasonable exigencies of families. When they are' allowed to prevail through a long period, they become pernicious, and by whatever name they may be called, are in effect entails, attended with all the evils of unalienable property in land. The rule that an executory devise shall not prevail, when it extends beyond a life or lives in being and 21 years and 9 months af
p. 391
terwards, is the first and great restriction upon these dispositions; and the rule now in question, is in effect, a farther restriction upon remote dispositions, which if they operate at all, can take effect only after two preceding estates have had their completion. Thus, in the case before us, the last devise to John Eden and Hannah Johnson, could never take effect, until the two preceding estates of Joseph Eden and Medcef Eden the younger, should have ceased. Where a devisor wishes to make provision for several persons, in different events, his purposes may often be as well accomplished by devising his land Li parts, with executory devises of parts, upon single contingencies, as by the method so usual in England, of devising the whole or a large part of an estate to various persons, upon many successive contingencies. The desire to preserve an estate or a large part of it entire, as long as may be possible, is frequently a strong motive for remote executory devises-; and so far as such divises may tend to prevent or postpone the division of lands, there is in this state no reason of law or motive of policy to support them. But all our law on this subject, is derived from England. If this rule operates as a restriction upon the power of the devisor to bind his lands, by a series of con t.ingent devises, which from the number of lives concerned, may extend to a period long after his death ; and if such a restriction has been found proper in England, it is still more proper here. We have abolished entails, and all dispositions of the nature of entails, are opposed to the policy of our institutions. The doctrine in question is entirely in accordance with the policy of our statute abolishing entails ; and . i • , , ' ’ contingent devises subjected to this restriction, still have an operation sufficiently ample, for all salutary purposes. If this doctrine is law, I am sensible that it is not necessary here, to discuss the policy of the rule ; and I concur with the Supreme Court, in holding it to be law, upon the authorities which that Court has cited. But as some of the English cases are indistinct upon this point, and the question is here new, I have thus briefly examined the principle involved in this rule and its practical effect.
Entails abol¡shed; and H-nature “of entails e™lrary to our policy-
The ultimate devise to John Eden and Hannah Johnson, was in fee simple. If, when the preceding estate of Medcef
Dev’se to J E. came1, a ’ »'
p. 392
Eden the younger, vested in possession, the right of John p¡qen au¿ Hannah Johnson became a remainder, it must have been a remainder after a fee tail. Considering both these devises as becoming executed at the same timo, and regarding them in connection, the estate of Medcef Eden the younger, was a fee tail, and the succeeding estate of John Eden and Hannah Johnson, was a remainder in fee . , _ . , „ , r,,, simple, upon the termination of that estate tail. The case is so often mentioned in the English books, as an estate tail by implication; and this case is entirely analogous to those in which that construction has prevailed. Cruise’s Digest, title Devise, ch. 18, sections 29, 30 and 31.
™a™g®r which last arose by implication.
Statute turned ple!*t0 fec sral'
The consequence of this construction is, that our statute enacting that estates tail shall be estates in fee simple, converted the estate of Medcef Eden, the younger, into an estate in fee simple.
To say that devise to J. E. and H. J. does not go over, is not inconsistent with Anderson v. Jackson.
These principles decide this cause; and they render it unnecessary to consider other questions which the cause presents. But it is proper here, to consider the decision of í _ 1 r 1 this Court, in the case of Anderson v. Jackson, so far as to g^ow^ that my opinion in this cause, is consistent with that decision. This Court decided in that case, that the estate of Joseph Eden, was not a fee tail. That decision was evidently made, in order to give effect to the intention of the devisor; he having declared, that the survivor of his two sons, should have the share of the son who should first die without issue. This Court appear to have been governed in making that decision, by two reasons; first the meaning of the terms, dying without issue, which were understood in their ordinary sense ; and secondly, the plain and forcible import of the term survivor. The first of these reasons has equal force, in respect to the devise to John Eden and Hannah Johnson; but the second reason is not applicable to the last devise, the devisor not having described John Eden and Hannah Johnson as survivors. In deciding, therefore, that the estate of Joseph Eden was not a fee tail, this Court by no means determined that the estate of his surviving brother, Medcef Eden the younger, was not such an estate.' The use of the word survivor in the first case, and the absence of that term or any word of similar import, in the last case,
p. 393
form a strong distinction between the two executory devises. The question in the case of Anderson v. Jackson was between the right of Joseph Eden and the right of Medcef Eden the younger. It was not necessary in that case, to determine, and this Court did not determine, the exact nature or extent of the estate which Medcef Eden the younger took, upon the death of his brother Joseph. The ultimate devise to John Eden and Hannah Johnson, was not in question, and nothing concerning their interest was or could be decided upon that occasion. The construction and operation of the two executory devises, in their relation to each other, presented questions, which were not before this Court, were not considered, and were not decided in that case. Indeed, these questions, as they now stand before us, could not arise, until after the death of Medcef Eden the younger. The opinion, that the last executory devise to John Eden and Hannah Johnson, was extinguished in the estate of Medcef Eden the younger, is therefore, I conceive, perfectly consistent with the former decision of this Court, that the first ex-ecutory devise to Medcef Eden the younger, took eifect upon the death of his brother Joseph.
In using the expression, fee tail and estate tail, I mean throughout, such an estate as would have been in this state a fee tail, before the twelfth day of July, 1782, when the first statute abolishing entails was passed.
To recapitulate:
1. The interest of John Eden and Hannah Johnson, became a vested remainder, when the preceding estate of Medcef Eden the" younger, vested in possession.
tion!eCapita!*
2. In these circumstances, the estate of Medcef Eden the younger, was a fee tail, with a remainder in fee simple, to John Eden and Hannah Johnson, upon the termination of the estate tail.
3. Our statute converted the fee tail of Medcef Eden the younger, into a fee simple absolute.
I am accordingly, of opinion, that the judgment should be affirmed,
Cramer, Senator. This case is brought before us by writ of Error, upon a judgment of the Supreme Court, giving a construction to the will of Medcef Eden, the elder.
p. 394
Two principal questions are raised:
q What estate did Medcef Eden, the younger, take in the lands devised to his brother Joseph, on the death of the latter without issue, in July, 1812 ?
2. What estate, if any, did John Eden and Hannah John son take on the death of Medcef Eden, the younger, without issue, in July, 18191
1st question same as in derson v. Jackson.
The first and main question, is the same which was agitated and decided by this Court in the case of Anderson v. Jackson, ( 16 John. 386 .) The decision in that case was on the same will, and in effect between the same parties ; for though Anderson was the defendant in that suit, yet the Bank (as I understand the history of the case) on an allegation that they held property to a large amount depending on the same question, were permitted by this Court to be heard by their counsel, in opposition to the then claim of Medcef Eden.
This Court is, then~ called on in a very solemn and impressive manner (for much ingenuity and legal learning have been displayed on this point by the counsel on both sides) to review its own decision on an important rule of law, affecting titles to real property. And though several members of this Court did, soon after the commencement of the argument on this point by the plaintiff's counsel, express a reluctance to suffer it to be at all agitated, yet it has been very fully and ably discussed; and manifestly, is the point on which they principally rely. I have, therefore, listened to the arguments, and examined that case with attention, and I am entirely satisfied as to the soundness and correctness of that decision; and I am also satisfied that it is in harmony with the most approved decisions in England, before and since our independence; that it is consistent with our policy, is supported by the ablest judical opinions in our sister states, and ought not now to he disturbed.
But we have not, in my view of the subject, the power (and by power I mean right) now to question or impeach that judgment rendered by this Court, and founded on the uniform decisions of the Supreme Court during a period of more than seventeen years.[1] Wills have been made, and estates settled, on the principles o~those cases, which have been
(q) (q) Fosdick v. Cornell, 1 John. Rep. 440 . Jackson v. Blanshan, 3 id. 292. Moffatt v. Strong, 10 id. 12. Jackson v. Staats, 11 id. 337. Anderson v. Jackson, 16 id 382.
p. 395
deemed and treated as a settled law of the land. They have been solemnly recognized by this Court, of the last resort, published to the world, held out to our citizens as the sure and established land marks by which they might, with perfect safety, regulate their conduct in acquiring or perfecting titles, or dispose of estates upon their dying beds, in such a manner that their honest intentions could not be defeated. It is now, however, sought to prevail on this Court, by reversing the judgment of the Supreme Court, to annul their own ; and thus overturn, at one fell blow, the numerous decisions which have for many years concurred in the doctrines on which that judgment is founded. Can any good citizen, for a moment contemplate the consequences of such a measure without alarm 1 All the suitors, whose hopes may have been defeated by the decisions made upon these principles, will have the right to commence suits, and recover back the lands which have been awarded to their adversaries, without regard to the various intermediate alienations, or the value or extent of the improvements which may have been made by bona fide purchasers.
The maxim stare decisis mndtcated-
_ Particular ^g fromPthat maxim,
These evils, however, might be transient; and affecting a few hundreds only, or possible a few thousand individuals, . would probably terminate and be forgotten with the present generation. But a more momentous and ruinous consequence, would be the total insecurity of property, and all personal rights. An appeal, or writ of error, would be renewed, on the same point, at every session, like petitions for bounty lands, or bank incorporations, in the perpetual hope of finding a friend in every new member. Law suits would be multiplied and interminable; or decided, only by the perseverance of suitors, or rather by the length of their purses. Men of discretion, friends to peace, order and industry would flee a country were nothing is stable or secure.
General evil ofdomSso*
Various attempts have been made in the House of Lords in England, sitting as a Court of appeal, to reconsider with a view to reverse their own decisions, but ultimately without success. A collection of these cases may be found in a note to 1 Ridgway’s Reports, 509. In one of these cases, (Broughton v. Delves,)[2] Lord Cambden was for reversing the judgment of the King’s Bench. The house had been
th^Houso of l,ords.
(r) (r) 1 Ridgw Rep. 513.
p. 396
equally divided whereby the judgment of the K. B. -was a;ffirmed against his opinion; but on a petition for a re-hearing he strenuously opposed it, and the petition was unantmously rejected.[3] I hope that we may, and I trust we shall, exhibit equal firmness and stability. Thus, we shall suppress a repetition of such attempts in future, and preserve to the citizens of this state one judicial forum, where the wearied and exhausted suitor may ascertain his rights, and repose from litigation.
Remedy is properly legislative.
If any general mischief or inconvenience should at any time be experienced from this or any other docision of ours, the legislature are competent to apply a remedy, and will no doubt do it, with a saving as to all rights acquired under those decisions.
Anderson v. Jackson decides that devise to M. E. was good, as executory devise.
Ground of decision.
By the judgment of this Court in the case of Anderson v. Jackson it is decided that the devise over to Medcef, on the death of his brother Joseph, without issue, was a good executory devise. This decision rests on the single circumstance of the word survivor, which necessarily limited the failure of issue to a life in being; and the Court as well as the counsel, unanimously agreed, (as may be collected from their arguments and opinions,) that if the limitation over had been on a mere failure of issue, without the use of ' the word survivor, it would have been void, as being a limitation on an indefinite failure of issue; and so tending to a perpetuity.
The words dying without issue, per se, mean indefinite failure.
Such, is the inflexible rule of law, established and respected for ages, and to depart from it, at this day, might unsettle half the titles in the state. By that judgment it was decided that Medcef Eden was, and had been since August 29th, 1812, entitled to the possession of all the real property which by the will of his father was devised to Joseph, and by necessary implication, that the title of the Bank and of the other plaintiff in Error, ceased on that day; being the day on which Joseph Eden died.
New suits for land withheld, notwithstanding Anderson v. Jackson;
The ejectment against Anderson was brought to settle, and did settle the effect of the first devise. And it was to be presumed that after the decision of that point, by this Court of the last resort, the persons who had purchased and entered under the title of Joseph, and who had no pretence of
(s) (s) And vid. Magrath v. Muskerry, 1 Ridgw. Rep. 469.
p. 397
any other title, would have surrendered the premises to Medcef. This, however, has not been done, and he instituted suits to recover possession of the land withheld. These suits, it seems, were defended ; and before the trial Medcef Eden died, without issue, having devised all his estate to his. wife and her daughters. And the occupants of the lands, devised to Joseph, now resist the claim under Medcef, by setting up the last devise, which is in these words: “ And in case of both their deaths, without lawful issue, all the property aforesaid to my brother John Eden, of Loftus, in Cleaveland, in Yorkshire, and my sister Hannah Johnson, of Whitby, in Yorkshire, and their heirs.” The plaintiffs in Error, now insist, that by this devise, the estate of Joseph and indeed the whole estate vested in John Eden and Hannah Johnson, and that therefore, the devisees of Medcef Eden, the younger, are not entitled to a writ of' possession.
before1"E trial without issue, vis0-
2. The effect of the last devise, therefore remains to be examined ; and in arriving at a just conclusion upon that point, we shall be much aided by recurring again to the case of Anderson v. Jackson. It has before been remarked, that the decision, in that case, turned wholly on the word survivor, which word alone .rescued the first limitation from destruction. This is in unison with the several cases decided by the Supreme Court of this state, from the case of Fosdick v Cornell,[4] to that of Jackson v. Billinger.[5]
Effect of last devise examin-
In all these cases there is no dissent from the opinion, that a general dying without issue, omitting words which confine it to a life in being, is a limitation on an indefinite failure of issue, and therefore void: a construction which cannot be denied, and which is founded in sound • policy, If we depart from this salutary rule, we shall, in the course of a few generations, have a great portion, if not the whole of the landed property, in the state, so shackled as to be rendered unalienable; for almost every man would be desirous to perpetuate his property among his own blood relation, and would therefore limit it to an indefinite extent, if the policy and rules of law would permit. It would be useless and unprofitable to cite an authority, in order to establish the well settled rule of law upon this head. All -those
The le that words dying per se, mean mdefi”ite ure, &e. farther consider-
(t) (t) 1 John. 440 .
(u) (u) 18 id. 368.
p. 398
referred to by the late Chancellor Kent, in the case of Anderson v. Jackson, and all those cited by the counsel in that case, at page 385, of the volume in which it is reported, so far as 1 have been able to examine and judge of them, concur in its support. It is, therefore, in my judgment, no longer the subject of reasoning or doubt. It has become obligatory upon all our Courts, and can be abolished, or impugned, only by legislative power. Indeed, the ingenious and learned counsel for the plaintiffs in Error, were constrained to admit the antiquity, the uniformity and the paramount correctness of the rule; but they endeavor to escape from its operation, in this case, by insisting that the last devise is on a qualified or definite failure of issue, and means, by implication, a dying without issue, in the lifetime of John Eden and Hannah Johnson, or issue living at the death of the surviving son. Let any man of common sense read these words, and say if he can discover any such meaning. To me it is most manifest, that it was the settled intention of the testator, to give the estate to the heirs of John Eden and Hannah Johnson, in case they should die before his sons, (an event to be expected, according to the natural course of life,) whenever the issue of the sons should become extinct. In Doe v. Fonnereau,[6] Ld. Mansfield asked Serjeant Hill, whether he had been able to find any case of real property, where the Court, on the words in default of such issue, had implied a restriction to issue living at the death of the father, and the learned Serjeant acknowledged, that he had not been able to find any such case. It would, therefore, be as repugnant to law and precedent as to reason and common sense, to infer such a restriction.
Whether word survivor can he implied in last devise.
But the learned counsel for the plaintiffs in Error, aware of the fallacy of such a position, say, that as the testator in the first limitation used the words survivor, and the second limitation being in the same sentence, and respecting the same subject, we have a right, and it becomes the duty of this Court, to supply the word survivor in this branch of the sentence. In reply to this suggestion, it may be justly remarked, that the subject of the devise is different; the one being of part, only, of the land, and the other of the whole. The different devises, also, relate to persons standing in dif
(v) (v) Doug. 470.
p. 399
ferent relations to the testator, the first being to his own children, the second to collateral relations. It is, therefore, to be expected, that he would use different words, and have different intentions. He has used different words, and most obviously had different intentions. Yet it is earnestly pressed upon us to insert this word survivor in the last devise, where the testator has not seen fit to use i, and where we are bound to infer that he did not intend to use it.
If we were disposed to supply this word survivor, it lias not been shown in what manner this is to be accomplished ; nor where the word ought to be placed. I have attempted it in vain ; it is not possible to insert this word alone, so as to make common sense of the paragraph. I invite the members of this Court to make the experiment, and I think they will be satisfied of its impracticability.
The counsel for the plaintiffs in Error, sensible of this difficulty, insist that if we cannot insert this single word so as to produce the effect desired, we must supply other words which will. Thus, after the words, lawful issue, in the last devise, insert, ‘ living at their death,’ or 1 at the time of the death of the survivor of them ;’ and after the words, John Eden and Hannah Johnson, insert, ‘ in case they should survive my said sons.’. All this, or something equivalent, must be supplied, or the con struction, here contended for cannot be sustained. This, I presume, the Court will not dofor it is not the province of this or any other Court to make a will for the testator, but to settle the legal construction of that which he has made.
I have examined this case with all the assiduity and attention justly due to the magnitude of the controversy, and the importance of the principles it involves; and unless I totally misunderstand the import of this bill, and misconceive the law applicable to it, the judgment of the Supreme Court (though the learned Judge, who delivered the opinion of that Court, took a different ground in relation to one of the points) maintains the legitimate construction of the testator’s will, without addition or diminution; is congenial with our policy and laws ; is supported by an uninterrupted series of the ablest adjudications, and should, therefore, be affirmed.
p. 400
The rest of the Court concurring in the result of these opinions, (King, Senator, dissenting,) it was thereupon ordered, adjudged and decreed, that the judgment of the* Supreme Court be affirmed ; and that the record be remitted, &c.
Note.—No division of the Court was had upon the different grounds taken, by the Chancellor and by Cramer Senator, against the ulterior devise going over, but the Court voted generally to affirm the judgment.