Majority
p. 169Jackson, ex dem. Hicks and wife, against Van Zandt.
Headnote
The act of the the'lah^uZy, ^jtoPolish ®^ed&pros pectiveiy: and whereH-, who died m im, teteTo'V.^and body^iawfiitiy f0ergdtefau’itnodf guchaa|irtheto Jjejra for^want^of^ P., and tile body, &c. it the3 estate *¡551 M.d was^by that statute, converted into an estate In /ee siwnte: and she being illegitimate, and dying without Issse, the estate escheated to the people.THIS was an action of ejectment for a farm in Flushing, Queens County. The cause was tried at the circuit in Queais, before Mr. Justice Van Ness, the 15th June, 1814; and aver-diet was taken for the plaintiff, subject, to the opinion of the court, on a case, with liberty to either party to turn the same . . , , into a special verdict.
Thomas Hicks, of Flushing, being seised of the premises in question, on the 19th June, 1782, made his will, by which lie devised all his lands and real estate, including the premises in question, to his sister, Mary IHcks, and to the heirs of her body, lawfully begotten, or to be begotten, and for want or default of such issue, then he gave and devised all his said lands and real estate to Stephen Hicks, and to the heirs of his body lawfully to be begotten; and for want or default of such issue, then he gave and devised the same lands and real estate to Richard Penn Hicks, son of his cousin William Hicks, of
p. 170
Pennsylvania, and to the heirs of his. body, lawfully begotten ;■ Sod' for want or in default of such issue, he devised the same estafe to the right heirs of the sai Richard Penn Hicks. Stephen Hicks was the. husband of Mary. Hicks, the testator’s sister. The testator died seised, the 1 st January, 1734. On his death; Mary Hicks, his sister, who was an illegitimate child, entered on the premises under the will, and took possession, and op the 22d March, 1784, died without issue, intestate, and without having made any conveyance or disposition of the premises. Upon her death, her husband, Stephen Hicks, took possession of the premises, and continued posgessed.thereof until his death, He died the 2d pecember, 1786, without issue; having, on the 32th November, 1786, made his will, and devised all his; real .estate, &c. to his niece, Mary Hicks, who was born the 24th October, 1784, and. afterwards married Jeffry Hicksand, she and her husband are the lessors of the plaintiff.
' On the 12th July, 17 82, the legislature passed an act, (sess. 6. c. 2.) entitled “ An act ta kbolish entails,' to confirm convey-; anees by tenants in tail, to distribute estates real of intestates, to Remedy defective conveyances, to joint tenants, and directing the mode of such conveyances in future ;” by which it vvas enacted, “ that in all cases wherein any person, or persons would, if this law had not been made, have been seised in fee tail of any lands, tenements, or hereditaments, such person or persons‘shall, in future, be deemed to be seised of the same in fee simple; and further, that where any land's; tenements, or hereditaments; shall heretofore have been devised, granted, or otherwise, com yéyed by a tenant in tail, and the person to whom, such devise, grant, or other conveyance, shall have beenmade, his, her, or their heirs or assigns shall, from the time such grant or ¡other conveyance, was made, to the day of the passing this act, have been in the uninterrupted possession of such lands*' tenements* or hereditaments, • and claiming and. holding the same, under devise, .grant* or other conveyance, shall be ¡deemed as good* legal, and'effectual* to all intents and purposes, as if such tenant in tail had, at the time of making such devise, grant* o.r other conveyance-; been seised of such lands, tenements, or hereditaments, in fee simple; any law to. the contrary hereof potwithstandjngd’ ■ . :, . . - -
On the'23d February, 1786,[5] an act- was passed, entitled ‘‘ Ay act to abolish entails, to confirm co.nveyanóes by tenants in tail,
p. 171
to regulate descents, and to direct the mode of conveyance id joint tenantsby which it was enacted as follows: “ that all estates tail shall be and are hereby abolished; and that in all cases where any person or persons now is, or are, or if the act hereinafter mentioned and repealed had not been passed, would now" be seised in tail, of any lands, &c., shall be deemed to be seised in fee simple absoluteand “ that in all cases where any person or persons would, if the said act and this present act had not been passed, or at anytime hereafter, shall become seised in fee tail, of any lauds, &c. by virtue of any devise, &c. heretofore made, or hereafter to be made, &c,, such person or persons, instead of becoming seised thereof in fee tail, shall be deemed and adjudged to be seised thereof in fee simple absolute and by the seventh section of this act the former act of July 12, 1782, is repealed; but all descents, &c. since the passing the act repealed, are to take effect according to the act so repealed.
On the 21st April, 1787, the legislature passed an act entitled “ An act to vest all the right and claim, of the people of this state to the lands and tenements whereof Thomas Ilicks died seised, in the persons therein named.” The preamble to the act, after reciting the seisin of the testator and his will, stated, “ that whereas it was represented to the legislature, that on the death of Thomas Ilicks, the said Mary Ilicks became seised o'f the lands and tenements of the testator by virtue of the said devise, but died without issue; that upon her death the said Stephen Ilicks entered upon the same, and also died without issue; by means whereof, according to the will and intention of the testator, the lands, &c. would have vested in the said Richard Penn Hicks, in fee tail general, but by the operation of the late laws of this state for abolishing entails, the estate in fee tail general devised to the said Mary Hicks was converted into a fee simple, and that she having been born out of lawful wedlock, can have no heirs, whereby the said lands, Sec., might escheat to the people of the state. And it being further represented, that the said Richard Penn Hicks is an orphan, and destitute of any support, but what is so provided by the said testator, and the legislature conceiving it just and reasonable, that the estate vested in the people of this state, by the means aforesaid, should descend according to his intention, expressed in the said will, as far as is consistent with the above-mentioned laws; it is, therefore, enacted, &c. “ That it shall
p. 172contended that Mary Hicks, the first devisee, took either a fee simple absolute, or a conditional fee, by virtue of ¡the statute of >782;. and that in either case, the title was in the lessors of the plaintiff. . The statute of 1782[5] converted all estates- tail into estates in fee simple; and the act of 23d-February, 1786,[3] declares that all -persons seised in fee tail shall 'be adjudged to become seised “ in fee simple absolute.” The first Statute abolishing estates tail restored estates as they existed before- the English statute de donis conditionalibus ; (West. 2. 13 Edw. I. c. 1.) and such ..¡estates became conditional fees, at the common law: if Mary Hicks, the first devisee,, had had issue; the estate would have become a fee simple absolute, but as she died without issue, the . land became vested in StephenHicks, the next devisee, as a fee conditional at common law; and while he- was possessed of such . conditional fee, the act of the 23d of February,, 1786, converted it into a fee simple, absolute, and while seised , of such estate; he-devised it to Mary, the wife of the lessor.
and may be lawful fur the said Richard Penn Hides, hii heirs and assigns, to enter int<$¿ have, hold, and enjoy, for his and their own proper use, in fee simple, for ever, all and singular, the said lands,” &c. “ notwithstanding any right or claim which the people of this state may or can have or make to the same by reason of the escheat ’thereof, and although no office has been found respecting the same,” &c. “ Provided, that nothing in this, act contained shall- be construed to affect or injure any right, title, interest, or éstate, in and to the said: lands, &c. which any person or persons whomsoever -would' or might have, claim , challenge, or demand, if this act had not been passed; but such estate only as the people of this state might lawfully claim, -by the means aforesaid, shall vest immediately in the- persons,” &c< Immediately after the passing of this act, Richard Penn Hides entered into possession of the premises, and continued in possession until his- death,, having, on the 14th January, 1791, a short time before his decease, devised the premises in question to Jacob Johnson Hicks, his brother, in fee simple; who entered into possession thereof, and, in 1792, by his will, empowered his executor to sell his real estate, who, in 1796, after the death of the said J, J. Sicks; sold the lands, &e.‘. for 8,000 dollars; and the . same premises,, by sundry mesne conveyances; were con,veyed to the. defendant, for 25,00.0 dollars.
Anthon, for the plaintiff,
p. 173The question is, what was the operation and effect of the statute of 1782 on estates tail? We say, it converted them into conditional fees ; and that was the reason why, in the act of 1786, the word « absolute” was added to the words fee simple. If this construction of that act is correct, then the land never escheated to the people, and the private act of 1787 could have no effect on the title of the lessors of the plaintiff. The act of 1782 operated only on estates then in existence, and not prospectively ; but the act of 1786 is different. It declares that all persons who are, or, if the act of 1782 had not been passed, would be, seised in fee tail, shall be deemed to be seised in fee simple absolute. If after 1782, Stephen Hicks was seised of a fee simple absolute, the act of 1786 prevented any escheat, and the claim of the defendant must fail. The special act of 1787, was manifestly passed with a view to vest the estate in Richard Penn Hicks, according to the intent of the devisor; and so far as principles of equity are to have influence, the court will be disposed to carry the act of the legislature into effect, as according with the intent of the devisor. While the act of 1782 was in force, Thomas Hicks, the devisor, died; and it is said, that as that act was not prospective, and he died after it was passed, Mary, the first devisee, took an estate tail, which, by the act of 1786, was converted into a fee simple absolute. In construing statutes, the court will endeavour to give every part effect, according to the intent of the legislature. Verba ita sunt intelligenda ut res magis valeat quam pereaU The words of the act are all prospective, and apply to all cases which should thereafter arise. The intent of the legislature is, as expressed in the title of the act, to abolish estates tail; and if there were any doubt of that intent, the title of the act might be taken in aid of the construction. It would be a very rigid construction to say} that the act was not prospective. The court will feel more disposed to consider it as wholly prospective, rather than retrospective, or as taking away existing rights. But it is said, that the expression of the act of 1786, fee simple absolute, is different from the act of 1782, from which it is inferred; that the estates tail were, after the act of 1782, considered as fees conditional■> It is true, that before the statute dt
Slosson and Hoffman, contra.
p. 174donis, where 'there Was a conveyance or devisé to aman and the heirs of his body, if he had heirs, the condition was performed, and the estate became absolute, or if he had no heirs; it- reverted' to the donor. ' . i The act of 1782 uses the words fee simple. Coke[5] says, a fee simple is where a man has lands, &c. to hold to-him and his heirs for ever,, The word fee denotes an estate of inheritance, and the word: simple added to it, denotes it to be an éstote absolute and general, and as contradistinguished from a fee conditional, or fee tail, The words in both acts mean precisely the same thing. Then Mary, the'first devisee, being, by effect of the act'of 1782, seised of, a fee simple, or fee simple absolute, and dying without heirs; the estate escheated. Where a person dies Without heirs, the éstate, on the principle of the feudal law, reverts to the sovereign or people, as the ultimus Imres. The estate, In such, case, becomes vested in the people,, without an inquest of.office.[5] 1 There were ,other and sufficient réasons for repealing the act of 1782, beside the one which lias been mentioned. By the 7th section of thé act of 1786, repealing the former act, it is provided," “ that all descents and conveyances, which have happened or been made since the passing of the said act, thereby repealed,. shall take effect according tó the said act.” So that" the legislature clearly intended to preserve entire the effect and operation of the act of I782.i The devise of Thomas Iiicks, Which took effect subsequent ¡to-the'passing of the act of 1782, was a conveyance. Every transfer of property, by the atit of the party, is a conveyance; or purchase. On the death of Hicks, the statute of 1782 Operated on the estate tail; converted it into an estate in fee simple; and by the law of escheat that, estate was vested in or conveyed to the people, for want of heirs., By the act of 1787, the legislature expressly guard against any imposition; and convey only such right as may have vested1 in the state by escheat, reserving all rights existing in others. The act of 1786 was not passed to alter
- It is hot to be presumed that, the legislature, by the act of 1786, meant to part with any right or estate in them. That is not to be taken by implication or inference; There must be clear and express words to warrant such a conclusión.
T. A. Emmet, in reply.
p. 175or amend that of 1782, but to repeal it. The law maxim, as to r the construction of statutes, is not applicable to a repealed act, for it was no doubt repealed for its imperfection and insufficiency. There is an obvious difference in the language of the two statutes. The one acts only on existing estates tail, and the .other operates prospectively on all future estates. It was because the act of 1782 did not act prospectively, that the act of 1786 was passed. We admit, that the legislature may have intended, by the act of 1782J to abolish all estates tail, future as well as present; but not having used proper language to show that intent, it became necessary to pass another act for the purpose. The last act seems to have been passed to meet the very case of the devisor; for if the law of 1782 had not been passed, he would have been seised in fee tail. The 7th section of the act of 1786, repealing that of 1782, provides that “ all descents and conveyances which have happened, or been made, since the passing of the said act, hereby repealed, shall take effect according to the said act.” It does not say all escheats shall take effect. The rights of the citizens are saved and preserved, but the rights of the people, as to escheats, are not saved.
delivered the opinion of the court. (Spencer, J. dissenting.) The grounds upon which the plaintiff’s counsel rested their argument, to show that the act of 1782 did not reach their case, were,
1st. That the act did not operate prospectively.
2d. That it did not give to the tenant jn tail, a fee simple absolute, but only operated as a repeal to the statute de donis, leaving the estate a conditional fee, as at common law.
With respect to the first objection ; it is true that the act is not' drawn with skill and accuracy; and, according to strict grammatical construction, may be liable to the criticism made by the plaintiff’s counsel. But the sense and meaning of the act, and the intention of the legislature, cannot be mistaken. It is a well-established principle in the exposition of statutes, that every part is to be considered, and the intention of the legislature to be extracted from the whole, and when great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning qf the legislature be plain. ( 2 Cranch, 386 .)
p. 176
It is a first principle in legislation, that all laws are to operate prospectively. And it appears to me that it would be doing .great violence to the intention of the legislature, to limit this act to estates tail then existing. This would be comparatively doing nothing. It would be obviously, against the general scope and object of the statute, which was to. abolish entails. It is a settled rule of construction, that when the words of a statute are obscure or doubtful, the intention of the legislature is to be resorted to in order to find Out the meaning of the words. This intention is sometimes to be collected from the canse or necessity of making the statute. And whenever the intention can be discovered, it ought to be followed, with reason and discretion* in the construction,1 although it seems contrary to the letter of the statute. (6 Bac. Ab. 384.) If this be a. sound rule of interpretation, and Of which, there can be; no doubt, it must apply with great force to the ease before us. And,, indeed* the. intention of the legislature is so obvious, that it was not pretended to be denied by the plaintiff ?s, counsel in the argument. The act Of 1787, by which the premises, in question are given to Richard Penn Hicks, is a strong legislative construction of the act of 1782. For it was -obviously made for the express purpose of carrying into effect the will of Thomas Hicks,, according to the intention of the testator? It alleges, by way of recital, that were it not for the late acts abolishing entails, Richard Peñn Hicks Would have become seised in fee tail general of the premises in question. But by such law the estate in fee tail general, devised to Mary Hicks, was-'converted into a fee simple* and she -having been born out of lawful wedlock could have no heirs, by means whereof the lands escheated to the people: It is nó answer to "this argument, that this is a private act, and the suggestion made by the party. This is true where the suggestions are matters of fact, but that is' not the case here. There was an alleged construction of a public act, and which the legislature were bound to look to and adopt or reject, as in their judgment the act would warrant. And if the act of 1782 did not extend to this case, most certainly the act of 1787'oüght not to have been passed. In my opinion, therefore, the act of 1782 must have a prospective operation, and apply to the will in question.
Nor is the Mother ground of argument, in my judgment, better founded. This seems to have been suggested by the
p. 177
difference in the phraseology between the acts of 1782 áfid 1786. By the former, the estate in fee tail is converted into a fee simple, and by the latter, into a fee simple absolute. This difference, however, does not extend throughout the act, for, in the second section of the act of 1786, the term fee simple is used in the same sense with fee simple absolute in the first section. But if it were not so, it would make no difference in the construction of the two statutes* The terms fee simple and fee simple absolute have one and the same meaning. Littleton, (sect. 1.) says, a tenant in fee simple is he who hath lands or. tenements to hold to him and his heirs for ever: and it is called fee simple, or feodum simplex, because it signifies a lawful and pure inheritance. Coke, in his Commentary, adopts the same definition, and says, that simple is added to fee for the purpose of showing, that it is descendible to the heirs generally, without restraint to the heirs of the body, or the like. And he uses the terms, simple and absolute, as synonymous, when subjoined to fee. Thus, says he, the more apt division of a fee is into fee simple or absolute, conditional, and qualified or base. For the word simple properly excludeth both conditions and limitations that defeat or abridge the fee. It would be a very strained .construction of the act of 1782, to say it only converted fee tails into conditional fees, as at common law. The result of the opinion of the court accordingly is, that the act of 1782 operated prospectively, and of course extended to the will of Thomas Hicks ,* that the fee tail general, devised to his sister, Mary Hicks, was, by the statute, converted into an estate in fee simple. And if so, it is not denied but that the defendant has shown a good title to the premises in question, and is entitled to judgment.
Spencer, J., dissented.
Judgment for the defendant»