Jackson ex dem. Livingston v. Robins — 15 Johns. 169

Majority

p. 169

Jackson, ex dem. Livingston and others, against Robins.

Headnote

Where ^. devises all his estate to B. his wife, her executors, administrators, and assigns, but in case of B s death, without disposing of it by will or otherwise, then to his daughter, B. takes, under the devise, the entire fee, and the subsequent limitation to the daughter is consequently void.

Where an adverse possession has commenced in the life time of the ancestor, the operation of the statute of limitations is not prevented by the title descending to a fierson under egal disability, as a feme co vertt &u.

THIS was an action of ejectment for lands in the town of Walkill, in Orange county. The cause was tried before his honour the chief justice, at the Orange circuit, in September, 1815.

The special verdict stated, that on the first of January, 1771, William Alexander, commonly called Lord Stirling, was seized of a certain tract of land of about 3,000 acres, in the county of Ulster, now in Orange county, of which tract the premises in question are part. Lord Stirling died seised, in the spring of 1783, after having made his will, dated January 29th, 1780, which contained the following devise, “I give, devise, and bequeath all my real and personal estate whatsoever, unto my dear wife Sarah, to hold the same to her, her executors, administrators, and assigns, but in case of her death, without giving, devising, or bequeathing by will, or otherwise selling or assigning the said estate, or any part thereof, then I do give, devise, and bequeath, all such estate, or all parts thereof as shall so -remain unsold, undevised, or unbequeathed, unto my daughter, Lady Catharine Duer, the wife of the Honourable William Duer, esq. of the state of New-York, to hold the same to her, her executors, administrators, or assigns.” Catharine Duer, who, after the decease of her husband, William Duer, married William Neil■> son, and Mary, the wife of Robert Watts, were the daughters and co-heiresses of the testator. Lady Stirling died in March, 1805. In 1771, Anne Waddell recovered a judgmentin the supreme court of the province of New-York, againt Lord Stirling for 77901. debt, with damages and costs. In 1775, the executors of Anne Waddell revived this judgment by

p. 170

scire facias ; and after the death of Lord Stirling, iñ October vacation, 1787, they again issued a scire facias against the heirs and terre-tenants, of Lord Stirling, whereon Robert Watts, and Mary, his wife, and Catharine Duer, the. heirs of Lord Stirling, alone were summoned, and in January, term, 1788, judgment passed against the persons thus summoned, by default; afi.fa. was issued to the sheriff of Ulster, under which he sold the premises in question, with other lands, to John Taylor, and executed to him a deed, dated the 10th of June, 1788. On the 30th of April, 1794, Taylor granted the premises to Harlowe, who entered and took possession. Harlowe afterwards conveyed them to the defendant’s father, from whence they descended to the defendant, as his heir at law. .

■ This cause was argued at a former term, by J. Duer for the plaintiff, and J. Emott, and S. Jones, jun. for the defendant;

and, again, in October term last by Duer, and T. A. Emmet, for the plaintiff, and S. Jones, jun. and Slosson for the defendant.^[1]

Several of the points discussed in this "Cause were, also, raised in the case of Jackson, ex dem. Livingston, v. Delancey, ( 11 Johns. Rep. 365 —376) which was affirmed in the court of errors. ( 13 Johns. Rep. 537 —560.)

The plaintiff’s counsel contended,

1. That Catharine N. one of the lessees, had a right of entry on the premises in question, under the limitations contained in the will of Lord S. and to show this, they insisted, that 'Lady S. took an estate for life, with power to sell or devise in fee, and that Catharine JV. took in remainder; but admitting that the word estate in the will of Lord S. gave Lady S. the fee, yet there was a good executory devise to Catharine JV. 2. That the right of entry of C. JV. was not barred by the sale ef the lands made by the sheriff of Ulster. 3. That her entry was not barred by the statute of limitations.

delivered the opinion of the court. The plaintiff claims title under the will of Lord Stirling, bearing date the 29th of January, 1780, and which took effect at the death of the testator, in the spring of 1783.

By that will, the testator devised to Lady Stirling all his estate, real and personal, with an absolute and unqualified right in her to “ sell, devise, or dispose of it,” at her pleasure : and the will further declares, that “ in case of her death, without giving, devising, or bequeathing, by will, or otherwise selling or bequeathing the said estate, or any part thereof,” then the testator gives to his daughter, Catharine Duer, all such part of the estate as shall remain “ unsold, undevised, or unbequeathed” by Lady Stirling.

In the case of Jackson, ex dem. Livingston, v. De Lancy, ( 13 Johns. Rep. 537 —551.) the court for the trial of impeachments and the correction of errors, on a point essential in the determination of that cause, expressly decided, that according to the true construction of this will, Lady Stirling took an estate in fee simple, absolute; and that the limitation over to Catharine Duer was not a good executory devise.

That decision sanctions the opinion of this court, in Jackson v. Bull, ( 10 Johns. Rep. 19 .) and must be regarded, by us, as conclusive on that point.

Lady Stirling died in 1805, and the only title proved on the part of the plaintiff is, that Catharine N. one of the lessors, is the daughter and heir of Lady Stirling. Mrs. JV*. can claim nothing immediately from her father, Lord Stirling, either as heir or devisee.

It appears, that in April, 1794, Harlowe entered into actual possession of the premises in question, under a conveyance from Taylor, who purchased the land at the sheriff’s sale, on the 16th of June, 1788.

Whether Taylor acquired a valid title, under the proceedings by scire facias and the sheriff’s sale, is a question which does not necessarily arise in this case. The possession taken under that purchase was, at least, under colour of title, so as to constitute a possession adverse towards Lady Stirling, and all claiming under her. As the statute of limitations began to run in the lifetime of Lady Stirling, and had

Concurrence

p. 172

overrun 20 years before the commencement of this suit, the coverture of Mrs. JV. affords no protection to the title which she derived as heir of Lady Stirling.

The statute of limitations, therefore, bars the plaintiff’s right of entry, and the defendant is entitled to judgment.

Though I concur in the decision of the court, yet I think proper briefly to explain the ground of my concurrence. The construction of the will of Lord Stirling was settled by the court of errors, in Jackson v. Delancy, and I am not at liberty to adopt a different construction. Were it not for that decision, I should have no difficulty in saying, that Lady Stirling did not take a fee under the will of Lord Stirling, and that the judgments were not well revived by sci. fa. against Lady Catharine Duer. But a decision of the court of errors, directly on the point before the court, in this cause, and which was necessary to the determination of the cause in that court, must be binding on this court.

Judgment for the defendant.