Brewster v. Striker

' The questions in this case are, what estate did the grandchildren take under the will in the real estate of the testator ? and what interest therein or power over the same was vested thereby in the executors ? The plaintiff by his declaration claims the premises in fee. To sustain that claim, it was incumbent on him to show that the fee was vested by the will, in Striker, from whom he derived his title; and for that nurpose he introduced and relied upon the will and the record

[The learned judge here proceeded to discuss at large the above question, and stated as his conclusion upon the fullest consideration he had been able to give the whole matter, that the devise over was to the surviving grandchildren or grandchild on the death of those who should die without lawfful issue then living, and must take effect in the lifetime ot both or one of them ; that the limitation over was valid as an executory devise; and that as the three grandchildren were still living, Striker under whom the plaintiff claimed had no vested estate in remainder or future estate in any part of the premises which could be sold under the judgment against him, or which could pass by a sheriff’s deed to the purchaser. This discussion is here omitted because the decision of the court was placed upon the ground yet remaining to be considered. The judge then proceeded.]

But it is contended that conceding the devise over to be valid as an executory devise, and Striker to have had no vested interest in the inheritance, still he had an immediate and present estate and interest in the premises for the term of his life which was saleable on execution, and did pass by the sheriff’s deed. In my view of the case any such claim to a present legal estate or interest in the premises, as vested in Striker for life, or other

It has been premised that the executors, as I understand and construe the will, on the death of the testator, took a legal estate of and in the lands and devised premises by implication of law as trustees, for the purposes of the will; and the grandchildren were entitled to and took equitable estates only in their respective shares of the estate devised to them, as cestuis que trust thereof. I now proceed to a fuller consideration of that ques tion, and to inquire what estate and interest the executor did take under the will in the premises. The claim' of the grandchildren to the premises is under the direct devise to them as qualified by the subsequent limitation over; but the provisions of the will, as I understand them, qualify that devise still further, by a devise to the executors of the legal estate by implication of law for the purposes of the will. The grandchildren were the chief objects of the bounty of the testator, and the whole real estate was to vest ultimately in them, or their lawful issue; but they were not to take an unqualified fee, and to come into immediate possession on the death of the testator. The clear instructions were, that they should have and enjoy the beneficial use and interest of and in the estate, but without the right or power to alienate or incumber the same, until the estate and interest therein should, under and according to the provisions of the will, become and be absolute in the legal owners thereof. Under these views the inheritance was intended tc be secured to their lawful issue; and the present beneficial interest vested in them for their lives; but it was not intended that they should have the control over the estate, which the legal title, if vested in them for their lives, would give them. And the testator, therefore, at the same time when, and in the same section of the will in which he devises his real estate to them, takes care to provide and direct, that the said real estate so devised to them, should be under the charge and management of his executors, who are to lease or rent the same, and pay over the rents and profits thereof to his said devisees. Bui it is made a question whether the clause containing these directions is so framed as to effectuate the testator’s intention, and

But it is objected that there exists no necessity for the presence of the legal estate, in the executors, to enable them to execute the powers given to them by the will, and that in the absence of an express devise, the court cannot in such case hold a devise to them to be implied by law. The objection virtually admits that if such necessity does exist, such devise will be implied, and unless the clearly expressed intentions and wishes of the

These extensive and ample powers over the estate thus vested in the executors, he. manifestly contemplated as being to continue in them, probably for the term of their lives, and possibly

Independently, therefore, of other reasons, the necessity oí vesting in the executors the legal title to the estate, in order to enable them to carry that intention into effect, would be a powerful consideration in support of the devise of the premises to them by implication of law. But in addition thereto, the plenary powers given to the executors, and the corresponding duties enjoined upon them, and other indications of the purposes of the will, and of the intentions of the testator, impress me so strongly, that I must consider the call for the title to the real estate in the executors too clear to admit of a serious question or doubt. These executors are invested with the entire and exclusive possession, charge and management of the real estate, with full power, and the corresponding duly, to keep the same in full and active operation ; to lease and let the same ; receive the rents and pay them over. Must they not, then, upon precedent and

Take as specimens of the difficulties they might have to encounter, these few familiar cases. Suppose a tenant neglect or refuse to pay his rent; an action against him, or an entry upon him, might be deemed advisable, but which, without the legal estate in the land, or very special covenants and provisions in the lease, would not be available to the executors. So too, a stranger might intrude, or even a grandchild, if vested with the legal title, claim to enter or .to hold, in defiance of the executors ; and they, if clothed with and acting under the general authority and power conferred upon them by the will, on the construction of them, as being powers, merely, without any right or interest in the land, would be powerless for the redress of the wrong, unless by the aid and co-operation of the legal owners, and in their names. From these and other causes, serious impediments and embarrassments might be perpetually occurring to obstruct and hinder the executors in the full and beneficial performance of the trusts and duties enjoined upon them, if held to possess and act upon powers only, and to have no legal title or estate in the land. Nothing short of a devise to them of the legal estate in the premises, by implication of law, can effectually obviate all defects, impediments and difficulties, and give full effect to the testator’s intention.

The right of the grandchildren to a preference over other applicants for the lease of such parts of the devised premises as they or either of them might desire to occupy, is in no respect

Is it not apparent then, that the testator must have intended' that the executors should retain the possession of the premises during the continuance of the contingency on which the devise over was made to depend? That such was his intention is further manifested by other provisions of the will. The real estate was by the general scheme of the testator’s disposition of it, to remain, each grandchild’s share, or one-third part thereof, undisposed of, during the lifetime of such grandchild, and the rest and residue of the personal property not specifically bequeathed or otherwise disposed of by the will, was to be managed and conducted by the said executors, &c., for the best advantage of the said grandchildren, and paid to them in equal proportions ; but the testator provided, nevertheless, that his wife Sarah, notwithstanding any devise in his will contained, should and might during her widowhood use and occupy his

In this will, the testator by the declared intent to protect temporarily the real estate from alienation of his grandchildren, and in charging the executors with the exclusive power and duty of leasing the same, and with the general superintendence of his said real estate, and the charge of the provision for his wife out of the avails thereof, and by conferring those extensive powers upon the executors and the survivor of them, and con tinuing the same after the death of the survivor to the personal representatives of such survivor, has shadowed out the trust he had in his contemplation. The formal devise or delegation of the trust to them, is alone, wanting; but no express devise or delegation of trust was indispensably necessary. The law will

The question now before this court upon this point on this will was also before the chancellor, and was passed upon by him in the case of Striker v. Mott, to which I have had occasion before to refer, in which partition was sought of a part of the real estate of the testator. The chancellor, in that case held, that the executors and such persons as should be the personal representatives of the survivor of them, if they should all die during the continuance of the trust, took by implication of law an estate in trust during the lives of the three grandchildren, and that the grandchildren were each entitled to a contingent or conditional fee, in one-third of the remainder of the estate provided they should have issue living at their death, with cross remainders if either died without issue ; that the complainants, therefore, were not entitled to a partition of the present interest in the premises, as that was vested in the executors in trust to pay one-third of the rents and profits to each of the grandchildren. And he held further, as before stated, that they could not claim a division of the future estate in the premises, as it was not yet ascertained that it would belong to them at the determination of the particular estate vested in the executors. This decision goes the whole length of establishing the defence in this cause, and is in point against the plaintiff’s claim of title. It sustains the construction of the will to which [ incline on both branches of the devise, as well that the executors took by implication of law a legal estate as trustees in trust for the purposes of the will in that behalf, as also, that the limitation over in case of the death of any of the grandchildren without lawful issue of the share of the one so dying, to the others of them, was valid as being a limitation over on a definite failure of issue, and good by way of executory devise.

But the principle of this decision of the chancellor, and the judgment of the common pleas in the case immediately before us, are both equally open to the review and adjudication of this court of appeals upon them; and the considerations offered against them, are to receive our respectful attention before passing upon them. In opposition to the principles of those decis

On the argument, two other grounds of opposition to the defence were urged, which ought not, perhaps, to be passed ovei

The first position is, that the possession of the premises by Striker as tenant in severalty at the time of the recovery and docketing of the judgment against him, claiming to be seized in fee, and exercising acts of ownership by the leasing thereof to tenants under him and otherwise, is evidence of a fee in him which he is not at liberty to gainsay; and moreover, that the admission and averments of a seisin in fee simple as tenant in common, in the partition, to which he was a party, and by the release thereupon executed, given by' him to his co-tenants in common, and by them to him, estopped him from denying the seisin in fee which these acts and admissions avowed, or from setting up and insisting upon any title or claim adverse- thereto, or in derogation thereof. And secondly, that the possession of the premises in question by the defendant Striker, as the owner thereof, with the privity and consent of the executors and trustees, and their long and open acquiescence therein, were sufficient grounds for the presumption of a release by the executors and trustees, of the estate and interest vested by the will in them, to him.

It was admitted that from the time of the decease of Hopper, the testator, to the time of the partition aforesaid, the defendant Striker was in the occupation of the premises in question, with the concurrence, assent and permission of the said executors and trustees of the testator; and that from and after the said partition, he occupied and possessed the portion of the premises whereof partition was made, allotted to him, including the premises in question in severalty; and it appeared, that on the death of the testator, his said executors in his will named, entered uoon the execution of their duties as executors and trus

Can these facts, or the partition and releases established by them, and the possession, claim and acts of the defendant Striker under them, bind him to the seisin in fee of the premises in question in himself, which the partition assumed to exist, or preclude him by estoppel or otherwise from setting up and insisting upon the defence he now makes to the title of the plaintiff under the judgment in evidence against him ? If I am right in my conclusion, that the executors, by the provision of the will, took the legal estate of and in the devised premises as dev ¡sees thereof by implication of law, for the purposes of the will, and the benefit of the grandchildren, a release of that legal estate' in these premises from the trustees to Striker, must be shown or presumed in order to make the estoppel, if it exists, available in this action. But the plaintiff has not put himself upon those grounds. He does not base his claim and right to recover upon the defendant’s possession of the premises under claim of title, as evidence of a fee in him, nor upon the partition and releases as an estoppel, or the presumption of a release from the trustees to Striker. He introduced the will of Hopper in evidence himself, and has made it the source of his title, and the basis of his claim. The ground he has taken and endeavors to sustain is, that the devise to the grandchildren of the fee, with a limitation over, on the death of the first taker without issue, to others, in the form expressed in the subsequent clause of this will, was, in law, a devise to each grandchild of his share in fee tail, which the statute converted into a fee simple; and that the allegations in the petition of Ann Striker for partition, were consequently true; and the partition valid and effectual,

How, then, could he take the ground of estoppel, or contend that the admission of Striker in his answer to the petition of Ann Striker, of the truth of her allegations of his seisin in fee of the one third of the devised premises, is binding upon him ? That such was the tenure of such one-third part of the premises, when the documents given in evidence by him, namely, the will and the deed of release, showed the truth of the fact; ana the actual tenure by which he, Striker, held the same. But again, the alleged admission was not of a fact, but of a conclusion of law. The will itself, and the clauses it contains, are not, and never were, as matters of fact, in dispute; but the construction of those clauses, and the estate and interest taken by the devisees under them, upon which the controversy turns, aro questions of law. The grandchildren, at the time of the partition, doubtless supposed the devise of the real estate to them to have the legal effect to vest in them the estate in equal shares, as tenants in common, in fee simple absolute, and on such erroneous supposition they acted in the partition they assumed to make. But could that mistake of the law be urged and used against either party, to estop him from afterwards claiming and asserting his rights under the true exposition of the will ? Can the plaintiff now avail himself of such mistake by the defendant of-his true title, as an admission conclusive upon him that such mistaken title was, and is in fact his true title to the land, in face of the will, to which both refer as the source of title ? The will was before the plaintiff when he took his ground and framed his pleadings, and when he went to trial. The partition professed to be of premises devised by the will of the petitioner and her co-devisees, and the releases expressly referred to the will as the source of the title of the parties to the undivided premises, of which the partition was made, and the plaintiff must abide by the true construction of the sense and meaning of the devises of the will, and could not and cannot claim that Striker is to be bound by his mistake of the conclusion of law,