Jackson v. Chew

ERROR to the Circuit Court for the Southern District of New-York.

The question presented by the special verdict in this case, arose upon the will of Medcef Eden, the elder, bearing date the 29th day of August, 1798, by which will the testator devised to his son Joseph, certain portions of his real and personal property, among which were the premises in question in this cause, 'to have and to hold the same to him, his heirs, executors, and administrators, for ever.' In like manner he devised to his son Medcef, his heirs and assigns, certain other portions of his property; and, after making some other provisions, added the following clause: '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 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.' And the question was, what estate Joseph Eden (under whom the lessor of the plaintiff claimed) took in the premises in question. The testator died soon after making his will, leaving his two sons, Joseph and Medcef, living. Joseph died in August, 1812, without issue, leaving his brother Medcef alive. The lessor of the plaintiff claimed title derived from Joseph Eden, under the sale of the premises in question, by virtue of a judgment and execution against him, and sundry conveyances thereafter made of such title as set out in the special verdict. The defendant claimed under a title derived from Medcef Eden, under the above mentioned clause in his father's will, he having survived his brother. If Joseph Eden took an estate tail, it was, by operation of the statute of the State of New-York abolishing entails, converted into a fee simple absolute, and the subsequent limitation became inoperative. That statute (passed the 23d of February, 1786) declares, 'That in all cases where any person would, if this act had not been passed, at any time hereafter become seised in fee tail of any lands, by virtue of any devise before made, or hereafter to be made, such person, instead of becoming seised thereof in fee tail, shall be deemed and adjudged to become seised thereof in fee simple absolute.' So that if Joseph would have taken an estate tail under the will, if the act of 1786 had not been passed, by operation of the statute he became seised of an estate in fee simple absolute, which was liable to be sold on the judgment against him, and the title under which the lessor claimed would be complete. But if Joseph took an estate in fee, defeasible in the event of his dying without issue, in the lifetime of his brother, (which event happened,) then Joseph's interest in the land became extinct on his death, and the limitation over to his brother Medcef was good as an executory devise, and the defendant would consequently be entitled to judgment.

A judgment was entered upon the special verdict in the Court below, for the defendant, pro forma, by consent of parties, for the purpose of bringing the cause before this Court. Jan. 25th.

The cause was argued by the Attorney General, and Mr. D. B. Ogden, for the plaintiff, and by Mr. Webster, and Mr. Wheaton, for the defendant.

On the part of the plaintiff, it was insisted, that Joseph Eden took an estate tail under the devise to him, which, by the operation of the statute of 1786, was converted into a fee simple absolute. The general rule that the words dying without issue import an indefinite failure of issue, was relied on to support this construction of the will. And, although it was admitted that there were circumstances which would limit those words to a definite failure of issue, yet it was denied that there were any qualifying expressions in this devise which would have that effect. There were certainly none such, unless the words, 'his share or part shall go to the survivor,' could be considered as having that effect. The earliest case, which would probably be relied upon to show that these expressions limited the failure of issue to issue living at the death of Joseph Eden, was that of Pells v. Brown, where the testator devised to 'Thomas his son, and his heirs, for ever, paying to his brother Richard 20 pounds 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, for ever, paying the said sum as Thomas should have paid.' Thomas having died without issue, and William having survived him, it was determined that this was a contingent fee to William by way of executory devise. Now, to test the authority of this case as to the effect of the word

The counsel here referred to all the cases cited, and commented on by Mr. Chancellor Kent, in Anderson v. Jackson, 16 ''John. Rep.'' 405-424.

''Cro. Jac.'' 590. survivor, it was only necessary to refer to King v. Rumball, decided three years before, in which a devise to three daughters, and if they all died without issue, then over, was held to create an estate tail; and to the case of Chadock v. Crowly, determined four years subsequent to Pells v. Brown, where the same Court held, that the word survivor had no such effect as is here attributed to it. In that case the testator devised all his lands in Bradmere to Thomas, his son, and his heirs, for ever, and his lands in Eastleak, to Francis, his son, and his heirs, for ever, and then added: 'Item. I will that the survivor of them shall be heir to the other, if either of them die without issue.' This was held to be an estate tail in Thomas. As to the more modern cases of Porter v. Bradley, and Roe v. Jeffray, which would be relied upon to show that the term survivor had this effect, the remarks of Mr. Justice Story, in Lillibridge v. Adie, might be applied to these cases, and would, at the same time, illustrate the general question. 'In respect to terms of years, and other personal estates, Courts have very much inclined to lay hold of any words to tie up the generality of the expression, dying without issue, and to confine it to dying without issue living at the time of 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. The cases of Porter v. Bradley, and Roe v. Jeffray, have gone a great way, but they turn on distinctions, which, though nice, clearly recognise the general rule.' In a recent English case, the word survivors was relied upon to raise an inference of restrictive intention; but Sir W. Grant held, that the word had the same sense as the word others, 'as (says he) has

''Cro. Jac.'' 448. S. P. Webb v. Heanig, Ib. 415.

''Cro. Jac.'' 695.

3 Term Rep. 143.

7 Term Rep. 585.

1 Mason's Rep. 236.

Fearne's Ex. Dev. 357-361. Butler's ed. 471-476. Cooke v. De Vandes, 9 Ves. 197. Dansey v. Griffith, 4 Maule & Selw. 61. been frequently decided.' So, in Massey v. Hudson, in a case of personal property, the presumption that a bequest over to the survivor of two persons, after the death of one without issue, was meant as a personal benefit to the survivor, was held to be repealed by the addition of the words ''executors, administrators, or assigns. Roe v. Scott & Smart, presented precisely the same case with that before the Court; and yet it was there held, that the indefiniteness was not restricted by force of the word survivor''. In the present case it could not be considered as having that effect, because the testator, in using the term survivor, did not intend the individual brother surviving, but the surviving branch; consequently, if Medcef had died, having issue, in the life time of Joseph, and Joseph had afterwards died without issue, the issue of Medcef would have taken Joseph's share; and so, also, in case of any more remote failure.

Barlow v. Salter, 17 Ves. 479.

2 Meriv. 135.

2 Fearne's Ex. Dev. (4th ed.) 203.

16 ''Johns. Rep.'' 397. 424.

As to the local decisions in the State Courts of New-York, giving a construction to this and other similar clauses in wills, it was said that the present question did not turn upon the interpretation which the local tribunals had given to the statute of 1786, or upon any other law peculiar to the State; but that the sole question was, whether Joseph Eden took an estate tail, which was a question of general law; and if he did, it was incontestible that the statute converted his estate into a fee simple, and, consequently, the plaintiff was entitled to recover. The decisions of the State Courts would receive no more respect in the present case, than in any other question of common law which might come before this Court; and to show that the State decisions had proceeded upon mistaken grounds, the arguments and authorities urged by Mr. Chancellor Kent, in Anderson v. Jackson, were relied upon, and enforced with a great variety of illustrations.

On the part of the defendant, it was admitted that a devise to take effect after a preceding estate in fee simple, upon an indefinite failure of issue, or (which is the same thing) where there are no expressions restricting that failure to a life in being, and the usual allowance for minority and gestation, cannot operate as an executory devise, because it would tend to a perpetual restriction of alienation, and is, therefore, void. But where the failure of issue is definite, and by plain words or necessary implication, declared to take effect, if at all, within a life in being, a limitation by executory devise is valid, and would be sustained both in England and New-York. But the peculiar state of the law of real property in England, would account for the application of a different rule to the construction of these limitations, when applied to real property, from what would prevail in the case of personal property; whilst the institutions of this country might justify and recuire the application of the same rule to both.

It was not, however, deemed necessary to resort to this distinction, since it was insisted that the construction put upon this devise was sustained by the general current of decisions in Westminster Hall, ever since Pells v. Brown, which had been called by Lord Kenyon 'the magna charta of this branch of the law,' and had never been departed from. In that case, the devise over was in the event of the first taker dying without issue, living his brother William; in this case, the devise over is to the survivor of the two brothers. In grammatical and legal construction, it is impossible to distinguish between a brother surviving, and a brother living at the death of the first taker. All the modern cases confirm the authority of Pells v. Brown, and it was also sustained by the general principles and analogies of the law. As to the anomalous case of Chadock v. Crowley, it was directly contrary to the authority of Pells v. Brown, and the long series of decisions following it, and, therefore, could not be law, even supposing it to be correctly reported, which might well be doubted. That case states, that 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 should remain to the other, then, peradventure, it should be a contingent devise in tail, if it should happen, and not otherwise.' No lawyer would pretend, at this day, that a devise to one and his heirs, and in case he die without issue in the life of another, or if he died before the age of 21, then over, is an estate tail, either vested or contingent. It is, like the present case, an estate in fee simple, defeasible on the event happening, with a valid executory devise over. The other cases cited by Mr. Chancellor Kent, would all be found to range themselves under one of the following classes: (1.) Where there are no words to control the indefinite failure of issue. (2.) Where the first estate is only for life, and enlarged by implication to an estate tail by the limitation over, or failure of issue. (3.) Where the first taker left issue, and the executory devise, in consequence, could not take effect. (4.) Several cases cited agaisnt the construction insisted on by the defendant in the present case, which are manifestly in favour of that construction. In Massie v. Hudson, the Master of the Rolls considers the words, executors, administrators, and assigns, as showing the intent of the testator to vest the interest, and make it transmissible. But, in the present case, there are no words of limitation annexed; and if it be said they are implied, the same might be said of every legatee, who, if no words of restriction are added, takes an absoulte interest transmissible to his executors, &c. But, here, the interest was neither vested nor transmissible. Barlow v. Salter cannot be reconciled with the general course of English adjudications in cases of personal property, and is entirely inconsistent with the American authorities. As to the notion of the word survivor being used to indicate the surviving branch or stock; in the recent case of Wellen v. Andrews, it is expressly laid down, that 'survivor or survivors,' mean not the surviving stocks, but the surviving children. And Mr. Fearne observes, that though the authorities have established on solid ground the power of testamentary dispositions of contingent and executory estates, and possibilities coupled with an interest, and such as would be descendible to the heir of the object of them dying before the contingency or event on which the vesting or acquisition of the estate depended; yet the decisions do not appear to reach those cases, where the contingent interest is not transmissible from any person, until the contingency decides him to be the object of the limitation. Now it has been decided, that a testamentary disposition of an estate, devised to the survivor of two persons, while both are alive, is not valid, although the person making the disposition becomes the survivor; because, till by the death of the other he so becomes the survivor, he has no interest whatever in the land. So, also, Mr. Preston observes, that mere possibilities to persons not ascertained, as to the survivor of several persons, are not coupled with an interest, and are not devisable, nor, he apprehends, transferrable to assignees under a commission of bankrupt. So, again: 'titles under possibilities or expectancies are of two descriptions. (1) Possibilities coupled with an interest. (2) Possibilities without any interest. Those possibilities which are not coupled with an interest are not devisable, but all titles under them may be barred, excluded, or bound by estoppel. Such are the expectancies of an heir apparent or presumptive, or of persons where the gift is to the survivor, and both are living.' So a power given to the survivor of two persons, cannot be well executed by both of them while alive.

In addition to the argument upon the case, as a question of general law, the counsel referred to the decisions of the State Courts of New-York, as conclusively establishing the construction contended for on the part of the defendant in error, as a settled rule of property in that State; and to the decisions of this Court, showing that the law thus established by a long series of adjudications in the local tribunals, would be respected here. Feb. 8th.

Mr. Justice THOMPSON delivered the opinion of the Court, and after stating the case, proceeded as follows: