Webster v. Cooper

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maine.

The facts are set forth in the opinion of the court.

Upon the trial in the Circuit Court, the demandant's (Webster's) counsel, prayed the court to instruct the jury as follows:

1. That the act of the Legislature of Maine, of the year 1848, ch. 87, is not applicable to any case in which the title of the demandant had accrued before the passage of said act.

2. That said act is not applicable to the present action, the same having been commenced before the passage of said act.

3. That said act is void, because it is in violation of the constitution of the State of Maine, (Art. 1, § 21,) and because it is retrospective in its operation upon vested rights of the demandant.

4. That said act is void, because it is in violation of the Constitution of the United States, as being a law impairing the obligation of contracts.

5. That by the true and legal construction of the will of Florentius Vassall, said Elizabeth Vassall took only an estate for life in the demanded premises.

6. That by the true and legal construction of the will of Florentius Vassall, the demandant took a remainder in tail male, as tenant in common with said Henry Edward Fox, in the demanded premises expectant on the life estate of said Elizabeth Vassall.

7. That the demandant is not barred from recovering one undivided half of the demanded premises by the statutes of limitation of the States of Maine or Massachusetts, or any of them.

8. That if the demandant shows a right to recover one undivided half of the demanded premises, he may recover the same under the writ in this case, although he therein demands the whole of said demanded premises.

9. That it is not necessary, for the purpose of enabling the demandant to recover in this action, that he should have taken the name of Vassall.

F. DEXTER and E. H. DAVEIS, Counsel for Henry Webster.

But the honorable Judges, who presided at the said trial, declined to give to the jury any of the said instructions so prayed for by the demandant's counsel; but, on the contrary thereof, did instruct the jury, that by the true and lawful construction of the said will of Florentius Vassall, no legal estate in the demanded premises, or any part thereof, was ever vested in the demandant, but that, if the legal estate in the demanded premises was, and by force and effect of the said will, vested in any person or persons, it was thereby vested and continued to be in the trustees named in said will, viz., Lord Viscount Falmouth, Lord Viscount Barrington, and Charles Spooner, Esq., the survivors and survivor of them, and the heirs of such survivor; and that, therefore, the demandant could not maintain the present action to recover the same, and that it was, therefore, unnecessary to instruct the jury upon the other points mentioned in the demandant's prayer for instructions; whereas the said counsel for the demandant respectfully insist that the said Judges ought not so to have instructed the jury, but ought to have instructed them upon the matters and in the manner prayed for by the said counsel as aforesaid; and they did, therefore, except in law to the said instruction and said refusal of the said Judges; and, inasmuch as the several matters aforesaid do not appear by the record of said verdict, the said counsel have made and tendered to the said Judges this, their bill of exceptions, and pray that the same may be allowed.

All which being considered, and found conformable to the truth of the case, the presiding Judge has allowed this bill of exceptions, and hath thereto put his seal, this 28th day of April, in the year one thousand eight hundred and fifty-one.

[SEAL.] LEVI WOODBURY, ''Ass. Jus. Sup. Court''.

The case was argued in this court by Mr. Daveis, with whom was Mr. Dexter, for the plaintiff in error, and by Mr. Allen, for the defendant in error.

The counsel for the plaintiff in error, made the following points:

1. A devise to A, and his heirs, to the use of, or in trust for B, vests the legal estate immediately in B. 2 Jarm. on Wills, 196, 198, 199; Hill on Trustees, Part 2, ch. 1, p. 229; 1 Greenl. Cruise, 346-7, note; Webster v. Gilman, 1 Story's R. 499, 515.

2. Where duties are imposed on the trustees which make it necessary that they should take the legal estate, the extent and duration of that estate are limited to exactly that quantity of interest which the purposes of the trust require. 2 Jarm. 213; Hill on Trustees, Part 2, ch. 2; 1 Greenl. Cruise, 348, note; Doe v. Ironmonger, 3 East, 533; Robinson v. Grey, 9 East. 1; Curtis v. Price, 12 Ves. 89; Doe v. Hicks, 7 T. R. 433; Doe v. Barthorp, 5 Taunt. 382, 385; Doe v. Simpson, 5 East, 163; 1 Hill. Real Prop. ch. 22, § 21, § §§ 27 to 31.

3. There are no duties imposed on the trustees by the will in this case, in relation to the demanded premises, nor is there any other expression of the intention of the testator to give them the legal estate.

4. The only duties imposed are, by the terms of the will, expressly confined to other lands, viz., to the Friendship and Greenwich plantations. And the purposes of those duties have been fully performed and discharged. Whether the trustees took a legal estate in those plantations at any time, may depend on the local law in Jamaica. Under our laws they would take but a chattel interest, as they were only to apply the rents and profits. Hill on Trustees, 240, 241, and cases cited to the second point.

5. The successive remainders limited to the use of the same trustees, to preserve contingent remainders in case of forfeiture, show that it was not the intention of the testator that the legal estate should vest in them originally. Curtis v. Price, 12 Ves. 100; Doe v. Hicks, 7 T. R. 433, 437; Fearne, Cont. Rem. 177, 178; Hill on Trustees, 240-1.

6. The act of Maine, 1848, ch. 87, is void as impairing the obligation of contracts. Fletcher v. Peck, 6 Cranch, 87, 137; 3 Story on Const. § 1385.

7. It is void, as it takes away vested rights. Wilkinson v. Leland, 2 Pet. S.C.. R. 657, 658, Story, J.; Society, ''&c. v. Wheeler,'' 2 Gall. 105, 141; Ham v. McClaws, 1 Bay, 93; Bowman v. Middleton, 1 Bay, 252; Dash v. Van Kleek, 7 Johns. 502, Kent, Ch. J.; Call v. Hagger, 8 Mass. 423; 1 Kent, 455.

Taking away all remedy, is taking away the right. Bronson v. Kinzie, 1 How. 317, 318; Bruce v. Schuyler, 4 Gilman, R. 221, 277; Story on Const. § 1379; Sturges v. Crowninshield, 4 Wheat. 207; Gilmer v. Shooter, 2 Mod. R. 310.

8. It is void as against the constitution of Maine. Proprietors, ''&c. v. Laboree,'' 2 Greenl. 275, 294; Oriental Bank v. Freeze, 18 Me. R. 109, 112; Austin v. Stevens, 11 Shepley, 520; Constitution on Maine, Art. 1, §§ 1, 19, 21.

9. The will in this case gave a life estate only in the demanded premises to Elizabeth Vassall, with remainder to her sons as tenants in common. Willis v. Hiscox, 4 Myl. & Cr. 197; Right v. Creber, 5 Barn. & Cres. 860; Doe v. Laming, 2 Burrow, 1100; Backhouse v. Wells, 1 Eq. Abr. 184; White v. Collins, 1 Com. 289; Sisson v. Seabury, 1 Sumn. 235; Dingley v. Dingley, 5 Mass. 535; Webster v. Gilman, 1 Story, 499, 514; 2 Jarm. 235, 315; Fearne, Cont. Rem. 150.

10. 'Sons' and 'children' are words of purchase, and not of limitation. 2 Jarm. 343, 344, 352 to 356; 1 Rolle's Abridg. 837, pl. 13; Buffar v. Bradford, 2 Atk. 220; Lowe v. Davis, 2 Ld. Raym. 1561; Goodtitle v. Herring, 1 East, 264; Walker v. Snow, Palm. 359; Archer's case, 1 Coke, 66; Lisle v. Gray, 2 Lev. 223; Dingley v. Dingley, 5 Mass. R. 535; 1 Fearne, Cont. R. 150, 151, &c.; 2 Jarm. 301, 302, &c.; Doe v. Simpson, 5 Scott, 770; Doe v. Webber, 1 B. & Ald. 713; Sisson v. Seabury, 1 Sumn. 235.

The word 'sons' has been held to control the words 'heirs of the body,' to make them words of purchase. Lowe v. Davies, 2 Ld. Raym. 1561; Lisle v. Gray, 2 Lev. 223; Goodtitle v. Herring, 1 East, 264; cited 2 Jarm. 301, 302; and also 'issue male;' Mandeville v. Lackey, 3 Ridgw. P. C. 352.

The word 'son' in the singular, can create an estate tail only when used as nomen collectivum, and where it is the manifest intention of the testator to give such an estate. Mellish v. Mellish, 2 B. & C. 520; cited 2 Jarm. 320.

11. The devise to the sons of Elizabeth Vassal as tenants in common, shows that it was not the testator's intention to give her an estate tail. These words control even the words 'issue of the body,' so that they take as purchasers. Doe v. Burnsall, 6 D. & E. 30; Burnsall v. Davy, 1 Bos. & P. 215; Doe v. Collins. 4 D. & E. 294.

12. The plaintiff's right of entry accrued at the death of Elizabeth, in 1845, and is not barred by adverse possession. Wells v. Prince, 9 Mass. 508; Wallingford v. Hearl, 15 Mass. 471; Angell on Lim. 42; 2 Sugd. Vend. 216, 323, 324.

13. The condition of taking the name of Vassal, is subsequent, and no one but the devisee over can take advantage of it. Gulliver v. Ashby, 4 Burrows, 1929; Taylor v. Mason, 9 Wheat 325, 349; Finlay v. King's Lessee, 3 Pet. 347, 374; 1 Jarm. 805.

14. The plaintiff can recover a moiety in this action. 6 Dane's Abr. 61; Dewey v. Brown, 2 Pick. 387; Somes v. Skinner, 3 Id. 52; Holyoke v. Haskins, 9 Id. 259; Rev. Stat. Maine, p. 610, §§ 12, 13.

Mr. Allen, for the defendant in error, made the following points:

1. That there is no error in the District Court in declining to give the instructions requested by said plaintiffs in error, as contained in the assignment of errors, from No. 1 to No. 9, both inclusive. Because, if there is no error in the tenth assignment, but the instruction therein given, was correct, plaintiff in error was not prejudiced by the withholding the instructions in the preceding nine requests. Greenleaf v. Birth, 5 Pet. R. 132; ''Binney v. Chas. & Ohio Canal Co.'' 8 Pet. R. 214; U.S. Bank v. Planters Bank, Gill & Johns. R. 439; Watts & Serg. 391.

2. But if the instructions in first four assignments of errors had been material and injurious to plaintiff in error, they were correct and not erroneous; that the act of the Legislature of Maine of the year 1848, ch. 87, is valid and not liable to any legal objection, and is not in violation of the constitution of Maine, Art. 1, § 21, or of the Constitution of the United States. Phalen v. Virginia, 8 How. U.S. 168. 'Such acts (Lim.) giving peace and quiet, may be said to effect or complete divesture or transfer of rights, yet as reasons have led to their validity, cannot be questioned.' Id. S. P. 585, Mills v. St. Clair County. 'Such laws do not impair the obligation of contracts within the sense of the Const. U.S.' Townsend v. Jemison, 9 How. U.S. 407, 419, 420; and cases cited 10 How. U.S. 395, 401, 402, ''Bal. & Susquehannah R. R. v. Nesbit.''

'No real or mixed action for the recovery of any lands in this State, shall be commenced or maintained against any person in possession of such lands, where such person or those under whom he claims, have been in actual possession for more than forty years, and claiming to hold the same in his, her, or their own right, and which possession shall have been adverse, open, peaceable, notorious, and exclusive. To take effect in one day after approval.' Act of Maine, Aug. 11, 1848.

3. The said act may apply to actions then pending. Thayer v. Seavey, 11 Maine Rep. 284; Bacon v. Callender, 6 Mass. Rep. 309; 2 Gall. Rep. 315, 319. Stat. Lim. Rhode Island, no objection that it went into immediate operation. Story, J.