As the lessor of the plaintiff exactly fills the description given of the devisee in remainder after the expiration of the life estate devised to George D.
The general rule certainly is that none are bound by a judgment or decree except those who were parties or standing in privity with others who were. But there are exceptions to the rule of equal authority with the rule itself.
It is clear that the limitation in the will of John Baylor 2d to the eldest son of George D. Baylor, lawfully begotten, who should be living at the death of his father was neither a vested remainder nor an executory devise but must be construed to be a contingent remainder. At the time the will was made, George D. Baylor had no son, and the limitation was of a freehold for life with remainder to a person not in esse. Such a limitation is a contingent remainder. Keyes on Future Interests § 222, p. 104; 1 Lom. Dig. 411; Fearne on Cont. Eem. 9. Nor was its character changed by the subsequent birth of the lessor of the plaintiff in 1816, some eight years after the death of the testator. Whether a condition upon which a devise is made to depend is to be regarded as a precedent or subsequent condition must be determined by the ajq^&rent intent of the testator. Here it wras plainly the intention that the remainderman should fill all the conditions of the devise before he could take. He must be the eldest son of George, lawfully begotten, and he must survive his father. Until all these things concurred, no estate was to vest. The language is “ I devise and give the same in fee simple and absolutely to his eldest son lawfully begotten then living.” Whenever the remainderman took he took an absolute, unconditional, unqualified fee simple estate. It could not be an estate vested upon his birth but liable to be defeated by his subsequent death during the lifetime of his father. If that had occurred
Assuming then that the lessor of the plaintiff took
It would certainly be very unreasonable and unjust that a party having a charge upon an estate affecting the whole fee should be delayed or embarrassed in enforcing it by reasons of limitations by way of remainder to persons whom it might be impossible or improper to make parties to the cause. To obviate the difficulty in such cases the doctrine of virtual representation has been introduced, according to which certain parties before the court are regarded as representing those coming after them with contingent interests, who therefore it is not required should be made parties. Accordingly it is well settled that it is not necessary that remaindermen after the first estate of inheritance should be made parties: and where real estate is in controversy which is subject to an entail it is sufficient to make the first tenant in tail in esse in whom an estate of inheritance is vested a party with those claiming prior interests without making those parties who may claim in reversion or remainder after such estate of inheritance. And a decree against such tenant in tail will bind those in reversion or remainder although by the failure of all the previous estates, the estates in remainder or reversion might afterwards become vacatged. Reynoldson v. Perkins, Ambler’s R. 564; Lloyd v. Johnes, 9 Ves. R. 37, 56; Cockburn v. Thompson, 16 Ves. R. 321, 326; Hopkins v. Hopkins, 1 Atk. R. 581, 590; Giffard v. Hort, 1 Scho. & Lef. 386; Finch v. Finch, 1 Ves. jr. R. 534; Mit. Pl. 140, 141; Cholmondeley v. Clinton, 2 Jac. & Walk. 133. But
Now when the original, amended and supplemental bills in this case were filed, there was no son of
In the excellent treatise of Mr. Calvert on Parties to Suits in Equity, the general principle of representation established by the cases is thus expressed : “In respect of the first estate of inheritance and of all interests depending upon it, it is sufficient to bring before the court the person entitled to that first estate: and if there be no such person then the tenant for life.” Calvert, p. 52. It is stated in terms very similar or to the same effect by other learned authors. Story Eq. Pl. § 145, 792; Coop. Eq. Pl. 36, 77 to 83. Mr. Calvert however suggests that there should be a qualification as to the tenant for life and that except under very particular circumstances, the tenant for life who should be regarded as representing the whole estate must be one whose child if he have one, will become entitled to the inheritance. The idea is that there would be thus afforded a guaranty for a proper defense according to the dictum in Dayrell v. Champness, 1 Eq. Cas. Ab. 400, that the tenant for life is to take care of the inheritance for his children. He admits however there is no direct authority for the suggestion though he thinks it is countenanced by expressions to be found in several of the cases. Calvert on Parties, p. 52, 53, 192. The condition required by this suggestion is however fully met in this case as
Upon the merits of the chancery case I shall remark very briefly.
I think the debt claimed was sufficiently established by the testimony of Pendleton,, and though it might have been barred by the statute of limitations in an action upon the account at law, yet I conceive that the amount for which the decree was rendered was not barred at the death of John Baylor 1st in 1772, and that by his will a charge was created upon the lands devised to his three sons John 2d, George and Robert for the payment of his debts in the proportions named in the will: and this charge would prevent the statute from running against the proceeds of the sale of the land upon the principles of Fergus’ ex’ors v. Gore, 1 Sch. & Lef. 107; Burke v. Jones, 2 Ves. & Beame 275 ; Ault v. Goodrich, 4 Russ. R. 430, 3 Cond. Eng. Ch. R. 740; Kane v. Bloodgood, 7 John. Ch. R. 90, 129. That there was such a charge seems to be very clear. Both parties in this action claim title from John Baylor 1st as the common source. The devisees under his will took the estates devised to them upon the terms of the will which expressly required that John should pay one-half of the debts not otherwise satisfied and George and Robert should pay the other half. By accepting the devises, the devisees became personally liable in respect of the subjects devised to them, respectively, to their shares of the debts and the creditors were under no necessity to look to the general estate of John Baylor 1st before asserting their claims against the devisees and the subjects devised. John Baylor 2d who took the New Market estate was in Europe at the date of the will and at the testator’s death in 1772. When he returned to Virginia does not distinctly appear, but he states in
But with regard to these and the other supposed errors in the proceedings it is sufficient to say that they cannot be examined into when the decree is offered in evidence in a court of law. And so with regard to the charge of collusion. If there was any improper arrangement between those parties to subject the property to a debt with which it was not chargeable in whole or in part, or if any wrong were done in throwing the whole burden upon that part of the land held by Geoi'ge D. Baylor, the remedy is not
I have not thought it necessary to examine the analogous case of a recovery at law in a real action and its effect in defeating subsequent estates in remainder: nor to consider how far that effect would be avoided by showing that the recovery was by default or collusion under the provisions of our act taken from the statute of Westm. 2. The court of law must give to this decree the same force and effect which it would have in the court of equity when brought incidentally to its consideration in another suit. In the latter it must be regarded as binding upon all those coming in by way of contingent remainder after the tenant for life, and it must therefore be regarded as binding upon the lessor of the plaintiff in this action.
I am of opinion to affirm the j udgment.
The other judges concurred in the opinion of XíEE, J.
Judgment affirmed.