4 Mason C.C. 467 | U.S. Circuit Court for the District of Massachusetts | 1827
Upon the very elaborate and learned arguments at the bar, every matter has been brought before the court, that can assist in forming its judgment. I should have been glad, as this is a point of local law, to have found the principal question adjudicated in our own state tribunals, so that my duty might have been merely to follow their decision. Unfortunately, no such case is known to exist, and It must therefore here receive an original determination. The rules of the common law have been fully stated at the bar, and indeed admit, upon the authorities, of no serious controversy. Where the estate descended is a present estate in fee, no person can inherit it, who cannot, at the time of the descent cast, make himself heir of the person last in the actual seisin thereof; that is, as the old law states it, “seisina facit stipitem.” But of estates in expectancy, as reversions and remainders, there can be no actual seisin during the existence of the particular estate of freehold; and consequently there cannot be any mesne actual seisin, which, of itself, shall turn the descent, so as to make any mesne reversioner or remainder-man a new stock of descent, whereby his heir, who is not the heir of the person last actually seised of the estate, may inherit. The rule, therefore, as to reversions and remainders, expectant upon estates in freehold, is, that unless some thing is done to intercept the descent, they pass, when the particular estate falls in, to the person who can then make himself heir of the original donor, who was seised in fee and created the particular estate, or if it be an estate by purchase, the heir of him who was the first purchaser of such reversion or remainder. It is no matter in how many persons the reversion or remainder may, in the intermediate period, have vested by descent; they do not, of course, form a new stock of inheritance. The law looks only to the heir of the donor or first purchaser. But while the estate is thus in expectancy, the mesne heir, in whom the reversion or remainder vests, may do acts, which the law deems equivalent to an actual seisin, and which will change the course of the descent, and make a new stock. Thus, he may by a grant, or devise of it, or charge upon it, appropriate it to himself, and change the course of the descent In like manner, it may be taken in execution for the debt of such mesne remainder-man or re-versioner during his life, and this, in the same manner, intercepts the descents. But if no such acts be done, and the reversion or remainder continues in a course of devolution by descent, the heir of the first donor or purchaser will be entitled to the whole as his inheritance, although he may be a stranger to all the mesne reversioners and remainder-men, through whom it has devolved. These doctrines are fully and learnedly explained by Mr. Watkins in his Essay on Descents, and are so well known, that it seems unnecessary to give to them any illustrative commentary. Watk. Desc. 137 (110), 148 (116), 153 (120). Now the operation of this doctrine in respect to estates in fee in possession, which are subject to dower and tenancy by the curtesy, is very important. In the former case, though the heir at law may obtain an actual seisin by entry into the whole estate, yet, by the assignment of dower, that seisin, as to the third part assigned as dower, is defeated ab initio; for the dowress is in of the seisin of her husband, and her estate is but a continuance of this seisin. The same principle is true of tenant by the curtesy. It is even stronger, for the law vests /the estate by curtesy in the husband without any assignment, and even without any entry, if the wife were already in possession, his estate being initiate immediately on issue had, and consummate by the death of his wife. So that there is no chasm between the death of the wife and his possession, as there is in case of the death of the husband and the assignment of dower to the wife, in which there can be a mesne seisin. Watk. Desc. (82) 104. Nothing, therefore, but a reversion passes in such case to the heir. But it is a misnomer to call it a case of suspended descent. In such case of curtesy, the reversion descends and vests absolutely in the heir. He may sell it, incumber it, devise it; and it is subject to execution as part of his property during his life. The descent to the heir is not suspended, but the actual seisin of the fee is not in him, since by law the actual seisin is in the tenant by the curtesy.
Applying these principles to the case now in judgment, it is obvious, that when Jane Tyler, the wife of David Cook, died in 17S6, seised of the premises, her husband became tenant thereof by the curtesy, and consequently the reversion thereof alone descended to her children, viz. to Horatio G. Cook (the plaintiff) and Mary T. Cook. By the act of descents of 17S3, c. 3G [supra], the eldest son was entitled to two shares, and this right, if at all, took effect at the time of the descent cast; and it is just as applicable to
The present case is obviously within the words of the act No reasonable doubt can be entertained, that a reversion is a “right” or “interest” in lands. In truth, it is included under the denomination even of “land,” and a grant of land will convey a reversion. Com. Dig. “Estates,” B, 12. A fortiori; it is included under the description of “tenement” and “hereditament,” for these are words of more extensive import, nomina generalissima. Com. Dig. “Grant,” E; Shop. Touch. 88; 1 Inst. 6a. The language of the act is, “when any person shall die seised.” But it is not a just construction of the act, to interpret this as intending an actual seisin. Lord Coke says (1 Inst. 153a), “seisin is common, as well to the English as French, and signifies, in the common law, possession.” Com. Dig. “Seisin,” A, 1. It may be either a seisin in law, or a seisin in ■fact Now, without adverting to what constituted, in the ancient law, a seisin in law, as contradistinguished from a seisin in deed, it is sufficient to say, that for centuries the language of the law has been, that a rever-sioner is “seised” of the reversion, although dependent upon an estate for life. Thus, in Plowden, 191, it was held by the court, that, where a reversion is dependent upon an estate for life, the reversioner, in pleading, may state, that he is seised of the reversion. Watk. Dése. c. 1, §§ 1 (27), 39-44; 2 Bl. Comm. 127. By this no more is meant, than that he has a fixed vested right of future enjoyment in it If a sense, at least as large as this, were not given to the term “seised,” it would follow, that the descent of reversions and remainders vested by purchase in the ancestor, and even of reversions vested in the original donor of the particular estate, would be wholly unprovided for, both by the provincial acts of descents of 1692, and the state act of 17S3. Cases of this sort must have been innumerable, and yet no doubt ever was entertained, that the descent of such remainders and reversions was provided for by these acts. My opinion is, however, that the word “seised,” used in all these acts, has a broader signification, and such as belongs to it in common jiarlanc?. It is equivalent to “owning;” and “seisin” is equivalent to “ownership.” My reason is, that otherwise none of these acts would regulate the descents ol' estates, whereof the ancestor, at the time of his death, was disseised; and
The present question must have often occurred, in many cases of dower, and in still more numerous cases of tenancy by the cur-tesy. Yet hitherto there has been a total silence among the profession on the subject There has not been any case within the memory or tradition of any man, in which such a right has been asserted or acquiesced in, as the plaintiff now claims. Judge Trowbridge, in his reading on the statute of distributions (Precedents, Dcclar., Ed. 1802, p. 290) of 1092, makes no allusion to any such doctrine; and yet if it had been stirred, it could scarcely have escaped his learned mind, and must have constituted a very important part of his reading. I have a note of a very memorable case (Ames v. Gay), in which the question must have arisen, and must have been decided, if there .had been any such doctrine then afloat My note states, that the case was an ejectment decided on a special verdict in 1749, and that the facts were as follows: One Fisher was seised of the estate in question, and devised the same to his wife, during her wddowhood, remainder in fee to his daughter Mary, who was the wife of the demandant. The testator died, and after-wards, during the life of Fisher’s widow, Mary, the devisee, died, leaving an only child, Fisher Ames, who afterwards died without issue, and intestate. Afterwards the widow of Fisher died, and thereupon the demand-ant brought the suit, as heir of his son, Fisher Ames. The defendant (Gay) claimed the estate as husband of the niece of Mary, the wife of the demandant The court, after argument, gave judgment for the demandant 1 have understood, that this was the first cause in which the point was decided, that the father could inherit from the son, under the provincial act of 1G92. But it presents the identical question now before the court, and the father could not have recovered, if the plaintiff’s argument is now W’ell founded.
Upon the whole, my opinion on this question is, that the common law rule, as to descents of reversions and remainders, has been altered by our statutes, and is not in force here; and that, by our statutes, reversions and remainders, of which the intestate is the owner at the time of his death, are to be distributed among his heirs in the same manner as estates in possession. In Connecticut the same question has arisen under the statute of descents of that state, which contains provisions, in substance, like ours; and after very elaborate arguments, the court came to the same results, to which my own judgment has been led.
There is a point, which has been suggested at the argument, upon which it may be well to dwell for a moment, as it fortifies the conclusion already expressed by the court, and leads adverse to the right of the demandant to recover the third of the reversion, which devolved on his sister Mary. It is this, that as upon her death, her right in the reversion, by our statutes, descended to her father, and vested in him as a mesne reversioner, and as he was then tenant for life, by the curtesy, of the whole premises, he became by operation of law, to this third part, seised in fee by the union of both estates. In other words, his estate for life, as to this third part, became merged in the reversion in fee, which devolved upon him. Lord Coke puts (1 Inst. 182b) several analogous cases. “If (says he) a man maketh a lease to two for their lives, and after granteth the reversion to one of them, the jointure is severed, and the reversion is executed for the one moiety, and for the other moiety there is tenant for life, the reversion in the grantee,” So, “if lessee for life granteth his estate to him in the reversion, and to a stranger, the jointure is severed, and the reversion executed for the one moiety by the act of law.” If I may be allowed to state a fact within my personal knowledge, I would add, that at an early period of my professional life, I put this very inquiry to Mr. Chief Justice Dana, in order' to ascertain if the common law rule had ever been recognised here. His answer was, that he knew no distinction admitted in descents here, between estates in possession and in reversion. I refer to this merely to show that his extensive learning and practice had not led him to notice the existence of any distinction in this state.
Judgment for plaintiff, two thirds of the premises.
The following is a copy of the record in the cas» of Ames v. Gay: “Suffolk — ss. At his majesty’s superior court of judicature, court of assize and general gaol delivery, begun and held at Boston, within and for the county of Suf
“This suit was commenced at August term last, when both parties appeared, and the case, after a full hearing, was committed to the jury, who were sworn, according to law, to try the same, and returned their verdict therein upon oath, that is to say, they find specially, viz. that the said Fisher Ames was seised of the remainder of the tenements aforesaid, expectant upon the death or marriage of the said Hannah Fisher, as set forth in the writ, and afterwards died so seised thereof and intestate, leaving neither wife nor child; and afterwards the said Hannah, the tenant for life, died seised of the said tenements, as set forth in the writ, that the said Nathaniel Ames was father of the said Fisher Ames, and the defendant’s wife was his aunt; and if, upon the whole matter, the plaintiff, by force of the province law, is intituled to the premises, the jury find for the plaintiff reversion of the former judgment, possession of the premises demanded, and costs of court; but if not, they find for the defendant costs; and from thence the action was continued from term to term to this time, for the court’s advisement on the special verdict; and now, after mature advisement thereon, and a full hearing of the parties by their counsel, it is considered by the court, that the former judgment be and hereby is reversed, and that the said Nathaniel Ames recover against the said Benjamin Gay the possession of the premises sued for, and costs of court, taxed at sixteen pounds, fifteen shillings and seven-pence, in bills of credit on this province of the new tenor. Fac. hab. possess. issued Nov. 24, 1749.”