Goodman v. Russ

14 Conn. 210 | Conn. | 1841

Sherman, J.

By the 39th section of the act for the settlement of estates, it is enacted as follows: “Administration shall not be granted upon the estate of any deceased person, after the expiration of seven years from his death. No will shall be allowed to be proved, by any court of probate, after the expiration of ten years from the death of the testator; provided that where any minor is interested in the estate, three years shall be allowed after his arrival to full age, to take out administration thereon, or to prove and allow the will; and provided, that the times in this section for the purposes aforesaid, shall, in no case, begin to run at, or be computed from, any time prior to the first day of June, one thousand eight hundred and twenty one.”

It is admitted in this case, that Sally Russ, the testatrix, died on the 6th day of August, 1826, and that the will was not offered for probate until the 19th day of May, 1841, more than ten years afterwards ; and could not, therefore, be lawfully allowed to be proved, unless by virtue of the first proviso, Which allows to any minor, who is interested in the estate, three .years after his arrival at full age to prove the will.

By this will the estate is devised to Mary D. Russ, John D. Russ, Charles J. Russ, and Cornelia Russ, children of the testatrix, to be equally divided between them, and to be to them, and the heirs of their bodies, forever.

All these devisees were minors at the death of the testatrix. Mary D. Russ, who died in 1841, was born in 1807, and had attained twenty-one years of age more than three years before her marriage with Mr. Burrows, in 1834. John D. Russ, who was born in 1810 and died in 1839, was of the age of twenty-one, more than three years before his decease. Cornelia Russ, the youngest of the devisees, was born the 30th of September, 1814 ; so that both the survivors became twenty-one, more than three years before the probate of the will, and more than three years before the first descent was cast, by the death of John D. Russ, in 1839. The bar was perfected, therefore, against all these devisees, while they were of full age and under no disability, and before any heir in tail became interested in the estate.

It is said, hoWever-, that as the estate was limited in tail M the heirs of the bodies of the devisees, the children of John D. Russ and Mrs. Burrows, who stand in that relation and are minors, are within the proviso. In the case of a fee-simple; it would not be contended, that, if the ancestor was barred, the right Which he had lost could still descend from him to his heirs.. But there is no difference, in this respect, between limitations in fee and in tail. In each, the whole is vested in the ancestor, and nothing in the heir. The ancestor, indeed,in this state, cannot, by any conveyance, so divest himself .of his own title, as to defeat the inheritance ; but if the law has barred his entire right to the estate, his heirs can claim nothing from him by descent, for there is nothing to descend. The children, in this case, must claim by descent from their immediate ancestor, and not by purchase from the testatrix. They are heirs, not remainder-men. The word “heirs” is as really a word of descent and not of purchase, in a deed or will conferring an estate tail, as in the ordinary limitation of a fee-simple. The heirs, unless the estate vested in their ancestor,have nothing, and can claim nothing. This will, when the right of the devisees to prove it was barred, was as ineffectual as if it had never been lawfully executed. The law could take no cognizance of it. When a devisee in tail is barred of the estate tail at common law, Ais heirs are as effectually barred,as if it were a fee-simple. We should, therefore, without looking further into the case, be clearly of opinion, that the children of John D. Russ and Mrs. Burrows could not be let in to prove the will, under the proviso in the statute, because their ancestors were wholly barred of the estate previous to their deaths, and left no inheritance to these children. They never had an interest in the estate.

But the statute has made no provision for the proof of a will after the time limited, except where “ a minor is interested in the estate.” This must refer to some particular period. The only terminus a quo mentioned, is that of the decease of the testator. If, at that time, a minor is interested, he is within the saving of the statute. It is immaterial whether his title, on the death of the testator, vests in possession, or in interest only. A remote remainder-man, who has any vested interest, would; if a minor, be within the proviso. There are also interests which are not vested, but contingent only, and still ar& susceptible of present alienation, by will or otherwise. Roe v. Griffiths, W. Bla. Rep. 605. Roe v. Jones & al. 1 Hen. Bla. 30. Moor v. Hawkins, cited 1 H. Bla. 34. Jones & al. v. Roe, 3 Term. Rep. 88. in error. Selwin v. Selwin, 2 Burr. 1131. S. C. 1 Hen. Bla. Rep. 222. The statute of wills, 32 Hen. 8. enables persons having any manors, lands,&c., to devise them, which, says lord Kenyon, (3 Term Rep. 94.) must mean having an interest in the lands ; and he approves the opinion of Willes, Ch. J. cited by Norton, 1 W. Bla. Rep. 225. “ that executory devises are not naked possibilities, but are in the nature-of contingent remainders ; and there is no doubt that such estates are transmissible, and consequently devisable.” But whether they are such as would bring a minor within this proviso, it is not necessary to decide ; as it is Certain, that the expectancies of heirs, before the death of the ancestor, are neither transmissible nor devisable. They have no interest whatever, vested or contingent; and any alienation which these heirs might then have made, had they been of age and legally capable, would have been utterly void. .

To what extent the rights of individuals should be barred, in order to secure the repose intended by the act, was for the legislature to decide. This court cannot review and correct their enactments. They must be executed according to their plain language and intent. If the latitude of construction contended for, in this case, were to be adopted, a will might lie dormant for above seventy years, during the life of the de-. Visee in tail; and even then, on his death, some infant heir of his body might defer the probate for upwards of twenty more* to the destruction of all intermediate titles acquired for near a century, under the confidence that the estate was intestate; The wise policy of our law, requiring, as it does with great anxiety, that titles to real estate shall, as far as possible, appear of record, would seem to be peculiarly opposed to such á construction. Wé think it unwarranted by the language of the act, and opposed to its intention.

It has been further contended, in support of the probate of the will, that even if the case were within the statute of limitations, yet, as it is admitted, that the will, upon the decease of the testatrix, came into the hands of the devisees, and by their mutual agreement was withheld from probate, such act is a fraud on the appellees, and the devisees ought not to be permitted to avail themselves of their own wrong to convert a fee-tail into a fee-simple, to the injury of those to whom the inheritance was limited.

If the only persons interested in the establishment of this will were the surviving devisees, on the one hand, and the heirs in tail on the other, this would certainly merit great consideration. But the appellants are bona fide creditors or purchasers, and are not charged with any knowledge whatever of the existence of concealment of the will. They have committed no wrong, of which they attempt to take advantage, by availing themselves of the legal objection here interposed, but are of the very class of persons whose rights the act was principally intended to protect. They claim, indeed, undef John D. Russ, the father of the appellees; but they claim for valuable consideration, under a title apparently perfect. If such claimants were not protected by the act, it would be difficult to conceive its utility.

This court has no power but to affirm or disaffirm the probate of the will. To do the former would be a violation of the statute. How far a case might be made, which would induce a court of equity to decree a settlement of that part of the entailed property in which no honest creditors or purchasers have an interest, which should place the heirs in tail on as good ground, in regard to that portion of the estate, as they would have been, had the will been duly proved, by the devisees, it is not competent for us to decide ; but for the reasons assigned, we unanimously advise the superior court, that the judgment of the court of probate be reversed.

In this opinion the other Judges concurred.

Decree of probate disaffirmed.