delivered the opinion of the Court. The first and most important question in this case, is, what estate did Joanna Burrell take, in the property devised to her by the will of her father, Moses Brackett.
It is contended on the part of the demandant, that it is an executory devise, and could not be barred or affected by the deed, or by any other act done by the devisee Joanna Burrell in her lifetime, and in the event that has happened, the death of Joanna, leaving no children, the estate, by force of the devise, has become vested in the surviving sisters, of whom the demandant is one.
On the part of the tenant it is contended, that the devise to Joanna was an estate tail, with a contingent remainder to the sisters ; that Joanna, being tenant in tail, had a power jointly with her fiusband, by force of the statute of this State, by her deed duly executed and recorded, to bar all remainders expectant upon such estate tail, and convert the same into an estate in fee simple, and that by the deed shown to have been executed to Walter, this effect has been produced, so that the claim of the demandant, to a contingent remainder, no longer exists.
If this suit is in form a formedon in remainder, as appears in the statement of facts, it is obvious that the demandant has no right to recover upon showing herself entitled to the estate as an executory devise ; because it can only be held as an executory devise, by showing, that there was no estate tail in Joanna, and no remainder, contingent or vested, upon which alone formedon in remainder can be maintained. But as the question has been argued upon general grounds, without reference to the form of the writ, as the effect of deciding it upon this ground would be merely to turn the demandant round to another form of action, and as there are other sisters claiming upon the same grounds, who are understood to be represented in this suit, we have thought it proper to consider the rights of the demandant, without regard to the form of her action.
Many of the subjects alluded to in the argument, are among the most abstruse and profound of all the questions
The essential difference in the quality of the estate, between a remainder and an executory devise, is, that the former may be barred at the pleasure of the tenant in tail, by a common recovery, or, in our State, by a conveyance by deed ; but he who holds by force of an executory devise, has an estate above and beyond the power and control of the first taker, who cannot alienate or change it, or prevent its taking effect, according to the terms of the will, upon the happening of the contingency, upon which it is limited. It does not depend upon the particular estate, but operates by way of determination of the first estate limited, and the substitution of another in its place.
As an executory devise was allowed only to give effect to the intent of a testator, when such intent would otherwise have wholly failed, as not being conformable to the rules of the common law in regard to the transmission of real property, it has been adopted as a fixed and settled rule, that whenever a future interest in lands is so devised, that conformably to the rules of law, it can take effect as a remainder, it shall be construed to be a remainder, and not an executory devise. Purefoy v. Rogers, 2 Saund. 388. And in Doe v. Morgan, 3 T. R. 765, it is said by Lord Kenyon, that if ever there existed a rule respecting executory devises, which has uniformly prevailed without any exception to the contrary, it is that which is laid down by Lord Hale, in Purefoy v. Rogers, that “ where a contingency is limited to depend on an estate of freehold, which is capable of supporting a remainder, it
Another settled rule in regard to an executory devise, to prevent this mode of devising from being resorted to as a means of creating a perpetuity, is, that it must vest within the compass of a life or lives in being, at the time the devise takes effect, that is, at the death of the testator, and twenty-one years and the fraction of a year after, otherwise such executory devise is wholly void.
And in the application of this rule, regard is had, not to any event which has taken place after the death of the testator, but the question is, whether by possibility the estate is so limited upon a contingency, that it may remain more than the allowed period, before the contingent interest will become vested, and if it can, it is not a good executory devise.
There are two kinds of executory devise ; one, where an estate is devised to one, but upon some future event that estate is determined, and the estate thereupon is to go to another; the other, when the estate is limited to commence m futuro, contrary to the rules of the common law. In the latter case, the fee in the mean time remains in the heir of the devisor.
In determining, therefore, with a steady reference to these rules, whether a contingent interest given by will, is in legal contemplation an executory devise', or a remainder, the first consideration is, whether the estate, after which it is limited, is an estate in fee or in tail.
If the estate after which it is to take effect, is an estate tail, upon which the contingent is dependent, there are two grounds, upon which, in most if not in all cases, it may be concluded, that the limitation over does not constitute an ex-euctory devise.
1. That the contingent interest thus given, after the devise of an estate tail, can in most instances take effect as a re mainder, and so may become barred by a common recovery suffered by the tenant in tail;
2. Because if the devise is made to depend upon the determination of a previous estate tail, such particular estate may last as long as there remain any issue in tail, that is, to an
To determine whether any particular devise constitutes an estate in fee or an estate tail, considered by itself, is usually not very difficult. It depends upon certain rules of construction, applied to particular forms of words, which are in a good degree settled. But it is a well-known rule of construction, that every clause and word in a will are to be taken together, however detached from each other, to ascertain the intent of the testator. When therefore, by one clause in a will, an estate for life or an estate in fee is given by plain words, if it appear in other parts of the will, by explanatory words or by implication, that it was the intent of the testator, in such devise, that the issue of the devisee should take the estate in succession after him, then the life estate is enlarged in the one case, and the estate in fee is reduced in the other, to an estate tail.
If therefore, an estate is devised to A and his heirs, which is a fee ; and it is afterwards provided, that if A die without issue, then over, this reduces it to an estate tail by implication. The law implies that by “ heirs ” in the first devise, was intended heirs of the body, and it also implies from the proviso, that it was not the intent of the testator, to give the estate over, and away from the issue of the first devisee, but on the contrary, that such issue should take after the first devisee.
The difficulty therefore in determining, whether a contingent devise is an executory devise or a remainder, usually arises where there is a plain devise in fee in one clause, and afterwards, a gift over upon the contingency of the first devisee dying wdthout issue. If the implication from such description of the contingency taken together is, that in the event described it was the intention and expectation of the testator, that the issue should take in succession, then the fee first created is reduced to an estate tail, the tenant in tail may suffer a recovery and bar*all remainders, and the gift over cannot take effect as an executory devise, both because it may take effect as a contingent remainder, and because it might not vest within the time limited for the vesting of the estate under an
In the former case, taking the first devise in fee, with the subsequent words “ if he die without issue,” as raising a necessary implication, that it was the intention of the testator to give the estate to the first devisee and his issue, it is a tenancy in tail, to which the law annexes certain incidents, among which the most important is, that the tenant in tail may suffer a common recovery ; in the other, the law implies, that notwithstanding the first devise in fee, and the subsequent limitation over, upon the contingency of the devisee’s dying without issue, there was no implication that if there were issue, they were to take the estate by force of the devise ; then the original estate in fee, created by the first clause, is not reduced to an estate in fee tail, but the first devisee always continues to hold as tenant in fee, an estate in fee simple, determinable and defeasible, upon the happening of the event of his dying
A devise to one and his children, he having no children at the time, is equivalent to a devise to him and his issue, and creates an estate tail. Wild's case, 6 Rep. 16 ; Wood v. Baron, 1 East, 259 ; Davie v. Stevens,
Such being the nature of her estate, the contingency of dying and leaving no issue, is precisely equivalent to dying without issue, and looks therefore to the general failure of issue before the devise over is to take effect. Then by the well-established principle, the devise over cannot take effect as an executory devise, both because it can be supported and have effect as a remainder, expectant, upon the determination of the estate tail to Joanna Burrell and her issue, and also, because if an executory devise could be so limited upon an estate tail, it might not vest within the time allowed for the vesting of the estate under an executory devise.
The next question is, whether the demandant is entitled to recover the whole or any part of the estate as a remainder.
Jf the tenant had issue by his wife Joanna, a fact which does not appear in the statement of facts, it is obvious that the tenant would hold a freehold estate for his own life, as tenant by the curtesy. If the wife was seised as tenant in tail, it was as tenant in tail general; the issue would be entitled to inherit as heir in tail, and therefore the husband would be tenant by the curtesy. If the husband is tenant by the curtesy, the demandant would have no right to recover now, whatever right she might have after his death. If it depended upon this consideration alone, it would be necessary to ascertain the fact, whether there has been issue of the mar riage born alive, before any judgment could be given.
But the remaining material question is, whether the estate
By the statute of 1791, c. 61, § 1, a simple, easy and efficacious mode of barring estates tail is provided. After reciting the dilatory and expensive process of common recovery, the statute professes to provide a more simple method of accomplishing this object, and one not liable to the same objections. The first and most obvious conclusion arising from this statute, taking the preamble and the enacting clauses together, is, that wherever an estate tail might before the statute have been barred by a common recovery, and an estate in fee substituted therefor, the same thing may be done under the statute, by a deed duly executed in the manner provided by the statute.
The provision of the statute is as follows:—“That it shall be lawful for any person or persons who shall be seised and possessed of any lands, tenements or hereditaments, within this commonwealth, in fee tail, being of full age, by deed duly executed before two or more credible subscribing witnesses, acknowledged before &c., or before any justice of the peace in this commonwealth, &c., and recorded in the record of. deeds for such county, for a good or valuable consideration, bonft fide, to give, grant, sell and convey such lands, tenements or hereditaments, or any part thereof, in fee simple, to any person or persons capable, by law, of taking and holding real estates, in this commonwealth; and such deed so executed, acknowledged and recorded, shall be sufficient and effectual in law, to bar all estates tail in such lands, tenements, or hereditaments ; and all right and title of the tenant or tenants in tail, and their issue in tail, and of all others claiming under and by force of the original gift or grant which created such estate tail, in and to such lands, tenements or hereditaments; and all reversions and remainders, expectant upon the determinations of such estates tail; and to pass, and to vest the absolute inheritance, in fee simple, of such lands, tenements or hereditaments, in such purchasers or grantees, without any fine or common recovery, made or ruffered, or any other act or ceremony whatever,”
. Seth Burrell and Joanna his wife, of full age, being at the time seised of the premises within this commonwealth, in fee tail, in her right, and being in possession thereof, duly executed their deed, on the 19th of April, 1806, before Mottram Vesey and George Nightingale, two subscribing witnesses, who are presumed to be credible, in the absence of all proof to the contrary, which was duly acknowledged on the same day before Peter B. Adams, a justice of the peace of the commonwealth, and was duly recorded in the registry of deeds for the county of Norfolk. It purports to be made upon a valuable consideration of two thousand dollars ; nothing appears to indicate that it was not made in good faith ; and it purports to give, grant, sell, and convey to Walter and his heirs, he being described as of Boston, merchant, and of course being capable, by law, of taking and holding real estate m this commonwealth.
Can there be any reasonable doubt, that under the statute, a deed by husband and wife, conveying estate of which they are seised in her right in fee tail, is as effectual to convey her estate and convert it into a fee simple by force of the statute, as it would be to transfer the estate of which she is seised in fee simple ?
In the case of Lithgow v. Kavenagh,
In regard to the apparent intent, where the land is minutely described, and where the only estate and interest, which the grantors have in it, is an estate tail, the intent of the grantors to transfer it must be sufficiently apparent.
As the statute has made no provision for the separate examination of a married woman, in executing a deed under this statute, to ascertain whether, in the disposal of her estate, held in this qualified way, she is under any unsuitable bias, it seems very clear, that a gratuitous examination of this kind, in point of fact, would not render the deed effectual, under the statute, if otherwise it did not come within its provisions. It is only in case the deed conforms to the statute, that the statute gives it the effect of a recovery, to bar all remainders and reversions. The consequence therefore would be, that a common recovery must still be resorted to, with all its ex pense and delay, to bar the entail, where the tenant is a feme covert. But what is the ground of this doubt ? If founded in considerations of policy, and in the safety of those who claim under married women, where is the difference, in this respect, between giving her such a power over her estate tail, and her estate in fee simple. The policy does exist in England, and there a married woman can only convey by fine, or other matter of record, in conducting which she is examined separately. But from the earliest times, we overlooked this danger to heirs, and permitted her to join with her husband in a conveyance of her separate estate in fee simple by deed ; why then should the policy remain in regard to her entailed estate ? In the case cited, p. 172, Mr. Justice Sewall, in alluding to cases in England, where by local custom the deed of husband and wife is held to be as effectual as a conveyance by record at common law, adds, that a like usage has prevailed here from the earliest times. A conveyance by husband and wife of lands holden in her right, may be by deed, and this mode of conveyance is now to be ranked among the common assurances, which are not to be questioned or disrobed. This usage and the efficacy attributed to the deed
It was intimated in the argument, that the conveyance in fee to Walter was not made in good faith, and “ bond fide ” under the statute.
It is not perhaps easy to decide what was intended by the use of the words bond fide in this statute.
In Wheelwright v. Wheelwright, 2 Mass. R. 447, the deeds purported to be made for a valuable consideration ir. money, and also for love and affection ; and it was in proof, that the intent of the tenant in tail, in executing the deeds, was, to prevent the entail from depriving the grantees of the lands conveyed, in other words, to bar the entail. On the part of the issue in tail, it was contended that such a conveyance was not made bond, fide within the statute. On the other side it was maintained, that this was a legitimate and proper purpose under the statute, doing nothing more than the tenant in tail had a right to do without the statute, by common recovery. It was held by the Court, that the deeds purporting to be made both for a good and for a valuable corsideration, it was clear that the statute intended that the
This goes far to settle the construction of the terms bond fide in this statute.
In Soule v. Soule,
But we do not consider this general question as involved in the present inquiry. The deed purports to be made for a valuable consideration actually received, and there is nothing to render this admission in the deed questionable, if it were open to question in a case like the present. The only circumstance is, that the grantors have remained in possession. But this they might do, in perfect consistency with the deed. The original deed purports to be made in consideration of a sum of money, and of a lease of the premises for one year, at an apparently nominal rent. Before the expiration of the term, a declaration of trust by indenture was duly made, by Walter, among other things to permit.the grantors to have possession of the premises, during their lives and the life of the survivor. This therefore satisfactorily accounts for the continued possession of the tenant, since the making of the deed. How this conveyance would have stood against the claims of creditors, is another and very different question.
There is nothing in the declaration of trust itself to show,
But it is unnecessary to speculate upon the various purposes, for which the deed might have been originally made, or the views which afterwards led to this declaration of trust If it were intended to impeach this deed, as not being a good conveyance to bar the entail, by force of the statute, because it was made without consideration or not bond fide, the burden of proof was upon the demandant to show it, and this has not been done.
We are therefore of opinion, that by this deed to Walter, the remainder in tail now claimed by the demandant was legally barred, and therefore, neither as an executory devise, nor as a remainder, is she entitled to recover. This renders it unnecessary to give any opinion upon the effect of the deed of partition and the covenants contained in it.
Notes
It was agreed by the parties, after this opinion was given, that neither at the time of the making of her father’s will, nor at any time, had Mrs. Burrell *nv child.