24 Miss. 343 | Miss. Ct. App. | 1852
delivered the opinion of the court.
In the year 1823, Gerard Brandon made his last will, which was admitted to probate in the county of Wilkinson. By it he bequeathed all his estate, real and personal, of every kind whatever, to three persons as trustees, in trust that they would immediately, after his decease, take possession of all his property, and “ deliver to his daughter, Margaret Smith, certain land and slaves named therein, in trust to permit said Margaret to have, possess, occupy, work, and enjoy said land and slaves to her sole and separate benefit, during her natural life. And in trust, after the decease of said Margaret, to put and continue in possession of said land and slaves, the lineal descendants of the said Margaret to the latest posterity, with the same privileges which the said Margaret shall have had during life; and on failure of lineal descendants, then in trust for the heirs generally of the testator, with the same privileges.” The will contains bequests in similar language, to all the children of the testator, and among other bequests is one in favor of Matthew N. Brandon, his son, in the following words: “ Also, further in trust, as soon after my death as the debts of my son, Matthew N. Brandon, are paid, and they may deem it prudent and measurable, to deliver to said Matthew N. Brandon certain slaves and a tract of land named in the will, and put the said Matthew N. in possession on the same conditions, and with the same privileges and limitations as before mentioned in respect to said Margaret and her lineal descendants.”
Matthew N. Brandon was put into possession of the property, and held the same during his life. He has died, leaving no lineal descendants. For the appellant, who is a creditor of
An ancient canon of the common law, regulating title to property, was announced by the English judges in the case of Shelly, decided in the 23d year of Elizabeth, and reported in 1 Coke, R. 104, in the following language: “ When the ancestor, by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance, an estate is limited, either me-diately or immediately, to his heirs in fee or in tail, that always in such cases the heirs shall take by descent, and not by purchase.” Fearne, in his work on Contingent Remainders, has defined in the following language “ the rule in Shelly’s case.” Wherever the ancestor takes an estate of freehold and an immediate remainder is thereon^ limited in the same conveyance to his heirs, or his heirs in 'tail, such remainder is immediately executed in possession in the ancestor so taking the freehold, and, therefore, is not contingent or in abeyance; as an estate for life to A., remainder to the heirs of his body, this is not a contingent remainder to the heirs of the body of A., but an immediate estate tail in A. Fearne on Rem. 27, 33.
In the very able and lucid analysis of the rule by Preston in his work on Estates, he has given it the following clear and ample definition. “ When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and afterwards in the same deed, will, or other writing, there is a limitation by way of remainder, with or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally, or his heirs of his body, by
1. The estate limited to the ancestor must be a freehold.
2. The remainder to the heirs generally, or heirs of the body, must be to them, as a denomination or class of persons to take in succession,, and to whom the inheritance is limited in their character as hens, and on account of that relationship to the ancestor.
3. The estate must be granted to the ancestor and the heirs by, under, or as a consequence of, the same instrument or writing. .
4. The interest limited must be of the same quality; that is to say, it must be a legal estate to both or an equitable estate to both, not a legal estate to one and an equitable estate to the other.
Whenever the foregoing circumstances are found united in any conveyance, the rule of the common law will be found inflexible and invariable, that the ancestor takes the whole estate limited by the conveyance, the life estate and the inheritance uniting in the same person. In the language of Preston, “ the estate of freehold attracts* to the ancestor the estate imparted by the limitations to his heirs.” 1 Preston on Es. 295. The rule thus announced is equally applicable to limitations of the legal estate, limitations of uses, limitations of trusts, and extends to all sorts of instruments by which gifts or limitations of estate can be made, either in law or equity. 1 Preston on Es. 289 ; Fearne on Rem. 79. The rule has been applied as universally and without exception to limitations of personal as of real estate; no distinction whatever having been taken between them by the English courts, or the courts of.this country. Dow v. Lord Chatham, 1 Madd. 288; 1 Merivale’s Rep. 278. Atkinson v. Atkinson, 3 P. Wms. R. 258. Also, see 1 P. Wms. 298, and Fearne on Rem. 463. Various attempts have been made to trace this rule to its source, and
By others, and among them Sir William Blackstone may be named, the establishment of the rule has been ascribed to a principle directly antagonistic to the entire spirit of the system of feuds; having been established, as they allege, in order to facilitate the alienation of estates, by giving the power and control of the inheritance to the ancestor one generation sooner than it would otherwise have been alienable. But whatever may have been the cause or origin of the rule, the fact of its existence in the manner and to the extent before stated, is entirely beyond question or dispute.
The argument has frequently been urged, by those who assign a feudal origin to the rule, that inasmuch as the feudal system has been abolished, the reason for the rule has ceased; and, therefore, the rule itself should be abrogated. However cogent this argument may' be when addressed to the legislature, yet courts of justice cannot so far recognize its potency as to make it the basis of their decisions. Whenever a. principle of the common law has been once clearly and unquestionably recognized and established, the courts of the country must enforce it, until it be repealed by the legislature, as long as there is a subject matter for the principle to operate upon; and this, too, although the reason, in the opinion of the court, which induced its original establishment, may have ceased to exist. This we conceive to be the established doctrine of the courts of this country, in every State where the principles of the common law prevail. Were it otherwise, the rules of law would be as fluctuating and unsettled as the opinions of the different judges
The counsel for the appellee insist, that this repeal has taken place, and we have been referred to sections 24 and 26 of the act of 13 June, 1822, Hutch. Code, 609, 610, as containing the evidence thereof. By reference to section 24, it will be found, we think, to have little if any bearing upon the question. The object of that section was to abolish entails in both real estate and slaves, whether conveyed by deed or devise; and the proviso contained in the section has exclusive relation to a conveyance or devise of real estate, and cannot, therefore, have any influence upon the construction which must be placed upon a devise or conveyance of slaves. A more difficult question, howéver, is presented for consideration by the 26th section, which has been mainly relied upon by counsel, and is in the following language: “ Every contingent limitation in any deed or will made to depend upon the dying of any person without heirs or heirs of the body, or without issue or issue of the body, or without children or offspring or descendant or other relative, shall be held and interpreted a limitation to take effect when
Does this statute repeal the' ancient common law rule on this subject? The student who is at all familiar with this branch of the law is well aware that the frequent controversies of which this celebrated rule has been the fruitful mother, had their origin not in any doubt as to the propriety or existence of the rule itself, but whether the words used in the instrument as “ heirs, issue, heirs of the body, offspring,” &c. were intended as words of limitation, or a designation of a class of persons to take as heirs of the ancestor, or as words of purchase intended to designate particular persons as individuals to take in their own right. The courts at length reached this result; that the words “ heirs, heirs of the body, issue, offspring,” &c. in their appropriate signification, embraced any heirs of the given description, collectively as a class of persons, unless there was a direct intention plainly and clearly expressed to the contrary; for if that intention clearly appeared, the rule was not so strict as to control that intention, if it steered clear of the reason of the rule or of its literal terms. 1 Preston on Es. 275, 278, 279. But to withdraw a case from the operation of the rule, it was held not sufficient that the intention should depend upon inference or presumable reasons; it had to be manifested by words which were explicit. 1 Pres. on Es. 279. - The numerous cases with which the books abound show the extreme difficulty that existed in ascertaining what words and expressions were sufficient to indi-cafe a direct intention to limit and control the 'usual meaning which had been given by the court to the foregoing words: “ That difficulty,” says Preston, “ when it arises, does not in any degree question the existence of the rule; it merely raises a doubt on the application of the rule.” 1 Pres. on Estates, 279.
To obviate this acknowledged difficulty, and by giving a fixed and positive definition to these words, in consonance with what in most cases seemed to be the wish and intention of the
But we do not think that it was the intention of the legislature to declare, that in every case where the words, “ heirs, heirs of the body,” &c. were used, that they should be construed as words of purchase and not of limitation, even should it appear from the instrument that such was not the sense or meaning of the party using them. This, we think, is clear from the language of the act itself, which simply declares that these words, when used in the cases referred to, shall have a certain definition or meaning, “ unless the intention of such limitation be otherwise expressly and as plainly declared on the face of the deed or will creating it.” From this exception contained in the law, the inference seems to be irresistible, that if such intention do so appear, then the words shall not have the meaning or signification affixed to them by the statute, but should receive that definition which the common law affixed to them, and which the party intended to give. In our opinion, therefore, the rule in Shelly’s case, so far at least as personal property is concerned, has not been abolished, but still exists in this State, and will be applied whenever it expressly or as plainly appears from the instrument creating the estate, that it was the intention of the grantor, by the use of the words “ heirs, heirs of the body, issue,” &c. to specify a class or denomination of persons to take the inheritance in succession from generation to generation, in their character as heirs of the ancestor. Does the devise in this case come within this definition ?
By the terms of the will, the estate was devised in trust, that Matthew N. Brandon should be put in possession, and “permitted to have, possess, occupy, work, and enjoy the same during his natural life; and in trust, after his decease, to put and continue in possession of the said land and slaves the lineal descendants of the said Matthew N., to the latest posterity.” Plainer and more explicit language could not be used to indicate an intention, that the heirs of Matthew N. Brandon, as a class of persons, were to take this inheritance from generation to generation, in and by virtue of their character as his lineal
We have examined the decisions made by this court heretofore on this subject, and do not think that they in the slightest degree conflict with the views here expressed. By reference to those decisions, it will be found, that they were cases in which the conveyance contained no evidence that any other or more enlarged signification or meaning of the words “ hens, heirs of the body, issue,” &c., was intended by the party, than that affixed to them by statute. We are, therefore, of opinion, that the slaves in controversy in this case were, by the will of Gerard Brandon, vested in fee simple in Matthew N. Brandon, and are subject to the payment of his debts. At the request of counsel, we have not examined the question, how far the probate court has the power to compel an administrator in a case like the present, to return an inventory of property alleged to belong to the estate.
Let the decree of the probate court of Wilkinson county be reversed, and the cause remanded for further proceedings.