13 A. 105 | R.I. | 1888
Lead Opinion
The case Hodges v. New England Screw Co.
Order accordingly.
The petition for a rehearing was heard December 31, A.D. 1887, before the chief justice and the four associate justices.
The facts involved are given in 15 R.I. p. 205 sq.
Addendum
The opinion given in this case at the October Term, A.D. 1885,
First, that Alexander Taylor, Jun., inherited an equitable estate from his father in the land referred to in the bill.
Second, that the conveyance of the legal estate to him was not a gift or devise from the testator, his grandfather, nor a gift from the trustee, his uncle. *177 Third, that the legal title was the controlling title in determining the descent, where the equitable estate had merged in the legal.
The first point is not disputed. As to the second, we must reiterate that Alexander, Jun., took nothing under the will. Certainly not by devise, for the will, in terms, gave him nothing. An equitable fee was given to his father, and this he inherited. He then got the legal estate from the trustee by virtue of his inheritance of the equitable estate, which was a right existing outside and independent of the will. If a stranger had bought the equitable fee of Alexander, Sen., he would equally have been entitled to a conveyance from the trustee. But no one would claim, in such a case, that he took either by devise or gift under the will, or by gift from the trustee. Whether the word "gift," as used in the statute, be taken in a technical or popular sense, it does not cover this case, since Alexander, Jun., took the legal estate independently of the will by virtue of his ownership of the equitable estate, just as a stranger would have done had he become the owner of it. In other words, he acquired the legal estate as a new estate, by purchase. The uncles of Alexander, Jun., contend, however, that William H. Taylor did not convey an estate by his deed, but only executed a power of appointment under the will, and, hence, that Alexander, Jun., took his estate under the will by virtue of the appointment, and not by purchase under the deed. We do not think this is so. The will contained no limitation of an estate in favor of Alexander, Jun., individually, or as one of a class, so as to leave to the trustee either a direction or discretion when to convey. If it had, undoubtedly the grantee in a deed from the trustee would take under the will by virtue of the limitation in his favor. Neither did the will indicate any intention to give a mere power of appointment. The trustee had no power of selection outside of the ownership of the equitable estate. The estate was devised to him in trust to hold, and in his discretion to convey. This discretion, at most, could only apply to the time and circumstances of the conveyance; and the decision in Taylor v.Taylor,
It is to be observed that the two estates did not come from the same person. Alexander, Sen., never had the legal title; but if anything could have descended from John Taylor it must have gone to him, for Alexander, Jun., was not the heir of his grandfather. Hence the rule followed in Wood v. Skelton, 6 Sim. 176, and in Buchanan v. Harrison, 1 Johns. H. 662, that an heir will not be held to take by devise what he would have taken by inheritance, does not apply. In this case the two titles come from distinct sources. In their devolution by the provisions of the will the ancestral character of the legal estate has not been preserved within the terms of the statute. If the legal estate controls, the descent is to the mother; if the equitable, to the uncles. Upon the authorities cited in the former opinion, no decisions to the contrary having been brought to our attention, we must adhere to the *179
conclusion that the legal estate controls. The following passage from Hopkinson v. Dumas,
There are dicta to the contrary of this rule, but we know of no case which has decided that, upon the union of the legal and equitable estates, the latter controls the descent.
The petition for rehearing is dismissed.
Decree accordingly. *180
