2 Denio 9 | N.Y. Sup. Ct. | 1846
Limitations in trust, to preserve contingent remainders, were not executed by the statute of uses, the legal estate in such cases remaining in the trustees. (Fletcher on the Estates of Trustees, 24, 114; Willis on Trustees, 37, 149; Lewin on Trusts & Trustees, 2, 4, 7, 21, 102, 3.) These limitations, as the phrase imports, were designed to preserve the remainders, while contingent, from being defeated by the destruction or determination, designed or casual, of the particular estate on which they depend, a hazard to which interests of this description are, in various ways, greatly exposed. (2 Bl. Com. 171, 2; Burton on Real Prop. 246.)
The usual form of these settlements, where they prevail, is to convey the estate for life directly to the person who is to hold and. enjoy it for that period, with remainder, for the same time, to trustees and their heirs, in trust to preserve the contingent limitations, and followed by such remainders over as might be declared in the deed or devise by which the settlement was made. (Bl. Com. supra; Burton, supra; 2 Cruise's Dig. 273, ch. 7; 4 Kent, 256, 5th ed.) In this form of settlement the tenant for life has a legal estate, a remainder of the same character and for the same period, being vested in the trustees. The contingent limitations are thus made to depend, in the first instance, upon the estate of the tenant for life, and secondly upon that of the trustees; for if his estate should determine otherwise than by his death, the estate of the trustees would eo instanti take effect, and as a particular estate in possession, would support such remainders as still depended in contingency. The contingent estates are thus placed beyond the power of the tenant for life, for although he may at any time destroy his own estate, he will not thereby defeat the contingent limitations; for instead of depending, as primarily, upon the particular estate of the tenant for life, they thus come to depend upon the legal freehold which at once takes effect, for the same period, in the trustees.
But this is not the only form in which these settlements áre
The estates limited in remainder to the sons of Mathias, the grandson, were legal in their nature; his was but an equity; and such dissimilar estates will not coalesce to enlarge the estate of the ancestor from a life interest to a fee, upon the rule established in Shelley’s case. (Shelley’s case, 1 Rep. 93; Fearne on Cont. Rem. 52 to 60; 4 Cruise’s Dig. 369, §§ 25, 6, 7; Lord Say
It is therefore quite clear that Mathias, the grandson, was not tenant, in tail of these lands; he had but a life interest', and that was an equity. The freehold for his life was in the trustees, with contingent legal limitations, in tail, to the first and other sons of said Mathias..
By this devise the remainder was in the first place limited to the first spn pf the devisee Mathias. The terms of the limitation are that from and after the decease of said Mathias, the estate is devised “ to the first son of the body of the said Mathias, lawfully issuing,” and the heirs male of his body, the eldest “ and the heirs male of his body being always preferred and to take before any of the younger spns and the heirs male of his body.”
When the devisor died his grandson, Mathias, had no son; but during his life he had several. Of these Dirk M. was the eldest. He was born on the 26th of August, 1783, and died the 5th of February, 1809, without issue. The second son, Henry M., was born on the 25th of May, 1785, and died without issue, the 22d of June, 1820. Mathias junior, the third son, was bom the 25th of November, 1788, and survived his father, but died without issue the 23d of November, 1840.
The remainder being limited by this devise to dubious and uncertain persons, was contingent until the birth of Dirk M. in 1783. He answered the description in the will of “ the first son of the body of the said Mathias lawfully issuing,” and on his birth there was no longer any contingency as to the person who was entitled to the estate in remainder. Dirk M. had .a present capacity to. take the land devised, and a present right to its enjoyment if the particular estate of the trustees had then terminated by the death of his father; and “ the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become va cant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent.” (Fearne, 216, 217; 2 Bl. Com. 169; 2 Cruise's, Dig. 264, § 8
The terms made use of by the devisor, in this case, that ufrom and after” the decease of the devisee, Mathias, “ I devise the same to the first son of the body of the said Mathias,” were not intended to indicate the time when the remainder should vest in interest, but the period when it would vest in possession and enjoyment. “ Much more effective words,” said Dampier, J. in pronouncing an opinion on a similar clause, “ have been bolden, in some of the cases above cited, not to prevent the vesting of estates.” (Driver v. Frank, 3 Maule & Sel. 32; same case in error, 6 Price, 41; 8 Taunt. 468; 3 Moore, 519; Doe v. Moore, 14 East, 601; Bromfield v. Crowder, 1 New R. 313; 2 Cruise’s Dig. 295, 300; Doe v. Norvell, 1 Maule & Sel. 327; Moore v. Lyons, 25 Wendell, 119, 140.)
The remainder being limited to the first son of the body of Mathias, “ and to the heirs male of the body of said first son lawfully issuing,” an estate tail was created. (1 Cruise’s Dig. 85, § 12 ; 2 Bl. Com. 109, 112.) On the birth of Dirk M. therefore this remainder in fee tail vested in him.
This was in 1783. On the 12th of July, 1782, an act had been passed which provided, “ That in all cases wherein any person or persons would, if this law had not been made, have been seized in fee tail of any lands, tenements or hereditaments, such person or persons shall, in future, be deemed to be seized of the same in fee simple.” (3 R. S. 1st ed. App. 47.) This statute was repealed by an act passed on the 23d of February, 1786, the first section of which was as follows: “ That all estates tail shall be and are hereby abolished; and that in all cases where any person or persons now is, or are, or if the act hereinafter mentioned and repealed,” (referring to the aforesaid act of 1782,) “had not been passed, would now be seized in fee
The act of 1782 had been passed before the birth of Dirk M., but it was shortly thereafter repealed, and succeeded by the substituted act of 1786. As both were in force during his life so that each might have taken full effect upon the remainder vested in him, (if indeed, both were not restricted in operation and effect to estates in possession,) it is quite unnecessary to inquire how far, if at all, these acts differed from each other. So far as respects the present question it may be assumed that they were identical, or, if not so, the difference was wholly immaterial. Dirk M. might claim the benefit of both these statutes, and if either could change a vested remainder in tail, expectant on an estate for life, into a remainder in fee simple, that change must have taken place in this instance.
It will be observed that this remainder was expectant on the determination of a freehold estate, and the point to be considered is whether either statute changed such a remainder in tail into one in fee simple.
A vested remainder is an estate, (Cornish on Rem. 113;) and the act of 1786 declares “ that all estates tail shall be and are hereby abolished.” But this clause, comprehensive and emphatic as it certainly is, cannot alone determine the question. So far the statute has not provided a substitute for the estate to be abolished. This is done by what immediately follows; and in giving a construction to any single part or clause of a statute, its entire provisions should be regarded. Having declared that all estates tail were abolished, the section proceeds
By the common law the term “seizin imports the having possession of an estate of freehold or inheritance in lands or tenements.” (Chit. on Descents, 48; Com. Dig. Seizin, A. 1; Co. Lit. 153, a; Burton on Real Property, 18; Towle v. Ayer, 8 N. Hamp. R. 57.) It is either in deed or in law. (Co. Lit. 29, a.)
Seizin in deed is sometimes called actual seizin or seizin in fact, for each expression has the same meaning; and it exists where a person is in the actual possession of a freehold estate in lands or tenements corporeal. This seizin may be acquired by one who has a legal right to such an estate, in various ways, as by an entry in person, or by an agent or guardian. The possession of a lessee for years is also, for this purpose, the possession of the owner of the freehold, so that one who has a reversion or remainder in fee expectant upon the determination of a term for years, is in the actual seizin of his estate. (Com. Dig. Seizin, A. 1, 2; Co. Lit. 15, a.; Ratcliff’s case, 3 Rep. 42; Chit. on Des. 61, 2, 238, 9, 242; Watkins on Des. 59, § 2, Lond. ed. 1801; Roscoe on Actions, 588; Bushby v. Dixon, 3 Barn, & Cress. 298.) There is also what is called a constructive seizin in deed, which, for all legal purposes, is equivalent to an actual seizin. (Green v. Liter, 8 Cranch, 244—9.)
Where the law casts the freehold upon a person, he has before exercising any act of ownership over it, what is called a seizin in law. Thus, an heir before entry, has but a seizin in law of lands which descend to him. (Chit. on Des. 53; Watkins on Des. 58.) But if the lands are in lease for a term of years, this, as we have already seen, gives to the heir an actual seizin,, the possession of the termor being in law that of the reversioner or remainderman in whom the freehold is vested. In this case, howéver, the remainder was limited on a freehold
It should not be overlooked that the terms seizin in law, and seizin in deed, have in general reference “ only to the present and actual corporeal possession of the premises, and not to the fixture of an interest which is to come into actual enjoyment in some future event; and here the word seizin is used in its strict sense; and though we frequently use the term seizin of a remainder or reversion, (expectant upon a freehold,) yet this signifies no more than that the property in them is fixed in the owner; and that such owner is placed in the tenancy. The particular estates, and those expectant upon them, form in law only one estate; and the delivery of possession to the person taking first extends to all. All therefore may be said to be seized, all being placed in the tenancy, and the property being thus fixed in all.” (Chit. on Des. 53.) In a note, (p. 55,) the author adds: “ This is often called a seizin in law ; and thus the seizin in deed of the particular tenant of the freehold, and the seizin in law of the remainderman or reversioner, are supposed to exist together of the same estate; but the seizin, that is the -actual corporeal possession, must be postponed to the determination of the particular estate of freehold; and the remainderman or reversioner cannot in this sense be said to be seized either in law or in deed.” To the same effect, Mr. Butler, in a note to Co. Lit. says: u When lands of inheritance áre Carved into different estates, the tenant of the freehold in possession, and the person in remainder or reversion, are equally in the seizin of the fee. But in opposition to what may be termed the expectant nature of the seizin of those in remainder or reversion, the tenant in possession is said to have the actual seizin of the lands.” (Co. Lit. 266, b, note 217.)
The true principle, whether the estates present and expectant, are created by common law conveyances or by such as derive their effect from the statute of uses or of wills, seems to be that the person in whom the expectant estate vests, has a
It is surely no new doctrine, Sharply as the point was contested on the argument of this cause, that there may be a seizin of a remainder or reversion expectant Upon a freehold estate. I know of but one case Which denies the position, Jackson v. Strang, (1 Hall, 1, 32;) and not an authority Was cited to sustain that opinion. In Cook v. Hammond, (4 Mason, 489,) Judge1 Story said, “ for centuries the language of the law has been, that a reversioner is seized of the reversion, although dependant upon an estate for life. Thus in Plowden, 191, it was held by the court, that where a reversion is dependant Upon an estate for life, the reversioner, in pleading, may state that he is seized of the reversion. By this no more is meant, than that he has á fixed vested right of future enjoyment in it.” The books, ancient and modern, are full of precedents for pleading a transfer; by purchase or descent, of a remainder or reversion, expectant on a freehold estate; and although they vary in this respect, that some allege a seizin by the party in his demesne as of fed, while Others simply aver a seizin as of fee, they all agree instating a seizin in one form or the other. (Hearne, Pl. 837; 3 Went. Pl. 502, 3; Tomlin’s Law Dict., Seizin; 2 Ch. Pl. 7th Am. ed. 568 and notes, 560 and notes, 569 and notes; 3 id. 1330 and notes, 1365; 2 Saund. 235; Com. Dig. Pleader, C. 35; Jacob’s Law Dict. Seizin; Arch. Civil Pl. 121, 125, 227. See also Wimple v. Fonda, 2 John. 288; 4 Kent, 202; Preston on Estates, 94, 98; Watkins on Des. 33, 40 to 45, 116, § 1.)
This remainder being vested in Dirk M., he was, in the language of the law and in propriety of speech, seized thereof. It
If the case were not in strictness within the words of these statutes, it might be urged that they should be liberally construed to effectuate the object and intent of the legislature. “These statutes formed an important epoch in our history. They broke into pieces the shackles which had been ingeniously contrived to perpetuate estates in the same family, and thus rendered the alienation of the soil free and unrestrained.” (Lion v. Burtiss, 20 John. R. 487.) Statutes having such objects in view should not receive a stinted, narrow construction, but should be expounded so as most speedily and effectually to eradicate the evil. On this principle it was held, although against the grammatical construction of the words used, that the act of 1782 had a prospective operation, and was not restricted to cases existing at its passage. (Jackson v. Van Zandt, 12 John. R. 169.) But the case at bar is within the words of the act of 1786. The remainder in fee tail had vested in Dirk M. and he was therefore seized of it. By the terms- of the last mentioned act this estate was abolished, and changed to a fee simple or fee simple absolute, for both mean the same thing. (Jackson v. Van Zandt, supra.)
Dirk M. thus became seized of a remainder in fee simple, instead of a fee tail. It came to him by devise, he was therefore a purchaser. (3 Cruise's Dig. 484, § 19; 6 id. 9, § 18.) Being a purchaser, this expectant fee simple, although incapable of an actual corporeal seisin, might pass by descent to his heirs. They would take from him as from a purchaser, and not as the person last actually seized.
It is a well known rule in the law of descents, that a reversion or remainder in fee, expectant on a present freehold estate, will not, during the continuance of such freehold estate, pass by des-, cent from a person in whom title thereto had vested by descent, as a new stock of inheritance, unless some act of ownership, which the law regards as equivalent to an actual seizin of a present estate of inheritance, had been exercised by the owner, over such expectant estate. But it is otherwise where the future
On the death of Dirk M. in 1809, this remainder in fee simple passed by descent to his father, Mathias, the grandson of the devisor. (Act of 1786—1 R. L. of 1813, p. 53.) The father of Dirk M. who thus acquired this estate in remainder, had given a mortgage in fee of those lands in 1792. He was then in possession, and the mortgage contained a covenant that the mortgagor “ was lawfully seized of” “a good, sure, perfect, absolute and indefeasible estate of inheritance, and that” said mortgaged premises were free from all former gifts, grants and incumbrances. This mortgage was duly foreclosed in 1799, the premises, on such foreclosure, being sold and conveyed to Albert Pawling. The remainder in fee simple, which vested in the father of Dirk M. on the decease of the latter, enured by way of estoppel, to the benefit of the purchaser at the mortgage sale, Pawling. (Jackson v. Murray, 12 John. 201; Jackson v. Hoffman, 9 Cowen, 271; Pelletreau v. Jackson, 11 Wend. 110; 13 id. 178, in error; Jackson v. Matsdorf 11 John. 91; Jackson v. Wright, 14 id. 193; Mason v. Mancaster, 9 Wheat. 445; Somes v. Skinner, 3 Pick. 52; White v. Patten, 24 id. 324.) It is conceded that the defendant had the title of Pawling, which was a fee simple absolute. The defence was therefore complete.
New.trial denied.
