Whiting v. Whiting

4 Conn. 179 | Conn. | 1822

Hosmer, Ch. J.

Allen Whiting, the husband of the plaintiff, was tenant in tail general of the land in question; which land he granted to his son Allen Whiting, 2d, in fee simple; and the plaintiff’s right of dower depends on this precise question: Whether the conveyance left remaining in the grantor an estate, whereof he was seised at his death.

The enquiry proposed has been long settled, and the law unquestionably established. The grantee acquired a base fee, determinable on the death of the tenant in tail, by the entry of the issue in tail; but until such determination, the estate had all the incidents of a fee simple. The wife of the grantee might be endowed; the grantee was not punishable for waste; and his alienation, by feoffment, or other conveyance, would create no forfeiture. The case of Took v. Glascock, 1 Saund. 260. maintains a different doctrine; but this case was overruled, by Lord Holt, in Machell v. Clarke, 2 Ld. Raym. 778. and is opposed to the current of decisions on this subject. The observation made by Sir Edward Coke in his 1st Institute, 331. that a tenant in tail cannot grant, or aliene, or make any rightful estate of freehold to another person, but for the term of his own life, (as has truly been remarked by Mr. Butler in his note on the passage, 286.) is not to be understood literally, that the grantee has only an estate for life, and that his estate is ipso facto determined, by the death of the tenant in tail. All that is meant by it, is, that his estate is certain and indefeasible no longer than the life of tenant in tail, but is defeasible by the issue, either by action, or by entry or claim on the land, at his election.

In Machell v. Clarke, before cited, it was determined, Lord Holt, agreeably to former decisions, 3 Rep. 84. b. 10 Rep. 96. a. and to the assertion of Lord Hobart, Sheffield v. Radcliffe, Hob. 338, 339. as well as to the case of Stone v. Newman, Cro. Car. 429. that if tenant in tail, by bargain and sale, lease and release, covenant to stand seised, or other conveyance operating by way of grant, conveys to another and his heirs, the grantee has a base fee simple, determinable after the death of tenant in tail, by the entry of the issue in tail.

The following reasons are assigned, by Lord Holt, for this determination. 1. Because the tenant in tail has in him an estate of inheritance. 2. Because having in himself the whole estate, there is no reason why he cannot divest himself of it, by grant, bargain and sale, &c. since the power of disposition is incident to the property of every one. 3. It is no prejudice to the issue in tail, as he can relieve himself effectually, by action or entry; and therefore, is no breach of the statute de donis.

The subsequent determinations are all agreeable to the decision in Machell v. Clarke, Stapleton v. Stapleton, 1 Atk. 8. Goodright v. Mead, 3 Burr. 1703. 2 Bac. Abr. 125. 1 Saund. 260. in note 1. It follows, that after the deed from the tenant in tail, in this case, to his son Allen, nothing remained in the grantor, of which the plaintiff could be endowed.

The other Judges were of the same opinion.

New trial not to be granted.