Banister v. Henderson

1 Super. Ct. Jud. 119

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1765
• Status: Published

Opinion

The Court

defiring that a brief State of the Cafe, Banister vs. Henderson might be given in by the Council on both Sides, the following States were delivered to the Court.

The State of the Case by the Council for the Tenant.

Banister’s Case.

Whatever Estate the Devisees took, was by Implication—not by express Devise.

Implication must be necessary, and not barely possible. 2 Bac. 66 (G). 6 Co. 17. Cro. Car. 368.

Intent to be collected from the whole Will— therefore the Devises to the Grandson and the Daughter, as well as joining real and personal Estate must be considered. Also the Words in Remainder in the Clause now in Dispute.

From all which it appears, the Testator never meant to Entail; the Distinction between the Devise of the Pew and the Rest of the Estate proves the same Point.

The Remainder being an Express Estate in Fee, argues that the first Estate was also intended in Fee.

The Testator meant to convey an equal Tenancy in Common, in Fee, determinable on either’s dying without Issue in the Life of some other Son, and an Executory Devise over, of such Deceased’s Share to the Survivor or Survivors.

The Estate being subjected to the Payment of Debts and Legacies, is equal to being subject to Payment of certain Sums; and the Estate being implied makes a Fee Simple. 2 Vern. 687. 1 Lill. 451, 452. 3 Co. 19, Boraston's Case. 1 Cas. Abr. Equ. 176, 9, 10, 12.

But if doubtfull, then Judgment must be for us, in Law and Equity; Law, that the Demandant clearly prove his Writ, and Cro. Eliz. 743 — what Walmsley said; Equity—fairly purchased, long possessed, the Purchase Money used to support the Family.

To prove it no Tail, 3 Mod. 104; 3 Cro. 57; 2 Strange, 1172.

Granting for Argument Sake, that the first Words create an Estate Tail by Implication, yet the Remainders not cross. Hob. 34. Vin. Tit. Devise, X. pi. 1, and Notes. Vin. Remainder, per tot; 2 Cro. 655. 2 Show. 139. 8 Mod. 260.

When John died, Tom. and Sam., expressly by the Devise over, became Jointenants in Fee of his Part; and on Tom.’s Death, all his Part of John’s Third that was undisposed went to Sam., by Survivorship, and never can go back as a Remainder to the Heirs of Tom.

If Jointenants in Fee, there cannot be Cross Remainders of that joint Estate, for that would be limiting a Fee on a Fee at Large.

The Collateral Warranty binds. 1 Inst. §§ 709, 716. 1 Co. 63. 10 Co. 97. Vin. Tit. Voucher, U. b. pl. 5, U. b. 6, pi. 1 & 2, & Notes. W. b. pi. 5. W. b. 4. Notes on pi. 2. U. b. 3, pi. 25, & Notes. Voucher, X. a. 2, pl. 5, U. b. 3, pl. 3. C. b. pl. 3, & Notes.

What is the Distinction between a Collateral and Lineal Warranty is proved by 1 Inst. §§ 704, 704, & 717.

By the Council for the Demandant.

Case of Banister vs. Henderson.

Mr. Thomas Banister by his last Will devised (among other Things) £500 to his Daughter Mary Banister; but if she did not live to have Issue, then to be paid to his three Sons to be equally divided amongst them, as he had willed the Rest of his Estate to be divided among them, or the Survivors of them.

Item. He gave all his Houses, Lands, Mortgages, Bills, Bonds, Money, Plate, Debts, Merchandizes, both at Sea and Land; as also all Books, Bedding, Household Stuff, Horses, Cattle, and all that of Right any ways belonged or appertained to him whether named or not named to his three Sons Thomas, Samuel, and John; to be equally divided amongst them; and if either of his three Sons die without Heirs lawfully begotten in Wedlock, he willed their Share to the surviving Sons or Son, and their Heirs forever.

By this Devife the three Sons took an Eftate in Common in Tail general in the Lands &c. devised, with Cross Remainders in Tail among them of each other’s Shares.

First. By the Devise of all his Houses and Lands &c., and all that of Right anyways belonged to him, whether named or not named, a Fee would have passed to his three Sons by Force of the Words taken by themselves. Vid. 1 Salk. 239, Hopewell vs. Ackland, where Alleyn, 28, Wheeler’s Case, and 2 Vent. 285, Willow’s Case, are rely’d on; for the Words are as strong and comprehensive as those made Use of in those Cases, and mull comprehend all his Estate, which alone would pass a Fee; and as by Devise of all his Lands an Estate for Life passed, the following Words, unless they comprehend his Estate in those Lands, mull be useless.

Secondly. The following Words, “ equally to be divided among them,” make them Tenants in Common of the Whole. Vid. x Salk. 226, Blisset vs. Cranwell.

Thirdly. By the subsequent Words — if either of his three Sons die without Heirs lawfully begotten in Wedlock, he wills their Share to the surviving Sons or Son, and to their Heirs forever—an Estate Tail general is created of their several Shares; for this shews the Intent of the Teslator to be Heirs of their Bodies, by necessary Implication; sw that Heirs here signifies the same as Issue; for they could not die without Heirs, living their Brother. Vid. Cro. James, 415, 416, Webb vs. Hearing. Same, 448, King vs. Rumball

* 3 Lev. 70, Parker vs. Thacker, 1 Salk. 233, Nottingham vs. Fennings. Cro. James, 695, Chadock vs. Cowley.

Fourthly. By these Words — if either of his three Sons die without Heirs lawfully begotten in Wedlock, he willed their Share to surviving Sons or Son, and their Heirs forever — Cross Remainders in Tail are created among them of their several Shares; for the Words “if either of them,” &c. make Cross Remainders, express, and differs the Case from that of Gilbert & Witty. In 1 Vent. 224, Cole vs. Levingston, per Hale, C. F. Vid. also Dyer, 303. Cross Remainders express among four, exactly agreeing with the present Case. 2 Jones, 172, Holmes vs. Meynill, a Cross Remainder by Implication— whereas this express, and consequently a much stronger Case.

In both the said Cases the Cross Remainders veiled in Tail, as well as the first Estate of each in their several Shares; and by the same Reason and Law, they shall veil in Tail in the present Case; so that the Estate shall not revert till all the Sons are dead without Issue, and the whole Estate Tail entirely spent. And this is corroborated by the Limitation to the surviving Son as well as Sons, which plainly shows the Intent of the Teilator was, that all these Remainders to each of the Sons, of the other’s Shares, should veil in Tail immediately by the Devise; and this is perfectly agreeable to the Refolution in the above Cases, particularly that in Dyer, which corresponds exactly to it, and is full in Point; and this Construction renders the whole Devise in every it perfectly agreeable to evident Design and Intention of the Testator.

Upon the Whole, the Devise then as was observed at first will stand thus: To Thomas, Samuel and John, in Common in Tail general, with Cross Remainders in Tail to each of the others' Shares; so that when John died first without Issue, his Estate was entirely spent, and the Remainder of his Share came equally to Thomas and Samuel in Tail; when Thomas died leaving Issue, his Moiety descended to the Heirs of his Body in Tail, and also the Remainder in Tail of John’s Moiety, which was veiled in Thomas, descended upon the Death of Thomas to the Heirs of his Body in Tail; so that when Samuel died without Issue, his Moiety also came to the Issue of Thomas in Tail; and no Part of the said Estate so devised can revert to the Heirs of the Devisor till all the Issue of the Body of Thomas is entirely spent.

(Another State of Banister’s Case which I received from Chief Justice Hutchinson, together with the foregoing State of that Case, by the Demandant’s Council.)

The Testator devises all his Houses, Lands, &c., and all that of Right anyways belonged or appertained to him, whether named or not named, to his three Sons Thomas, Samuel and John, to be equally divided among them; and if either of his three Sons die without Heirs lawfully begotten in Wedlock, he willed their Share to the surviving Sons or Son, and their Heirs forever.

It was argued for the Defendant, that this was an Executory Devise, &c.

In Answer to which, it was urged for the Plaintiff, that it is a settled and certain Rule of Law, that a Will shall never operate by Way of Executory Devise, if it might take Effect by Way of Remainder, viz., if there is a particular Estate sufficient to support it. Vid. Carthew, 310, in the Case of Reeve vs. Long; 2 Saund. 380, Purefoy vs. Rogers, at the latter End of the Case; 2 Bacon, 72, where these and several other Cases are cited.

By this Devise (as we shall shew clearly) an Estate Tail was created in the three Sons, of their several Shares; which is a particular Estate sufficient to support a Remainder; and therefore by the Rule, the Limitation shall take Effect. by Way of Remainder, and cannot be construed an Executory Devise.

It is insistead for the Plaintiff, that, by this Devise, the three Sons took an Estate in Common in Tail general in the Lands devised, with Cross Remainders in Tail among them of each other’s Shares.

To shew this, they observe—

First. By Devise of all his Land, and all that of Right anyways belonged to him, &c., a Fee would have passed to the three Sons, by Force of these Words taken by themselves; for this they rely on the Case of Hopewell vs. Ackland, 1 Salk. 239, where Alleyn, 28, Wheeler's Case, and 2 Vent. 235, Willow’s Case, are rely’d on; for these Words are as full and strong as those made Use of in these Cases, and must comprehend all his Estate.

Secondly. The following Words, “equally to be divided among them,” make them Tenants in Common; for which Vid. 1 Salk. 226, Blisset vs. Cranwell.

Thirdly. By the subsequent Words — if either of his three Sons die without Heirs lawfully begotten in Wedlock, he wills their Share to the surviving Sons or Son, and their Heirs for ever. By the first Part of them, an Estate in Tail general is created of their several Shares: For this shows the Intent of the Testator to be, Heirs of their Bodies; so that Heirs here signifies the same as Issue, for neither could die without Heirs in the general Sense of the Word, living his Brothers. For this they rely on Cro. James, 415, 416, Webb vs. Hearing; Same, 448, King vs. Rumball; Same, 695, Chaddock vs. Cowley; 3 Lev. 70, Parker vs. Thacker; 1 Salk. 233, Nottingham’s Case.

N. B. By the above Cases of Webb of Hearing, and Chaddock of Cowley, and their Analogy to the present, it appears that this was not a contingent Estate, but took Place and veiled immediately by the Devise.

Fourthly. By the same Words, also (the latter Part of them), Cross Remainders are created among the three Sons, of their several Shares. These Words, “ if either of them,” &c., make Cross Remainders express, (1 Vent. 224, Cole vs. Livingston) and is not by Implication, but as determinate as if Cross Remainders had been drawn out at Length. And this differs the Case from that of Gilbert & Witty, produced on the other Side. Vid. also, Dyer 303, Crofs Remainders in Tail among 4, a Case in Point. Also 2 Jones, 172, Holmes & Meynill, where the Case of Gilbert & Witty is questioned. Vid. Hobart, 34, which Case, and that in Dyer, must have been overlooked by Justice Dodridge. He said, in Gilbert & Witty, that it would not be found in any Book that Cross Remainders could be between three.

It appears, also, by the Limitation being to the surviving Son as well as Sons, that it was the Intent of the Testator that the last surviving Son, the other two dying without Issue, should take the Whole. This could not take Effect by any Construction, but the above of Cross Remainders in Tail executed; but upon this Construction, no Part of the Estate could revert to the right Heirs of the Devisor, until all the Sons were dead without Issue, and the whole Estate Tail in each spent, according to the above Case in Dyer.

Upon the Whole, therefore, the Devise stands thus: To Thomas, Samuel and John in Common, in Tail general; and if Thomas die without Issue, the Remainder of his Share to Samuel and John in Tail; and if Samuel dies without Issue, the Remainder of his Share to Thomas and John in Tail; and if John dies without Issue, the Remainder of his Share to Thomas and Samuel in Tail.

So that when John died without Issue, his Share came to Thomas and Samuel in equal Moieties in Tail, with Cross Remainders in Tail between them of each other’s Shares; and when Thomas died leaving Issue, his Share, and his Moiety of John’s Share, came to his Issue in Tail; and when Samuel died without Issue, his Share, and his Moiety of John’s Share, came to the Issue of Thomas in Tail.

The last Words, “ then to the surviving Sons or Son, and their Heirs for ever,” could not possibly make a Jointenancy in Fee, is Case of Death without Issue. The Survivor was to have the Whole, which might have been prevented by severing the Jointenancy; so that, to answer the Testator’s Intent, a Remainder in Tail veiled in Thomas upon Samuel’s Estate in Tail in this Moiety; and so vice versa, and upon Samuel’s Death, this Remainder came veiled in Possession.

Judgment was afterwards rendered at Worcester Court for the Tenants; By the Opinion of Lynde, Cushing & Russell: Chief Justice & Oliver full in Favour of the Demandant.* (⁹)

By the first: and last Cases in Cro. James, it appears it was not a Contingent Estate, but took Place immediately by the Devise.

Qu. if 2 Black. Comment, ch. 20, pp. 302, 303, and ch. 23, pp. 381, 382, would have been impertinent in this Case.

9 (9) It is to be regretted that we have no means of ascertaining conclusively on what grounds this decision was given. The three points raised are briefly as follows : 1. Whether the words of the will created an estate tail, or a see with executory devises; 2. If an estate tail, whether cross remainders can he created by implication among more than two; 3. Whether collateral warranty will not bind the issue. Quincy states that the last point was given up by the tenant’s counsel; and although it was inserted in his “ state of the case,” yet its not being mentioned in the others, would seem to show that it was, in effect, abandoned. As to the second point, it is true that most of the authorities at that day leaned strongly against the establishment of crost remainders among more than two. See 3 Bl. Com. 381, 2, cited by Quincy supra. But upon this ground alone, it is difficult to fee why the demandant should not have had judgment for one third of the premises. And it was soon after established that cross remainders might arise among any number. Cowp. 780. 2 East, 36. Hall v. Prieft, 6 Gray, 18, in which laft cafe they were eftabliihed among eight. From thefe coniiderations, it feems to us more probable that the deciiion was given upon the firft point; and we have, accordingly, fo ftated it in the marginal note.

But whether the point of collateral warranty was not well taken, queere. That the reporter fo coniidered it, appears from his note, ante, 145, and his citation, fupra, of 3 Bl. Com. 303, where it is laid down that collateral warranty is ftill a bar, “ notwithftanding the ftatute of Queen Anne, if made by tenant in tail in poffeffion.”

Among the law papers of John Adams, for access to which we are indebted to the kindness of Hon. Charles Francis Adams, we find a copy of an opinion given in 1745, by the diftinguilhed lawyer, John Read, upon a case which had arisen upon the same clause in the will, and in which some of the same questions were involved. That opinion is printed below. The cafe resulted in favor of the tenants; but it will be feen that Mr. Read’s opinion coincided with that of the minority of the Court in Banister v. Henderson, viz., that the devise created an estate tail with cross remainders. It appears, also, that the point was raised which was afterwards decided in Baker v. Mattocks (ante, p. 69), viz., the partibility of estates tail; and that the opinion of Mr. Read, and alfo, it would feem, of Mr. Pratt (afterwards Chief Juftice of New York), was in favor of the partibility, coinciding with that of the minority of the Court in Baker v. Mattocks, and with that of Judge Trow-bridge. See ante, p. 74, note.

“ Mr. Banifter's Cafe v. Nat. Cunningham.

1692. The Province Law, p. 3, enacteth that any Man Seized in Fee Simple of Land in this Province may dispose of it at Pleasure by Deed or Will; or it shall be Subject to a Division with his Personal Estate, vizt, a double Portion to his eldest Son, and equal Shares to the Rest of his Children.

1708. Mr. Thomas Banister devised, among other Things, £500 to his Daughter, Mary Banister, but if she did not live to have Issue, then to be paid to his 3 Sons, to be equally divided among them, as he had willed the Rest of his Estate to be divided among them or the Survivor of them.”

Item. He all his Houses, Ware-houses, Lands, Mortgages, Bills, Bonds, Money, Plate, Debts, Wares, Merchandizes, at and Land, as also all Books, Bedding, Household Stuff, Horses, Cattle, and all that of Right any ways belonged or appertained to him, ’whether named or not named, to his Three Sons, Thomas, Samuel and John, to be equally divided among them; and if Either of his Three Sons dye ’without Heirs lawfully begotten in Wedlock, he voilled their Share to the Surviving Sons or Son, and their Heirs for ever.

The Testator died; then his Son John died without Issue; then Thomas leaving Issue, whereof the Eldest Son is since deceased without Issue; but there are now living John, Samuel Annesley, and Frances Wife of Wm. Bowen. The Testator’s Son Samuel, surviving his two Brothers, mortgaged 7 Acres of Pasture in Boston, Part of the Estate deviled them, to Nathaniel Cunningham, and his Heirs, by Force whereof he entered and held it, and then the Mortgagor died without Issue.

Q. Is Nath’l Cunningham’s Estate in this Pasture good, or not?

A. His Estate is void, for the Mortgagor had but one Half, and that in Tail, by the Devise above. —

For the Devise above, giving all that of Right any ways belonged to the Testator, gave every Parcell of his Estate, and all the Right he had therein, and is as large as the Exprellion in the Case of Hopewell vs. Ackland, 1 Salk. 239, vizt., “ and whatsoever else I have not before dilposed of; ” and therefore would by itself pass a Fee Simple to the Three Sons.

And these Words added, “to be equally divided among them,” would make them Tenants in Common of the Whole. 1 Salk. 226, Blisset vs. Cranwell. But by farther devising the Remainder to the Survivor, if either of his Three Sons dye without Heirs lawfully begotten in Wedlock, the Testator createth an Entail of their several Shares, 1 Salk. 233, Nottingham vs. Jennings. Devise to his second Son to hold to him and his Heirs for ever, and for Want of such Heirs, then to his own Right Heirs — adjudged an Estate Tail; and the Word Heirs can import nothing more than Issue, for he could not die without Heirs, living Heirs of the Father.

Lastly, by devising the Share of such as dye without Heirs lawfully begotten in Wedlock, to the surviving Sons or Son, and their Heirs for ever, makes Cross Remainders among them. So that when John died first without Issue, the Remainder of his Share came equally to Thomas and Samuel in Tail; when Thomas died leaving Issue, his Moiety descended to the Heirs of his Body in Tail; and when Samuel died without Issue, his Moiety came to the Heirs of the Body of Thomas in Tail. 2 Jones, 172, Holmes vs. Meynell, on Cross Remainders by Implication, where Croke, James, 655, Gilbert & Witty, is questioned. See Dyer’ 303 Devise Cross Remainders express among 3, as this Case is. And Mr. Samuel Banister’s surviving both his Brethren doth not change his Estate, which was an Entail immediate by the Will, Remainder to Thomas and John, and the Heirs of their Bodies. Cro. James, 695, Chadock vs. Cowley. Therefore by Samuel’s Death without Issue, his Estate is determined ; by the Death of John without Issue, and of Thomas leaving Issue, the Right to this Remainder, by Force of the Gift vesteth in Thomas’s Issue in Tail, the Reversion to the Right Heirs of the Donor.

Wherefore the Heirs of ye Body of Thomas shall demand and recover the Pasture of Mr. Cunningham by Force of the Devise aforesaid.

Q. 2. To whom doth this Pasture fall, — to John the eldest Son surviving, or to the four Children of Thomas equally?

A. This Pasture descends to all his Children equally as Coparceners by the Prov. Law, and they must join in Suit.

The Testator was Seized of this Pasture as of an Inheritance descendible to all his Children as Coparceners as above, and therefore by giving it in Tail to his Sons and the Heirs of their Bodies, he could not alter ye Descent, and make that descendible to the Eldest Son only, which was by Law descendible to all ye Children; for —

1. The fullest Words of Limitation to make an Intail, as in a Gift to A. and his Heirs of his Body begotten, have no Tendency to alter the Course of Descent, but only to limit whose Issue shall inherit, and so how long the Inheritance shall endure; and when that Issue is spent, the Estate reverts to the Donor. Lit. Ten. § 18, 19.

2. The Stat. of West. 2, c. 1, makes no Intail but of such Estates as were Fee Simple Conditional at Common Law, and confirms them according to the Will of the Donor, but makes no Alteration of the Course of Descent. Co. Lit. 18, 19. Therefore Lands of Inheritance, whether intailed or not, always descended to the same Heirs. So Lands in Burrough English to the youngest Son. Co. Lit. no, b. Lands in Gavelkind to all the Sons. Co. Lit. 175, &c.

3. If the Donor, intending by express Words to alter the Course of Descents, gives Lands to a Man and his eldest Heirs females of his Body, or Lands holden in Gavelkind, to a Man and his eldest Heirs, he cannot thereby alter the Law; the Word Eldest shall be rejected, and all the Parceners shall inherit. Co. Lit. 27, § 31.

By ye same Reason and Law, this Pasture, descendible to all his Children as Parceners in Fee Simple by the Prov. Law, now intailed descends to all the Children, and they mull bring the Action.

Boston, December 19, 1745. John Read.

Or say, —

1. The Nature of an Intail consists in limiting what Issue shall inherit, and how long the Inheritance shall endure, before the Donor or his Heirs may enter as in their Reversion. Lit. Ten. § 18.

2. The Stat. of Donis conditionalibus creates no Estate Tail but of such an Estate as was Fee Simple at the Common Law, and is descendible in such Form as it was at the Common Law. Co. Lit. 19, Devant le dit Statute, &c.—the penultimate Sentence of the second Paragraph. Therefore Lands of Inheritance, whether intailed or not, always descend to ye Same Heirs in Either Case, Lands in Burrough English to the youngest Son. Co. Lit. § 165. Toutes les Terres ou Tenements. Lands in Gavelkind to all the Sons. Co. Lit. § 265.

N. B. This last was, I think, in Mr. Pratt’s Handwriting.