Cook v. Hammond

6 F. Cas. 399, 4 Mason C.C. 467

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1827
• Status: Published

Opinion

STORY, Circuit Justice.

Upon the very elaborate and learned arguments at the bar, every matter has been brought before the court, that can assist in forming its judgment. I should have been glad, as this is a point of local law, to have found the principal question adjudicated in our own state tribunals, so that my duty might have been merely to follow their decision. Unfortunately, no such case is known to exist, and It must therefore here receive an original determination. The rules of the common law have been fully stated at the bar, and indeed admit, upon the authorities, of no serious controversy. Where the estate descended is a present estate in fee, no person can inherit it, who cannot, at the time of the descent cast, make himself heir of the person last in the actual seisin thereof; that is, as the old law states it, “seisina facit stipitem.” But of estates in expectancy, as reversions and remainders, there can be no actual seisin during the existence of the particular estate of freehold; and consequently there cannot be any mesne actual seisin, which, of itself, shall turn the descent, so as to make any mesne reversioner or remainder-man a new stock of descent, whereby his heir, who is not the heir of the person last actually seised of the estate, may inherit. The rule, therefore, as to reversions and remainders, expectant upon estates in freehold, is, that unless some thing is done to intercept the descent, they pass, when the particular estate falls in, to the person who can then make himself heir of the original donor, who was seised in fee and created the particular estate, or if it be an estate by purchase, the heir of him who was the first purchaser of such reversion or remainder. It is no matter in how many persons the reversion or remainder may, in the intermediate period, have vested by descent; they do not, of course, form a new stock of inheritance. The law looks only to the heir of the donor or first purchaser. But while the estate is thus in expectancy, the mesne heir, in whom the reversion or remainder vests, may do acts, which the law deems equivalent to an actual seisin, and which will change the course of the descent, and make a new stock. Thus, he may by a grant, or devise of it, or charge upon it, appropriate it to himself, and change the course of the descent In like manner, it may be taken in execution for the debt of such mesne remainder-man or re-versioner during his life, and this, in the same manner, intercepts the descents. But if no such acts be done, and the reversion or remainder continues in a course of devolution by descent, the heir of the first donor or purchaser will be entitled to the whole as his inheritance, although he may be a stranger to all the mesne reversioners and remainder-men, through whom it has devolved. These doctrines are fully and learnedly explained by Mr. Watkins in his Essay on Descents, and are so well known, that it seems unnecessary to give to them any illustrative commentary. Watk. Desc. 137 (110), 148 (116), 153 (120). Now the operation of this doctrine in respect to estates in fee in possession, which are subject to dower and tenancy by the curtesy, is very important. In the former case, though the heir at law may obtain an actual seisin by entry into the whole estate, yet, by the assignment of dower, that seisin, as to the third part assigned as dower, is defeated ab initio; for the dowress is in of the seisin of her husband, and her estate is but a continuance of this seisin. The same principle is true of tenant by the curtesy. It is even stronger, for the law vests /the estate by curtesy in the husband without any assignment, and even without any entry, if the wife were already in possession, his estate being initiate immediately on issue had, and consummate by the death of his wife. So that there is no chasm between the death of the wife and his possession, as there is in case of the death of the husband and the assignment of dower to the wife, in which there can be a mesne seisin. Watk. Desc. (82) 104. Nothing, therefore, but a reversion passes in such case to the heir. But it is a misnomer to call it a case of suspended descent. In such case of curtesy, the reversion descends and vests absolutely in the heir. He may sell it, incumber it, devise it; and it is subject to execution as part of his property during his life. The descent to the heir is not suspended, but the actual seisin of the fee is not in him, since by law the actual seisin is in the tenant by the curtesy.

Applying these principles to the case now in judgment, it is obvious, that when Jane Tyler, the wife of David Cook, died in 17S6, seised of the premises, her husband became tenant thereof by the curtesy, and consequently the reversion thereof alone descended to her children, viz. to Horatio G. Cook (the plaintiff) and Mary T. Cook. By the act of descents of 17S3, c. 3G [supra], the eldest son was entitled to two shares, and this right, if at all, took effect at the time of the descent cast; and it is just as applicable to the ease of a reversion or remainder as to a present estate in fee. Nothing has since taken place to devest the title of the plaintiff by descent from his mother, and as the estate has fallen into possession by the death of his father, his reversion has become a present estate to two thirds of the premises in controversy. The great question turns upon the third of the reversion belonging to Mary T. Cook. She dieci in 1809, and if without issue, and it had been a present estate in fee, her father would have inherited it as her heir. It was but a reversion, and if the rule of the common law be in force here, the plaintiff, being at the time of the death of the tenant by the curtesy the sole heir of his mother, is entitled to take the whole estate. Have our laws abrogated the rule of the common law? By the colonial acts of 1641 and 1649 it was ordered, that “when the husband or parents die intestate, the county court &c. shall have power &c. to divide and assign to the children, or other heirs, their several parts and portions out of the said estate; provided the eldest son shall have a double portion; and where there are no sons, the daughters shall inherit as copartners, unless the court, upon just cause alleged, shall otherwise determine.” There is nothing in this language, which points to any particular kind of estates, and the language is sufficiently broad to cover all kinds. By the provincial act of 1692 (4 W. & M. c. 8) it was enacted, “that every person lawfully seised of any lands, tenements, or hereditaments within this province, in his own proper right in fee simple, shall have power to give, dispose, and devise the same,” &c. &c.; and if not so disposed of, then “the same shall be subject to a division with his personal estate, and be alike distributed according to the rules hereinafter expressed for intestate estates.” Here, again, there is no language discriminating between the various kinds of estates, whether present or in expectancy, unless some stress can be laid on the words “lawfully seised of any lands,” &c. the force and effect of which will come under consideration in construing the act of descents, under which the present question arises. The act of 17S3 (chapter 36) enacts, that “when any person shall die seised of any lands, tenements, or heredita-ments, not by him devised, the same shall descend in equal shares to and among his children, &c.. except the eldest son,” &c. &c. Another clause declares, that “the real estate shall stand chargeable with all the debts of the deceased over and above what the personal estate shall be sufficient to pay,” &c. And throughout the act, there is a studious silence as to any differences in the course of descent of any estates capable of descending. Then came the act of descents of 1S03 (chapter 90), which was drawn by Chief Justice Parsons, and after a full explanation of his views, with his permission perused by me, then being a member of the legislature, and with what little aid and co-operation I could give it, passed into a law. That act provides, that “when any person shall die seised of any lands, tenements, or heredita-ments, or of any right thereto, or entitled to any interest therein, in fee simple, or for the life of another, not having lawfully devised the same, the same shall descend in equal shares to his children, &c. &c.; and when the intestate shall leave no issue, the same shall descend to his father,” &c. &c. Mary T. Cook died in 1809, and consequently this act regulates the descent of her estate.

The present case is obviously within the words of the act No reasonable doubt can be entertained, that a reversion is a “right” or “interest” in lands. In truth, it is included under the denomination even of “land,” and a grant of land will convey a reversion. Com. Dig. “Estates,” B, 12. A fortiori; it is included under the description of “tenement” and “hereditament,” for these are words of more extensive import, nomina generalissima. Com. Dig. “Grant,” E; Shop. Touch. 88; 1 Inst. 6a. The language of the act is, “when any person shall die seised.” But it is not a just construction of the act, to interpret this as intending an actual seisin. Lord Coke says (1 Inst. 153a), “seisin is common, as well to the English as French, and signifies, in the common law, possession.” Com. Dig. “Seisin,” A, 1. It may be either a seisin in law, or a seisin in ■fact Now, without adverting to what constituted, in the ancient law, a seisin in law, as contradistinguished from a seisin in deed, it is sufficient to say, that for centuries the language of the law has been, that a rever-sioner is “seised” of the reversion, although dependent upon an estate for life. Thus, in Plowden, 191, it was held by the court, that, where a reversion is dependent upon an estate for life, the reversioner, in pleading, may state, that he is seised of the reversion. Watk. Dése. c. 1, §§ 1 (27), 39-44; 2 Bl. Comm. 127. By this no more is meant, than that he has a fixed vested right of future enjoyment in it If a sense, at least as large as this, were not given to the term “seised,” it would follow, that the descent of reversions and remainders vested by purchase in the ancestor, and even of reversions vested in the original donor of the particular estate, would be wholly unprovided for, both by the provincial acts of descents of 1692, and the state act of 17S3. Cases of this sort must have been innumerable, and yet no doubt ever was entertained, that the descent of such remainders and reversions was provided for by these acts. My opinion is, however, that the word “seised,” used in all these acts, has a broader signification, and such as belongs to it in common jiarlanc?. It is equivalent to “owning;” and “seisin” is equivalent to “ownership.” My reason is, that otherwise none of these acts would regulate the descents ol' estates, whereof the ancestor, at the time of his death, was disseised; and yet, from the first existence of these acts, up to the present day, it has always been understood, that the descent of estates from the disseisee, was to the same heirs as would inherit, if he died in the actual seisin. The language of the provincial act of 1(592 is, “any person lawfully seised;” hut that of the acts of 17S3 and 1803 is, any person who “shall die seised.” Upon a descent, therefore, cast from an ancestor, who was dis-seised in his life-time, and died 'disseised, no title would pass to his heirs under these acts (but pass to the heir at common law), if we did not interpret the word “seised” as equivalent to “owning” or “entitled to;” and this, as far as my knowledge extends, has been the uniform interpretation. If, however, any doubt whatsoever could remain on this point, it is put completely at rest by the supplementary clause in the act of 1805; “or of any right thereto, or entitled to any interest therein.” And as one object of that act was to clear away latent ambiguities, and to affirm the settled construction upon the former acts, these words seem appropriate for the very purpose under consideration. I confess I should not have entertained any doubt as to the true construction, without them. There are other parts of these acts, which satisfy my mind, that the legislature intended, by them, to provide effectually for the descent of all the real estate of the intestate. The phrase,. “real estate,” occurs frequently in the acts, as of the same import with the words, “lands, tenements, and hereditaments;” and the provision, making the “real estate” of the intestate liable to his debts, was evidently meant to be co-extensive with the property, which would pass by descent. If the legislature, by these acts, meant to provide a system of descents for all the real estate, which is vested in the intestate at the time of his death, and refer to him alone as the stock of inheritance as to such real estate, upon what ground can resort be had to the common law for a rule of descent in the present case. The legislature has nowhere named reversions or remainders, as entitled to a distinct course of descent. It has nowhere stated, that the heir must make himself heir, when the estate falls into possession of the original reversion-er, or of the purchaser of such remainder. It has been perfectly silent on this subject; and has uniformly looked to the last intestate, as the stock of descent of the real estate vested in him; and in one or two excepted cases only (as of a child dying under age, &c.) has made a special provision, interfering with the general policy of the acts. These very exceptions are strong to show, that no others were intended. If the argument at the bar can be maintained, then this is a case wholly unprovided for by any statute, and the descent is to be regulated by the canons of the common law. But if reversions and remainders are out of the statute, so far as respects the stock of inheritance, what ground is there to stop here, and not apply the same rule to the heirship? If the statute meant to leave the rule of the common law in force, as to reversions and remainders, then the heir at common law, that is, in case of several children, the eldest son, is entitled to take the whole. Upon what principle can we apply our canons of descent to reversions and remainders to ascertain who are the heirs, and, at the same time, refuse the like application as to who is the ancestor, or stock of inheritance? If our statutes do not contemplate cases of reversions and remainders, then such cases are to be governed wholly and exclusively by the common law. Such a doctrine has not, as I recollect, been asserted.

The present question must have often occurred, in many cases of dower, and in still more numerous cases of tenancy by the cur-tesy. Yet hitherto there has been a total silence among the profession on the subject There has not been any case within the memory or tradition of any man, in which such a right has been asserted or acquiesced in, as the plaintiff now claims. Judge Trowbridge, in his reading on the statute of distributions (Precedents, Dcclar., Ed. 1802, p. 290) of 1092, makes no allusion to any such doctrine; and yet if it had been stirred, it could scarcely have escaped his learned mind, and must have constituted a very important part of his reading. I have a note of a very memorable case (Ames v. Gay), in which the question must have arisen, and must have been decided, if there .had been any such doctrine then afloat My note states, that the case was an ejectment decided on a special verdict in 1749, and that the facts were as follows: One Fisher was seised of the estate in question, and devised the same to his wife, during her wddowhood, remainder in fee to his daughter Mary, who was the wife of the demandant. The testator died, and after-wards, during the life of Fisher’s widow, Mary, the devisee, died, leaving an only child, Fisher Ames, who afterwards died without issue, and intestate. Afterwards the widow of Fisher died, and thereupon the demand-ant brought the suit, as heir of his son, Fisher Ames. The defendant (Gay) claimed the estate as husband of the niece of Mary, the wife of the demandant The court, after argument, gave judgment for the demandant 1 have understood, that this was the first cause in which the point was decided, that the father could inherit from the son, under the provincial act of 1G92. But it presents the identical question now before the court, and the father could not have recovered, if the plaintiff’s argument is now W’ell founded.² The case of Williams v. Amory, 14 , seeras to have proceeded -upon the ground, that a remainder-man, who died before the expiration of the tenancy for life, was a proper stock of descent. In that case the intestate took by purchase, and therefore was at common law a proper stock of inheritance, and as be left only one child, the descent was the same as at the common law. The court, however, took no notice of the case in this particular view. But the court there decided that remainders and reversions were, under our laws, liable to be taken In execution for the debts of the reversioner and remainder-man, and comprehended as “real estate” of the debtor under our statute of executions of 1783, c. 57. The cause of Whitney v. Whitney, 14 Mass. 88, is more in point. There the court held, that a reversion in the hands of a mesne reversioner was, on his death, to be considered as assets in the hands of his administrator for the payment of his debts, notwithstanding the tenancy for life did not expire until after his ■death. The reasoning of the court proceeds upon the admission of the doctrine of the •common law; and that it had been changed by our statutes. If the reversion, notwithstanding the death of the party, before the life estate falls in, be assets, because it constitutes a part of the “real estate” of the mesne reversioner, it seems to me, that for the same reason, it must be liable to distribution among his heirs.

Upon the whole, my opinion on this question is, that the common law rule, as to descents of reversions and remainders, has been altered by our statutes, and is not in force here; and that, by our statutes, reversions and remainders, of which the intestate is the owner at the time of his death, are to be distributed among his heirs in the same manner as estates in possession. In Connecticut the same question has arisen under the statute of descents of that state, which contains provisions, in substance, like ours; and after very elaborate arguments, the court came to the same results, to which my own judgment has been led.

There is a point, which has been suggested at the argument, upon which it may be well to dwell for a moment, as it fortifies the conclusion already expressed by the court, and leads adverse to the right of the demandant to recover the third of the reversion, which devolved on his sister Mary. It is this, that as upon her death, her right in the reversion, by our statutes, descended to her father, and vested in him as a mesne reversioner, and as he was then tenant for life, by the curtesy, of the whole premises, he became by operation of law, to this third part, seised in fee by the union of both estates. In other words, his estate for life, as to this third part, became merged in the reversion in fee, which devolved upon him. Lord Coke puts (1 Inst. 182b) several analogous cases. “If (says he) a man maketh a lease to two for their lives, and after granteth the reversion to one of them, the jointure is severed, and the reversion is executed for the one moiety, and for the other moiety there is tenant for life, the reversion in the grantee,” So, “if lessee for life granteth his estate to him in the reversion, and to a stranger, the jointure is severed, and the reversion executed for the one moiety by the act of law.” If I may be allowed to state a fact within my personal knowledge, I would add, that at an early period of my professional life, I put this very inquiry to Mr. Chief Justice Dana, in order' to ascertain if the common law rule had ever been recognised here. His answer was, that he knew no distinction admitted in descents here, between estates in possession and in reversion. I refer to this merely to show that his extensive learning and practice had not led him to notice the existence of any distinction in this state.

Judgment for plaintiff, two thirds of the premises.

2 The following is a copy of the record in the cas» of Ames v. Gay: “Suffolk — ss. At his majesty’s superior court of judicature, court of assize and general gaol delivery, begun and held at Boston, within and for the county of Suffolk, on the third Tuesday of August, being the 15th day of said month, Anno Domini 1749, Nathaniel Ames, of Dedham, in the county of Suffolk, physician, plaintiff, against Benjamin Gay, of Dedham aforesaid, yeoman, defendant, in a plea of review of a plea of ejectment, commenced and prosecuted by the plaintiff against the defendant at an inferior court of common pleas, held at Boston aforesaid, for the said county of Suffolk, on the first Tuesday of October, A. D. 1746, in the words following: viz. ‘In a plea of ejectment, wherein he demands against the said Benjamin a messuage and about half an acre of land, with the appurtenances thereof, in Dedham aforesaid, bounded southerly by the county road, westerly by Mr. Samuel Dexter’s land, northerly and easterly by the said Nathaniel Ames’s land, or however otherwise bounded; and saith, that on the twenty-fifth day of March, A. D. 1729, one Joshua Fisher was seised of the tenements aforesaid with the appurtenances in his demesne as of fee, and being so seised thereof by-his last will in writing of that date, devised the same to Hannah! Fisher, his wife, to hold and improve during her widowhood; and by the same will further devised the same tenements, with the appurtenances. to his daughter Mary, to hold to her and her heirs from, or immediately after, the death or marriage of the said Hannah, whichever should first happen; and afterwards, viz. on the eleventh of March, A. D. 1730, the said Joshua died so seised thereof, after whose death the said Hannah entered into the tenements aforesaid, and by force of the devise aforesaid became seised of the same, with the appurtenances, in her demesne as of freehold for the term of her life, determinable upon her marriage, and the said Mary was thereupon seised of fee and right of and in the remainder of the same tenements, with the appurtenances, expectant upon the death or marriage of the said Hannah; and the said Mary, being so seised of the remainder aforesaid, afterwards took to her husband the said Nathaniel Ames, by force whereof the said Nathaniel and Mary were seised of the aforesaid remainder of said tenements, with the appurtenances, as of fee and right, in right of the said Mary; and after-wards, viz. on the twenty-fourth day of October. A D. 1737, had issue betweeen them lawfully begotten, viz. a son, named Fisher Ames; and afterwards, viz. on the eleventh of November, A. D. 1737, the said Nathaniel and Mary, being so seised of the remainder of the said tenements, with the appurtenances, in form aforesaid, in her right, she, the said Mary, at Ded-ham aforesaid, died so seised, after whose death the remainder in fee of the tenements aforesaid, with the appurtenances expectant, as aforesaid, descended to the said Fisher Ames, as only child and heir of the said Mary, whereby he, the said Fisher Ames, was seised of the remainder of the same tenements with the appurtenances, as of fee and right, expectant upon the death or marriage of the said Hannah; and afterwards, viz. on the seventeenth of September, A. D. 1738, the said Fisher Ames, at Ded-ham aforesaid, died thereof so seised and intestate, leaving neither wife nor child; after whose death, the remainder in fee of and in the said tenements, with the appurtenances, expectant upon the death or marriage of the said Hannah, by force of the province law, made in the fourth year of the reign of King William and Queen Mary, for the settlement of, and distribution of the estates of intestates, came, and fell to the said Nathaniel, the father of the said Fisher Ames, as next akin to him the said Fisher Ames, the intestate; whereby the said Nathaniej became seised of the remainder of the same tenements, with the appurtenances, as of fee and right, expectant upon the death or marriage of the said Hannah; and afterwards, viz. on the twenty-first day of December, A. D. 1744, the said Hannah continuing in her widowhood, and being seised of the said tenements and appurtenances in her demesne as of freehold, for the term of her life, determinable as aforesaid; and the said Nathaniel also being seised of the remainder thereof as of fee and right, expectant ns aforesaid, she, the said Hannah, at Dedhnm aforesaid, died of such her estate so seised; whereupon the tenements aforesaid, with the appurtenances, by force of the province law aforesaid, came, and belonged to the said Nathaniel, to hold to him and his heirs, and he ought to hold the same, and be in the possession thereof accordingly. Yet the said Benjamin Gay hath illegally entered into the said tenements and appurtenances, and unjustly holds him out of the same; to the damage of the said Nathaniel Ames (as he saith) the sum of a thousand pounds.’ And at the superior court of judicature, held at Boston aforesaid, for the said county of Suffolk, on the third Tuesday of February, A. D. 1746, the aforesaid Benjamin Gay recovered judgment in said action against the said Nathaniel Ames for costs of court, which were taxed at thirty-five shillings and six-pence, which judgment the said Nathaniel Ames saith is wrong and erroneous, and that he is thereby damnified the sum of a thousand and five pounds; wherefore, for reversing the said judgment. and for recovering judgment against the said Benjamin Gay for restitution of the costs aforesaid, and for possession of the premises, demanded in the original writ, and for costs of court, he. the said Nathaniel Ames, brings this suit, as also for his costs occasioned thereby.

“This suit was commenced at August term last, when both parties appeared, and the case, after a full hearing, was committed to the jury, who were sworn, according to law, to try the same, and returned their verdict therein upon oath, that is to say, they find specially, viz. that the said Fisher Ames was seised of the remainder of the tenements aforesaid, expectant upon the death or marriage of the said Hannah Fisher, as set forth in the writ, and afterwards died so seised thereof and intestate, leaving neither wife nor child; and afterwards the said Hannah, the tenant for life, died seised of the said tenements, as set forth in the writ, that the said Nathaniel Ames was father of the said Fisher Ames, and the defendant’s wife was his aunt; and if, upon the whole matter, the plaintiff, by force of the province law, is intituled to the premises, the jury find for the plaintiff reversion of the former judgment, possession of the premises demanded, and costs of court; but if not, they find for the defendant costs; and from thence the action was continued from term to term to this time, for the court’s advisement on the special verdict; and now, after mature advisement thereon, and a full hearing of the parties by their counsel, it is considered by the court, that the former judgment be and hereby is reversed, and that the said Nathaniel Ames recover against the said Benjamin Gay the possession of the premises sued for, and costs of court, taxed at sixteen pounds, fifteen shillings and seven-pence, in bills of credit on this province of the new tenor. Fac. hab. possess. issued Nov. 24, 1749.”