Holland v. Cruft

69 Mass. 162

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1855
• Status: Published

Opinion

Shaw, C. J.

We shall first consider the nature and legal effect of that part of Mr. Holland’s will which bequeaths his estate and interest in the Long Wharf.

This clause in his will is expressed in very few words, in the same words in which he devises the mansion house, as follows : “ I give to my wife Sarah Holland, during her natural life, all my mansion house and appurtenances, with the furniture and stores as the same shall remain at my decease; and my pew in the Federal Street Meeting-house; also the income and profits of my right in the Boston Pier or Long Wharf, being one full share of the same, i. e. three warehouses, and one twenty-fourth part of said wharf; and at her decease the said mansion house, with the remainder of the furniture and stores, if any, the pew, and also the said right, to be divided among my children, share and share alike, and to the heirs of their bodies respectively.”

This, we think, was a devise of the real estate to thé- wife for life. A devise of the whole income and profits of real estate, especially when not in trust, and when it is followed by a gift over, is a devise of the estate itself, as a freehold. It is like a devise of the improvement, or the use, of real estate described. The devise over, after the determination of the life estate, was of a remainder; and being to the five children severally, and to the heirs of their bodies respectively, it was a remainder in tail of one undivided fifth to each.

We are then to inquire to what subjects this bequest applies. The pew was personal estate, made so by statute, declaring the tenure of pews in Boston. Sts. 1795, c. 53; 1798, c. 42. Rev. Sts. c. 60, § 31. The mansion house was real estate; and it does not appear that any furniture or stores remained; and further, as to this part of the bequest, no question arises in this suit, because no money appears to have come into the hands of the administrator as the produce of such furniture or stores.

In regard to the Long Wharf, the testator seems to have devised, under the designation of his right, three warehouses standing on the wharf, and one twenty-fourth part of the common and undivided interest in the proprietary, or the incorporated proprietors. And without going further at present, we may say that it appears, from the facts in the case, that, at an early period, these proprietors made partition of a portion of their common and undivided land, by assigning to each proprietor, to hold in severalty, three warehouse lots, two in the upper and one in the lower division, upon which they respectively built warehouses, each at his own expense. The title to these lots ceased to be common property, or under the control of the corporation, except perhaps that by the terms of their deed of partition in 1715, recognized in their act of incorporation in 1772, these separate warehouses were, under special circumstances, liable to assessments for repairs, necessary as well to the security of the warehouses as to the wharf. They were in all other respects real estate held in severalty by the testator in fee, and therefore the will operates upon them directly, in the same manner as upon any other real estate. Indeed, it is doubtful whether these three warehouses, though standing on the wharf, would have passed by force of a devise of “ ray right in the Boston Pier, being one full share of the same,” had not the explanatory and enlarging clause been added, under an id est, “ three warehouses and one twenty-fourth part of said wharf.” This brought the warehouses within the operation of the devise.

In regard therefore to these warehouses, we consider that they were embraced in the devise to the wife for life, with remainder in tail to each of the children of one fifth ; and that the will operated upon them directly to pass them, according to the form of the gift, immediately upon the death of the widow. It further appears that the administrator and trustee never sold them, nor any part of them, pursuant to the power of sale given him by the will, and no money ever came to him, as the proceeds of sale or otherwise, from these warehouses, except the annual rents payable to the widow. The inquiry therefore is limited to the question respecting the money received by the defendant Cruft, as the administrator, from the various sales of real estate made by the corporation to the City of Boston, and afterwards to the United States.

2, It then becomes necessary to inquire what estate and interest passed by the devise of one share or twenty-fourth part of the Long Wharf, as expressed in the will. The nature and character of the property must be learned by their act of incorporation, passed before the Revolution, in June 1772. [Ante, 164, note.]

It is very clear, in the first place, that from 1715 to 1772 the proprietors were tenants in common of an undivided real estate, and that this act had no effect to change that tenure. The mere act of incorporation of tenants in common does not transfer the fee of the estate from the individuals to the corporation. Leffingwell v. Elliott, 8 Pick. 455. The object was to make them a proprietary, a qualified species of corporation well known in our early history, established to enable a large number of tenants in common the more conveniently to hold, manage and dispose of their estate. In 1712 a general act was passed, authorizing an easy method, by application to a justice of the peace, to enable such persons to incorporate themselves; and was extended to wharves in 1735. Anc. Chart. 402, 500.

It is hardly necessary to go at large into the early laws constituting proprietaries—their organization, capacities, powers and modes of action—because they are familiar and well understood. It appears manifestly, from the preamble to this act, and all its enactments, that its purpose was to extend to the owners and tenants in common of this large estate, and to their heirs, corporate powers, the better to enable them to manage and improve their estate; and the reason why they did not adopt the usual course under the general law, by applying to a justice of the peace, obviously was because, from their peculiar condition, they required superadded powers. They owned the wharf in common, and this would naturally yield a considerable income. But they had made partition of warehouse lots to hold in sev» eralty But if the wharf should go to decay, the warehouses and the lots on which they stood would be worthless. This being foreseen, a reservation had been made in the partition, that these lots, though held in severalty, should be subject to regulations for the common good. An exigency had arisen, requiring an expensive new stone head, for the general security of both wharf and warehouses, which several years’ wharfage might be insufficient to pay; and therefore they needed and unanimously petitioned for the additional power to subject the proprietors, holding in severalty, to assessment towards an expenditure necessary to the security of their several property; and this was granted by the act of incorporation. It is quite manifest therefore that, in constituting this proprietary, consisting of tenants in common by special agreement, the purpose was to give them in that capacity some special powers, necessary to their condition, and not to change the tenure by which their several estates as tenants in common were held.

Thus the property stood until the passing of the additional' act of 1806. Si. 1806, c. 11. This act in terms declared them capable in law, in their corporate name and capacity, to purchase, have, hold, enjoy and possess the land of the Island Wharf, together with all such lands as the same proprietors should judge necessary or expedient for the improvement of the wharf and for widening the passages thereto, limited to a certain distance, and not exceeding a certain value. We are of opinion that, although such purchase would vest the fee in the corporation, yet, as it was exclusively to benefit and add to the conve nience and value of the estates of the proprietors, it was held to the beneficial use of the proprietors, as tenants in common, in proportion to their interests. The further enabling act of 18.24, c. 2, is in exactly the same terms, and we think must have the same construction. The fee in the lands purchased under both these acts was, by the terms of the grants, vested in the corporation ; but it was for the use and benefit of the proprietors, as tenants in common, and so operated as an accretion to and enlargement of their interest in the proprietary. The conveyances to such a corporation, composed of tenants in common and their heirs, and incorporated for the purpose of. better managing and improving their common estate, including, under the idea of improvement, increased accommodation by ways, easements and other valuable acquisitions, must be considered as an addition to and improvement of their existing estate, and not as the aequisitior of a new one. It is like that of erecting buildings or building a wharf on common land; the value of the whole and of each aliquot part is enhanced, but the nature and quality of the estate is not changed. It was, in legal effect, a conveyance to the corporation, to the use of all the proprietors, in proportion to their aliquot parts of the undivided estate, as tenants in common, and would have vested in them by the statute of uses, but for the obvious consideration that the very purpose of the enabling acts was to vest the fee of the land to be acquired in the corporation, the better to enable them to convey and pass legal titles in their corporate name and capacity. Where such is the obvious intent of a conveyance, which by its terms would operate as a conveyance to uses, and so operate by the St. of H. 8 to vest the use in possession, then, by an early construction of the statute, where, taking the whole instrument together, it was apparent that it was not intended to have the effect to vest the use in possession, or where the obvious purpose of the conveyance was to have the fee vest in the grantee, and not pass to the cestui que use, it should be held that the fee remained vested in the first grantee; and to distinguish this from a use vested in possession by the statute, it was denominated a conveyance in trust, and the grantee a trustee. And we take this to have been the origin of trust interests in real estate. But except as to remedies, which, in general, a cestui que trust must seek in a court of equity, he is regarded as the owner. He is said to have an equitable estate in fee, or in freehold, according to the terms of the trust. Such an equitable estate in fee may be devised. Newhall v. Wheeler, 7 Mass. 189. Such an equitable estate will give a settlement, in cases where the statute requires a freehold Orleans v. Chatham, 2 Pick. 29.

That aggregate corporations may take and hold property in trust, for the accomplishment of the purposes for which they were constituted, seems never to have been doubted; the only question has been, whether they could so take real estate for purposes alien to that of their incorporation. First Parish in Sutton v. Cole, 3 Pick. 232. Bartlet v. King, 12 Mass. 537. So, in a recent case, where several persons purchased land for the erection of a meeting-house, and organized themselves as a proprietary under the St. of 1783 ; it was held that as such corporation they held the estate in trust for those who should become holders of pews, for the time being, in the meeting-house to be erected. Congr. Soc. in North Bridgewater v. Waring, 24 Pick. 304. Proprietors, thus incorporated, (and an incorporation by special act cannot be less available,) were held capable of selling and disposing of then common lands, by vote or by deed. 4 Dane Ab. 72, 73. Rogers v. Goodwin, 2 Mass. 475.

Upon any other supposition, than that the lands purchased in pursuance of the acts of 1806 and 1824 were to be used, reconveyed and disposed of, like their other lands, with the single exception that the fee of these lands was in the corporation, but solely for the use of the proprietors, the property in shares must have been of a most anomalous character. It would require the proprietors to" keep separate accounts, both of the income and proceeds of sale, of the different estates; the right in shares held by the same individual would require, for one part of his share, a conveyance by deed, for another part, a transfer by certificate ; different modes of conveyance, different modes of attachment and levy for debts would be required, in respect to different parts of one and the same share, or part of a share. But to hold that the effect of the acts of 1806 and 1824 was not to change the quality, but to enlarge the quantity of interest in the shares held before, renders the acts compatible with each other, and the rights held under them intelligible, practicable and beneficial.

A share was then an aliquot part of the common estate in fee, as tenant, with a trust estate in a like aliquot part of estate held by the corporation under an enabling act, in trust for each proprietor; and thus the trust estate in realty was inseparably connected with the real estate, and passed with it, enhancing its value, but not changing its character.

. With these views of the law, we come to the conclusion that, prior to the first act of incorporation of 1772, a right or share in the Boston Pier or Long Wharf was a twenty-fourth part of the estate held by the proprietors, as tenants in common; that that act did not change the nature and character of the estate, or vest the fee in the corporation, such vesting of the fee not being necessary to the accomplishment of the purpose for which they were incorporated, but that purpose being to clothe the tenants in common, for the time being, with corporate powers as a proprietary; but the statutes of 1806 and 1824 having enabled the corporation to take a conveyance in fee of adjoining property, to the use of the proprietors, that the purchases made under these acts, and the deeds by which they were carried into effect, vested a fee in the corporation, in trust for the proprietors, to be used, managed and disposed of, for their benefit; that such trust estate was annexed to, and inseparably connected with the legal estate, before held by the several proprietors ; that the original share or right, being real estate, the addition to and enlargement of it by such trust, must also, for the purpose of passing title, if not for all purposes, be deemed real estate, and that the devise in the will of the testator, John Holland, of “ my right in the Boston Pier or Long Wharf,” so far as it extended to one twenty-fourth part of the said wharf, independent of the three warehouses, to his wife for her life, and at her decease to be divided among his children, share and share alike, and to the heirs of their bodies respectively, must be regarded and applied as a devise of the real estate.

This view of the rights of these corporators, seems, by the facts agreed, to be conformable to their own, and to the practice uniformly adopted of considering and dealing with this property as real estate, and transferring it only by deed.

The same understanding is implied in the act of March 2d 1826, (St. 1825, c. 117,) making the proprietors, in their corporate capacity, capable of talcing and holding the pier itself, and all the estate then held by them as tenants in common, providing for the transfer of the several interests of the proprietors to the corporators, and the division of their stock imo two hundred shares, and the issuing of certificates therefor. This act was undoubtedly passed at the request of the proprietors, and is evidence of their sense of their own rights at that time; though having been passed after the transactions in question in this suit, it can have no other bearing on the present case.

The dates inserted in the agreed statement, with a view to raise the question whether the will might not be inoperative to pass the testator’s interest in certain portions of Spear’s Wharf and Bray’s Wharf, being afterpurchased estate, might be material, had the conveyance been made direct to himself. The deeds were given to the corporation; his interest was a right through and under them. That right, as real estate, he held when he made his will, and when he died. That right was entire and integral; and although the corporation might be undergoing continual changes, by buying, selling, contracting, giving or receiving mortgages, and other acts affecting their legal estate; yet that integral right was one and the same, and embraced whatever they potentially could command, through the means held by them as trustees, as well as what they at any one time actually held as trustees; that right passed, and it is in virtue of the devise of that right, that any party holds under the will. Having decided that a right in the Long Wharf is real estate, and that the trust estate in additional lands which the corporation was enabled to purchase and hold in trust for the proprietors is incident to the realty and passes with it, then a conveyance or devise of that right is a conveyance or devise of all that is incident to it, and passes with it. This conclusion is strengthened by a consideration of the reason on which it was held, before Rev. Sts. c. 62, § 3, that real estate purchased after the execution of the will did not pass. By the common law, a devise is regarded as a conveyance, and the devisee a purchaser; and although the will does not take effect till the death of the testator, yet, when it does take effect, it relates back to its date. Then, on the rule non dat qui non habet, he shall not be intended to give what he did not then have the power to give. But no such reason can apply to this case. The testator, when he made his will, did own that right, being real estate, in virtue of which, as ah incident, the corporation had power to acquire, and did afterwards acquire property in trust for the owner of that share. The real estate, therefore, of which the corporation took deeds as trustees, after the making of the will, was not real estate vested in the testator, and therefore was not after acquired estate, within the rale which excludes such estate from the operation of the will. It appears to us, therefore, that the dates of the deeds to the corporation are immaterial.

4. The next question, in determining who is entitled to the money in the hands of Cruft, depends upon the will, and the rules of law governing it. It is clear that when the devise was made, and when it took effect by the death of the testator, the subject on which the devise operated was real estate, and the devise gave a freehold to the widow for her life, with remainder in tail to the five children. But in point of fact, after this devise took effect, a considerable part of the property devised was converted into personal estate. Indeed the testator, by his will, had given a power to his executor, and to any administrator with the will annexed, to sell and dispose of all his real and personal estate, and to sell and give deeds of his real estate without license, not for the payment of debts, but after his debts were all paid, and whenever, in his judgment, such sale should be most for the benefit of the parties concerned. He also authorized such executor or administrator to invest the proceeds in safe and productive stocks, or other secure and permanent funds. He thus constitutes the executor or administrator a trustee, whether he would have been one by virtue of his office or not. He does not himself declare the trusts ; but this is immaterial, because they result by implication of law to those who would have had the beneficial use of the estate of which the money was the proceeds. The testator, in recommending to his executor to sell the entire real and personal property, manifested no intent to alter the ultimate beneficial disposition of his property, but only to make it more beneficial to those entitled.

Now, although the administrator did not execute the powers of sale vested in him by the will, yet by another mode a part of the devised property was converted into money, and did come into his hands, as administrator and trustee. The property was sold, and a conveyance thereof made by the corporation, who, we are to presume, acted rightfully therein, both as empowered by the original act to manage and dispose thereof, so far as it was the original property and estate of the proprietors, and as trustees and holders in fee, so far as it consisted of estate purchased under the two enabling acts. In point of fact, the whole of the estate sold, and from the proceeds of which the money in controversy was derived, was land purchased under the act of 1806 or that of 1824, to wit, part of the Spear’s Wharf and Bray’s Wharf estates on the north, purchased under the act of 1824, and the Island Wharf on the south, under the act of 1806. Indeed the validity of those sales by the corporation is not in question in this suit. Both parties affirm it, by claiming the proceeds of them in the hands of the trustee.

But it is immaterial by what mode real estate is converted into personal, whether by a trustee with power to sell and hold and apply the proceeds, or by a devisee for life, with power to sell and take the income for his own life, by decree or license of any court of competent jurisdiction, or even when such conversion is constructively effected, by articles stipulating to lay out money in land and convert land into money to particular uses. Whatever be the mode, the fund takes the place of the land which yielded it, and is liable to stand in its place, and be applied and ultimately disposed of, in the same manner, until the object is accomplished. Fletcher v. Ashburner, 1 Bro. C. C. 497. The general doctrine is stated and illustrated in many cases. Lechmen v. Earl of Carlisle, 3 P. W. 211. Elwin v. Elwin, 8 Ves. 547. Thornton v. Hawley, 10 Ves. 129. Wheldale v. Partridge, 5 Ves. 388. Craig v. Leslie, 3 Wheat. 563. Emerson v. Cutler, 14 Pick. 120. So when land held in trust is taken for public use, under the right of eminent domain, the money paid for it stands in its place, subject to the same trust and to the same ultimate disposition. Gibson v. Cooke, 1 Met. 75.

The principle therefore appears to be fully settled, both upon well considered reasons of justice and expediency, and upon a series of authorities, that where land is devised as real estate, and either by the direction of the testator himself, or by operation of law, such real estate is converted into money for the purpose of better investment, or for any other purpose consistent with the design and purpose of the ultimate destination to which the real estate was appropriated, there the money is substituted for, and stands in the place of the devised real estate, and shall go to the same persons and in the same proportions, and vest in possession and enjoyment at the same times and upon the same contingencies, which would have affected the real estate, had it remained specifically in real estate.

And we think this rule applies to the present case, and must apply to and regulate the disposition of the fund in the hands of the administrator and trustee. It was devised to the wife for life, with a remainder in tail, and the devise took effect and vested the estate in the widow, and during the continuance of that particular estate, the real estate was converted into personal; this event, though in a different form, had been contemplated by the testator, and yet no intention or purpose was indicated in the will, to give a different destination to the money from that which he had given to the real estate; the conversion was made for no purpose requiring a different disposition of the money, as the payment of debts or legacies, and therefore the money must go in beneficial enjoyment to those who would have been entitled to the real estate, and in the same proportions.

5. The only remaining question is, how would the real estate have vested, by force of the will, in the events which have happened.

In the first place, it is proper to notice a marked distinction between this case and the very common one in which a testator directs his estate to be sold after his decease, and a disposition made of the proceeds. There, at the decease of the testator, the estate, being then real, descends to the heir at law; the power of sale by the executor operates to devest the estate of the heir, and therefore, until'a sale, the heir is entitled to the rents and profits, and upon a sale made, there is a resulting trust for the heir at law in tie proceeds, or such part of them as have noé been disposed of by the testator to other uses, in express terms or by necessary implication. But in the present case the real estate was converted into personal during the subsistence of the particular estate, so that at the moment of the decease of the tenant for life no real interest remained to descend to the heir, and the will took effect upon the proceeds immediately, as it would have done upon the real estate, had it specifically remained.

Now, as Samuel M. Holland, who had the first remainder in tail under the devise, died during the life of the tenant for life, the right descended to his issue in tail, and the estate never vested in possession and enjoyment in Samuel M. Holland; in other words, he was never seized of the estate as an estate tail in possession. At the time of the decease of Sarah Holland, John Holland, the plaintiff, was the next heir in tail, and entitled to enter upon and hold the estate, as an estate tail, with all the incidents thereto—among others, the power of barring the entail and putting an end to all remainders and reversions by a common recovery; or as the law stood before the revised statutes, by force of St. 1791, c. 60, § 1, he could accomplish the same object by a deed, executed in presence of two witnesses, for a good or valuable consideration, bona fide and acknowleged ; or after the passage of the revised statutes, the same effect might be produced by a deed in common form, which would be valid to pass an estate in fee. Lithgow v. Kavenagh, 9 Mass. 161. Cuffee v. Milk, 10 Met. 366. So it would be liable for his debts, either by being attached and set off during his life, or by a sale by his administrator under a license after his decease. So it would be subject to dower; or, if the tenant in tail were a wife, to curtesy. So, during his lifetime, if he became non compos, it might be made liable for his debts by a sale made under license by his guardian. Williams v. Hichborn, 4 Mass. 189.

But all these considerations apply to a tenant in tail in possession, to one actually seized of an estate, and cannot apply to a remainderman, whose title is not vested in possession. And there seems to us to be great reason for this distinction. A tenant in tail in possession has an actual vested estate of inheritance, attended with the usual incidents of full dominion—free dora from waste; dower and curtesy; and a power, at his own will, to convert it into an absolute estate, both by the common law and by statute. None of these qualities and incidents can be attributed to the right of an heir in tail in remainder, during the holding and possession of a prior tenant of the freehold. His right of entry, of enjoyment, of any beneficial occupation or use, depends on a contingency, that is, of his surviving the previous tenants; if he does not, at the decease of the previous tenant, if the entail has not been barred, the right has descended to the next heir in tail, who can at once enter and become seized ; if there are no issue in tail, it may go to the next devisee in tail, or the heirs of his body, to whom an estate tail was limited, because by the same devise any number of estates tail may be limited one after another; and even when all the issue in tail of all those to whom the estates tail in remainder were so limited are exhausted, the estate reverts to the devisor or his heirs.

This view we think is confirmed by the statutes. The Rev. Sts. c. 59, § 3, provide that any person, actually seized of lands as tenant in tail, may convey in fee simple, by deed in common form, which shall bar all remainders and reversions. The Rev. Sts. c. 60, § 29, declare that all lands held in fee tail shall be liable for the debts of the tenant in tail, both in his lifetime and after his decease ; but this shall not extend to lands in which the debtor has only an estate tail in remainder. The report of the commissioners, in their notes to these sections, shows that they intended to make no change in the law, except to enable any person, actually seized of lands as tenant in tail in possession, to pass them in fee simple by a common deed, and also, without affecting the validity of the bar of the entail, to take back an estate in fee simple to himself. In all other respects, we think thsy leave the law as it stood before, except perhaps by a more explicit declaration in terms,of that which before rested in implication. For ascertaining this, let us look at the law as it previously stood. The St. of 1791, c. 60, § 1, after reciting the delays and expenses incident to the existing mode of barring estates tail by common recovery, provides that any person who may be seized and possessed of any lands, &c., in fee tail, may, by deed duly ex* ecuted before two witnesses, and acknowledged and recorded, bal all estates tail in such lands, &c. This designates very clearly one seized and in actual possession. Section 2, which renders lands liable for the debts of tenant in tail, is supposed, in the argument of the case before us, to extend further; it provides that all lands, &c. held in fee tail shall be liable to the payment of the debts of the tenant in tail, in the same manner as other real estates. Here it is “ lands held in fee tail,” for “'the debts of the tenant in tail,” “ as other real estates.” These terms distinctly apply to an estate in possession, as the term “ held” implies. Not a mere right as tenant in tail in remainder, but “ lands held,” and for the debts of a tenant so holding. On any other construction, estates might be taken to satisfy the debt of a party, who could not convey or charge the realty by his deed, and, upon the decease of the tenant to the freehold, the estate would be liable for the debts of the intermediate tenants in tail, however numerous, who had died before the death of the tenant for life; a supposition too extravagant to be entertained.

But it appears to us decisive of the point, that, as well in the statute of 1791 as in the revised statutes, the declared purpose was to bar an estate by the simple process of executing a deed, as a substitute for the dilatory and expensive expedient of suffering a common recovery. Of course, the power of barring the entail by deed could only be executed by one capable of suffering a common recovery. It is a familiar rule that a common recovery can be suffered only by one who has an actual estate in possession, because none other - can convey a freehold, or be a tenant to the praecipe, against whom the writ must be brought. 5 Cruise Dig. tit. 36, c. 2, § 19. That it cannot be suffered by one having an estate in remainder was determined in the case of Parkhurst v. Smith, 6 Bro. P. C. (2d ed.) 351. If indeed a party be tenant in tail in remainder, expectant immediately upon the determination of a life estate, then, by a concurrence of the tenant for life and the next immediate tenant in tail, a common recovery may be suffered, because the life estate is thereby surrendered, and the tenant in tail becomes actually seized of an estate tail in possession. These rules are well illustrated in both points by the case of Goodtitle v. Duke of Chandos, 2 Bur. 1065.

We are therefore of opinion that, though the language is iess explicit, by the legal operation of St. 1791, c. 60, § 2, as by that of the revised statutes, the liability of lands to be taken for the debts of a tenant in tail does not extend to lands of which the debtor has only an estate tail in remainder, which has never vested in possession.

During the life of the widow, neither she, nor the tenants in tail in remainder, without concurrence, could have barred the entail; not she, because she had a life estate only; nor they, because they were not tenants in tail in possession. Had the tenant for life and the next remainderman united, they might have barred the entail by their deed, by the authority of St. 1804, c. 59, which is a plain recognition and affirmance of the rule of the common law.

Another argument, relied on to show that this estate would have been liable for the debts of Samuel M. Holland, was drawn Rom the statute provisions and the cases under them, showing that a vested remainder may be levied on for debt, transferred by deed, devised and treated in most respects as real estate. But we think it will be found that they were all remainders in fee. As far as we have examined the cases cited, they are of that character. Whitney v. Whitney, 14 Mass. 88, was the case of a devise to one for life, then to his heirs; and held to be not a remainder, but to pass by inheritance. Williams v. Amory, 14 Mass. 20, was the case" of a levy on a vested remainder in fée; during the life of tenant for life, and held good. Williams v. Hichborn, 4 Mass. 189, was an estate tail in possession, vested in a person non compos, and sold by his guardian, and the sale held good. But we have seen no authority for holding a remainder in tail liable for the debts of the tenant in tail, who has not come into possession.

The court are therefore of opinion that as Samuel M. Holland had no other interest than that of a tenant in tail in remainder, and died during the life of the tenant for life, thereupon the right, descended to the plaintiff as heir in tail, the estate was never liable for the debts of Samuel M. Holland, and therefore the claim of his administratrix cannot be sustained.

This is entirely distinguishable from the case of Holland v. Cruft, 20 Pick. 321, which arose under the same will, and concerned a bequest of real and personal estate other than the Long Wharf and the mansion house. That was a bequest of real and personal estate, with a recommendation and power to convert the real estate into personal. The testator then directed that so soon as his youngest child should come of age, the whole should be divided into equal parts, one to each child then living, and to the heirs of their bodies respectively. Now, although that bequest was in tail, like the present, there was no intermediate estate for life or otherwise, and the estate tail immediately vested in possession, and Samuel M. did not take a remainder. So far as the clause affected personal estate, the limitation to heirs of the body was void, and the right vested forthwith absolutely in the first taker, though perhaps the payment was suspended. But even supposing the time of vesting suspended, it was suspended only till the youngest son came of age, and it appears that Frederick, the youngest child, came of age in 1832, and Samuel M. survived till 1833, before which the right of Samuel M. became absolute as to the personal, and he became tenant in tail in possession as to the real; and so the estate was liable for his debts to the extent of his right as heir in tail to one fifth. It was therefore held, quite consistently with the rales adopted in the present case, that both were liable for the debts of the tenant in tail, and that his administratrix had a right to recover.

The principles thus stated must, we think, dispose of any claim on the part of the assignee, Weld, if they were not otherwise disposed of by the former case, as fraudulent against creditors. No interest could pass by the assignment of a tenant in tail in remainder, except perhaps by way of estoppel against the assignor himself; and no conveyance by such remainderman could affect the right of the issue in tail, or of any other tenant in tail in remainder, or of the reversioner. If it could have any effect by way of estoppel, it must be upon the contingency that the event should happen upon which the assignor’s right as a' remainder would become a tenancy in tail in actual possession, by the death of the tenant to the freehold during his own life. As that event did not happen, the assignment could have no effect. But in Davis v. Hayden, 9 Mass. 514, it was held that nothing passed by a deed of the tenant in tail in remainder, during the life of the prior tenant to the freehold.

As to the right of the sisters of John Holland, we think it quite clear that if the estate had remained, and not been converted into money, it would have descended to the plaintiff as heir in tail, to the exclusion of sisters and younger brothers, if any; and this principle has been always held in this commonwealth. One authority to this point is the case, just cited, of Davis v. Hayden, 9 Mass. 514.

The decrees of this court in 1826 do not affect the rights of the plaintiff. The object of those suits was, to ascertain whether the whole of the sums, received for sales of land to the city of Boston, was to be regarded as income, and therefore paid to the widow, or whether she was entitled only to the income of those sums for life; and the court decreed that she was entitled to the income only, and that the principal sums, on her decease, should go “ to the children of John Holland or their legal representatives, according to the tenor of the will aforesaid,” thus referring to the will as a rule of distribution. The question whether these sums were to be treated as real or personal estate does not appear to have been brought to the notice of the court; and the inadvertent insertion, in the decree, of a direction that the fund should be distributed by the judge of probate, cannot affect the rights of the remainderman in tail. Decree for the plaintiff