Powell v. Brandon

24 Miss. 343

• Court: Court of Appeals of Mississippi
• Decided: April 15, 1852
• Status: Published

Opinion

Mr. Justice Yerger

delivered the opinion of the court.

In the year 1823, Gerard Brandon made his last will, which was admitted to probate in the county of Wilkinson. By it he bequeathed all his estate, real and personal, of every kind whatever, to three persons as trustees, in trust that they would immediately, after his decease, take possession of all his property, and “ deliver to his daughter, Margaret Smith, certain land and slaves named therein, in trust to permit said Margaret to have, possess, occupy, work, and enjoy said land and slaves to her sole and separate benefit, during her natural life. And in trust, after the decease of said Margaret, to put and continue in possession of said land and slaves, the lineal descendants of the said Margaret to the latest posterity, with the same privileges which the said Margaret shall have had during life; and on failure of lineal descendants, then in trust for the heirs generally of the testator, with the same privileges.” The will contains bequests in similar language, to all the children of the testator, and among other bequests is one in favor of Matthew N. Brandon, his son, in the following words: “ Also, further in trust, as soon after my death as the debts of my son, Matthew N. Brandon, are paid, and they may deem it prudent and measurable, to deliver to said Matthew N. Brandon certain slaves and a tract of land named in the will, and put the said Matthew N. in possession on the same conditions, and with the same privileges and limitations as before mentioned in respect to said Margaret and her lineal descendants.”

Matthew N. Brandon was put into possession of the property, and held the same during his life. He has died, leaving no lineal descendants. For the appellant, who is a creditor of Matthew N., it is contended that by the foregoing devise an estate in fee was bequeathed to said Matthew N. in the slaves, and that his creditors since his decease have a right to subject them to the payment of his debts. For the appellee it is argued, that Matthew N. had only an estate for life in the slaves, and as he died leaving no lineal descendant, that the same, by the provisions of the will, now belong to the heirs general of the testator, Gerard Brandon. The question thus presented is interesting and important, and throws upon the court the necessity of deciding, whether or not the celebrated rule in Shelly’s case is in force in this State; and if so, whether it is applicable to the devise before us.

An ancient canon of the common law, regulating title to property, was announced by the English judges in the case of Shelly, decided in the 23d year of Elizabeth, and reported in 1 Coke, R. 104, in the following language: “ When the ancestor, by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance, an estate is limited, either me-diately or immediately, to his heirs in fee or in tail, that always in such cases the heirs shall take by descent, and not by purchase.” Fearne, in his work on Contingent Remainders, has defined in the following language “ the rule in Shelly’s case.” Wherever the ancestor takes an estate of freehold and an immediate remainder is thereon^ limited in the same conveyance to his heirs, or his heirs in 'tail, such remainder is immediately executed in possession in the ancestor so taking the freehold, and, therefore, is not contingent or in abeyance; as an estate for life to A., remainder to the heirs of his body, this is not a contingent remainder to the heirs of the body of A., but an immediate estate tail in A. Fearne on Rem. 27, 33.

In the very able and lucid analysis of the rule by Preston in his work on Estates, he has given it the following clear and ample definition. “ When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and afterwards in the same deed, will, or other writing, there is a limitation by way of remainder, with or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally, or his heirs of his body, by that or some such name, and as a class or denomination of persons to take in succession from generation to generation, the limitation to the heirs will entitle the person or ancestor himself to the estate or interest imported by that limitation.” 1 Preston on Estates, 264. The rule thus defined by Preston requires the concurrence of the following circumstances: —

1. The estate limited to the ancestor must be a freehold.

2. The remainder to the heirs generally, or heirs of the body, must be to them, as a denomination or class of persons to take in succession,, and to whom the inheritance is limited in their character as hens, and on account of that relationship to the ancestor.

3. The estate must be granted to the ancestor and the heirs by, under, or as a consequence of, the same instrument or writing. .

4. The interest limited must be of the same quality; that is to say, it must be a legal estate to both or an equitable estate to both, not a legal estate to one and an equitable estate to the other.

Whenever the foregoing circumstances are found united in any conveyance, the rule of the common law will be found inflexible and invariable, that the ancestor takes the whole estate limited by the conveyance, the life estate and the inheritance uniting in the same person. In the language of Preston, “ the estate of freehold attracts* to the ancestor the estate imparted by the limitations to his heirs.” 1 Preston on Es. 295. The rule thus announced is equally applicable to limitations of the legal estate, limitations of uses, limitations of trusts, and extends to all sorts of instruments by which gifts or limitations of estate can be made, either in law or equity. 1 Preston on Es. 289 ; Fearne on Rem. 79. The rule has been applied as universally and without exception to limitations of personal as of real estate; no distinction whatever having been taken between them by the English courts, or the courts of.this country. Dow v. Lord Chatham, 1 Madd. 288; 1 Merivale’s Rep. 278. Atkinson v. Atkinson, 3 P. Wms. R. 258. Also, see 1 P. Wms. 298, and Fearne on Rem. 463. Various attempts have been made to trace this rule to its source, and to assign the reason for its establishment. What success has attended these investigations it is not necessary to determine. By some, the origin of the rule has been ascribed to the nature and policy of the feudal system. Preston says, “it was framed in order to give the inheritance to the ancestor, so that the heirs might take by hereditary succession in a course of descents, that the lord might have the fruits of his seignory, the most valuable of which was wardship, of which right the lord would have been deprived, if the heir had b'een introduced as tenant by purchase instead of by descent.” 1 Preston on Estates, 296.

By others, and among them Sir William Blackstone may be named, the establishment of the rule has been ascribed to a principle directly antagonistic to the entire spirit of the system of feuds; having been established, as they allege, in order to facilitate the alienation of estates, by giving the power and control of the inheritance to the ancestor one generation sooner than it would otherwise have been alienable. But whatever may have been the cause or origin of the rule, the fact of its existence in the manner and to the extent before stated, is entirely beyond question or dispute.

The argument has frequently been urged, by those who assign a feudal origin to the rule, that inasmuch as the feudal system has been abolished, the reason for the rule has ceased; and, therefore, the rule itself should be abrogated. However cogent this argument may' be when addressed to the legislature, yet courts of justice cannot so far recognize its potency as to make it the basis of their decisions. Whenever a. principle of the common law has been once clearly and unquestionably recognized and established, the courts of the country must enforce it, until it be repealed by the legislature, as long as there is a subject matter for the principle to operate upon; and this, too, although the reason, in the opinion of the court, which induced its original establishment, may have ceased to exist. This we conceive to be the established doctrine of the courts of this country, in every State where the principles of the common law prevail. Were it otherwise, the rules of law would be as fluctuating and unsettled as the opinions of the different judges administering them might happen to differ in relation to the existence of sufficient and valid reasons for maintaining and upholding them. Whatever may have been the original reason for the common law rule, that a legal title to real estate can only be conveyed by deed sealed and delivered, or whatever reason may have existed originally for the distinction between sealed and unsealed instruments and contracts, it would be difficult to assign any other at this day for their maintenance, than the fact that they are long and well settled rules of the common law. The same remark may be predicated of many other fixed and positive regulations of the common law, whose validity no one disputes or controverts. And hence it is, that the courts of every State in the Union, where the common law constitutes a part of their judicial system, governed by such considerations, have declared the existence of the rule in Shells case, and have enforced it as rigorously as any other well settled principle of that law; and we are of opinion, that in common with the other principles of the common law, that rule constitutes a part of the judicial system of this State, and must be enforced, unless it has been repealed by some statutory provision.

The counsel for the appellee insist, that this repeal has taken place, and we have been referred to sections 24 and 26 of the act of 13 June, 1822, Hutch. Code, 609, 610, as containing the evidence thereof. By reference to section 24, it will be found, we think, to have little if any bearing upon the question. The object of that section was to abolish entails in both real estate and slaves, whether conveyed by deed or devise; and the proviso contained in the section has exclusive relation to a conveyance or devise of real estate, and cannot, therefore, have any influence upon the construction which must be placed upon a devise or conveyance of slaves. A more difficult question, howéver, is presented for consideration by the 26th section, which has been mainly relied upon by counsel, and is in the following language: “ Every contingent limitation in any deed or will made to depend upon the dying of any person without heirs or heirs of the body, or without issue or issue of the body, or without children or offspring or descendant or other relative, shall be held and interpreted a limitation to take effect when such person shall die, not leaving such heirs or issue, or child or offspring or descendant or other relative, (as the cáse may be,) living at the time of his death or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and as plainly declared on the face of the deed or will creating it.”

Does this statute repeal the' ancient common law rule on this subject? The student who is at all familiar with this branch of the law is well aware that the frequent controversies of which this celebrated rule has been the fruitful mother, had their origin not in any doubt as to the propriety or existence of the rule itself, but whether the words used in the instrument as “ heirs, issue, heirs of the body, offspring,” &c. were intended as words of limitation, or a designation of a class of persons to take as heirs of the ancestor, or as words of purchase intended to designate particular persons as individuals to take in their own right. The courts at length reached this result; that the words “ heirs, heirs of the body, issue, offspring,” &c. in their appropriate signification, embraced any heirs of the given description, collectively as a class of persons, unless there was a direct intention plainly and clearly expressed to the contrary; for if that intention clearly appeared, the rule was not so strict as to control that intention, if it steered clear of the reason of the rule or of its literal terms. 1 Preston on Es. 275, 278, 279. But to withdraw a case from the operation of the rule, it was held not sufficient that the intention should depend upon inference or presumable reasons; it had to be manifested by words which were explicit. 1 Pres. on Es. 279. - The numerous cases with which the books abound show the extreme difficulty that existed in ascertaining what words and expressions were sufficient to indi-cafe a direct intention to limit and control the 'usual meaning which had been given by the court to the foregoing words: “ That difficulty,” says Preston, “ when it arises, does not in any degree question the existence of the rule; it merely raises a doubt on the application of the rule.” 1 Pres. on Estates, 279.

To obviate this acknowledged difficulty, and by giving a fixed and positive definition to these words, in consonance with what in most cases seemed to be the wish and intention of the party using them, and thus to cut off a fruitful source of litigation, occasioned as we conceive the enactment of the 26th section, before referred to. - *

But we do not think that it was the intention of the legislature to declare, that in every case where the words, “ heirs, heirs of the body,” &c. were used, that they should be construed as words of purchase and not of limitation, even should it appear from the instrument that such was not the sense or meaning of the party using them. This, we think, is clear from the language of the act itself, which simply declares that these words, when used in the cases referred to, shall have a certain definition or meaning, “ unless the intention of such limitation be otherwise expressly and as plainly declared on the face of the deed or will creating it.” From this exception contained in the law, the inference seems to be irresistible, that if such intention do so appear, then the words shall not have the meaning or signification affixed to them by the statute, but should receive that definition which the common law affixed to them, and which the party intended to give. In our opinion, therefore, the rule in Shelly’s case, so far at least as personal property is concerned, has not been abolished, but still exists in this State, and will be applied whenever it expressly or as plainly appears from the instrument creating the estate, that it was the intention of the grantor, by the use of the words “ heirs, heirs of the body, issue,” &c. to specify a class or denomination of persons to take the inheritance in succession from generation to generation, in their character as heirs of the ancestor. Does the devise in this case come within this definition ?

By the terms of the will, the estate was devised in trust, that Matthew N. Brandon should be put in possession, and “permitted to have, possess, occupy, work, and enjoy the same during his natural life; and in trust, after his decease, to put and continue in possession of the said land and slaves the lineal descendants of the said Matthew N., to the latest posterity.” Plainer and more explicit language could not be used to indicate an intention, that the heirs of Matthew N. Brandon, as a class of persons, were to take this inheritance from generation to generation, in and by virtue of their character as his lineal descendants; and the language here used, but for the 24th section of the act of 1822, before referred to, 'would have given an estate tail to Matthew N. Brandon. But in consequence of that act, in our opinion, an estate in fee simple vested in him. Do the words of the limitation over contract or change the clear and manifest intention of the testator, as above expressed ? The words of the devise or limitation over, are as follows: “ And on failure of lineal descendants, then in trust for the heirs generally,” &c. No rule was better established than this at the common law. Wherever an executory devise is limited to take effect, after a dying without heirs or without issue, subject to no other restriction, the limitation is void; for the policy of the law will not suffer property to be tied up and rendered inalienable, in expectation of such remote contingencies.” Fearne on Remainders, 444. . In our opinion, this principle and policy still exist; and that a limitation over of personal property, to take effect after a dying without heirs, or heirs' of the body, or issue, &c., subject to no other restriction, is void, if it clearly appear from the instrument, that by those words was intended an indefinite failure of such heirs or descendants. In this case, the estate was devised in trust for Matthew N. Brandon for life; after his death, in trust “ for his lineal descendants to the latest posterity;” and “ on failure of lineal descendants, then in trust for the heirs generally,” &c. When did the testator intend that this limitation should take effect ? Was it, in the language of the statute, when Matthew N. Brandon “ should die, not having a lineal descendant then living, or born to him within ten months thereafter ” ? No. It is expressly declared that it shall take effect whenever “ there shall be a failure of lineal descendants of Matthew N. Brandon in the latest posterity,” a period of time so indefinite and remote that it might not have taken effect for a hundred or a thousand years; and during the whole of that period of time, the property would have been tied up and inalienable, if the manifest and clear intention of the testator should be carried out. There is no single clause in the will, which, in any degree, tends to remove this irresistible conclusion. Such being the case, is the limitation valid? Most surely not. It is against the principles of the common law, at war with the settled policy of the State, and, in our opinion, in violation of the spirit, if not the letter, of the 26th section of the act of 1822. Hutch. Code, ch. 42, p. 610.

We have examined the decisions made by this court heretofore on this subject, and do not think that they in the slightest degree conflict with the views here expressed. By reference to those decisions, it will be found, that they were cases in which the conveyance contained no evidence that any other or more enlarged signification or meaning of the words “ hens, heirs of the body, issue,” &c., was intended by the party, than that affixed to them by statute. We are, therefore, of opinion, that the slaves in controversy in this case were, by the will of Gerard Brandon, vested in fee simple in Matthew N. Brandon, and are subject to the payment of his debts. At the request of counsel, we have not examined the question, how far the probate court has the power to compel an administrator in a case like the present, to return an inventory of property alleged to belong to the estate.

Let the decree of the probate court of Wilkinson county be reversed, and the cause remanded for further proceedings.

Smith, C. J., gave no opinion.