McGillis v. McGillis

Putnam, J. (dissenting):

This action was brought for the partition of certain real estate in the counties of Albany and Warren, and for the enforcement of an alleged lien on other real estate known as the “Mansion House Property ” at Caldwell, U. Y. in favor of the defendant Henry W. Hayden, on the interest of the defendant Morrison M. E. Jarvis, therein ■— the complaint asking that the property sought to be partitioned be divided equally between the six surviving children of Eliza McGillis, deceased, and the defendant Morrison M. E. Jarvis, the only child of Margaret Louisa Jarvis, a deceased daughter of Eliza McGillis, and that the defendant Morrison M. E. Jarvis may be directed to convey liis interest in said “ Mansion House Property ” to the defendant Henry W. Hayden.

William Caldwell died in the year 1848, devising property in Albany and Warren counties to his daughter, Eliza McGillis, for life, to her husband for life, and after their deaths to her issue her surviving, in the following language: “ From and after the decease of both my said daughter, and her said husband, I give, devise and bequeath the remainder, or fee simple in said property, to the lawful *365issue of my said daughter then living, in such relative proportions (if such issue consist of more than one person), as they would, by the laws of the State of New York, have then inherited or taken the same from her, in case she and they were then native-born citizens of said State, and she had then died intestate, lawfully seized of said property in fee simple.”

Eliza McGillis died in the year 1893, and subsequent to the death of her husband. She had married, on or about May 17, 1836, one John McGillis, an alien, and after such marriage resided with her husband in Canada where all her children were born. At the time of the death of the testator she had four children, who were aliens, viz., Mary Charlotte, William H., John and Elizabeth. The latter died without issue in 1890. After the death of William Caldwell said Eliza McGillis had four children, Ewen, Margaret Louisa, who married John H. Jarvis, and died intestate on May 1, 1891; leaving the defendant Morrison M. E. Jarvis her only heir, Robert A. McGillis and Mary Sophia, who married on March 8, 1887, Alexander A. R. McDonell. Thus Eliza left as her issue six children, three horn before the death of the testator and three after, and one grandchild, the son of a daughter, also born subsequent to the decease of William Caldwell.

In the year 1850 an action was brought by the executor named in the will of William Caldwell, deceased, to obtain a judicial construction of its provisions. Eliza McGillis, her husband and her four children then living were made parties defendants. It was held in that action that the devise to Eliza McGillis for life was valid, she not being an alien, but that the devise to her husband and to her issue, they all being aliens at Caldwell’s death, was void and inoperative under 2 Revised Statutes, 57, section 4, which provides that “ Every devise * * * to a person who * * * at the time of the death of "the testator, shall be an alien, * * * shall be void.” (See Beck v. McGillis, 9 Barb. 35.)

Soon after an action was brought by the devisees of the other two-thirds share in the Warren county property to partition it. Eliza McGillis was made "a party, but her children were not. In that action the property was divided. A life estate in one-third thereof was set off to Eliza McGillis and the fee therein to the heirs at law of the testator. No order confirming the report of the com*366missioners in partition was made or filed. This action was known as the suit of “ Van Oortlcmdt v. Laidley P In the year 1887 four children other than those living at the death of the testator having been born to Eliza McGillis, proceedings were commenced by the defendant Henry W. Hayden to establish the title of such children to the fee in the Warren county property which had been set off in the said action to Eliza McGillis for life, and to the heirs at law of the testator in fee. Mrs. McGillis was then living and had eight children, the four named as defendants in .the action of Beck v. McGillis (supra), and the four others born since the death of William Caldwell.

Mr. Hayden secured the passage of chapter 310 of the Laws of 1887, by which the State released any right of escheat which it might possess over the property in question on account of the alien-age of the children of Eliza McGillis. The first-born four, on the 20tli day of June, 1887, conveyed to the after-born four their interest, if any, in the property in question, on the agreement that the after-born four would share equally with them in case their title thereto should be established. The entire eight also executed a deed to Henry W. Hayden, their attorney, of a portion of the property known as the “ Mansion House Property,” and said Hayden, in consideration thereof, contracted to conduct the proceedings for them.

In July, 1888, the four children born after Caldwell’s death were permitted to intervene in the aforesaid action of Van Cortlandt v. Laidley (supra), as the plaintiffs in a cross action against the heirs at law of William Caldwell, deceased. The rights of the children of Eliza McGillis to the remainder of the property set off in that suit to her for life, as against the heirs at law of William Caldwell, was the only issue in the cross action. It was there decided that the children of Eliza McGillis, born after Caldwell’s death, not being aliens at that time, were not within the provisions of 2 .Revised Statutes, 57, section 4, making devises to persons at that time aliens void; that, not being parties to the action of Beck v. McGillis (supra), they were not bound by the judgment therein ; that they, and all subsequent born issue who should survive Eliza McGillis, were entitled to the remainder. (Van Cortlandt v. Laidley, 59 Hun, 161.)

*367The defendant. Morrison M. E. Jarvis was born on July 1, 1888. His mother, Margaret Louisa Jarvis, died on August 1, 1891. The act of the Legislature, providing that foreign-born children of a woman horn in the United States may hold real estate, was passed on the 2d day of March, 1889.

Two questions were presented on the trial: First, whether the defendant Morrison M. E. Jarvis was entitled to a one-seventh interest, or to a one-fourth interest, as he claimed, in the real estate in question. Second, wh ether, as against him, the agreement made by all the other parties in interest, and by his mother, by which, in consideration of services to be rendered by the defendant Henry W. Hayden, the Mansion House property at Caldwell was to be given to him, can he enforced.

The learned referee found in favor of the contention of the plaintiffs on both questions, and the defendant Morrison M. E. Jarvis appeals.

In the year 1887, when the defendant Henry W. Hayden commenced proceedings in behalf of the four children of Eliza McGillis, born subsequent to the death of William Caldwell (hereafter designated as the “ after-born ” children), those parties were vested with title to the remainder in the real estate in Warren county set off to their mother for life.

The devise in the will of William Caldwell, so far as it gave an interest in such remainder to the children of said Eliza born before his death, they being at the time of his decease aliens, was void. This had'been adjudicated in an action in which the said children and the heirs of the testator were parties. (Beck v. McGillis, 9 Barb. 35.) But the devise of such remainder was valid as to the “ after-born ” children. (Wadsworth v. Wadsworth, 12 N. Y. 376.) They were entitled to the entire remainder so bequeathed (Downing v. Marshall, 23 N. Y. 366), except as against the State, whose right therein was released by chapter 310, Laws of 1887.

The above conclusions are authorized by the decision of the General Term of the third department in Van Cortlandt v. Laidley (59 Hun, 161). The trial court in that case found in reference to the children of Eliza McGillis born before the death of William Caldwell as follows: “ As the above-named children of Eliza McGillis were, upon the death of William Caldwell, aliens, the said *368devise to such, issue by the will of William Oaldwell was void under the provisions of section 4 of article 1st of title 1 of chapter VI of the Revised Statutes. The judgment of this court in the action of Beck v. McGillis, referred to in the findings of fact herein, was binding and conclusive upon all the parties to the said action.” The judgment, which was .afterwards affirmed by the General Term and the Court of Appeals, provided : “ That the said fee or remainder in said property, partitioned and set apart therein to said Eliza McGillis for life, is vested in and owned by the lawful issue of the said Eliza McGillis, born subsequent to the death of William Caldwell, and their assigns, in the proportions provided and as specified by the said William Caldwell, deceased, in 1ns said will and codicil.”

We find, therefore, that at the time in question, under the decision in Van Cortlandt v. Laidley (supra), and under the provisions of 1 Revised Statutes, 723, section 13, which enacts that a future estate is vested “ when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate,” that Eliza McGillis had a life estate in the premises described in the complaint, and, subject to such life estate, her four after-born ” children were vested with the remainder. The youngest of such children was born on April 1, 1857. From that time, therefore, for a period of over thirty years, those parties had, under the will of William Caldwell and the laws of the State, been vested with an estate in remainder in the premises in question, when the defendant Hayden commenced proceedings in the year 1887 in their behalf. The estate was so vested in each of those four, subject to be divested by his or her death before the death of the life tenant. (Campbell v. Stokes, 142 N. Y. 23.) Had Eliza McGillis died at any time during that thirty years, no doubt could be entertained but what those four parties would have taken the estate under the provisions of the will of William Caldwell and the statute above quoted.

Subsequently, on July 1, 1888, the defendant Jarvis, son of Margaret Louisa Jarvis, was born, and on his birth became entitled to a contingent interest in one-fourtli of the remainder in the premises in question, which wbuld vest on his surviving the life tenant and his mother. He having survived his mother and Eliza McGillis, the question to be passed upon is, how, if at all, his contingent *369interest in the lands in question has been reduced from' a one-fourth to a one-seventh interest.

It was not thus reduced by the contract made between the four after-born ” with the four “ first-born ” children of Eliza McGillis, by which the .former agreed to transfer to the latter a portion of the estate to be recovered. As the first-born children had no legal interest in the remainder, the promise that they should share in the recovery was probably without any consideration — a promise to make a gift; but if obligatory on the parties who entered into the agreement, it had no validity as against the defendant Jarvis. His mother had no authority to give away his property, or by her contract to affect his contingent right to one-fourtli of the remainder in the real estate in question.

Mor do I think that his contingent right in the premises in question was affected by the provisions of chapter 42 of the Laws of 1889. The estate in remainder of the four “ after-born ” children having been vested for so long a period, could not be divested by the statute in question, nor could the contingent property right of the defendant Jarvis be affected thereby. Such, right was a contingent estate. (1 E. S. 723, § 13 ; Powers v. Bergen, 6 N. Y. 358-360.) It was property, and being property he could not be deprived thereof by a subsequent law enacted by the Legislature. ( Westervelt v. Gregg, 12 N. Y. 202; Luhrs v. Eimer, 80 id. 171.)

The Legislature may in certain exceptional cases provide for the disposition of future contingent interests in real estate for the benefit of parties who may become thereafter entitled thereto, but it cannot arbitrarily deprive them of their property therein. (See Ebling v. Dreyer, 149 N. Y. 460; Kent v. Church of St. Michael, 136 id. 10.)

The contingent right of the defendant Jarvis to one-fourth of the said remainder could no more be reduced by the Legislature in 1889 to a one-seventli interest than could the one-quarter vested interest of his mother, had she not entered into the agreement referred to with the children born before the death. of the testator. The Legislature had no more power in the one case than in the other. (See Powers v. Bergen, 6 N. Y. 358; Brevoort v. Grace, 53 id. 245.)

*370In the case last cited it was held that the Legislature could, by special act, authorize the sale of a future contingent interest in the real estate of a person not in being, but that it could not authorize the sale of lands in which adults competent to act for themselves had an interest, either vested or contingent, and Groveb, J., in his opinion (p. 259), says: It is further insisted that although the Legislature may not have the power to authorize the sale of an estate in possession, or a vested estate in expectancy of an adult, without his consent, yet it can authorize the sale of a contingent estate in expectancy. I can see no reason for the distinction. An owner sui juris is equally competent to determine and manage for himself in the one case as in the other. The foundation of the power of the Legislature to act in behalf of any owner is the want of capacity to act for himself, and this reason no more extends to the case of a contingent than to a vested expectant estate. The question as to whether the interests are vested or conti/ngent is not material and will not be discussed,” thus holding that future contingent interests in real estate are as much protected by the provisions of the Constitution as is a vested remainder.

As it was not within the power of the Legislature, by the act of 1889, to divest the four “ after-born ” children of Eliza McGillis of an estate with which they had been vested under the laws of the State for thirty years, or the contingent estate of the defendant Jarvis, which has since vested, I think the statute of 1889 should not be deemed to have been intended by the Legislature to have a retrospective operation, or by its terms to apply to an estate the title to which had vested at the time of its enactment.

It is a well-settled doctrine that “ no statute shall be construed to have a retrospective operation, without express words to that effect, either by an enumeration of the cases in which the act is to have such retrospective operation, or by words which can have no meaning unless such a construction is adopted.” (Palmer v. Conly, 4 Den. 376 ; Dash v. Van Kleeck, 7 Johns. 477; The People v. Supervisors of Columbia Co., 43 N. Y. 131; Sanford v. Bennett, 24 id. 20; N. Y. & Oswego M. R. R. Co. v. Van Horn, 57 id. 473.)

I find nothing in the act of 1889 that shows a legislative intent to give that statute such a retrospective operation, so as to affect the *371title of the parties to real estate with which they had been vested for so long a period before the law went into operation. It is true that the language used in the act is: “ hi or shall the title to any such real estate * * * which has been or shall be devised or conveyed to such woman or to such foreign born children or descendants be impaired or affected by reason of her marriage with an alien,” etc. The words “ lias been ” in the act should, I think, be deemed to refer to devises in wills executed prior to its passage, and where the devise had not actually taken effect when the law went into operation. When .the statute in question was enacted the children of Eliza McGillis born before the death of William Caldwell had no title to the premises in question. The devise had taken effect and the title was vested in the “ after-born ” children. The “first-born” children had no interest in the real estate in question to be affected or impaired. Hence, by the terms of the statute in question, as well as under the principle above adverted to, that a law shall not be construed to have a retrospective operation, it cannot be deemed to affect the rights of the “ after-born ” children, or the property right of the defendant Jarvis, who has succeeded to his mother’s title, and who, when the act was passed, had a contingent estate in remainder in the premises in question.

It follows that, although the testator intended that all the children of Eliza McGillis should share equally in the remainder in question, under the laws of the State applicable, those born prior to his death could not take any interest therein, and those born after his death took the whole estate (Downing v. Marshall, 23 N. Y. 366; Van Cortlandt v. Laidley, 59 Hun, 161), and the defendant Jarvis is entitled to the one-fourtli interest in said remainder to which his mother would have been entitled, had she survived the life tenant.

The remaining question in the case concerns the claim of the defendant Hayden to the “ Mansion House Property.” The agreement under which he claims was made with the four “ after-born ” children of Eliza McGillis before the birth of the defendant Jarvis. It was a contract that, for services to be performed, Hayden should be paid by a conveyance of a portion of the property sought to be recovered. The arrangement made seems to have been a fair and equitable one. The four “ after-born ” children made an agreement *372with those born before the death of William Oaldwell by which the intent of the testator, that the remainder after the death of the life tenant, Eliza McGillis, should go equally to her surviving issue, should be carried out. The death of Louisa Jarvis was not then anticipated. It does not appear that by the conveyance of the “ Mansion House Property ” to Mr. Hayden he received an excessive compensation for the services he contracted to perform. Those services to some extent inured to the benefit of the defendant Jarvis. I should, therefore, feel inclined, if possible, to sustain the conclusion of the referee in reference to the claim of Mr. Hayden, but I have with some reluctance reached the conclusion that it was beyond the power of the parties who made the contract with him to convey or affect the interest of the defendant Jarvis in the “Mansion House Property,” or to give to Mr. Hayden any claim for legal services, as against Jarvis, which could be enforced against the interest of the latter in the property in question or otherwise. Suppose those parties, instead of conveying to Mr. Hayden the “ Mansion House Property,” had agreed to pay him $20,000 in money for the services he was to,perform. It would hardly be claimed that he could have collected of Jarvis any part of such agreed compensation. It was said in the opinion in Kent v. Church of St. Michael (supra, p. 17) that “ where an estate is vested in persons living, subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate, for all purposes of any litigation in reference thereto and affecting the jurisdiction of the courts to deal with the same, represent the whole estate, and stand not only for themselves but also for the persons unborn. This is a rule of convenience and almost of necessity.”

In other words, the authority cited holds that those unborn or having a contingent interest in the premises affected by the litigation are bound by the proceedings i/n court and Toy the judgment in the action, not by contracts or engagements made by the parties in whom the title to the estate is vested, not considered or passed upon in the litigation or validated or sanctioned by the judgment of the court.

I am unable to reach the conclusion that the conveyance of the “Mansion House Property” made by the four “after-born *373children to Hayden in any manner affected the interest oí ’the defendant Jarvis therein, or that the latter is in any way bound by such contract.

The judgment should he reversed and judgment rendered in pursuance of this opinion, with costs to the appellant to be paid out ol the estate.

So much of the judgment as charged the infant Jarvis with a lien in favor of Mr. Hayden reversed; in other respects affirmed, with costs to both parties to be paid out of the fund.