Sanders' heirs v. Morrison's ex'ors

Judge Mills

delivered the Opinion of the Court.

Absent — Chief Justice Bibb.

’ Morrison filed his bill on an adverse conflicting entry, to recover land against Sanders, who held the elder grant. The court below -gave him the relief prayed, and from that decree Sanders appealed. Morrison and Sanders have both died pending the appeal, and the cause has been revived in the name of their respective representatives.

The appellants now question the title of Morrison, and their ancestor required proof of title in his answer.

Question on the title waived, because 'the necessary parties are not before tho court. Will of Goo, Nicholas.

*l'he title set out by Morrison, is an entry in lite name of Andrew Shriver, a patent to the late George Nicholas, as assigr.ee of Shriver, and the will of Nicholas devising the land in fee, to said James Morrison and Joseph H. Daviess, and in trust for the payment of his debts, and to be conveyed in .portions to his wife and children.

The appellants except to the will as not proved cither by a certificate from a recording office, or by witnesses to be the will of Nicholas. We waive that question, as it may in a future stage of the cause arise in another shape, because we are of opinion, that the hill of Morrison by his own shewing, admitting the copy of the will to he genuine, which he has made part of the bill, shows such a defect of parties as prove conclusively, that he is not entitled to the decree which he has obtained on the merits.

The devise in the paper relied on as- a will, after appointing Morrison and Daviess as his executors, is to this effect:

“I hereby give them the fee simple on my whole estate upon the following trust — that they shall permit my wife to hold my house and lots near Lexington, my farm near that place, and tire negroes belonging to that farm, and one dwelling house and all the stock belonging to that farm, and every kind of personal property, in or belonging to our dwelling-house, wherever that may be situate at the time of my death, for her life, and that they convey the said property after, her death, to any child or children of ours, that she may give it to by her last will,, and that they pay her annually, during her life, the sum of five hundred dollars; that they sell so much of the rest of my estate, which in their judgment can he best spared, to comply with my contracts, and .pay my debts, and that they, convey all the residue of my estate of every kind, to all my children who shall attain the age of twenty-one years, or money in equal proportions, and this division is to be made at their discretion, either partially, or of the whole residue at once, as will host suit the wants of my family and fhe'situation of my debts, and my executors are to be the judges of the equality of the division, *56each child to have an estate in fee ih the part to be allotted to him or her.”
Where land is devised in trusty to two executors, saying nothing of survivor on the death of one of the executors, a moity passes to his heirs or devisees. Triist estates -pass as others, unless it Is otherwise provided by the Will, or other instmmentof con* veyazifce. 't’he jit? acerescendi is destroyed by the Statute in trust estates, as well as all others. '

This will is dated May 3rd, 1797, and has not one word in relation to the survivor talcing the estate between the executors, and the vestiture is joint.

Morrison states in his bill that Daviess is dfead, and that he is the sole surviving executor and trustee; and hence he would have it inferred that the trust estate survived to him, and the question is, can this inference be admitted? We conceive not. A moiety of the estate descended to the heirs of Daviess, or might have been devised by his will, if he made one, and therefore, Daviess’ heirs or devisees, as the case may be, were necessary parties to a suit of this nature to try the title of the land. With this agrees the decision of this court, in the case of Waggener vs. Waggener, 3 Monroe, 542.

There is nothing to prevent a trust estate from descending or being devised, unless such transmission of the title be forbidden by the terms of the original grant to the trustees, and that is not the case in this will. In England, the case of joint trustees were different.. The doctrine of survivorship which existed in that country would still keep the estate in the survivor. But here, since the desrtuction of the doctrine of survivorship, the case is different.

Knowing the inconvenience of spreading a naked trust of this kind into so many hands, by a descent or devise, we have resorted to the act of Assembly, 2 Dig. K. L. 686, to discover whether we could not make a trust of this nature, an exception to the general rule of destroying survivorship between joint tenants; but in this resort we have been disappointed, and that act is express and decisive in all cases; even in joint trust estates, and is conclusive against the appellee, and precludes his escape. Survivor-ship is there taken away between all joint tenants,“whether they be such as might have been compelled to make partition or not, or of whatever kind the estate or things hoi den may be.” It therefore expressly includes unlimited trusts as this, and leaves *57the title to pass to the representatives of the one dying, to be held in common with the survivor.

Reversal, and order for proper parties,or bill to be dismissed. petition for a re-hearing,

The decree must, therefore, be reversed with costs, and the cause be remanded to the court below, with directions there to dismiss the bill with costs and without prejudice, unless the proper parties are brought before the court in a reasonable time, to be fixed by the order of the court below.