Den ex dem. Hopper v. Demarest

The Chief Justice delivered the opinion of the court.

The lessors of the plaintiff claim title to the premises in question under the will of Johannes Perry.

The devise is as follows :

I give unto my daughter Catharine, for and during her natural life, the remainder of my real estate. After her death, I will and require the same shall be equally divided among her heirs, and be unto them, their heirs and assigns, forever.

Upon the terms of this devise, Catharine, the daughter of the testator, at the common law would clearly have taken an estate in fee simple in the devised premises. There is a devise to her of a freehold estate, with a limitation over to her heirs in fee. The word “ heirs,” in such cases, under the rule in Shelly’s ease, is always a word of limitation, and not of purchase.

The remainder limited over to the heirs, is executed immediately in possession in the ancestor. And notwithstanding the express limitation in the devise to her of an estate for life, she becomes seised of an estate in fee. Shelly’s case, 1 Coke, 104; Fearne on Rem. 21; 4 Cruises Dig. 369, Tit 32, c. 22; Den v. Laquear, 1 South. 301.

This rule of construction has, however, been superseded in this state, by express legislative enactment. By the 1st section of the act, entitled “An act regulating the descent of real estates,” passed the 13th of June, 1820, R. L. 774, it is enacted,. “ That in case any lands, tenements, hereditaments or real estate, situate, lying or being in this state, shall hereinafter be devised by the owner thereof, to any person for life, and at the death of the person to whom the same shall so be devised for life, to go to his or her heirs, or to his or her issue, or to the heirs of his or her body, then and in such case after the death of such devisee for life, the said lands, tenements, hereditaments or real estate, shall go and be vested in the children of such devisee, equally to be divided between them as tenants in common in fee; but if there be only one child, then to that one in fee, and if any child be dead, the part which would have come to him or her, shall go to his or her issue, in like manner.”

It is clear that this enactment controls the construction of the devise now in question. The terms of the devise are directly within the provisions of the act, I think it proper to remark, moreover, tho’ perhaps not material to the decision of the cause, that I think it equally clear, notwithstanding the suggestions to the contrary, made at the bar upon the .argument, that this enactment entirely counteracts the operation of the rule in Shelly’s ease, and that this was its main end and design. Such I believe has been the uniform construction of the act by the bar. The same view was manifestly entertained by Mr. Griffith, whose opinion, ill the absence of judicial construction, is entitled to the highest, consideration. 4 Am. Law Reg. 1242, 994,

Indeed, upon this point, notwithstanding the apparent inaptitude of the title of the act, the language of the statute is too clear to admit of doubt. It is contended, however, that under the operation of this enactment, the children of the devisee for life, take a vested not a contingent remainder in fee.

If the statute will admit of such construction, the courts incline to construe estates vested rather than contingent. Ives v. Legge, 3 D. & E. 488 note; Doe v. Provost, 4 John. R. 65; Dingley v. Dingley, 5 Mass. 535.

The statute first directs, that after the death of the devisee for life, the lands shall go to and be vested in the children of such devisee, equally to be divided between them as tenants in common in fee; if this provision stood alone, I think it clear that the children would take a vested remainder, that if children were born at the death of the testator, the remainder would then vest, if no children were then born, it would remain contingent until the birth of the first child, when the estate would vest in such child, and in either case the estate would open from time to time to take in after born children, such would clearly be the construction of this language, if used by the testator himself in framing his will, and such I apprehend should be the construction of the statute. Fearne on Rem. 158; 2 Bla. Com. 169, 170; 2 Cruise’s Dig. 275, Tit. 16, c. 1; 4 Cruise’s Dig. Tit. 32, c. 22, § 28; Doe v. Perryn, 3 T. R. 484; 4 Kent, 205; Dinghy v. Dingley, 5 Mass. 535; Doe v. Provost, 4 John. R. 61; Den v. English, 2 Harr. 280.

Xor do I think this view of the construction of the act affected by the peculiar phraseology of the act, that the land shall go to, and be vested in, the children, after the death of the devisee for life.

This phraseology may with propriety be referred rather to the time of enjoyment than to the vesting of the title, and in order that the fee might not be in abeyance the court would incline to give it such construction.

But there is a farther provision in this section, viz : “ that if any child be dead, the part which would have come to him or her, shall go to his or her issue in like manner : ” This provision, whether through inadvertence or design, has, I apprehend, necessarily converted the estate in remainder, which else would have vested in the children of the devisee for life, into a contingent remainder. The whole provision of the section taken together is in substance this : After the death of the devisee for life, the lands shall go to and be vested in his children, and if any child die in the life-time of the tenant for life, the share of such child shall go to his children. It is tantamount to a devise to one for life, and on his death to his children, in case they survive him, and if any child die in the life-time of the tenant for life, leaving issue, then over to such issue. In such case, the remainder to the children cannot vest until the death of the tenant for life; the estate in remainder depends upon the contingency of their surviving him.

It is obvious moreover to remark, that if the estate be vested in the children of the tenant for life, then that clause of the statute which provides that upon the death of any child, his share shall go to his issue, is rendered nugatory, for if the estate in remainder be vested, it may be aliened. It is liable to attachment; it may be taken , in execution. The remainder over'to the issue may thus be defeated, in direct contravention of the statute.

And, on the other hand, if the estate in remainder were not aliened in the life-time of the parent, it would upon his death, if vested, have descended to his children, without the aid of the statutory provision.

I think it clear, therefore that upon the sound construction of this statute, the children of the devisee for life take not a vested but a contingent interest in .the estate devised, and that consequently, under the will of Johannus Perry, the children of his daughter Catharine, took not a vested but a contingent remainder upon the death of the testator. It depended upon the contingencies of their surviving their mother, and vested only upon her death and their survivorship.

The deed from Lewis Hopper and Maria his wife, to the defendants, under which they claim one-third of the devised premises, was executed in the life-time of Catharine, the daughter of the testator, and consequently while the estate of the grantors remained contingent. It is well settled, that a contingent remainder cannot be conveyed, except by way of estoppel, until the contingency happens. Shep. Touch. 288; 4 Cruise Dig. 370, Tit. 32, c. 22, § 2; 4 Kent, 260, (2d Ed).

The deed therefore, from Hopper and wife, was inoperative to pass title to the defendants,, no title whatever could or did pass by the deed.

It remains to inquire whether the lessors of the plaintiff are estopped to deny the title of the defendants, or whether they will be permitted, in the absence of a technical estoppel, to set a title or claim adverse to that of the defendants.

I deem it unnecessary, for the settlement of this'case, to examine or decide the point which was very fully discussed at the •bar, whether a deed of bargain and sale, without warranty, will estop the grantor, or bar him and those claiming under him from setting up a claim adverse to his own grant. Admitting the law to be as contended by the counsel of the defendants, that a grantor will not be permitted to claim against his own grant— the question still remains, whether a married woman, or those claiming under her, are subject to the same restriction. Lewis Hopper claimed title to the premises in question in right of his wife. The children who are lessors, claim title under their mother, not under Lewis Hopper.

As a general rule, all acts of a married woman are absolutely void. She acts solely under the cover or protection of her husband. Her acts, her admissions, her contracts, her representations, do not, as a general rule, bind her, or affect her property. She may pass her estate by deed, executed and acknowledged in the mode designated by statute, and in no other way. A deed thus executed and acknowledged, is good and effectual to convey her interest in the land thereby intended to be conveyed. But she is bound by no covenant in the deed. She is not estopped by an express warranty. As to her it is void — she is es-topped by no averment or recital in the deed. They cannot be offered in evidence against her. It is even doubtful, whether her answer in Chancery under oath, made during coverture, is competent evidence against her, in an action after her husband’s death.

How the grantor is not permitted to allege that he had no title, in contradiction to his own deed, because it is said a grant implies a warranty, or more strictly, because by his deed the grantor professes to convey, and thereby tacitly avers, that he held an estate in fee simple, but no such averment can be imputed to the wife.

It is not ordinarily true, in point of fact, that she either avers, or professes, expressly or impliedly, that she has title in herself. She executes the deed for a specific purpose, being thereto specially authorised by the statute. And if such averment could be imputed to her, an implied undertaking on her part, could not have greater efficacy or a morp binding force, than her express recital or agreement. A deed, therefore, executed by husband and wife, either with or without warranty, cannot prevent the wife or those claiming under her from setting up a title adverse to the deed, or from averring that no title passed by her grant.

The declaration contains a count on the demise of Lewis Hopper, who claims as tenant by the curtsy the estate of his deceased wife.

There can be no recovery upon that count, nor can his alleged title in any way interfere with the right of recovery in his children. To constitute the husband tenant by the curtsy, there must be an actual seisin of the wife. Co. Lilt. 29, 30; 2 Bla. Com. 127.

The wife of Lewis Hopper was never actually seised of these premises. Prom the time that the estate vested in her, until her death, the defendants were in possession, not under her, but claiming by an adverse title. She had neither the actual nor the constructive possession of the premises. She had but a bare right to possess.

Upon the whole case, I am of opinion that the heirs of Maria Hopper are entitled to recover their mother’s share, being one third, of the demised premises.

As to the other two-thirds there is no difficulty. John Bush, it is admitted, has executed a valid conveyance of his share since the estate vested in him, and as to that share there can be no recovery.

There has been no conveyance of the share of Rachel, claimed by Wortendyke and wife, and for that third the plaintiff is entitled to judgment.

Let judgment be entered in favor of the plaintiff, for two equal undivided third parts of the premises in question.

Whitehead and Randolph JJ. concurred. Carpenter and Nevius JJ. did not hear the argument, and gave no opinion.

Reversed, 2 Zab. 610. Cited in Kennedy v. Kennedy, 5 Dutch. 187; Akers v. Akers, 8 C. E. Gr. 30; Wilson v. King, Id. 155; Zabriskie v. Wood, Id. 543.