Bailey v. Hoppin

Dukeee, C. J. This is a bill for instructions. It shows that on the 13th of March, 1862, Tristam Bur-ges conveyed certain land in East Providence,' and pew No. 84 in St. John’s Church, in the city of Providence, to Charles S. Bradley, his heirs and assigns, in trust, and that in 1863, the said Charles S. Bradley having resigned' as trustee, William M. Bailey, the complainant, was appointed trustee in his stead. The deed empowers the trustee to sell or mortgage the property or change the investment, and generally to dispose of the property as he shall deem best, but in trust, nevertheless, after paying expenses, &c., to apply the residue of the income to the support of the grantor’s wife during her life, and after her death to the grantor’s support during his life, with power, in case the income should not be sufficient for their comfortable support, to mortgage or sell, and apply the proceeds; and on further trust, on the decease of the grantor and his wife, to convey the trust estate to such of the children of the grantor and his wife “ who shall be living at the decease of the survivor of them, and to such issue, then living, of any one or more of the children of the grantor and said wife who may then be deceased, their respective heirs and assigns, in equal shares, as and when said children and issue shall respectively attain the age of twenty-one years, or die under that age, in a course of distribution, so that the issue of any de *566 ceased child may take, by way of substitution, the share only which the parent would have taken if living ; ” and upon further trust, after the death of the grantor and his wife, until the period of conveying, to accumulate the property, or, in his discretion, to apply the whole or any part of the share or shares “ to which any of said children or issue shall, for the time being, be entitled under the trusts aforesaid, in said trusts, premises, investments, income, and accumulations, for or towards his or her advancement in the world, or otherwise for his or their benefit.” Tristam Burges died in 1863, leaving his wife and sis children by his wife surviving him. His wife died in April, 1879, leaving the six children surviving her. The six children were all living when the trust deed was executed. They were all over twenty-one at the death of the wife. On October 29, 1870, Arnold Burges, one of the six children, gave to Robert Wheaton, his heirs and assigns, a quit-claim deed of all his right, title, and interest,, in the trust estate, the granting part of the deed concluding with the words : “ Hereby releasing and intending to release all right title and interest, claim and demand in law or equity, vested or contingent, which I have or at any time hereafter may, or but for these presents might have in or to said trust estate.” The deed contained a covenant of warranty of “ the aforedescribed land and property ” to the grantee, his heirs and assigns, against the lawful claims and demands of all persons claiming by, through, or under the grantor. Robert Wheaton died in 1874, leaving a will, executed March 12, 1873, in which he devised all his estate, real and personal, which he then had or might subsequently acquire, after the payment of his debts, to William A. Hoppin, in trust for his daughter, Katharine Wheaton. The time for the determination of the trust having arrived, the trustee desires to be instructed to whom he shall convey the one sixth of the trust estate, to which Arnold Burges would have been entitled without question but for his quit-claim deed to Robert Wheaton. William A. Hoppin claims that under the trust deed Arnold Burges had in equity a vested remainder, which passed by his deed to Robert Wheaton, and by Robert Wheaton’s will to him in trust for Katharine Wheaton. Katharine Wheaton claims that Arnold Burges had only a contin *567 gent remainder which, though neither assignable nor devisable at law, would pass in equity by estoppel to Robert Wheaton, under the deed of Arnold Burges to him, and would descend from Robert Wheaton to her, she being his sole heir at law. Arnold Burges claims that his interest in the trust estate was so contingent and uncertain that it was not assignable either at law or in equity, and that it is not bound by any estoppel, and consequently that he is himself entitled to have the said one sixth conveyed to him, notwithstanding his deed to Robert Wheaton. The first question which we will consider is, Were the equita-table remainders created by the trust deed vested or contingent ? We think they were clearly contingent. They were limited, after the death of the grantor and his wife, not to their six children, but only to such of them as should then be living, and to the issue of such of them as should then be dead. It was uncertain at the creation of the trust, and it continued to be uncertain during the life of the surviving parent, who, if any, of the children would survive. Arnold Burges might or might not survive ; but unless he did survive he would not be one of the persons to whom the equitable estate in remainder was limited. It was uncertain not only when he would be entitled to the sixth of the estate in possession, but whether he would ever be entitled to it, either in possession or right. We think, therefore, that the equitable remainders were contingent, and continued so until the death of Mrs. Burges, the equitable donees in remainder being then first ascertained. 4 Kent Comment. *208 ; Biggot v. Smyth, Cro. Car. 102 ; Olney v. Hull, 21 Pick. 311; Thompson v. Ludington, 104 Mass. 193 ; Brown v. Williams, 5 R. I. 309. The counsel for William A. Hop pin cites the provision for advancements, as proof that the grantor intended to have the equitable remainders vest immediately. It will be seen, by reference, to the provision, that it only relates to a period after the death of the grantor and his wife, and therefore, though it may evince an intent on the part of the grantor to have all the equitable remainders vest immediately after their death, whether all the persons entitled in remainder were then twenty-one years old or not, we do not perceive that it evinces such an intent for any previous period. The next question is, What effect is to be given to Arnold *568 Burges’s deed to Robert Wheaton ? It seems to be settled that at common law such a deed is inoperative as a grant because the grantor, so long as the precedent estate endures, has only a naked possibility, without an interest, which is not assignable. 4 Kent Comment. *161, 162; Jackson v. Waldron, 13 Wend. 178. But the deed here is not a simple grant, but it contains a covenant of warranty, by which the grantor agrees to warrant the described land and property to the grantee, his heirs and assigns, against the lawful claims of all persons claiming by, through, or under him. The covenant, it will be seen, is not confined to the right, title, and interest released or assigned, but extends to the land and property described, and must be held to include, at least, whatever the deed purports to release or assign, and the deed purports to release and assign not only the grantor’s present and vested property, but also his future and contingent property, and in fact, any property of any kind which he may have, or which but for his deed he might have at any time thereafter in the trust estate. It has been held that a grantor is barred, even at common law, from claiming against the grantee or his heirs by such a warranty, by way of rebutter or estoppel, to prevent circuity of action. Trull v. Eastman, 3 Met. 121; Blake & Goodhue v. Tucker, 12 Vt. 39 ; Jackson v. Bradford, 4 Wend. 619. But the case at bar is not an action at law, but a suit in equity, relating to an equitable estate, and determinable therefore upon purely equitable principles. In equity it is well settled that a deed which purports to convey property, which is in expectancy or to be subsequently acquired, or which is not of a nature to be grantable at law, though inoperative as a grant or conveyance, will be upheld as an executory agreement, and enforced according to its intent, if supported by valid considerations, whenever the grantor is in a condition to give it effect. Varick v. Edwards, 1 Hoff. Ch. 382; Whitfield v. Fausset, 1 Ves. 387 ; Wright v. Wright, 1 Ves. 409 ; Duke of Chandos v. Talbot, 2 P. Wms. 601, 608 ; Theobalds v. Duffoy, 9 Mod. 101; Holroyd v. Marshall, 10 H. L. 191; Williams v. Winsor, ante, 9; Bayler v. The Commonwealth, 40 Pa. St. 37. We think, therefore, that there can be no doubt that Robert Wheaton, if living, would be entitled to have the deed, if fairly obtained for an adequate consideration, which is not disputed, supported and *569 enforced in equity for bis benefit. We also think the right of Robert Wheaton to have the deed supported and enforced, according to its intent, is transmissible in equity to his heir or devi-see, notwithstanding the precarious nature of the subject of the deed. A court of equity does not stop, in a case like the present, to get itself entangled in the web of subtle refinements which renders the law of contingent remainders so perplexing to the common law lawyer; but, brushing them aside, it regards only the fact that the grantee of the deed has paid his money for it, and that he is therefore entitled, in good conscience, to have the fruit of it, though it may exist but in promise, not only conserved to him while living, but transmitted to his heirs and devisees. In equity, indeed, it is the executory contract for the future estate which is transmitted. The final question is, Who is entitled to the benefit of the deed, the heir or the devisee ? The counsel for the heir contends that she is entitled to it, because our statute, Gen. Stat. R. I. cap. 171, § 1, confers the right of devising real estate only on persons who are “ seized.” The word “ seized ” there, is, however, we think, evidently used in the broad sense of Timing, which is the word used in the old English Statute of Wills, 32 Henry VIII. cap. 1, under which it has been held that every descendible interest, of which the testator has not been disseised, is devisable. See Sutton v. Miles, 10 R. I. 348, 353, where the meaning of the word, used in the second section of the same chapter, is considered and explained and the authorities cited. Under the English statute a devise of equitable estates, including estates which have only been contracted for, and even where the contract by its terms is not perform able until after the execution of the will, is upheld as good in equity. Greenhill v. Greenhill, Finch Prec. in Ch. 320; Acherley v. Vernon, 9 Mod. 68, 78; M'Kinnon v. Thompson, 3 Johns. Ch. 307. Under these precedents the only difficulty here is, that the estate contracted for was, when the will was made and until after it went into effect, something which might never exist. The contract, however, was, as we have seen, valid in equity; and therefore the contract itself, whatever subtle lawyers may think of the subject of it, was a valuable property, and as such we think it must be held to have passed to William A. Hoppin under the will. *570 Our conclusion therefore is that the complainant ought to convey the said one sixth of the trust estate to William A. Hoppin, as devisee and trustee under the will of Robert Wheaton, subject to the trusts in the will declared. It may be thought that, according to the view which we have taken, a conveyance or release from Arnold Burges will be necessary to perfect the title. This would be so if his estate were legal; but, being equitable, we think his deed, though inoperative at law, will in equity be operative according to its intent. Decree accordingly. Note. — Tlie deed considered in the foregoing decision has already been before this court on other points, in Bailey v. Burges, 10 R. I. 422, and in Bailey v. Burges, 11 R. I. 330.