Marwick v. Andrews

[529] The opinion of the Court was prepared by Shepeey J. The estate demanded in this action was conveyed by Edward Watts to Hugh Marwick and Lydia his wife, on June 27, 1795. The wife survived the husband, became entitled to hold the estate in fee, and conveyed it to her son, Andrew S. Marwick, on October 25, 1830. The son, by his will, approved in February, 1833, devised all his real and personal estate to his wife Elizabeth, after payment of his debts and funeral charges, “ to hold the same to her and her heirs forever. On condition, however, that my said wife shall support and maintain in a comfortable and suitable manner my much honored and now aged and infirm mother, should my mother survive me.” The mother survived her son and died in March, 1844. The demandants claim to be heirs at law of the mother and the son, and allege, that the estate has been forfeited by neglect to maintain the mother according to the provisions of the will. The tenant claims the estate by a conveyance from the de-visee and her second husband, made on May 3, 1834. His counsel contends, that the will should not be so construed as to give to the wife an estate on condition subsequent and subject to forfeiture for neglect to perform, because the testator has used other language indicating an intention to rely upon the strong injunctions to the wife for the performance of the duties required of her. He does express in the will great confidence, that the care of his mother could not bo trusted to better hands, and that she will accept it as a sacred charge, for the fulfilment of which God will reward her. He does not, however, by his will charge the estate with her maintenance. When a devisor uses words suited to create an estate upon condition subsequent, and charges the same estate with the performance of all the duties and acts required by the conditional words, courts may, as they often have done, conclude, that it was the real intention of the devisor to make the estate continue to be security for the performance, and not to subject it to forfeiture for neglect. And words, wiiich were apparently designed to create an estate upon condition, have been constru [530] ed to have no such effect, when performance was required of the only person, who could legally make an entry to create a forfeiture of the estate. There is nothing in the present case, which would authorize a court to refuse to give effect to an express condition, upon which the devise to the wife was made. It being clearly a devise upon condition subsequent, the devisee became entitled to enter upon and enjoy the estate until forfeited. Her grantee would have the same rights. No one can take advantage of such a condition, and make an entry to create a forfeiture of the estate, but an heir at law of the devisor. Litt. § 347; Co. Litt. 214. (b) & 218. (a) ; Newis & ux. v. Lark, Plow. 413. There is no proof in this case that an heir at law has ever made an entry for the purpose of causing a forfeiture of the estate. The counsel for the demandants insists, that the action can be maintained in this State by virtue of the provisions of the statute, c. 145, § 6, without proof of such an entry. That section provides, that the demandant shall not be required to prove an actual entry under his title, but proof, that he is entitled to such an estate in the premises, as he claims, and that he has a right of entry, therein, shall be deemed sufficient proof of the seizin alleged. The cases provided for by that section are those, in which a formal entry was required by the common law to restore the seizin to one, who had been disseiz-ed, or otherwise deprived of it. The statute does not in terms, and was not intended to apply to cases, where an entry was required not as matter of form, but for the purpose of causing a change of title, or a forfeiture of the estate, such as an entry under a mortgage for condition broken, or an entry upon a conditional estate to cause a forfeiture. The statute contemplates a case, where the party has already acquired a title, and an entry is necessary only to perfect the remedy. In this case the demandants can make no title to the estate, but by proof of neglect to perform the condition, followed by an entry made by an heir at law for the purpose of causing a forfeiture. They could not therefore bring their case within the terms of that section, if it had been applicable, for they [531] could not, without such an entry, prove their title to the estate. They could not therefore have been benefitted by the admission of the testimony excluded. It appears, that the mother had deceased without an entry to create a forfeiture, and before this action was commenced, and it does not in this case appear, that she ever made any complaint, that she had not been maintained according to the provisions of the will. Whether the heirs at law may not be considered as having waived their right to do it by their omission to make an entry until after her decease, under such circumstances, is not now presented for consideration. In certain cases courts of equity give relief against forfeitures of title depending upon the performance of conditions subsequent, when compensation can be made. Whether this would be a proper case for such relief: or whether this Court has power to relieve in a proper case, are also questions not now before the Court. Demandants nonsuit.