North v. Philbrook

Rice, J. This is a petition for partition. The rights of the petitioner depend upon the provisions of a deed from Joseph North and Hannah North to Henry W. Fuller, dated Jan’y 7, 1814, and a deed from Gershom North to James P. Philbrook, dated Nov. 17, 1846. The original estate was in Joseph North and Hannah North, his wife, in right of the Avife. Gershom North was a son of Joseph and Hannah, who also had other children and heirs, and the petitioner is a daughter of Gershom. Hannah North, one of the grantors to Fuller, died in Feb. 1819, and Joseph North, the other grantor to Fuller, died April 17, 1825. Ann North, Avife of Gershom, deceased before her husband, but after the decease of both Hannah and Joseph. Subsequent to the death of Ann, Gershom married again, and died March 4, 1849, leaving the petitioner, a minor daughter by his second wife, his only heir. The deed of trust from Joseph and Hannah North to Fuller [537] contains no words of inheritance. The first point raised at the argument was as to the character of the estate which passed to the trustee by that deed. The petitioner contended that it was an estate of inheritance, because nothing short of such an estate would enable the grantee* in that deed to perform the trusts, provided in the deed, and carry out the manifest intention of the grantors. As a general rule, such a quantity of estate will be held to be vested in trustees as is required for the performance' of the trust; and therefore if land be given to a man, without the word heirs, and a trust be disclosed which can be satisfied in no other way but by the trustee’s taking an inheritance, it has been held that a fee passes; so where there is a trust for sale, that is a purpose which it is impossible to serve unless the trustee have an inheritance, “for if they are to sell a fee, they must have a fee.” Crabb on Ileal Property, § 1831, p. 594. So a trust to sell, even on a contingency, confers a fee simple as indispensable to the execution of the trust. Lewin on Trust and Trustees, 235. Trustees must in all cases be presumed to take an estate commensurate with the charges imposed on them. 7 East, 99. Therefore, where lands are devised for a particular purpose, without words of inheritance, and the death of the devisee may defeat the object of the devise, he will take a fee. This doctrine is frequently applied to trusts created to support estates of inheritance. 8 Vim Abr. 262, pi. 18. When lands are granted to a trustee without words of perpetuity, he will by implication of law take a fee, if such estate be necessary to fulfil the objects of the trust. Welch v. Allen, 21 Wend. 147. The grant to Fuller not only authorized him to go into the immediate possession of a portion of the estate, but also to “sell so much of the above granted premises and execute a good and sufficient deed thereof, as shall amount to the sum of eight hundred dollars,” for the purpose of building a house, but further stipulated that, “provided the said land shall not have been sold nor the said building erected, during [538] the lifetime of the said Joseph, the said Fuller is hereby authorised, after the decease of the said Joseph, to sell so much of the above granted premises as shall amount to the above sum and for the purposes aforesaid, out of such part of the premises as he shall think proper.” To comply with these provisions it would seem to be necessary that the trustee should have an estate in fee, and that such was the intention of the grantors is obvious when all the provisions of the deed are taken into consideration. The estate of the trustee being thus enlarged, by operation of law, its operation upon the rights of other parties must be considered. The grantors reserved to themselves, during their natural lives, the use of the principal part of the estate, remainder over to Gershom and Ann North during their natural lives, and lastly, after the death of Gershom and Ann, so much of the estate as remained unsold “ to descend to, and vest in, the heirs of Joseph North and Hannah North, his wife.” At what point of time did the estate vest in the heirs of the grantors ? This question was much discussed at the argument. But from the view we take of the case it is wholly immaterial, so far as the rights of the petitioner are involved, how this question is determined, and it is therefore unnecessary at this time to enter upon a discussion of the distinctions, which exist between vested and contingent remainders. The rights of other parties, not now before the Court, may be found more involved in the consideration of that branch of the law. If, as is contended by the respondents, the heirs of Joseph North and Hannah North be'came known at the death of Joseph, and the remainder then vested in those heirs, with the right of possession of the estate after the decease of Gershom and Ann, then as a legal consequence, Gershom, being one of the heirs of Joseph and Hannah, became seized of’ a vested remainder in fee, which being a transferable interest, passed by his deed, dated November 17, 1846, to Philbrook, leaving no interest to be inherited by his daughter, the petitioner. [539] If, on the other hand, as is contended by the petitioner, the estate remained contingent until the death of Gershom, and then, according to the terms of the deed of trust, vested in the heirs of Joseph and Hannah, the petitioner is equally excluded. She being the heir of Gershom and not the heir of Joseph and Hannah, and the interest of Gershom according to this construction of the deed being an equitable life estate only. But it is strenuously contended that the petitioner is the heir of her grand-parents, Joseph and Hannah North, and therefore entitled to recover. In a recent case in Massachusetts, Brown & al v. Lawrence & al. 3 Cushing, 396, which in all material points is strictly analogous to the case at bar, this question was distinctly before the Court, and directly decided. The action in that case was brought by grandchildren of the grantor, claiming as heirs of the grantor after the termination of an intervening life estate in their father, who during his life, had aliened his interest in the estate. In giving the opinion of the Court, Shaw, C. J., says; “ they cannot make themselves heirs of the grandfather, because their father, through whom they must claim, was living at the time of their grandfather’s decease; and it is only when a son or daughter dies before the father, leaving children, that such children are heirs of a graudfather, or other more remote ancestor. These children were not born when the testator died ; their father was then his heir, and became a new stock of inheritance to these demandants. If the estate vested in him, he had a capacity to alienate it, and did alienate it, by his deed to the city; if the estate did not vest in him, then nothing came to these demandants, as his heirs.” The Court are unable to perceive any principle upon which the petitioner can recover, and according to the agreement of the parties a nonsuit must be entered. Shepley, C. J., and Tenney, Howard and Appleton, J. J., concurred.