Campbell v. Rawdon

By the Court, Hand, P. J. It is not pretended that the plaintiffs can recover if they are concluded by the judgment on the scire facias and the sale of the property by the sheriff. It is said that an execution without a sdre facias is not void, but voidable only by a writ of error, and cannot be questioned in a collateral suit; and till reversed is a good justification. (Patrick v. Johnson, 2 Lev. 493 ; S. C. 2 Lutw. 925. Jackson v. Delaney, 13 John. 537. Jackson v. Robins, 16 id. 537.) But there is another rule, that where a person not a party to the record derives a benefit by, or becomes chargeable to, the execution of it, there must be a scire facias to make him a party to the judgment. (Penoyer v. Bruce, 1 Salk. 319. 2 Saund. R. 6, n. 1. Id. 72, n. 4. Woodcock v. Bennett, 1 Cow. 611.) And where a judgment is revived against real estate by writ of scire facias, by our statute, the right of any person therein, not made a party to the writ, shall not be impaired or affected by such revival, unless he claim title from the tenant of such real estate who was duly made a party thereto. (2 R. S. 577, § 5.) Writs of scire facias, in such cases, formerly were brought against the heir or devisee and terretenants. And “ terretenant” in a scire facias, is said to mean the owner in fee. (Parke, B. 5 M. W. 326. 2 Saund. 9 a, n. 9.) But now it may be brought against one who actually occupies the estate, and claims an interest therein whether in fee or for life, or for years. (2 R. S. 577, § 4.) In the case now under consideration, the plaintiffs — 499 — did not actually “ occupy” the land, but the writ ran against “ the heirs of John Bill,” and the sheriff returned that the latter had nothing by which he could give them notice, in his bailiwick, and that they were not found therein. They may, perhaps, be said to have been parties to the writ. And, indeed, language as explicit as that used in § 5, has received a somewhat qualified interpretation. (Post v. Arnot, 2 Denio, 344.) But the revisors evidently suppposed what they believed to be the old rule, was to be abrogated. (Notes 3 R. S. 786, 2d ed.) And upon the whole I think the judgment did not bind the plaintiff if they had an interest in fee or for life ; even if it may be deemed, in form, a judgment against them; and the decision at the circuit was therefore right upon this point. (2 R. S. 377. Darcy v. Ketchum, 11 How. U. S. R. 165.) This brings us to the consideration of the will of Joseph Bindon senior. My first impressions were that the testator’s sons, Joseph and George, and Jane McCready took an estate in fee, subject, perhaps, if in this -respect the will is to be construed under the revised statutes, to a limitation over in case they died without' issue. Two’of them were heirs of the testator'; and the heirs at law cannot be disinherited by will, except by express words or necessary implication; ( Willes, 140; 6 Cruise, 159 ; Ram on Wills, 257 ;) and the words, “ to them and their heirs,” &c. if they mean any thing, are very important; and besides, the sons were then almost in the morning of life, and there was no apparent motive for giving his property to strangers at their decease. I understand Mr. Justice Cady still considers this the true construction ; and I have come to a different conclusion with considerable difficulty. However, the explicit language “ during their natural lives, and after their decease to the heirs of John Bill,” the other members of the court are inclined to think, was intended to limit the interest of the. three first takers, to a life estate. George died before his father; consequently the devise to him lapsed; and his share would have descended to the heir, his brother Joseph, if there had been no devise over. (Van Kleeck v. Dutch Church of N. Y. 20 Wend. 457. 7 Hill, 353 — 500 — 2 id. 516. 4 Kent, 542. 1 Jarm. on Wills, 555.) It would have been otherwise in case of a joint tenancy. (1 Jarm. 295.) But words of equality denote a tenancy in common ; (6 Cruise, 407, 409, 410 ; 2 Jarm. on Wills, 161, 2;) and the devise was to them for their equal emolument, &c. And without these words the result would have been the same. (1 R. L. 54. 1 R. S. 727, § 44. 4 Kent, 361.) Of course, there is nothing in the objection that the devise was void because the power of alienation was too long suspended. There was in fact, as we shall see, no suspension ; and if there had been, as the first takers were tenants in common, it would have been for one life only. The old rule allowed any number of lives in being, a reasonable period for gestation, and 21 years. (4 Ves. 319.) And within the provisions of the revised statutes ; if there ’had been a joint tenancy, as one of the three died in the lifetime of the testator, the devise would have been valid. (See Lang v. Rophe, 5 Sandf. R. 363.) If there was a valid devise over, the share of George did not go to the heir or residuary devisee, but, on the death of the testator, vested in those persons entitled to take under the designation of “the heirs of John Bill.” (Mowatt v. Carow, 7 Paige, 328. Walker v. Main, 1 J. & W. 1. 1 R. S. 723, & 113; 725, § 32. 2 Vern. 116, 207, 378, 611. And see Norris v. Beyea, 15 Barb. 416; Jackson v Staats, 11 John. 337 ; 11 Wend. 259 ; 15 Barb. 621; 2 Keen, 284; 1 Russ. & My. 639.) They do not claim by way of substitution, but under an original substantive gift. (2 Eng. L. & Eq. Rep. 243. 15 id. 498.) And the plaintiffs claim that one third of the lot passed to them or those under whom they claim, in fee on the death of the testator, and one third more on the death of Jane McCready. And it becomes necessary to inquire, what interest, if any, passed under the clause of the will “ and after their decease to the heirs of John Bill” &c. and to whom 7 John Bill was living at the time the will was executed ; and of course, in a technical sense, cou^d then have no heirs. And some special designation, as “ now living,” seems to have been thought necessary in such cases. (6 Cruise, 184.) However, — 501 — the word “ heirs” in this case, I think, may be considered as synonymous with “ children.” (Londay v. Hopkins, Ambler, 273. James v. Richardson, 1 Eq. Ca. Ab. 214. Right v. Creber, 5 B. & C. 866. Doe v. Perratt, Id. 48. 2 Jarm. on Wills, 1 to 25, and cases there cited.) But those only, took an interest who were living at-the time of the death of the testator. A gift to children “ now living” is a gift to those only, living at the date of the will. But a gift to children to take effect at the testator’s death, or to a class of persons, as a general rule, comprehends those living at his death, unless the case be one within the statute giving it to a surviving child or children; (2 R. S. 66, § 52;) which is not this case. And where the devise is to a fluctuating class of persons, the decease of'any of them in the lifetime of the testator will occasion no lapse in the disposition. (Doe v. Sheffield, 13 East, 536. Jackson v. Staats, 11 John. 337. Morton v. Morton, 8 Barb. 21. Jenkins v. Freyer, 4 Paige, 47. 1 Jarm. 295.) The devise over, therefore, was to the children of John Bill living at the time of the death of the testator. But if this will is to be construed, as the law was before the revised statutes, I think they took only a life estate. There are no words limiting an estate in fee simple, or showing an intent to pass an estate of inheritance to the children of John Bill. (Harvey v. Olmsted, 1 Corns. 483. S. C. 1 Barb. 102. Edwards v. Bishop, 4 Comst. 61. Olmstead v. Olmstead, Id. 56. Vanderwerker v. Vanderwerker, 7 Barb. 221. Lippen v. Eldred, 2 Barb. 130. 2 Jarm. on Wills, 170.) The word “ heirs” was not necessary; nor other express words of inheritance. (Id. 6 Cruise, 237.) But the intention to give a fee must appear in the will; and I think does not in this case. This will was executed in 1819, and the testator died in 1832; and it is material to inquire how far, if at all, it is affected by the revised statutes. In' Depeyster v. Clendining, (8 Paige, 295,) the will was made before 1830, and the testator died long after, and the chancellor said the validity of the trust, and the provisions of the will, must depend upon the law as it was when — 502 — the will took effect by his death. And in Bishop v. Bishop, (4 Hill, 138,) it was held that a devise in fee to a son, who died in the lifetime of the testator, did not lapse, but vested in the children of the son, the testator dying after, though his will was made before 1830. And in Sherman v. Sherman this principle of construction was recognized, though its application was unnecessary in that particular case. (3 Barb. 385.) But in Ellison v. Miller, it was held that a will executed before the revised statutes took effect, did not pass lands acquired after 1831. (11 Barb. 332.) And finally, the court of appeals, in Parker v. Bogardus, (1 Selden, 309,) unanimously held, that a will of all his estate, real and personal, executed in 1814, disposed only of the real estate then owned by the testator, although he died in 1841, and purchased the land in question in 1825. The case was considered as coming within § 77 of the first title of chapter 6, part 2, entitled “ Of wills and testaments of real and personal property, and the proof of them,” (2 R. S. 68,) which declares that “ the provisions of this title shall not be construed to impair the validity of the execution of any will made before this chapter shall take effect, or to affect the construction of any such will.” And consequently that section 5 of that title, providing that a will by a testator in express terms of all his real estate, &c. should be construed to pass all the real estate which he was entitled to devise at the time of his death, (2 R. S. 57,) did not apply; thus leaving the construction of the will in this respect as at common law. (See Jackson v. Potter, 9 John. 312.) The statute relied upon to give a fee in this case, it is true, is not found in the above title, to which reference has been made. It is as follows: “ The term ‘ heirs,’ or other words of inheritance, shall not be requisite to create or convey an estate in fee; and every grant or devise of real estate, or any interest therein, hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant.” (1 R. S. 748, § 1.) It is not clear, considering all its provisions, that this will would have given a fee tó the children of John Bill if this section were ap — 503 — plicable. But I think it is not. It has often been said that. a will must take effect according to the law as it is at the death of the testator; and that it speaks at that time. (18 Wend. 294. Depeyster v. Clendining, supra. Sherman v. Sherman, supra. Adams v. Wilbur, 2 Sumner, 266. Beable v. Dodd, 1 T. R. 193, 204. 1 Ves. 53.) And when an expectant estate is created by devise, the time of the death of the devisor is to be deemed the time of the creation of the estate. (1 R. S. 726, § 41.) No doubt the rights of the devisee, and of the heirs, accrue on the death of the testator or ancestor. (2 Smith’s L. Cas. 403.) And a devise, in one sense, speaks at the death of the testator. But, as Mr. Bam significantly asks, “ what does it speak ? Does it say more than what the testator said when he made his will?” (Ram on Wills, 108.) We have seen that, unless executed since the revised statutes took effect, it does not speak at the death of the testator, as to lands acquired after it was executed. In that case, the old rule holds; “ that it is so far testamentary, that it is fluctuating, ambulatory, and does not take effect till after death; but it is in the nature of a conveyance ; being an appointment of a specific estate.” (Ld. Rosslyn in Bridges v. De Chandos, 2 Ves. jun. 427. And see the notes at the end of that case.) And why should a different rule prevail as to the quantum of interest ? That may be much more important. It has often been said that the intent of the testator ought to be taken as things stood at the time the will was made. (Willes, C. I, in Doe v. Underdown, Willes, 297. Abner v. Miller, 2 Atk. 597. 6 Madd. R. 84. 1 Jarm. on Witts, 277, and note et seq. And see Root v. Stuyvesant, 18 Wend. 257.) And Mr. Bam remarks, that the effect of a will may be changed by events happening since it was published, as by lapsed devises, &c. “ but not the intention; for then it would not be the intention expressed in the will.” And no doubt, for certain purposes, the time of the publication of the will and of the death of the testator are both important. But again, the language of this section, dispensing with the word “ heirs,” and declaring that a devise of real estate shall pass all the estate of the devisor, i&c., (1 R. S. 748, § 1,) by its — 504 — terms, is not applicable to wills executed before the revised statutes took effect. It is confined to grants and devises “ hereafter to be executed.” There can be no doubt what is meant by the execution of a will. (2 R. S. 63, § 40. 1 Vict. ch. 26, § 9.) [Franklin General Term, September 4, 1854. Hand, Cady, C. L. Alien and James, Justices.] If this construction of the will is right, the three children of ' John Bill, living at the time of the death of the testator, on his death, took a life estate as tenants in common in the land in question; to one third of which they then had an immediate right of possession by the previous death of George Bindon ; and if .they had survived her, they would have become entitled to the possession of another one third part thereof, on the death of Jane McCready. But as they took only life estates as tenants in common, their children can take nothing under the will; nor was there any right of survivorship-among the children of John Bill. Mrs. Batey wras the only survivor at the time this suit was commenced, and she was then entitled to recover possession of one third of two thirds of lot fifty-six, the' land in question. The counsel for the defendant .Rawdon also insists, that there can be no recovery against him, because it was not proved that he was in possession. His answer admits that he is in possession ; and probably the other defendant was-a mere servant or agent. And besides, if it were otherwise, as Rawdon only claims title and defends, it may be presumed that he does so as landlord. The judgment must be set aside, and there must be a new trial, with costs to abide the event.