Miller v. Macomb

When this cause was called up for decision: [234] Mr. Justice Cowen, after stating the facts of the case, observed, that the executory devise limited to take effect, in case Mary should die and leave no lawful issue, was bad, the contingency being too remote, as it was not to take place until after an indefinite failure of issue. But, he observed, it has been said, that though the remainder vested in fee in the daughter of Mary immediately upon the birth of that daughter, still it was subject to open and let in after-born children as tenants in common. As to which, he said, it appeared from the bill that Mary was of the age offifty-five years, and it therefore was not very probable that she would have another child. Indeed, he observed, the Chancellor has held that it is impossible she should have another child. (The Chancellor, who was present, denied that he had so held, and said he could not have been guilty of such an absurdity. The parties had agreed to have a clause inserted in the decree, that there was a physical impossibility to the complainant again becoming a mother, and, therefore, he had not passed upon that question.) Well, then, said the judge, the objection is obviated, and the decree ought to be affirmed. Senator Verplanck observed, that he thought it well, that the explanation of the Chancellor had been made, for it ought not to be decided as a question of law, that it is impossible for a woman of the age of fifty-five to become the mother of a child, when, from works entitled to judicial notice, it seems that such an event is not impossible. He said he had lately observed mention made in a work on medical jurisprudence, of the birth of a child subsequent to the mother attaining the age of fifty-six* After, how [235] ever, the explanation of the Chancellor, he would vote for an affirmance of the decree. By the President of the Senate. This is an amicable suit. The bill is filed for the specific performance of a contract for the purchase of land; and the only question is, whether the respondent, under the will of her father, and by the death of her only child without issue, is the owner in fee simple of the premises embraced in the contract 1 As regards the house and lot in Cherry-street, there can be no question that the respondent took an estate in fee [236] simple. In respect to the undivided half part of the five lots on Catharine-street, the respondent took, under the will of her father, a life-estate; and, as heir, under the statute, of her daughter Julia, such interest or estate as that daughter had at the time of her death. It therefore becomes material to inquire what was the nature and extent of that interest. The testator devised to the respondent a life-estate in the undivided moiety of these five lots, remainder in fee to her child or children if she should have any, with a limitation over, if she should die and leave no lawful issue. If this limitation can be upheld and carried into effect, according to its terms, then the respondent has only a life-estate in the undivided moiety of the five lots in question; but I apprehend that the limitation is fatally defective. The limitation over, therein attempted to be created, is undoubtedly void, being made dependent on an indefinite failure of issue. See 1 R. S. 723, § 14, 15, 16. 5 Cruise’s Dig. tit. 32, Devise, ch. 17, Id. p. 290. Doe ex dem. Ellis v. Ellis, 9 East. 382; and Hannan and others v. Osborn and others, 4 Paige, 336, where the Chancellor decided that “ a limitation over after an indefinite failure of issue is void, as too remote,” and that “failure of issue,” and <£ dying without issue,” were, equivalent to an indefinite failure of issue; and so are the authorities. In Patterson v. Ellis’ heirs, in this court, 11 Wend. 259, the same doctrine is laid down, after having been discussed at great length, and decided with much deliberation. So, also, in the case of Doe ex dem. Comberback v. Sir R. Perryn, 3 T. R. 484. Lord Kenyon, chief justice, and Ashurst, Buffer and Grose, justices, decided that such a limitation over is void, and that the remainder, vests. .- Julia, therefore, at her birth, took a vested remainder in fee, subject to open to let in children of the respondent born afterwards, if there should be any. See Right ex dem. Shortridge v. Creber, 5 Barn & Cress. 866; also the cases above cited of Doe ex dem. Comberback v. Sir R. Perryn, and Hannan v. Osborn. This remainder, on the death of [237] Julia without issue, passed under the statute to her mother, the respondent, as heir of her daughter, and being added to the life-estate which the respondent took under the will of her father, completed in her the entire fee simple. Having thus a full and unimpeachable estate in fee simple in the whole premises in question, she could convey the same in conformity with her contract with the appellant, and is? therefore, entitled to a specific performance of the contract. The decree of the Chancellor should be affirmed. On the question being put, Shall this decree he reversed? all the members of the court present, who had heard the argument, answered in the negative. Whereupon the decree of the Chancellor was Affirmed. Footnotes [*] Women in -England and North America ordinarily cease to bear children between the ages of forty-five and fifty, but there are many exceptions. Dr. Theodric Romeyn, Recle, in his valuable work on Mediad Jurisprudence, vol. 1, p. 523, 6th ed. after mentioning the famous case in which the Duke of Hamilton was appellant, and Archibald Stewart respondent, in which the latter claimed to be the son of Lady Jane Stewart, who was delivered of twins in her fiftieth year, and alluding to a previous part of his work, page 207 of the same volume in which he had treated of births in females óf advanced [235] ages, adds a note, which he has kindly given me permission to transcribe. It is in these words: “ Probably the most remarkable instance on record (if true) is that related by the Bishop of Sens in the Memoirs of the French Academy of Sciences for 1710, of a man in his diocese at 94, and a woman at 86, having a child, (Memoirs of Literature, vol. 7, p. 78.) Pliny says that Cornelia, of the family of Scipio, bore a child at 60. (Paris’s Medical Jurisprudence, vol. 1, p. 173.) He mentions other cases. In Dodsley’s Annual Register for 1775, is the following: “June 25,1775. The wife of Mr. Ladenberg, wine-merchant in Castle-street, Leicester Fields, in the 54th year of her age was brought to bed of twins. Mrs. L. though married upwards of 30 years, never had a child before.” During the present year (1833) a case has occurred in the English courts, in which the leading question appears to be whether it is possible for a woman to have a child at the age of 51. (Lancet N. S. vol. 12, p. 45.) On the next page the author refers to the ease of Leng v. Hodges, Jacob’s Reports in Chancery, 585, where a fund was devised to be paid over to certain individuals in the event of the first beneficiary dying without leaving children, in which the Master of the Rolls refused his assent to the transfer of the fund to the persons last entitled, although the first taker had no children, and had attained the age of sixty-nine years, unless security was given to refund to after-born children. At page 207, above referred to, is another note of Dr. Beck in these words: “ Many cases of births in advanced age are on record. See Capuron, pp 93, 98. The succession to an estate was disputed in France, because the mother was 58 years old when the child was born. It was decided in favor of the applicant, because similar instances are mentioned by ancient and modern writers. Smith, p. 493, mentions cases of early and late fecundity. I quote the following, because it happened lately: “ May, 1816. Mrs. Ashly, wife of John Ashly, grazier of Firsby, near Spilsby, at the age of 64, was delivered of two female children, which, with the mother, were likely to do well.” (Edinburgh Annual Register, vol. 9, part 2, p. 508.) And the following is an American case. A woman at Whitehall, in the state of New-York, named Ann Cook, had a child at the age of 64. She had not menstruated for fifteen years, and her youngest child was 26 years old. The child was born in February, 1836, and was doing well. (Boston Med. and Surg. Journal, vol. 14, p. 79.)”