Vedder. v. Evertson

The Chancellor. It is unnecessary to consider the question whether this court would compel a party to perform a contract for the purchase of his own property, where there was no mistake as to the facts of the case, and the party had merely misunderstood his legal rights; as from an examination of the will of Myndert Veeder, I am satisfied there has been no mistake here, either in law or fact. By that will the testator gave his real estate to his wife ■ during her widowhood, with remainder to his six sons in fee. Certain personal property was also given to his daughter. The testator then adds: “ It is my will, and I do hereby order and direct, that in case one or more of my herein above named sons, or my daughter, do or shall happen to die without lawful issue of his or their bo — 290 — dies, that the survivor or survivors of my said sons and daughter, as above said, shall then have what I have herein and hereby given or devised to him, her or them, so dying as aforesaid.” Simon M. Veeder, one of the sons, died without issue. And if he took an estate tail under the will, it was turned into an estate in fee by the statute, which was passed before his death. In that case the defendant is probably the legal owner of the premises in question, through divers mesne conveyances from Simon. But if he only took a contingent or determinable fee, the premises belong to the complainant, as the representative of one of the surviving brothers. The cases which arose upon the Eden will, decided in the supreme court and in the court for the correction of errors, have conclusively settled the point that the word survivors in this will refers the devise over to the contingency of Simon’s dying without issue living at the time of his death ; and not to the event of an indefinite failure of issue. (16 John. Rep. 382. 20 Id. 483.) It is supposed, however, that the fact of the first limitation to the mother, and the supposed survivorship of Simon her son, turned this executory devise into an estate tail upon her death. And to support this position, the court is referved to a note hi Saunders. (2 Saund. Rep. 388, i, note 9.) Sergeant Williams there says, “ With regard to executory devises, it is a rule that wherever one limitation of a devise is taken to be executory, all subsequent limitations must likewise be so taken. However, it seems to be established that whenever the first limitation vests hi possession, those that follow vest in interest at the same time, and cease to be executory, and become mere vested remainders, and subject to all the incidents of remainders.” As I understand the case put by the learned annotator, it is directly the reverse of the one now under consideration. He is supposing a case in which the first limitation cannot vest as a valid remainder for want of a particular estate to support it; but where the second limitation would be good as a remainder, provided the particular estate on which it rests could have vested absolutely at the death of the testator. And inasmuch as the owner of the particular estate can have no vested interest in possession during — 291 — the continuance of the contingent or determinable fee, he cannot, by any mode of alienation, bar the subsequent remainder which has not yet vested in interest. The second limitation over is, therefore, during the continuance of the contingent fee, only valid as supported by an executory devise. But as an ex-ecutory devise prevents an alienation of the property until the contingency happens upon which the limitation is to take effect, it is a settled rule óf law, that if a limitation over can be supported as a contingent remainder, it shall never be construed to be an executory devise. And in accordance with that principle, in the case supposed by Sergeant Williams, the moment the first limitation vests in possession by the happening of the contingency upon which it is to take effect, the second limitation, which in its nature is nothing.but a contingent remainder, is changed from an executory devise into a remainder in fact; and may be barred in the same manner as if the first contingent estate had never existed. The principle, however, that the second limitation vests in interest, and ceases to be executory whenever the first executory limitation vests in possession, is confined to cases where the second or subsequent limitation can vest as a valid remainder, and therefore cannot be good as an executory devise; or where the subsequent limitation in itself never could have been valid as an executory devise, being founded or dependant upon a contingency too remote. And it cannot be applied to a case where such succeeding limitation is in itself valid as an executory devise, but could not take effect as a remainder for want of a particular estate to support it. Chief Justice Spencer does not advert to this distinction in the case of Lyon v. Burtiss, (20 John. Rep. 489;) nor was it necessary, as that case was rightly decided, upon the ground that the limitation over to the brother and sister of the testator was too remote, being after an indefinite failure of issue. I have looked into all the cases referred to by the chief justice in that case, in connection with the note of Sergeant Williams, and find them to have been cases in which the subsequent limitations were in themselves valid as remainders, or where they could not take effect as executory devises, on the ground that they would not vest during the existence of a life in being at — 292 — the death of the testator, or within twenty-one years after the determination of that life. (Ca. Temp. Talb. 232.) In the case of Hopkins v. Hopkins, (1 West’s Rep. 615,) Lord Hardwicke says, “ It is admitted on all hands, that if Samuel Hopkins had survived the testator, he would have taken an estate for life in the trust, in possession ; and that all the subsequent limitations intermediate between the devise to him and the devise to the now plaintiff, the first son of Hannah "Dane, would have been contingent remainders.” But as Samuel Hopkins died in the life of the testator, and the next limitation over could hot therefore take effect as a contingent remainder, for the want of a particular estate to support it until the estate became vested by the birth of a second son of John Hopkins, that limitation was held good as an executory devise. The moment, however, that estate vested in the second son as an estate tail, all the subsequent limitations which were valid remainders, and supported on that estate, became vested in interest as contingent remainders, dependant upon the indefinite failure of the issue of such second son. And these limitations having once vested as valid remainders, upon a contingency which was too remote to support or sustain them as executory devises, they must have entirely failed upon the death of the second son, leaving no person in esse to take the estate under the will, had they not been preserved by the legal title which was vested in the trustees. The several limitations over, by the will of the testator in that case, were not successive executory devises, which certainly may be made by the same will, but they were originally so many parts of the same executory devise. And when a particular estate once vests in the first, taker, the estate thus vested being capable of supporting the other parts as remainders, all the subsequent limitations, must be considered and-treated as remainders merely. (See 1 West’s Rep. 617.) The case under consideration, however, is entirely different from those to which I have referred. Here the first limitation over, to the sons, upon the death or marriage of the" mother, was an estate in fee, subject to the contingency of then- dying without issue at the time of their respective deaths. Being a conditional fee, the limitation over to the survivors on the happening of the contingency, was in itself a separate and distinct — 293 — executory devise, and could not be valid as a remainder. It is therefore immaterial whether the conditional fee vested in the sons by the first limitation was a remainder, or only an executory devise. Although the estate vested in Simon at the death of his mother, the subsequent limitation could not take effect as a remainder ; and it must of necessity remain an executory devise, depending upon the determination of the fee simple conditional by his death, without lawful issue then existing. The complainant had therefore the legal estate in the property at the time of the first contract, and he is entitled to a specific performance of that contract; unless the conveyance of the small piece to McGown has discharged the defendant from his agreement. As to the lots acquired under the partition sales, I cannot see that there is any pretence for disputing the validity of the title. The piece conveyed to McGown was separate and distinct from the other lots embraced in the agreement, and the defendant admits he knew at the time of his purchase that the complainant had promised to convey it to McGown. I think, therefore, the consummation of the bargain with the latter affords no valid excuse to the defendant for refusing to complete his purchase of the residue. If he had been informed that the contract with McGown was in writing, so as to be legally binding upon the vendor, the defendant would now be entitled to receive the consideration money due from McGown at that time, and nothing more ; he paying for the same at the rate agreed upon in his own contract with Vedder. Under the circumstances, however, he is entitled to the consideration money received from McGown, with interest thereon, or he may elect to have an allowance made for that piece according to its relative value, as compared with the other lands contracted for at the same time. There must be a decree for a specific performance of the several contracts as stated in the complainant’s bill, with the exception of the piece of land conveyed to McGown. And it must be referred to a master, to take an account of what is due to the complainant for principal and interest; making a proper deduction for the lot conveyed to McGown. The interest on the purchase money is to be computed from the time — 294 — of the complainant’s offer to complete the purchase, so far as it respects the lots of which the defendant had not taken possession before that time, and as to the residue of the property from the time he took possession, after the contract with the complainant. The decree must also contain the consequential directions, upon the coming in and confirmation of the master’s report, for the payment of the amount reported due, with the interest thereon, and for the conveyance of the property upon the receipt of such payment. And as the defendant appears to have been wholly in fault in this case, he must pay to the solicitor of the complainant his costs in this cause to be taxed.