Varner v. Boynton

McCay, Judge. The language in which this deed undertakes to pass a remainder over, after the death of the husband, is so exactly within the rule in Shelley’s case, that it presents no difficulty. That rule, in substance, is simply this: that whenever there is an estate for life aud remainder over, to the heirs of the first taker, the estate is absolute in the first taker, since an estate to a man for life and then to his heirs, is the largest estate one can have in land. The use of the word heirs general can make no difference. If the word “general” has any meaning, it is only that no particular heirs are meant, and this would be the meaning if only the word heirs was used. [513] It follows, therefore, that at the death of the wife, the husband took a fee in this property. His heirs had no interest in it, except as his legal heirs; they took nothing under the deed, more than that interest which every man’s heirs have in the property he has an absolute title to, to-wit: the right to inherit if he dies intestate. This right, however, is a mere expectancy since no man has heirs whilst he lives. Whatever disposition, therefore, this husband made of this property was a disposition he had a right to make, so far as his heirs are concerned. During the life of the wife, his power over the property was limited by her rights, but at her death, under the deed, his dominion over it was absolute. During the life of the wife her assent to any act of his would bind her, even as to her life estate; and though any act of his during her life would not bind her, unless she assented to it, yet, such an act, though illegal as to her,v#buld bind these plaintiffs. They can only stand in the shoes of their father. They are not the heirs of their mother. At her death her husband inherited her rights, and if they ever came to these plaintiffs they came through their father to them. They have no rights in this property, except as the heirs-at-law of their father. If he committed any wrong to the mother’s rights, at her death he fell heir to any cause of action she had for that wrong. If there was a cause of action against him he fell heir to that, and, as a matter of course, it ceased on his accession to the right. For it is a rule, as well as law, as of common sense, that a man cannot have a right of action against himself. The question here, then, is simply this: did the husband misappropriate any of this trust estate during the life of his wife? If he did, as he was himself the sole remainderman, he had a right to dispose of it as he pleased. So far as the remainder is concerned, and so far as the life-interest of the wife is concerned, at her death, her rights, whatever they were, fell to him. These plaintiffs have no rights here, except as heirs-at-law of the father. Did he, in his life time, wrong his wife — that is, for her to complain of? His heirs can only stand in his shoes. Had he, during his [514] life, complained as remainderman, the reply would have been conclusive, you are complaining of your own act. His heirs must stand in his place; they are his privies. Any reply good as to him is good as to them. Judgment affirmed.