Seaman v. Harvey

LEARNED, P. J.: Prior to the statute of uses (27 Henry VIII., chap. 10) a grant to one person to the use of another gave the bare legal estate to the grantee, as feofee to uses; while the whole beneficial interest went to the person named in the deed as cestui que use. The rights of the cestui que use were enforced in chancery; but he had everything except the formal legal statute. That statute gave to him a legal estate. In the old technical language it executed the use, so that a legal estate passed to the cestui que use at once, of the same kind and extent with the equitable estate which he would have had by the same deed before the statute. The deed, therefore, of Robert T. Livingston to John V. D. S. Scott and another, conveyed to the cestuis que use named therein, legal, not equitable, estates. It first gave to Livingston himself a life estate. For under the doctrine of uses and by force of the statute, one could (as it were) convey to himself. After reserving a certain rent to Livingston’s right heirs, it then gave the lands “ to Margaret Race, and the heirs of her body lawfully begotten, * * * from and after the decease of said Livingston, to enter in and upon the said farms and premises with, etc., and the same to have and enjoy, as her and their estate.” Aside from the effect of our statute, hereinafter to be mentioned, the rule in Shelley’s Case (1 Coke, 88) determines what the estate thus granted would be. [74] “ Whenever there is a limitation to a man which, if it stood, alone, would convey to him a particular estate of freehold followed by a limitation to his heirs or to the heirs of his body (or equivalent expressions), cither immediately or after the interposition of one or more particular estates, the apparent gift to the heirs, or heirs of the body, is to he construed as a limitation of the estate of the ancestor, and not as a gift to his heirs.” (Digby Real Property, 195.) For other definitions (see 4 Kent Com., m. p., 215). This rule was in force in New York until abrogated by the Revised Statutes. (Brant v. Gelston, 2 Johns. Cas., 384; 4 Kent Com., m. p., 232.). This rule has been held to apply even in cases where it appeared to interfere with the intention of the grantor or devisor. (Schoonmaker v. Sheely, 3 Den., 485; Brown v. Lyon, 6 N. Y., 419.) In this last case a devise was to B. during her natural life, and after her decease then to descend to the heirs of her body, and to their heirs and assigns forever.” It was held that B. took a fee. But in the deed in question there are no such strong expressions of the intent of the grantor. The grant is-simply to Margaret Race and the heirs of her body. So that the grantor has not shown any intent to give Margaret Race, as the plaintiffs claim that she had, only an estate for life. According, then, to the language of the deed, and aside from the statute of 1786, Margaret Race would have taken an estate in fee tail general. That statute 1 ‘An act to abolish entails,” etc., passed February 23, 1786 (1 R. S., 52), declares that when any persons are or would be, but for the passage of the act, seized in fee tail, they shall be deemed to be seized in fee simple absolute. Hence Margaret Race took an estate in fee simple. (Lott v. Wykoff, 2 N. Y., 355.) In opposition to this view, the plaintiffs urge that the trustees held the title, and that Margaret Race had only an equitable estate. They cite the doctrine that where the life estate is equitable and the remainder is legal, the rule in Shelley’s Case did not apply. (Striker v. Mott, 28 N. Y., at p. 91.) But in this deed there is no distinction, as to the nature of the estate, between the estate which the plaintiffs claim Margaret Race took, and that which they claim her children took. Both are legal estates under any construction. She was to enter and enjoy.' Active trusts, it is true, were at an early day excepted from the statute of uses. (Brookes’ Abridg., [75] Feoffment at Uses, 52.) But here is no active trust, and therefore the cestuis que use, as before stated, took legal estates. This, too, is the plaintiffs’ position. For they claim as remainder-men, taking a legal estate under the deed of Livingston, and not by any conveyance from the trustees. If they took a legal title by that deed, so did Margaret Race, and then the rule in Shelly’s Octse applies. The plaintiffs further urge that the words “ heirs of her body,” must be intended to designate children as purchasers; that if the grantor had intended to convey a fee, he would have used the word “heirs” simply. “But the law of 1786 does not prohibit entails, but, when created, it turns them into estates in fee.” (Lott v. Wykoff, ut supra.) The grantor may have thought that he could still create an estate tail. There is in the deed a. further clause — “And in case of the death of the said Margaret Race without heirs on her body lawfully begotten, for the use and in trust for Mary Livingston, the daughter of the said Robert T. Livingston, her heirs and assigns forever.” The plaintiffs insist that these words show that Margaret Race took only a life estate. The Revised Statutes (1 R. S., m. p. 724, § 22) have declared that where a remainder is limited to take effect on the death of a person without heirs, or without heirs of his body, the word heirs shall be construed to mean heirs living at the death of the person named as ancestor. But, before that statute, the rule of construction was that such a limitation had reference to an indefinite failure of heirs or heirs of the body. (Wilson v. Wilson, 32 Barb., 328; Patterson v. Ellis, 11 Wend., 259.) The remainder over, therefore, to Mary Livingston was void, as limited on an indefinite failure of the issue of Margaret Race. The present case is very closely analogous to that of Grant v. Townsend (2 Hill, 554); S. C. (2 Den., 336). After a life estate, the testator gave a half of his real estate to “ R. and the heirs of her body forever; * * * and in case of her death without such heirs,” then he gave the same to certain other persons. It was held that R. took a fee simple; that the devise over to those persons was void; and that even if it were valid, yet, in that case, R. would take a determinable or base fee, and that the plaintiffs, the [76] children of R., could not recover against the defendant claiming under a deed from R. No question of fact is raised in the present case. If Margaret Race had the fee, the defendants now hold it. If she had only a life estate, that ceased at her death. The judgment and order must be reversed, and judgment rendered for- the defendants, with costs. Present — LearNed, P. J., BoardmaN and Bockes, JJ. Judgment and order reversed, and new trial granted; costs to abide event.