Carlyle v. Cannon

The opinion of the court was delivered by Duncan J. In this ejeetment the plaintiff claims to recover three sixth parts of the premises : that is his original sixth part, the sixth part devised to his father for life, who survived the testator, and the sixth part devised to ’William Renew for life, who died in testator’s life time. He contends that had all the devisees for life survived the testator, [491] then on the death of the testator, he would have taken estate in a special tail male, there being an estate or estates of freehold to support the remainder to him, but by the death of William Renew in the testator’s life, his sixth part must either fail, or go over by way of executory devise to the plaintiff; that John, the second of the name, (to distinguish him from his father) took the whole in specialtail by the devise to “ my nephew John Carlyle, and his four children, namely, John, William, Alexander and Rachel, and to William Renew, for their lives, to be equally divided amongst them, and afterwards to revert to the male heirs in lineal descent of my nephew John Carlyle, whose male heirs are only to possess my estate in tail, and their male issue who bears the name of Carlyle forever, so that my estate may remain entailed to the surviving male issue of John Carlyle forever.” John the present plaintiff is the heir male oí John the first, the nephew of the testator. Mandeville’s case first settled that this would be a devise in special tail male, and the reasons are fully stated in Fearne, page 180 of the Philadelphia edition ; for though the words heirs male of the body do not attach to the ancestor, but vest in the person answering the description of such special heir, they have a sort of equivocal or mixed effect; and though they give the estate to the special heir originally, and not through or from the ancestor, yet the estate which he so takes, has such a reference to the ancestor as to pursue the same course of succession, or the same estate of duration or continuance through the same heir, as if it had attached and descended from the ancestor. Here the testator expressly and in words limits it to the surviving male issue of his nephew John forever, which same male issue is the plaintiff; and there can be no good reason why the high constable of this good city, should not be indulged in the gratification of his family pride, equally with the proudest baron, and make what is very usual in his native country, Scotland, a Tailzie. To prove the second position, and I think it does prove it, the same authority, page 525, is referred to, and relied on, and the authorities cited, prove the ruie to be, that wherever a contingent limitation is preceded by a freehold, capable of supporting it, it is a contingent remainder, and not an executory devise; but it is possible that the freehold so limited may by a subsequent accident become incapable of ever taking effect at all, as by the death of the first devisee, in testator’s life time, in which case if the contingency has not then happened, it is held that where such subsequent limitation could not vest at testator’s death, that is at the time when the will is to take effect, it goes over as if it had been limited, without any preceding estate of freehold ; in which case when the subsequent limitation could not vest at testator’s death, it should enure as an executory devise, rather than fail for want of a preceding freehold which had never taken effect. But when the preceding freehold is once vested, no subsequent accident will make a contingent remainder operate as an executory devise. From these well settled principles, it fol [492] lows that plaintiff is tenant in tail in remainder of the five-sixth parts and takes the sixth part of Renew, by way of executory devise immediately, and on the events which have taken place, will be entitled to the possession of three-sixths immediately, unless there are other provisions in the will which postpone his right of possession. It is alleged that the trustees are to hold possession for the purposes of the will, to rent the whole, and pay over part of the rent to Jane Renew and her blind child, during their lives. This does not seem consistent with the intention of the testator. The trustees are empowered to rent and dispose of his real estate for one year, not exceeding that time, provided that the possession is to continue no longer than until his respective heirs shall arrive and take possession of said estate, or empower some one to do it for them. Here the plaintiff has arrived to take possession, and is entitled presently to the possession of three-sixths, except for the interception of the devise to Jane Renew, and her blind child. The devise of the one third part of the nett proceeds, in order to effectuate the intention of the testator, is equivalent to a devise of the estate itself, and the plaintiff is entitled at present, only to judgment for two-thirds of three sixths of the premises. Judgment for plaintiff