Terry v. Briggs

Wilde, J. The first question to be decided in this case is, what estate David Smith, from whom the tenant derives his title, took in the demanded premises by the last will and testament of his father, William Smith. The words of the devise are, “ I give and devise one half of my real estate unto [22] my son David Smith, his heirs and assigns forever. And if he shall die without lawful heirs, then all that I have given and devised unto him, I give and devise unto his three younger sisters, Demarus, Hannah, and Sarah, their heirs and assigns forever, subject to the limitations, benefits and uses hereinbefore made to the mother.” Upon a certain contingency, which has not happened, the whole real estate was devised to the said David; but this' and other parts of the will are not material in the question to be decided. Nor is it material, that all the words of the will, as above cited, are not in immediate connexion. The three sisters, on the death of .David Smith without issue, did not take an estate in fee by way of executory devise. For we think it very clear, that an executory" devise limited to take effect after a dying without heirs, or without issue, is void, as it is not to take effect until after an indefinite failure of issue, which is too remote. A devise in fee, with remainder upon an indefinite failure of issue, is an estate tail; and where a devise over can take effect as a remainder, it shall be so construed, and not as an executory devise. Such devises are against the policy of the law, which abhors perpetuities. Common recoveries were introduced to bar estates tail, to prevent perpetuities, and to remove the restraint upon the power of alienation. And our statute, by which estates tail may be barred in a more easy and simple form, is founded on the same policy. We adhere, therefore, to the rule which has been fréquently laid down, that where a contingency is limited to depend on an estate of freehold, which is capable of supporting a remainder, it shall never be construed to be an executory devise, but a contingent remainder. 4 Kent Com. (3d ed.) 263. Doe v. Morgan, 3 T. R. 763. Nightingale v. Burrell, 15 Pick. 110. Stehman v. Stehman, 1 Watts, 466. If, then, David Smith took an estate tail, by the devise to him, the devise over was a remainder, and not an executory devise; and we have no doubt that he took such an estate. By the first clause of the devise, he would take an estate in fee simple; but by the subsequent clause, it [23] was reduced to an estate tail, by necessary implication. The words ‘ dying without lawful heirs,’ have the same meaning as the words '* dying without lawful issue.’ This appears clearly by the devise over to the sisters, who would be the awful heirs of David, if he left no issue. The charge upon David, to pay certain legacies to his sisters, does not affect the construction of the will, so as to convert an estate tail into an estate in fee simple. Denn v. Slater, 5 T. R. 335. The remaining question is, whether the remainder over to the three sisters of David Smith was barred by his deed to Bradford Howland; and we are of opinion that it was. At the time the deed was made, the grantor was of full age ; for he was living in 1801, when the will bears date, and the deed is dated in 1826 ; and he was seized and possessed of an undivided moiety of his father’s real estate, as tenant in tail. And there is no evidence to show that his deed to Howland was not made, bona fide, for a good and valuable consideration. It has been argued that the conveyance was not bona fide, because only $500 were paid for sixty acres of land. But we have no evidence of the value of the land, and are not authorized, from that fact, to infer that the conveyance was not bona fide. It has been argued also, that the deed should have been recorded before the death of the grantor. But there is manifestly no ground for this objection. The record had relation back, as that of any other conveyance. See Foster v. Stone, 20 Pick. 542. The conclusion is, that the demandants have no valid title under the will of William Smith. But they are entitled in right of the female demandant, as she is one of William’s heirs, to her share of a moiety of the demanded premises, which were not devised over after the death of his widow ; and judgment is to be entered accordingly.