Smith v. Pendell

Church, Ch. J. David Smith was the owner of the land in controversy until his death ; and by his last will and testament, dated March 7th, 1815, he devised it in the following language: “ And to my beloved grand-daughter, Elizabeth “ Smith, [afterwards the wife of William Pendell,’] I do “ give all the remainder of my lands and estate, hoping she “ may live to enjoy the same ; but if the said Elizabeth should “ die, leaving no natural heirs, my will is, that the same shall “go to my said daughter-in-law Hannah Smith, mother of “said Elizabeth, [one of the plaintiffs] and to be her own,” &c. Under this will, the said Elizabeth entered into the possession of the premises, and having married William Pendell, ishe continued in possession until her death ; and while she was thus in possession under the will of David Smith, the said Hannah Smith and her husband, the present plaintiffs, executed and delivered to her a quit-claim or release deed of this land, dated October 26th, 1841, as follows : “ We do, by “ these presents, remise, release and forever quit-claim unto “ the said Elizabeth all right, title, interest, claim and demand “ whatever, which we, the said releasors, or either of us, “ have, or ought to have, either in possession, remainder, re- “ version, or by bequest, or under the will, of David Smith, “ or in any other way.” Elizabeth, the grantee, died about the 1st day of January 1842, without ever having had a child ; and by her will, dated October 26th, 1841, she devised this land to William Pendell, her husband, in fee-simple. William Pendell married again, and died in January, 1846, [111] after having devised this land to his wife, the present defendant. If the release or quit-claim deed from Hannah Smith and her husband to the first Elizabeth Pendell, was effectual to transfer or extinguish the interest of the said Hannah in these premises, the plaintiffs cannot recover ; and whether it was, is the question submitted for our advice. This question arises under the will of David Smith, connected with the fact, that Elizabeth Smith (Pendell) therein named, died “ leaving no natural heirs upon which contingency, the estate devised was to go to Hannah Smith, one of these plaintiffs. But Hannah had executed to Elizabeth the quit-claim deed before described. The claim of the plaintiff, is, that, when that deed was executed, Elizabeth was alive, and Hannah had no interest in the land, but only a naked possibility, which could not be affected or conveyed, by a release deed without covenants; and that the interest which afterwards arose from the death of Elizabeth, without children, was an original interest in Hannah, not existing when the quit-claim deed was executed, and ^therefore, not extinguished by it. It is true, if Hannah Smith, when she executed her deed of release, had nothing more than a possibility of interest, such deed was inoperative to extinguish her future rights, even after such a possibility had ripened into certainty; and though the releasee was in possession under a title ; because a mere possibility, unaccompanied with some present interest, can neither be granted, devised nor released; although it may be reached, by force of an estoppel in a deed, with covenants. Preston on Estates, 78. 1 Jarman on Wills, 40. 4 Kent’s Com. 498. Jones v. Perry, 3 Term R. 88. Dart v. Dart, 7 Conn. R. 251., and the cases there cited. Lacey & al. v. Tomlinson, 5 Day, 77. We do not think Hannah Smith had any such vested or present interest in this estate, as could, by her deed, be conveyed to a stranger; but we believe she had, under the will of David Smith, a contingent remainder. We cannot, in this respect, distinguish this case from the case of Hudson v. Wadsworth, 8 Conn. R. 348. The will which was there the subject of construction, having given to J. T. Hudson and others the residue of the testator’s estate, further directed, that in case of the decease of the said J. T. Hudson “ with112 “ out lawful heirs of his body,” then the estate given to him “should be equally divided between F. and H., and their “ heirs and assigns forever.” The court, in that case, held clearly, that Hudson took an estate tail by implication, and the limitation over to F. and H. created in them a contingent remainder. The words “ natural heirs” and '‘heirs of the body,” in a will, and by way of executory devise, are considered as of the same legal import. The cases are very numerous, which confirm this construction ; many of which are referred to, in the case last cited. Here, as in that case, the limitation over was to a person certain, but upon an event entirely uncertain; which brings the case within the most approved definition of a contingent or executory remainder. In the late case of Mackell v. Weeding, 8 Simons. 4. Sir L. Shadwell, V. C. said, “I consider it to be a settled point, that whether an estate be given in fee, for life, or generally without any particular limit as to its duration, if it be followed by a devise over, in case of the devisee dying without issue, the devisee will take an estate tail.” And in all such cases, the event being uncertain, if the person be certain, the remainder must be contingent. 1 Sw. Dig. 140. 1 Jarman on Wills, 488. The right of Hannah Smith, therefore, was more than a naked possibility, like that of an heir apparent; it was an interest in the estate, though a contingent one. Such an interest is descendible, and if not deviseable at common law, it was made so, by the English statute of wills; and it may also be the subject of equitable cognizance; but it must be conceded, that by the rules of the common law, it cannot be conveyed or transferred, by a deed,.of bargain and sale, or of feoffment, or other common law assurance, without covenants of warranty, to a stranger to the estate. And if this conveyance from Hannah Smith and her husband to Elizabeth Pendell had been of that character, we must say, that no interest passed thereby. 2 Preston on Estates, 15. Shepard’s Touchstone, by Preston, 29. Jones v. Roe, 3 Term R. 88. 1 Sw. Dig. 121. But we have said, that Elizabeth Pendell, when she received the quit-claim deed from the plaintiffs, was tenant-in-tail in possession. This being so, this quit-claim or release deed was effectual to enlarge her estate, and to confirm the ulti [113] mate interest in her. and her heirs general, if she should die without children, by creating in her, in that event, a fee-simple. And this, no doubt, was the intention of these parties. The quit-claim deeds in common use in this state, operate as primary or original conveyances ; and when made to a tenant in possession, have all the legal effect of release deeds at the common law; which are defined to be a discharge or conveyance of a man’s right in lands to another, that hath in them some former estate in possession. 2 Bla. Com. 234. Although by the common law, neither a mere possibility, nor a chose in action, can be assigned, by deed, to a stranger ; yet actual rights, though but, contingent, and especially contingent remainders, may be released. The law on this subject was well understood, in the days of Littleton, who says : “ For in every case, where he to whom the release is made, “ hath the freehold in deed or in law, at the time of the release, “ there the release is good.” Sec. 447. Co. Lilt. 265. b. And it is said, that such contingent rights to an estate of freehold may be released in five manners. 1. To the tenant of the freehold in fact and in law, without any privity. 2. To the person in remainder. 3. To the person who is seised of the reversion, without any privity. 4. To the person who has right only in respect of privity. 5. In respect of privity only, without right. In the present case, it is enough, that Elizabeth Pendell, when she received the release, was undoubtedly the tenant of the freehold, both in fact and in law ; and therefore, the release was effectual to transfer all the rights of Hannah Smith, and to perfect the title of Elizabeth, against any future claim of Hannah under the will of David Smith. Co. Litt. 265. a. n. 212. by Butler. Preston on Estates, 75. Lampet's case, 10 Co. 48. Lacey & al. v, Tomlinson, 5 Day, 77. 3 Bla. Com. 324. 1 Sw. Dig. 121. We must therefore advise the superior court, that judgment be rendered for the defendant. In this opinion the other Judges concurred. Judgment for defendant.