Jackson ex dem. Livingston v. Robins
Jackson, ex dem. Livingston and others, against Robins
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Opinion of the Court
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Platt, J.,
delivered the opinion of the court. The plaintiff claims title under the will of Lord Stirling, bearing date the 29th of January, 1780, and which took effect at the death of the testator, in the spring of 1783.
By that will, the testator devised to Lady Stirling all his estate, real and personal, with an absolute and unqualified right in her to “ sell, devise, or dispose of it,” at her pleasure : and the will further declares, that “ in case of her death, without giving, devising, or bequeathing, by will, or otherwise selling or bequeathing the said estate, or any part thereof,” then the testator gives to his daughter, Catharine Duer, all such part of the estate as shall remain “ unsold, undevised, or unbequeathed” by Lady Stirling.
In the case of Jackson, ex dem. Livingston, v. De Lancy, (13 Johns. Rep. 537—551.) the court for the trial of impeachments and the correction of errors, on a point essential in the determination of that cause, expressly decided, that according to the true construction of this will, Lady Stirling took an estate in fee simple, absolute; and that the limitation over to Catharine Duer was not a good executory devise.
That decision sanctions the opinion of this court, in Jackson v. Bull, (10 Johns. Rep. 19.) and must be regarded, by us, as conclusive on that point.
Lady Stirling died in 1805, and the only title proved on the part of the plaintiff is, that Catharine N. one of the lessors, is the daughter and heir of Lady Stirling. Mrs. JV*. can claim nothing immediately from her father, Lord Stirling, either as heir or devisee.
It appears, that in April, 1794, Harlowe entered into actual possession of the premises in question, under a conveyance from Taylor, who purchased the land at the sheriff’s sale, on the 16th of June, 1788.
Whether Taylor acquired a valid title, under the proceedings by scire facias and the sheriff’s sale, is a question which does not necessarily arise in this case. The possession taken under that purchase was, at least, under colour of title, so as to constitute a possession adverse towards Lady Stirling, and all claiming under her. As the statute of limitations began to run in the lifetime of Lady Stirling, and had *172 overrun 20 years before the commencement of this suit, the coverture of Mrs. JV. affords no protection to the title which she derived as heir of Lady Stirling.
The statute of limitations, therefore, bars the plaintiff’s right of entry, and the defendant is entitled to judgment.
Concurrence
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Van Ness, J.
Though I concur in the decision of the court, yet I think proper briefly to explain the ground of my concurrence. The construction of the will of Lord Stirling was settled by the court of errors, in Jackson v. Delancy, and I am not at liberty to adopt a different construction. Were it not for that decision, I should have no difficulty in saying, that Lady Stirling did not take a fee under the will of Lord Stirling, and that the judgments were not well revived by sci. fa. against Lady Catharine Duer. But a decision of the court of errors, directly on the point before the court, in this cause, and which was necessary to the determination of the cause in that court, must be binding on this court.
Judgment for the defendant.
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