Macomb v. Miller

The Chancellor.

The whole difficulty in sustaining the complainant’s claim to an absolute estate in fee simple in the premises in question in this suit, arises from the executory'limitation over of the proceeds of the testator’s real estate to his collateral relatives, in case his daughter should die and leave no lawful issue. The previous clauses of the will gave to the complainant an estate for life in this portion of the testator’s property, with remainder in fee to her children in case she should have any. And he left the estate to pass to the children of his sisters, after the termination of such life estate, under the residuary clause of the will, in case the complainant should happen to die unmarried or without having had any issue. The effect of the will, therefore, independent of the clause in question, or if the limitation over of the proceeds of the property contained in that clause is void by being too remote, in the events which have occurred, would be to vest the remainder in fee in the daughter of the complainant immediately upon the birth of that daughter in 1809, subject to open and let in any after born children as tenants in common in such remainder. (Hannan v. Osborn, 4 Paige’s Rep. 336.) For a remainder is vested in interest, so as to be transmissible to the heirs or legal representatives of the remainder-man, as soon as he is in esse and is ascertained as the person entitled to the remainder; and who will have an immediate and absolute right to an estate in possession in the premises upon the termination of the precedent estate or estates. (5 Paige’s Rep. 466.) If the limitation over in this case is void, therefore, as depending upon an indefinite *268 failure of issue, the daughter of the complainant, upon her birth in 1809, became immediately entitled to an absolute vested interest in the remainder in fee simple ; subject, however, to open and let in after born children. And as it is now agreed and admitted by the parties that the birth of any other children has become physically impossible, it follows that the daughter of the complainant, at the time of her death in July 1831, was the absolute owner of the premises in question, subject only to the life estate of her mother therein. And as her father was then dead, that interest descended to her mother, as her only heir at law, under the provisions of the sixth section of the title of the revised statutes relative to the descent of real property. (1 R. S. 162.)

The construction of the clause of the will which limits the proceeds of the testator’s estate over to his collateral relatives, in case his daughter should die and leave no lawful issue, must depend upon the law as it existed previous to the adoption of the revised statutes. For the testator died in 1798, and the statutory provision on this subject is not declaratory of the law as it previously existed, but is the adoption of a new rule for the government of future cases. (1 R. S. 724, § 22.) And upon a full examination of this case I have arrived at the conclusion, that there is nothing in this will to take it out of the technical rule of construction, which existed in this state and in England previous to the change made by the revised statutes, that a limitation over of real estate, in the event of the death of the previous taker without issue, or without leaving issue, meant an indefinite failure of issue and not a failure of issue at the time of the death of the first taker. The American as well as the English cases on this subject are collected and commented upon by Chancellor Kent with his usual ability, in his commentaries on American law, (4 Kent's Com. 271;) and it is not necessary, therefore, to refer to them here more particularly. He says, anti such was unquestionably.the law on the subject both here and in England in respect to limitations of interests in real *269 estate, previous to 1830, “If an executory devise be limited to take effect after a dying without heirs, or without issue, or on failure of issue, the limitation is held to be void, because the contingency is too remote, as it is not to take place until after an indefinite failure of issue.” The decision of the court for the correction of errors in the case of Patterson v. Ellis’ executors, ( 11 Wend. 259 ,) settled the question as to the construction of the words in a will, “ without leaving lawful issue.” And I see nothing in the devise in the present case which can possibly take it out of the operation of that decision, either as to the real or the personal estate of the testator. The complainant, therefore, has an absolute and indefeasible estate of inheritance in fee simple in the premises in question, by the union of the life estate, devised to her by the will of her father, with the remainder in fee to which she has become entitled as the heir at law of her daughter.

There being no substantial objection to the title, the complainant is entitled to a decree for the specific performance of the contract set forth in her bill and admitted by the answer. But under the circumstances of this case I shall not charge the defendant with costs. (a)

Affirmed, on appeal to the court for the correction of errors, in December, 1841. (See 26 Wendell's Reports, 229.)