For the reasons given by the counsel in the argument of this case on behalf of Davie and wife, we are of opinion, that tiny are entitled to a moiety of the rents and profits received by the guardian. — Judgment accordingly.
Exum v. Davie, 5 N.C. 475, 1 Mur. 475 (1810)
July 1810
·
Supreme Court of North Carolina
5 N.C. 475, 1 Mur. 475
James Exum v. Hyder A. Davie and wife, and Harwood Jones.
1 b>From Northampton.
A. devised his manor plantation to his son B, in trust, to apply and pay-over the rents and profits to another son, C, during his life, and after the death of C, he devised tile plantation to B. in fee-simple. In the year 1790, B. conveyed the plantation to C. in fee, with proviso, “ that if C. should die without a child or children, the plantation shoixld revert to B. and his heirs.” B. died in 1794, intestate, leaving two children, D. a son, and E. a daughter. At the time of his death, D. Ids son was heir at law. In 1795, the Legislature declared that sisters should be admitted to inherit lands equally with the brothers, to hold with the brothers as tenants in common. Ini 1798, C. died without leaving any child; and a question arose, Whether D. who was the hen- of his father at the time of the descent, or D. and E. who were the heirs at law at the time the rever-sionary interest of the father fell into possession, were entitled to the rents and profits of the plantation.
Held, that E. was entitled equally with D.; for whoever claims a fee-, simple by descent from one who was first purchaser of the remainder or reversion expectant on a freehold estate, must make himself hem to such purchaser at the time when such remainder or reversion falls into possession. s
And the pleadings in a writ of Formedon in Remainder or Reverter, shew that he who is heir at the time of the contingency happening and the lands falling into possession, is to take, and not he that ^5 heir at the death of the first purchaser or donor.. For in Formedon in Descender, file Court stating the„gifl to the first donee, expressly avers a descent from him to A, his son and heir, then to B, his son and heir, and then to the Demandant, his son and heir. But in For-, medonin Remainder and Reverter, the Court only avers the happening of the contingency on which the lands were to go over or revert, and that on its happening, the lands ought to go over or revert to the Demandant, who now claims as cousin and heir of the first purchaser or donor.
*The interest of the first purchaser of a remainder in fee, or the donor of a reverter in fee, is to him and his heirs forever; and on his death. *476whatever interest vests in his heir, is to him and Ms heirs forever. This interest, although vesting in the heir of the first purchaser or donor and his heirs, is subject to be dives! ed out of his heirs by any subsequent event which makes them not heirs to the first purchaser or donor at the lime when the reversion falls in. As the law of descents has not been changed in England, the books shew no case decided there, in which the estate has by any subsequent event been divested out of the heir of the first purchaser or donor in whom it has once vested; and therefore, if the remainder or reversion once vested in him, he continued to be heir to the first purchaser or donor at the falling in- of the reversion, if he so long lived: but such heir does not take an interest to himself and another to his heirs; and as the interest which he takes to his heirs is liable to be divested by subsequent event-', making his heirs not heirs to the first purchaser or donor at the time when the remainder or reversion falls into posses-sibn, so his interest may be divested by a public and general law, making Aim not heir to the first purchaser or donor at the time when the remainder or reversion falls in.
fiiere the reversionarj interest fell in in 1798, at which time the act of 1795 had made 1). not the sole heir to the donor, and had declared that D. and E. should then be considered heirs to him. And it is a common case in lav/ for lands to vest in one sub modo only, so as to be divested by a subsequent event, and vested in another. It occurs,
1. Ex instilutione legis in every instance where on the death of a tenant in fee or in tail, his lands descend to his daughter, uncle, &c."and afterwards a son is born, who shall enter upon the daughter, &c. and divest the estate which she took by descent.
2. Ex provisione hominis ; as where lands are settled or devised to the Use of the husband and wife for life, remainder to such one or more of their children as they shall appoint; and in default of such appointment to all their children as tenants in common. There on the birth of one child, the remainder vests solely in it; but on the birth of the second child, one moiety of the remainder is divested out of the first child, and vested in the second, and so on loties quo-■lies ; and if the father and mother make an appointment, then the whole remainder is divested out of the children as' tenants in common, and vested according to the appointment.
So if on the death oí' B. an interest vested in his son 11, one moiety of that interest was divested by the act of 1795, and 1). and E. became entitled each to a moiety of the lands, and of course to a moiety of the profits.
Harwood Jones devised his “ manor plantation, and all the lands adjoining the same, to his son John Jones, in trust, to apply and pay over anuually the rents and profits of the same to the use of another son, Harwood *477Jones, for and during his natural life; and after the death of the-said Harwood, (the son,) to John in fee sim-pie.” In the year 1790, and shortly after the death of Harwood Jones, the devisor, John Jones conveyed the •said manor plantation to his brother Harwood Jones, in fee, y?ith a proviso, “that if the said Harwood Jones should die without a child or children, the said manor plantation should revert to the said John Jones- and his heirs.” Harwood Jones died in 1798, without leaving any child or children, or the issue of such : and John Jones died in the year 1794, intestate, leaving two children, Harwood, and Elizabeth, since intermarried with Hyder A. Davie. James Exum was appointed guardian to the said Harwood and Elizabeth, and received the rents and profits of the said manor plantation ; and not being able to determine who was entitled to the said rents and profits : whether they belonged exclusively to Har-wood, or were to be divided between him and his sister Elizabeth ; and as Mr. Davie, in right of his wife Elizabeth, claimed a riioiety of the rents and profits, he filed this bill in the Court of Equity for Northampton county, against Harwood Jones, and Hyder A. Davie and Elizabeth his wife, to compel them to interplead, settle and adjust their rights and demands, between themselves, so that he might be enabled to pay the said rents and profits with safety to himself. He appended to his bill the. usual affidavit that he did not file the bill in collusion with either of the Defendants, but from a desire to avoid being doubly vexed concerning the matters contained therein.
The Defendants put in their answers ; Harwood Jones insisting that the whole rents and profits belonged to him ; and Hyder A. Davie and wife insisting that one moiety thereof belonged to them. The case was sent to this Court upon the bill and answers, for the opinion of the Judges. The case was argued by Fitts for Harwood Jones, and by Browne for Hyder A. Davie and wife.
*478The argument relied upon for Harwood Jones is noticed by Browne in his. argument for Davie and wife.
Browne, for Davie and wife
The first questions which present themselves in this case, are, 1st. Whether the heirs pf John Jones are entitled to the lands, the profits of which are now in controversy ? and 2dly, if they be entitled, Who are his heirs ?
By the will of Harwood Jones the elder, his son Har-wood Jones was tenant for life, with a clear remainder to his other son John Jones. But John Jones, by de(ed of bargain and sale, conveyed the said lands to his brother Harwood in fee, “Provided nevertheless and upon thi^ express condition, that if the said Harwood Jones sliou,ld depart this life without a legitimate child or children, then and in that case, the said lands, &c. are to revert to and become the property of the said John Jones, bis heirs and assigns for ever, in as full and ample a manner, to all intents and purposes, as if this present indenture had never been made.” if this had been a feoffment or other common Law conveyance, the feoffee would have taken a fee-simple on condition. — Co. Lit. 203, a— 204, 331, 371, 372. And on his dying without child or children, the feoffdr might have entered and been seised of his former estate. — Co. Lit. 325,. 202, a.
A condition may either confirm or defeat a fee-simple. Co. Lit. 207, a.
But this conveyance was a bargain and sale to operate by the statute of uses — 2 Bl. Com. 338 ; and on such conveyance a fee may be limited on a fee,, provided the contingency on which it is so limited'is not too remote. The Duke of Norfolk’s case arose on a deed, and was a springing trust after an estate-tail in a term. ,An estate-tail in a term gives the wholeinterest therein, because it cannot be docked by fine Or recovery, and so tends evidently to a perpetuity.* A common recovery suffered *479by tenant in tail barred all remainders and reversions on account of the supposed recompense.* But conditions, conditional limitations, shifting uses and trusts, resulting uses and trusts, &c. which were only to have operation after the termination of a fee-simple, being of no value in the eye of the law, no recompense was awarded them, and therefore, they were not bound on that ground $ but on the absurd notion that the recoverer was in of the estate-tail, which, in contemplation of law, will ever continue to subsist.† But a recovery by tenant in fee-simple did not bar them; for lie having the whole estate would be entitled to the whole recompense, and there being no previous estate-tail, there was no room for the notion of its continuing to subsist. This is the foundation of the rule limiting them to take eifect within a life in being and twenty-one years after.
In the case before the Court, the bargainee was tenant in fee-simple, and no recovery has or could have been suffered. It is therefore submitted that the heirs of John Jones are clearly entitled to the lands, the profits of which are in dispute in this case.
The second question is, Who are the heirs of John Jones entitled to these lands ? At the death of John Jones, his son was his sole heir: but at the death of Har-wood Jones the bargainee in 1798, when the reversion-' ary interest of the said John fell into possession, bis son and his daughter were equally entitled:‡ and the question is, Whether the son who was heir at the death of his father John, or the son and daughter who were the heirs at law at the death of Harwood the bargainee, and the falling into possession of the reversionary interest are to take.
*480Whoever claims a fee simple by descent from one who was first purchaser of the remainder or reversion expcc-tant on a freehold estate, must make himself heir to such purchaser at the time when such remainder or reversion falls into possession : * and although the particular reason given in the case in Willson, against the Plaintiff, was, that she was not of the blood of the first purchaser, yet that would not govern the case from Lord Coke, as the father and the sister of the whole blood were of the blood of the first purchaser. It must therefore be the general one assigned by Fearne, “ that she was not heir at the time of the contingency happening, and the .estate falling into possession.”
In Formedon in Descender, the Court stating the gift to the first donee, expressly avers a descent from him to A, his son and heir, then to R, his son and heir, and then to-thc demandant, his son and heir.† But in Formedon in the Remainder and Reverter, the Court only avers the happening of the contingency on which the lands were to go over or revert; and that on its happening, the lands ought to go over or revert to the demandant, who now claims as cousin and heir of the first purchaser or donor \ and only under a scilicet shews how he is cousin and heir.‡ What is laid under a 4idelicet is mere form, not traversable by the Defendant; nor is the Plaintiff obliged to prove it, but may support ids general allegation of being cousin and heir by proof of any other facts.§ As the accuracy and scrupulous precision of ancient pleading, and the necessity that a party was under of averring every thing material to his claim, are well known, and as the demandant in remainder or reversion only averred that at the time the contingency happened and the lands were to come into possession, he was heir to the first purchaser or donor, these precedents appear *481to be strong evidence, that he who was heir at the time of the contingency happening and the lands falling into possession, was to take ; aud not he that was heir at the death of the first purchaser or donor, or those claiming under Mm. The same doctrine is strongly laid down by Brampton, Chief-Justice, and Berkley, Justice, in Cro. Car. 411, and agreed to by Jones and Croke, Justices, although they differed from the others in the determination of that case upon the custom. But Croke reports himself and Jones as having said, “ If lands vest in an heir by reason of a contingency, although another heir more near comes in esse, it shall never be divested $ and he who will afier claim ought to claim from him in whom the estate vested.” The two cases which they citd in support of this doctrine, arc both stated in 1 Co. 65, a. and shew that by the term “ vest” they meant vesting in possession on the happening of the contingency. Indeed, they could mean nothing else, for an interest, while it depends on a contingency, is not a vested interest, and is therefore called contingent. So that this doctrine has no bearing on the case now before the Court. Both cases are, however, well explained,, and the dictum itself shewn, not to be Law, in 1 Co. 69, a—Cro. Car. 87—Mob. 3—3 Co. 61, b.
The interest of the first purchaser of a remainder in fee, or the donor of a reverter in fee, is to him and his heirs forever ; and on his death, whatever interest vests in his heir, is to him and his heirs forever. But the cases already cited, shew that this interest, although vesting in the heir of the first, purchaser or donor and his heirs, is subject to bo divested by any subsequent event which makes them not heirs to the first purchaser or donor at the time when the reversion falls in. It is true, that none of these cases shew that the estate may, by a subsequent event, be divested out of an heir of the first purchaser or donor, in whom it has once vested j but only that it shall not descend from such heir to his heirs, which must be owing to the law of descent’s never hav*482ing been changed in England since we have any reports of cases decided there : and therefore, if the remainder or reversion once vested in a person, as heir of the first purchaser or donor, ho continued to be heir to the first purchaser or donor at the falling in of the reversion, if he so long lived : but such heir does not take an interest to himself and another to his heirs ; and if the interest which he takes to his heirs is liable to be divested, and has been divested by subsequent events, making his heirs not heirs ¡o the first purchaser or donor at the time when the reversion or remainder fell into possession, why should not his interest be liable to be divested and actually be divested by a subsequent event, (the passing of a public, and general law,) making him not heir to the donor or first purchaser at the time when the reversion or remainder fell into possession ?
It, is impossible to ascertain wiien this rule of Law was first established; but it was probably after that which, in opposition to the principles of both natural and feudal law, excluded the children of different venters from inheriting from one another the lands of their common ancestor ; and one beneficial consequence, if not a cause of it, is the avoiding of some extreme hardships under the latter rule : ex gratia, if John Jones had had two sons by different venters, and no other relations whatever, and died, then the sou by the first venter had died, and then Harwood Jones, the bargainee had died, living the sou by the second venter ; by this rule, the son by the second venter would inherit $ whereas, if the reversion had vested in the son by the first venter, that then must have continued in him and his heirs, and could not be divested by any subsequent event making him or bis heirs not heirs to the first donor at the time of the reversion falling in, the son by the second venter could not, at Common Law, inherit, but the lands would escheat. In Cunningham v. Moody,* Lord Hardwicke says, in a similar case, “ The Court never is sorry to see this happen between brothers *483and sisters of the half blood by the same father ; it both answers the intention and rule of nature.” It is also in strict conformity to t!ie great principles of inheritance, it admits all the blood of the first purchaser, and none but the blood of the first purchaser.
It is a common case in Law, for lands to vest in one sub modo only, so as to be divested by a subsequent event, and vested in another. It occurs ex institutione legis in every instance where, on the death of a tenant in fee or in tail, bis lands descend to his daughter, brother,.uncle,. &c. and afterwards a son is born or other nearer heir .: the after-born issue shall enter upon the lister, brother, uncle, &c. and divest the estate which he or she took by descent.* So it occurs often ex provi&ione hominis: as where lands are settled or devised to the use of the husband ami wife for life, remainder to such one or more of their children as they shall appoint; and in default of such appointment, to all their children as tenants in common : there on the birth of one child, Use remainder vests solely in it; hut on the birth of a second child, one moiety of the remainder is divested out of the first child, and vested in the second, and so on toiies qnoties ; and if the father and mother make an appointment, then the whole remainder is divested out of the children as tenants in common, and vested according to the appointment. † Thife, if on the death of John Jones, an interest vested in his son Harwood, one moiety of that interest was liable to he divested, and was actually divested by the act of Assembly of 1795, and each of the. Defendants is entitled to a moiety of the lands, and of course to a moiefy of the profits.
But it is contended, that on the death of John Jones, no interest whatever descended to or vested in his sot» Harwood. Wherever the vesting of an estate, either in interest or in possession, depends on a contingency,* which, by possibility may never happen, it is calk'd a *484 possibility; and the old authorities did not perhaps distinguish between them. But the law for a number of years past, has distinguished and made a wide difference between them. The first, where the vesting in interest depends on a contingency, which, by possibility may never happen, is called a bare or naked possibility, and has no existence until the event happens. It is a mere hope or expectation, such as an heir apparent has during the life of his father, and of course cannot be disposed of. The second, where the vesting in possession only, depends on a contingency, which, by possibility may never happen, is called a possibility, coupled with an interest; or there is a present existence in interest, although the taking effect in possession, depends on a future event:* and .it has been decided by .degrees, that these last are de-scendible, releasable, assignable and devisable.† It is admitted that John Jones, the donor, had a possibility coupled with an interest; it was descendible to his heirs, and he might have disposed of it from his heirs, either 'by release, assignment or d. vise. But on his death his son took no such interest. It was not descendible from him to his heirs. If he had died in the life-time of his ancle, his father’s heirs and not his, would have been entitled at the death of his uncle, as has been shewn already. He could not devise it:‡ nor could he assigp it; for devisable and assignable are convertible terms; a devise being only an assignment in contemplation of death. The son of John had not therefore, during the life of his uncle, a possibility coupled with an interest: but only a bare, naked possibility, a mere hope or expectation that he would be heir to his father at the death of liis uncle. The Legislature have disappointed this expectation by the act of 1795, declaring his sister should inherit equally with himself; so that these lands and the’ profits thereof must be equally divided between them.
*485jSTo inconvenience even at the Common Law, conld have resulted from considering such possibility as in abeyance or suspension, on the death of the donor or first purchaser.' The uncle was tenant in fee-simple, constituted a complete feudal tenant, was dispunishable of waste, conld pray in aid of no remainderman, or rever-sioner, could even bring or defend a writ of right; and the power of alienation could only be restrained during the period which elapsed between the death of John Jones and his brother Harwood Jones.