Gray v. Corbit

The Court having, upon the general hearing of the cause, concluded that there is a resulting trust to the heirs-at-law of Samuel Thomas, the testator, of the surplus rents accumulated at Richard Thomas’ death, from the moiety of the real estate devised for his benefit, the object of the present argument has been to ascertain among whom, under such resulting trust, the fund is now distributable.

Three questions have been discussed :—

I. Whether the trust resulted to the immediate heirs-at-law of Samuel Thomas, passing to them at his decease, an interest transmissible upon the death of any of them, during Richard’s lifetime, to their representatives, or, whether the trust results only to those who, at Richard’s death, the event upon which the fund accrued, could entitle themselves as heirs-at-law of Samuel Thomas, the testator. This question becomes material, because several of the heirs of the testator died in Richard's lifetime, some of them intestate and others leaving wills.

It is, of course, not questioned that, ordinarily, real estate or its produce, ineffectually disposed of by will, results to the immediate heirs-at-law of the testator, carrying to them an interest which, upon the death of any one of the heirs, before the fund comes into possession, is transmissible from such heir. The principle is, that, under *370a resulting trust, the heirs-at-law take by virtue' of their right of inheritance in the land to which the trust relates, it being considered as, pro tanto, not devised, and the resulting fund being, for all the purposes of its transmission from the testator, treated precisely as the land itself. So strictly do the heirs thus take by the right of inheritance, that their title is wholly irrespective of any question of intention on the part of the testator to prefer them. Hopkins vs. Hopkins, Cas. temp. Talbot, 44; Amphlett vs. Parke, 2 R. & M. 221; Tregonwell vs. Sydenham, 3 Dow. P. C. 194. Nay, the heirs will take under a resulting trust even against express words of exclusion in the will unless there be also an effectual testamentary disposal of the fund ; for the heir cannot be disinherited by mere intention, but only by an effectual devise away from him. Lord Hardwicke in Sibley vs. Cook, 3 Atk. 572; Fitch vs. Weber, 6 Hare, 145.

It must follow, from these principles, that, ordinarily, whoever would have taken by descent from the testator, had he died intestate, the land out of which the trust is raised, will be entitled to the resulting interest, and will take it with the like qualities of transmissibility from the heirs so taking, except only, that, in its transmission from the heir upon his death, it will follow that course of succession which attaches to the nature of the interest, whether as realty or personalty.

But the position taken is, that the present case is exceptional ; that this surplus resulted, not to the heirs-at-law of Samuel Thomas, who were such at his decease, but only to those who could entitle themselves in that character at the decease of Richard Thomas, the event upon which the existence of the surplus became a fact, ascertained and fixed. This position rests upon two grounds.

First, that prior to Richard’s death, there was but a naked possibility, as it is termed, in this surplus, not *371coupled'with such a legal interest such as could be, at that time, transmissible.

There are two answers to this objection to the transmissibility of the surplus fund before Richard’s death.

One answer, and a true one, is that, according to the theory of .resulting trusts before stated, the fund results to the heir as the mere fruit or consequence of his title to the land, which is pro tanto treated precisely as if it were intestate ; however contingent or uncertain the accruing of any surplus, as a fact, may be, yet, in the event of its accruing, we ascertain its course of succession by going back to the death of the testator, and consider the case as if there had then occurred a descent directly from him of the real estate when the fund accrued, and, as the title to the land would be, so we fix the succession to the fund. It matters not, therefore, how contingent or remote the actual existence of any undisposed-of fruit of real estate, since the right to it is ascertained by reference to a supposed title by descent of the land direct and certain, attended with all the consequences of a descent, and therefore transmissible immediately and without awaiting the actual existence of the fund.

But laying aside this technical view of- a resulting trust, as following the course of an immediate descent, and treating the question upon general principles, 'it is still true that a future interest, be it ever so remote, will, if the person who is to take it in the event of its accruing die before that event happen, be transmissible to his representatives by descent, devise or assignment. The only limitation to be put upon this statement is, that the contingency must be one which affects, not the person who is to take, but only the event upon which the interest is to vest. Whenever there is a person in esse and ascertainable capable of taking an interest contingent upon some uncertain event, should that event now happen, then the interest is transmissible before the event happens.. *372It is only where the contingency affects the person to take, so that he cannot be ascertained until the contingency happens, that there is no transmissible interest; as where an executory devise is limited to the right heirs of J. S. who is living; or where a remainder after an estate for life is limited to whichever one of two persons may survive the estate for life, as in Doe vs. Tomkinson, 2 M. & S. 165, cited in argument. This distinction is very fully put it Fearne on Cont. Rem. Ch. VI. Sec. 4 and 6, particularly in the closing paragraph of Sec. 6. The exact test then of the transmissibility of a contingent interest may be taken to be the present capacity of some person, ascertained or ascertainable, to take the interest in question, should the contingency occur, upon which it is to vest in possession.

Contingent rights and interests were very early held to be descendible. A strong example on this point is afforded by the case of Marks vs. Marks, Prec. in Ch. 486; also reported in 1 Strange, 129, where, upon a devise of a remainder after a life estate to A, upon condition that he should, within one month after the testator’s death, pay into his estate A500. A. died in the lifetime of the tenant for life without having paid the money. Nevertheless, the right to pay it and take the estate, was held to have descended to his heir. The inheritability of contingent interests and possibilities of every nature is fully discussed and very liberally conceded in that case by Sir Joseph Jekyll, M. R., and Lord Chancellor Parker, sitting together. The devisability of contingent and executory interests was, at one time, questioned ; but not since the decision of Jones vs. Roe, in which all the prior cases were reviewed. Chancellor Kent speaks of the doctrine of that case as generally adopted in this country, 4 Kent (511). Jones vs. Roe came first before the Common Pleas, X H. Blk. 30, and then on writ of error before the King’s Bench, 3 T. R. 88, where the subject was elaborately considered and put at rest. See also Fearne on Cont. Rem. *373Ch. VI Sec. 6. It is hardly necessary to add that our Statute of Wills is as comprehensive as was the Statute of Henry VIII, upon which the English decisions proceeded ; and that it has always been considered as subject to the rules of construction adjudged in the English courts.

We may now proceed to apply these principles to the present case. Whether this, or any surplus of rents and profits of the real estate devised to Richard’s use would ever exist, was at the testator’s death uncertain, being contingent upon the question whether, at his death, there should have accrued from the rents and profits, more than the amount applied to his maintenance. But it is not true that, because the surplus might never in fact arise, it had, prior to Richard’s death, no legal existence, i. e., as the subject of legal right or interest. It was not, as was argued, a bare or naked possibility not coupled with an interest, like the expectation of an heir in the ancestor’s lifetime who has not even the shadow of legal right, since the law does not then know him as' heir, no more than any stranger, the maxim being nemo est haeris viventis. And this, by fhe way, is in fact, the only example of a naked possibility found in the books. The present surplus did not spring from mere accident, but directly from the provisions of the will, i. e., from the limitation which, it has been adjudged, was put upon Richard’s interest in the rents and profits. The contingency of such a surplus, whether actually contemplated or not, enters into the scheme of the will; and, however uncertain the fact of its ever accruing, the right to take it, should it accrue, might be a present subsisting interest before Richard’s death ; provided there were then a person ascertained and capable to take. Not a question on this point could have been raised, had the testator himself limited this contingent interest to a devisee. Yet, whether the person to take it be one named by the testator or entitled under the law, *374in the absence of a testamentary disposal, cannot affect the nature of the interest as to whether it be one transmissible or not. Either way, it is plainly within the principle that, where there is a person presently capable of taking, and only the event upon which the interest is to arise or vest is contingent, then the interest is transmissible. I am unable to distinguish this case from that of any ordinary contingent remainder, limited to arise upon some uncertain determination of the particular estate ; or from an executory, devise in fee, to take effect upon some contingency determining a prior estate in fee, as upon the death of the first tenant in fee, without issue living at his ■ death. In these cases the contingent remainder and ex-ecutory devise, prior to the contingency upon which they are limited, exist as legal interests, so as to be transmissible in no conceivable sense such as applies to this surplus.

They are contingent interests provided for by the will; so is this surplus. None the less so, because, instead of being expressly limited, as such interests' ordinarily are, it arises by construction of this will. In the case of contingent remainders and executory devises, limited upon contingent events, there is a person presently capable of taking should the contingency, upon which the interest is to arise, happen. .So here, with the wholly immaterial difference that the persons to take, instead of being named in the will, are ascertained by the law of descent.

The other objection to the transmissibility of the interests of those of the heirs of Samuel Thomas, who died in Richard’s lifetime, was founded upon the common law doctrine, that if the heir on whom the inheritance has been cast by descent die before he has acquired actual seisin, or what is equivalent in case of incorporeal hereditaments, his ancestor, and not himself, becomes the person last seised of the inheritance, and to whom the claimants must make themselves heirs, upon the maxim non jus sed *375seisina facit stipitem, 4 Kent (386.) The effect of this rule was, to make all remainders and reversions expectant upon a particular estate of freehold, ultimately inheritable in possession only by the person who, at the determination of the particular estate, could make himself heir of the original donor, who was seised in fee and created the particular estate; or, if it were an estate acquired by purchase, the heir of him who was the first purchaser of such remainder or reversion ; unless, indeed, the mesne heir should, as he might do, by acts equivalent to an actual seisin, have changed the course of descent and made himself a new stock; as by a grant, devise or charge upon it, or by its being taken in execution. Cook vs. Hammond, 4 Mason, 485.

In the present case, the resulting trust being treated as an interest in real estate, and being in its nature a reversion, would, if subject to this common law rule of descent, pass at Richard’s death, only to those who could then claim as heirs of Samuel Thomas, the person last seised. A question might be made as to the effect of wills made by some of the deceased heirs; whether or not, such wills so operated under the qualification of the general rule as to alter the descent. It is at least’doubtful, whether anything short of a devise of the specific interest in question could have that effect. But that question is not material. For my conclusion is, that this common lay/ rule of descent does not apply under our intestate law, the effect of which is to make all estates and interests inheritable, excluding the necessity of an actual seisin to constitute a new stock. This construction has been given in other states to statutes of descents, and where the statutory provisions are in terms less comprehensive than our own. Cook, vs. Hammond, 4 Mason, 467, contains an elaborate examination of the Massachusetts statute on this point, and is followed by Miller, vs. Miller 10 Metc. 393. The provision of that statute was, that “when any *376“person shall die seised of any lands, tenements or “ hereditaments, or of any right thereto or entitled to any “ interest therein in fee simple &c., the same shall descend “&c.” 4 Mason, 488. The like construction has been given to the Connecticut statute of descents, Hillhouse vs. Chester, 3 Day, 166; also in South Carolina, 1 Hill S. C. Ch. 269. And in most of the States the common law rule is held to be altered by such statutory construction, 4 Kent (388.) Our statute runs thus; “when “ any person, having title or right, legal or equitable, to “ any lands, tenements or hereditaments in fee simple, “ shall die intestate as to the same, such lands, tenements “or hereditaments shall descend &c. ” Rev. Code 277. It omits the term “ seised, ” which, in the Massachusetts statute, afforded the main argument .for retaining the common law rule.

Both the objections taken to the transmissibility of the interests of the deceased heirs of Samuel Thomas, were taken in like manner in Kean's lessee vs. Roe & Hoffecker, 2 Harring. 103. That was the case of an executory devise under the will of Thomas J. Macomb, deceased, to Mrs. McKean, expectant upon the death of her brother, James B. Macomb, without issue, living at his death. Mrs. McKean died in her brother’s lifetime, leaving, as her heirs at law, two children who also both died before the executory devise vested by the death of James B. Macomb.

The question arose, whether the father of the children inherited the executory devise under them ; and it was so decided, the Court holding both that all contingent interests and possibilities, coupled with an interest, were transmissible to the representatives of the devisee, if he die before the contingency happens. They take the distinction before stated,between contingencies,affecting the certainty of the person to take, and those which are only in the event upon which the interest limited is to vest. The other objection founded upon the common law *377rule, was very fully argued and and considered upon our statute, and the Court held that our intestate law was intended to supersede wholly the English rules of descent, and to establish a new and distinct system, differing from the English in all its main features, and, among other points of difference, reversing the common law maxim which renders seisin necessary to make a stock of descent. The case arose under our old intestate law of 1829; but there is no material difference between that and the revision of 1852 now in force.

The second question discussed was, whether the interests of the deceased heirs at law of Samuel Thomas, deceased, have passed from them to their heirs or devisees as real estate, or to their executors or administrators as personal estate. The authorities decisively settle the latter as the course of descent. The undisposed-of produce of land devised to be sold or rented, is treated as realty only as a means of effectuating the rights of the heir of the testator ; but for all the purposes of transmission from him, the resulting interest is dealt with according to its actual condition; and therefore, if it be “ of a chattel nature, as a “ term for years or a sum of money, it will, on the death “of the heir, devolve on his personal representative,” Lewin on Trusts (177) Part 1 Ch. VIII. Sec. 1; Leigh & Dalzell on Conversion (137),Ch. VI. I find these writers supported by the cases cited. Levet vs. Needham, 2 Vern. 138; Wych vs. Parkington, 3 B. P. C. 44; Hewitt vs. Wright, Bro. C. C. (86); Smith vs. Claxton, 4 Madd. (484); Sewell vs. Denny, 10 Beav. 315; Barratt vs. Buck, 12 Jur. 771. It makes no difference, as was suggested, that the heir of the testator dies before the resulting interest realized in money. That point was made in Sewell vs. Denney, where the resulting trust to an heiress was of a term for years in lands which was unexpired at her death. It was insisted that, although the rents accruing from the term in her lifetime passed to *378her administrator, the future rents, as they came to her in the character of realty, would so descend to her heir. But the Court adjudged the rents of the entire term to the administrator.

The last point discussed was, whether, supposing the trust to have resulted to the immediate heirs-at-law of Samuel Thomas, deceased, the administrator of Richard Thomas is entitled to a share of the fund under him, as one of those heirs, his death being the event upon which the surplus was to accrue, if at all, so that he by no possibility, could himself take an interest in it.

I am of opinion that Richard’s administrator is' entitled to a share. This seems to be a necessary consequence of the peculiar doctrine of resulting trusts, as before stated. A resulting trust of the undisposed-of pro- ' duce of real estate, presupposes a descent pro tanto of the real estate itself as the ground of title to the fund; so that, in order to ascertain who is to take the fund, we are to look for the person who, at the testator’s decease, had he died intestate, would have taken, as his heir-at-law, the land from which the fund has accrued ; or if the heir be dead, his representative is entitled. This surplus accrued from land which, had it been intestate, would unquestionably have descended in part to Richard, as one of the heirs ; and to the extent of this surplus, and for the purpose of fixing the title to it, the case is to be treated under the doctrine of resulting trusts, as if the land were in fact intestate, so as to have descended to Richard with the other heirs. Then the question arises, does the fact that the fund was necessarily to accrue after Richard’s death, so that he could himself by no possibility ever take an interest in possession, create any legal impediment to the transmission of such an interest through him to his representatives. Upon authority it seems not. Interests in real estate and its produce are held, under the law of descents, 'to be transmissible through the heir-at-law, not *379only where the actual enjoyment of such interest by him is future and contingent, but where the interest is to vest in possession after his death, and therefore, can never come to his possession. The distinction is taken between the inheritance in the land, and the actual possession of it or of its produce. The former may, in legal contemplation, be in him to whom the latter can never come. The distinction is very technical, but well established and clear. An early and most authoritive illustration may be found in Coke on Littleton, 2 Co. Ins. 378 b., note on Sec. 721. In treating of the cases in which a warranty of land will run to the heirs of the grantee, he puts this case :—

“And so it is if land be given to A. and B. so long as “ they joyntly together live, the remainder to the right “ heirs of him that dieth first, and warrant the land in for- “ ma praedicta ; A. dieth ; his heire shall have the war“rantie ; and yet the remainder vested not during the life “of A, for the death of A. must precede the remainder “ and yet shall the heire of A. have the land by descent.” Now here, the effect of the rule in Shelly’s case would be to convert the remainder, limited in terms to A’s heirs, into an inheritance in A., to be taken by descent from him, unless the fact that the remainder could, by no possibility, vest in A.’s lifetime, rendered him incapable of taking and transmitting the inheritance. Yet Lord Coke, while he -expressly notes the fact that the death of A. must precede the remainder, holds that the heir takes the estate, not as a remainder, but by descent of the inheritance from A.; thus giving the rule in Shelly’s case its full application. In Marks vs. Marks, before referred to, 1 Strange, 132, Sir Joseph Jekyll cites this passage from Coke to the general proposition, that “ even a possibility “may go to the heir which never could vest in the ancestor.” This statement by an eminent and able judge, may be taken as shewing what was then understood (5 Geo. 11.) to be the scope and meaning of Lord Coke’s *380dictum. Two modern cases have been cited in which the same principle has been applied to resulting trusts. In Wright vs. Wright, 16 Ves. 188, a testator directed the conversion óf his real estate by trustees for the payment of his debts ; also of his personal estate. After charging the mixed fund with an annuity to his wife, he directed the whole to be sold for his daughter and any other children he might leave, to be paid over at twenty-one years of age or marriage ; but if he should have no other child, and his daughter sould die under age and unmarried, then the fund to be subject to his wife’s use of the income during her life, and at her death the principal to pass as he should by codicil direct. The daughter was the testator’s only surviving child, and she died under age unmarried. The testator left no codicil ; so that the principal of the mixed fund, subject to the widow’s use of the income, became, undisposed of by the will. The direct question raised in the case was, whether the conversion of the real estate was absolute or qualified ; whether, therefore, the whole fund resulted as personal estate to the next of kin of the testator, or the proceeds of the real estate resulted as land to his heirs. But either way, it was treated as settled that an interest in the fund, as the subject matter of a resulting trust, was transmissible through the daughter, although it could, by no possibility, come to her in possession, either as of next of kin or heir of her father, since it was only in the event of her death under age and without issue, that the fund was to become undisposed of and so pass as intestate to the testator’s representatives. Sir William. Grant says, “It is not necessary in this case to determine whether the conversion be absolute or qualified ; because in the events that “ have happened the result with respect to the rights of “ the parties will be the same. In the one way the mother “ and daughter would take it as personal property, distributable as upon an intestacy with respect to the capital; “ and the mother, as administratrix to her daughter, would *381“now be entitled to her share ; in the other, the daughter “ would as heir at law, take it by way of resulting trust upon “ a failure of the object for which the conversion was made ; “ but according to Lord Thurlow’s doctrine, referred to in “ the argument, it would be personal estate in her, and the “ mother, as her administratrix, would in that way also be “now entitled to the whole.” Jessopp vs. Watson, 1 Myl. & K. 665, is a case under precisely the same circumstances, in which there was a resulting trust of a residue composed of proceeds of real, and also of personal estate, which could arise only after the death of the testator’s heir, an only daughter, to whom the estate was limited in the event of her attaining full age or marriage. Sir John Leech M. R., held that so much of the residue as was constituted by the proceeds of the real estate, descended to the daughter as her heir at law, and was transmissible from her in the character of personal estate.

If, at common law, there is no impediment to the transmission of the subject-matter of a resulting trust, through an heir of the testator, to whom it cannot accrue in his lifetime, no such impediment will be found in our statute of descents. For it is the policy of our statute to enlarge, to the utmost limit, the descendibility of interests in real estate ; and it may be safely assumed, that any right or interest in, or springing out of, land which was transmissible to the heir at common law, may be taken by him under the statute.

I conclude, therefore, upon the whole case, that the surplus rents and profits which, at Richard’s death, had accrued from the real estate held in trust for his benefit during his lifetime, is distributable among all the heirs at law of Samuel Thomas, deceased, as ascertained upon his death, including in the distribution, the executors or administrators of such of the heirs as died in Richard’s lifetime, and including, also, the administration of Rich-are himself.