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when the estate falls into possession; 1 and further that there could have been no merger, for that “the executory fee devised to the mother, could have no existence before the decease of the son under age without issue; for upon that event only could it arise." “Now,” adds Mr. Fearne, “how was it possible for it, to merge before it had any existence? If it could be extinguished by merger, it must be by its union with a greater estate out of which it was to arise, and of which it might be considered as a part, or at least as an extraction. But how are two estates to unite, or one to become blended and confounded with or absorbed in the other, when both are of equal measure, viz.: both fee simples; and of which the one cannot commence or partake of existence at all, but in an event which destroys and annihilates the other?"
Now it may be regarded as very clear, that the old law of the descent of the vested remainder and the reversion has been superseded very generally in the United States; and that the descent is the same as that which generally prevails in this country in the case of the descent of an estate in possession.?
Moreover, and it must necessarily follow, that each heir in succession, regardless of whether he be the heir of the original vested remainderman to whom the estate was limited in fee simple or of the original reversioner, can alien the remainder or the reversion, and pass the title to it.
And even under the old law of the descent of the vested remainder and of the reversion, limited to one in fee simple, the heir for the time being, – that is — the intermediate heir, could pass full title to the interest; and it could likewise be taken for his debts.
In Adams v. Chaplin, Chancellor Harper says by way of
See also Barnitz's Lessee v. Casey,
? Winslow v. Goodwin, 7 Met. 383;
3 2 Wash. R. P. *391, *410; Miller
9. Miller, 10 Met. 400; Cook v. Hammond, 4 Mason, 485, 494, 495; Vanderheyden v. Crandall, 2 Denio,25 (S. C.); 1 N. Y. 491; Ingilby v. Amcotts, 21 Beav. 592; see, further, Drake v. Lawrence, 26 Supreme Ct. Rep. (N. Y.) (19 Hun), 112.
4 1 Hill's Ch. (S. C.)
dictum:1 “ It was never doubted, I imagine, if a person grants an estate tail, with reversion to himself, and dies, his heir at law may grant or release the reversion; and so any intermediate heir, if there should be any before the termination of the estate tail."
In Bishop v. Fountaine, there was a devise of land to a trustee in trust to convey to the children, if any, of Mary, and “ for want of such issue, or if such issue die without issue” to convey to the eldest son of testator's nephew John and his heirs; but that if the latter claim anything during the life of Mary or of any of her issue, then both the nephew John and his eldest son to be excluded from having anything out of the estate. John had an eldest son, Anthony, and two daughters. It does not appear whether Anthony was born at the time of the testator's death. Anthony died and left issue, a son named John who was the heir of Anthony; and this latter John in the life-time of Mary, devised the land to the plaintiff; and died without issue. Thereafter, Mary died without issue. The heir of the trustee conveyed the land to the said sisters of Anthony, who, it is stated, were the heirs of Anthony and of his father, John. It was held that the devisor, John, the grandson of John, the elder, and the son of Anthony, had “no estate devisable, but a mere possibility during the life of Mary or any of her issue;' and that the conveyance to the sisters of Anthony, also stated to be “the heirs of Anthony," was right. Although not stated, yet it must follow that these sisters of Anthony, were also the heirs of John, the younger. Here, then, was a devise by an heir (the ancestor being dead) of a devisee of a contingent interest while the devise still remained executory; or of an heir of a so-called equitable remainderman; and it was held to be void. No reasons are given by the court.
In commenting on this case, in Jones v. Perry, Grose, J., says that the only way of accounting for the decision is,because of the clause that claiming anything during the life of Mary, etc., was to exclude from the enjoyment of the estate, and that perhaps the estate might be considered as “ contingent
i On p. 273.
? 3 Levinz, 427.
3 3 T. R. 97 (A. D. 1789.)
until that condition was performed which could not be till the death of Mary without issue;" and Grose, J., adds: “He would rather have take (sic) an 'equitable remainder in fee, expectant on the death of Mary, and the failure of issue of her body, which would have been a vested estate, and consequently devisable."
Grose, J., further adds: “ The only way in which I can account for this doctrine having been afterwards adopted by Lord Chief Justice Parker and by Lord Hardwicke, was because they considered it as a point already determined, and therefore did not enter into the reasons on which it could be supported; ” and he says, "Now, if the case in Levinz cannot be considered as law, the foundation on which the other cases were built, is destroyed ;” and that “ the modern cases have decided the other way.” But in Jones v. Perry, the devise was not by an heir.
Mr. Fearne, speaking of Bishop v. Fountaine, says: “Contingent estates, appear formerly to have been held, not devisable by the person entitled thereto, whilst they remained contingent, as in the case of Bishop v. Fountaine.” 2 And he says: The reasons upon which the estate was held a mere possibility during the life of Mary or of any of her issue, are not stated or mentioned; but that probably it was because of the clause excluding John from claiming anything out of the estate during the life-time of Mary or of any of her issue; and that “ unless we recur to some reason of this nature for suspending the effect of the devise to” Anthony " in that case, it should seem that he would have taken the equitable remainder in fee expectant on the decease of " Mary " and the failure of the issue of her body; which would have been a vested estate, and clearly devisable."
It should be remembered that Mr. Fearne has declared that in the case of an executory devise, limited to one and his heirs, descending, there could be no merger with the preceding fee because the executory interest while it remained executory could have no existence.
If the testator's son in Goodright v. Searle had been the
tenant for life of a particular estate, and the limitation over had been a vested remainder, it seems that upon the decease of the ancestor, the remainderman, the estate for life would have merged in the fee simple in remainder, thus producing a fee simple in possession.
Moreover, whatever difficulty there may be in establishing an alienable interest in an intermediate heir of an executory devisee, is enhanced by the contingency, which would frequently arise, that the ultimate heir might not be the heir at all of the intermediate heir.
In Winslow v. Goodwin, there is a very forcible expression of the law by Judge Wilde; but the question as to the power of alienation of an intermediate heir did not arise in that case; nor did the question come up as to when the heir or next of kin of a person is to be ascertained.
In Winslow v. Goodwin," it is said by Judge Wilde, delivering the opinion of the court: “ In the case of Cook v. Hammond, it was decided after a very able discussion of the question as to the construction of the first provision in the Stat. of 1805, Ch. 90, that remainders and reversions vested by descent in a person who may
die intestate, descended to his heirs in the same manner as estates in possession.” Judge Wilde added: “No question was raised in that case, as to contingent remainders and executory devises. But the statute makes no distinction between vested and contingent remainders; and there seems to be no reason for any such distinction, especially as no distinction in the law existed before the statute. The language of the statute is unambiguous. If an intestate is entitled to any interest in real or personal estate, vested or contingent, it will pass by force of the statute to his heirs or administrator, in the same manner as estates in possession.'
In Doe v. Roe,3 the facts were: A devise to A with a contingent devise over to B. While still contingent, B died, leaving two children who were her heirs. These died successively without issue; and their father was their heir; although he was not the heir of his wife B. When the contingency happened and 1 7 Met., on p. 383.
3 2 Harr. (Del.) 103, referred to in 2 4 Mason, 467.
2 Shars. & Budd. 522.
the contingent estate took effect in possession, this husband of B was living, but his wife and children had all died, as above. Held that under the statutes of Delaware, the husband was entitled as the heir of that child of his which last died. In this case, no question arose as to any alienation of any kind by anybody.
In Moore v. Rake, the judges lay stress upon the fact that it was a vested remainder in fee simple which was descending; and that a conveyance by an intermediate heir of the vested remainderman, passed the interest as against his own heir,that is,– the heir's heir. This was a vested remainder subject to an estate tail. But, argues one of the judges, the same result would follow, if the remainder be regarded as a contingent remainder,-- or if it were an executory devise.
And to this last proposition he cites a certain authorities. But none of these authorities sustain this position.
However, the old doctrine of the descent of contingent interests is asserted in Payne v. Rosser. It was in this case held that the heirs of an executory devisee are to be ascertained upon the happening of the contingency. But no question arose in this case as to any alienation by anybody.
The following Maryland case is exactly to the point. It is the case of Buck v. Lantz. A deed of trust of real and personal property was made in favor of the grantor for life, remainder to her daughter Margaret Buck for life, remainder to such child or children of Margaret's as she might leave living at the time of her death; but if she should die without leaving lawful issue living at the time of her death, then in trust to convey the whole remainder to Mary Harwood, sister of the grantor, absolutely. The grantor first died; then Mary Harwood died; and thereafter Margaret died, unmarried and without issue, but leaving a will in which she devised and bequeathed all the property to which she might be entitled at the time of her death, to her aunt, Cassandra Olivia Buck. The question was whether the heirs of Mary Harwood were entitled or whether Cassandra Olivia Buck was entitled,- the latter as devisee of Margaret.
1 26 New Jersey L. 574.
ed to it
3 53 Georgia, 662, 664 (A. D. 1875). 4 49 Maryland, 439 (A. D. 1878).