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The court said : 1 - The next question is, who are the heirs of Mary Harwood who are now entitled to the estate. It is clear that those only can take who were in esse at the time when the contingency happened, and the estate fell into possession. That did not occur until after the death of Margaret Buck. She could not, therefore, be heir, or take or transmit any interest in the estate by will or otherwise.” The court quotes the language of the court in Barnitz's Lessee v. Casey, as follows: The rule that the heir in such case is ascertained when the contingency happens “o is adopted in analogy to that rule of descent which requires that a person who claims a fee simple by descent from one who was first purchaser of the reversion or remainder expectant on a freehold estate, must make himself heir of such purchaser at the time when that reversion or remainder falls into possession. The foregoing is the only authority to this point cited by the court in Buck v. Lantz. But see Snively v. Beavans, where, however, the question of alienation by an heir did not arise. 4
In Deas v. Horry,5 it was held that the possibility of reverter, subject to a fee simple conditional, descended to the person who should be the heir of the original grantor or testator at the time that the fee simple conditional should expire; that is, that the heir was to be ascertained at that time.
There was no question here as to the power of an intermediate heir to alien.
The court says by way of dictum, that a right of entry is descendible in the same way that the above possibility of reverter is descendible; meaning, it is supposed, that this would apply in South Carolina to a reversioner's right of entry. The court is here speaking of the right of entry which a reversioner had upon the levying of a fine by the tenant for life of the particular estate. This was a ground of forfeiture of the particular estate. The court here cites Goodright v. Forrester.?
27 Cranch (on p. 470). 31 Md., on p. 225.
4 See further as to Maryland, Chirac v. Reinecker, 2 Pet. 625; cited in 2 Wash. R. P. *410, Note. See
further, Conner, Executrix v. Waring et al., 52 Md. 724.
5 2 Hill Ch. (S. C.)244,(A. D. 1835), cited in 4 Kent's Com., *511, N. (b). 6
p. 249. 7
8 East, 564; 1 Taunt. 578.
The statute De Donis has never been the law of South Carolina; so that what would be an estate tail wherever the estate tail exists, is in South Carolina the ancient fee simple conditional at the common law; to which a possibility of reverter is subject. The right which a grantor has upon limiting an estate tail is a reversion; and a reversion is a vested right.
In Pease v. Killian, it was held that the heir of the donor of a fee simple conditional, is to be ascertained at the expiration of the fee simple conditional; and it is said that before the expiration thereof there is no power in the heir to convey nor to devise, yet that he may release to the tenant in fee simple conditional,
In Adams v. Chaplin, it is said: Our act of distributions has so altered the English law that it is not required that one who claims a reversion or a remainder by descent should be ascertained at the expiration of the particular estate;— but that a right of reverter subject to a fee simple conditional is not an estate in the land, but a mere possibility; and that this is not affected by the act of distributions.
In Hicks v. Pegues 5 and in Buist v. Dawes, it was held that in an executory devise to one and his heirs, the heirs are ascertained upon the death of the ancestor and not upon the happening of the contingency: and that the common law had been altered in this respect in South Carolina by the statute of 1791. And the court, in this latter case, goes so far as to say that it is conceded that the ancestor "might have devised his interests now under consideration; which is very near equal to admitting that, in default of a will on his part, those interests descended, immediately upon his death, to such distributees as he then left."
We will here refer to a kindred question, that of " inheritance,” which is when an heir presumptive who inherits the possession of land, is displaced by the subsequent birth of an
McMullan's Eq. (S.C.) 231 (A. D. 1841.)
2 See further 1 Preston on Estates, 440, 441; see also Adams v. Chaplin, 1 Hill's Ch. (S. C.) 271, 272 (A. D. 1833).
3 1 Hill's Ch. (S. C.) p. 269.
heir better entitled. Thus, as a matter of illustration ; under the old law, one in possession of land dies without issue, and the land descends to an aunt as the heir. She may be displaced by an afterborn uncle. It was held in North Carolina, where this doctrine was applied to a certain state of facts, that an alienee of the prior heir in possession was displaced by the birth of the subsequent heir.1
In England, the statute of 1 Vict., provides that it shall be lawful for every person to devise, bequeath or dispose of by his will all real and personal estate which he shall be entitled to either at law or in equity; and that the power hereby given shall extend to “ all contingent, executory or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested; " " and also to all rights of entry for conditions broken and other rights of entry.”
And the statute of 8 and 9 Vict., provides that “ a contingent, an executory and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent, into or upon any tenements or hereditaments in England, of any tenure, may be disposed of by deed.”
To deviate briefly from the strict lines of this inquiry, for the purpose of developing these lines somewhat: It was held in Avern v. Lloyd,4 that a bequest to a survivor of a class of persons unborn at the testator's death was good. There were life estates previously limited to the class. The ground upon which it was held that the bequest to the survivor did not come within the operation of the rule against perpetuities was, that the class could alien their respective interests. We introduce this for the
I Caldwell 0. Black, 5 Iredell's (Law), 463; See further Bates 0. Brown, 5 Wall. 719. And see also for Ohio, Dunn v. Evans, 7 Ohio, *170; overruled on the main question, that is, that there was a shifting inherit
ance at all, in Drake v. Rogers, 13 Ohio
2 Ch. 26, Sec. 3.
purpose of referring to the statements of so eminent an authority as Mr. Joshua Williams.
Mr. Joshua Williams in his work on Settlements, being a course of lectures delivered in 1876, says, that the view is unsound that a limitation is not within the operation of the rule against perpetuities provided that “ two or more persons in esse at the date of the settlement, or perhaps in esse at any time during the prescribed period, should be able by their joint concurrence to alienate the land. If this should be the case, it is thought that a limitation so circumstanced would not be void for remoteness. I apprehend, however, that this is not so. The vice appears to me to consist in the fact that within the prescribed period, the estates to be held in the property may possibly remain unascertained; and I do not think that this vice is cured by the fact that all the persons, who on any contingency may be entitled, are in being, and may together make a good title, by each one giving up his contingent right. To take a simple case: I apprehend that if property is so settled that on an event which may happen beyond given lives in being and twenty-one years and nine months from the decease of the survivor, it may belong either to A and his heirs or to B and his heirs, this settlement is void for remoteness, although A and B together could no doubt make a title, as in any event the property must belong to one or the other.” It should be pointed out, however, that if there be any inference from the foregoing statement of Mr. Williams, that he contemplated a power in the heirs of A and B, in the event of the decease of their ancestor, to make a complete conveyance, it should be considered that he is writing since the act of 1 Vict., Ch. 26. Avern v. Lloyd was overruled in In re Hargreaves.
In Culley v. Doe d. Taylerson, it was decided that if a tenant in common of land, whose co-tenant is in the actual possession, but not as a disseisor, dies, and his heir devises his interest, that devise carries the interest as against that heir's heir; and that this would be true even though there were an ouster by the
Pp. 31; 32.
further, Knowlton, J., in Winsor v. Mills, 167 Mass., pp. 365, 366.
3 11 Ad. & Ell. 1008. 6
tenant in common in actual possessson, if the same did not amount to a disseisin ; 1 and that this devise is good without the help of the Stat. of Vict., Ch. 26.
Preston says, but citing no authority, that in the case of a contingent remainder, each heir for the time being is so far the owner that he
devise or release. 2 We have yet to mention the very important case of Ingilby v. Amcotts.
Ingilby v. Amcotts, decided by Sir John Romilly, Master of the Rolls, in A. D. 1856, is as follows: In 1795, the Kettlethorpe estates were settled upon Sir William Ingilby for life, with remainder to his first and other sons in tail male, and with remainder to his daughters in tail, and then with similar limitations to his sister Elizabeth. In default of issue by her, with similar limitations in favor of his sister Augusta. In 1808, the Harrington and another estate were devised to Augusta in fee, with an executory devise to another sister, Diana, in the event of Augusta's coming into actual possession of the above mentioned Kettlethorpe estates. In 1841 Diana died; and Sir William was her heir at law. Sir William died in 1854 without leaving any children surviving him, and thereupon Elizabeth became entitled to the Kettlethorpe estates. Elizabeth died thereafter in 1854; and thereupon Augusta came into the possession of those estates ; and consequently the executory devise limited to Diana took effect. Sir William left a will dated in 1851 ; and the plaintiffs were the devisees under his will. The defendants were the co-heirs at law of Sir William and of Diana. The question was whether the estates covered by the executory devise passed under the will of Sir William. That executory devise was limited to Diana; and when it took effect Sir William had been for some time deceased, so that the then heir of Diana was not Sir William. The Master of the Rolls declared that both under the old law, and under the above Statute of 1 Vict., Ch. 26,4 the property covered by the executory devise passed under the will
1 See p. 1022.
2 2 Preston on Abstracts, 443. See further, 3 Preston on Conv. 496.
321 Beav. 585, cited in Jarman
on Wills, (6th ed. by Bigelow, ) *49, N. (g.)
4 See p. 594.