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of Sir William. The Master of the Rolls says 1 that the “ rule of descent is not confined to contingent interests; for vested interests in remainder and reversion are exactly in the same situation; and yet no one ever supposed that a person who became entitled by descent to a vested interest in remainder, or to a reversion expectant upon the decease of a tenant for life, was totally unable to dispose of such interest either by deed.or by will; or, in other words, was unable to grant or devise it.”
The Master of the Rolls also refers to the operation of the Statute of 3 & 4 William 4th Ch. 106; and that thereunder if a person dies seised of an estate in possession, the descent is to the heir of the last purchaser; and yet that it could not have been intended to prevent a person who inherited an estate in fee simple in possession from selling or devising that estate; and then he adds: “ and yet it is argued that as regards interests which are incapable of seisin, it has that effect, by taking away the descendible character ; and it is obvious that if it takes away the descendible character in one case, it takes away
the descendible character in the other case;' and that it is a descendible estate in both cases, but that the descent is traced to the heir of the purchaser, and not the heir of the person last seised, or the person last entitled, whether it be a matter capable of seisin, or a matter incapable of seisin.
It is to be observed that Sir William never could have had any benefit personally of this executory devise, because it could not take effect until after his death and the failure of his issue. There is no reference in this case to Bishop v. Fountaine.
This case of Ingilby v. Amcotts leads to the conclusion that though the heir of the purchaser to whom a contingent interest has been limited in fee, is to be ascertained at the happening of the contingency, yet that the interest is alienable by an intermediate heir, not merely by a release, but by devise, and by any appropriate conveyance inter vivos; and, of course, if the descent is to the heir at the death of the ancestor, in the case of a contingent interest limited to the ancestor in fee, and then to that heir’s heir, the conclusion is inevitable that the contingent
} p. 592.
? pp. 593, 594.
3 And see p. 595.
interest is alienable in every way by the heir for the time being. The conclusion reached in Ingilby v. Amcotts we regard as sound, notwithstanding certain authority above mentioned to the contrary.
Of course, the heir can have no greater power than the ancestor; and when the power of the ancestor is in any way limited by the want of statutory help, as to assign at law (see above), the power of the heir must be correspondingly limited.
The conclusion reached in Ingilby v. Amcotts would seem to be valid, because, assuming the ancestor to have the power of alienation, why should not the heir have it also ? True, he may not be entitled as of the time of the happening of the contingency, under the method of descent within which the heir is to be ascertained at that time. But in the case of a vested remainder or a reversion which is descending, the intermediate heir, under the old method of descent, may pass a good title as against one ascertainable as the heir of the first remainderman or of the original reversioner when the interest falls into possession (see above). But it may be said that we are here discussing an executory and not a vested interest. But it is, for all that, an interest which the ancestor may alien; why not his heir as well as himself?
At the beginning of this article we quoted the language of Judge Bigelow in the case of the Proprietors of the Church in Brattle Square v. Grant, touching rights of entry for breach of condition subsequent.
We will now quote from Austin v. Cambridgeport Parish, Hayden v. Stoughton,” and Brigham v. Shattuck, all three of which cases are referred to by Judge Bigelow in the above mentioned case. In Austin v. Cambridgeport Parish, Judge Dewey says
that the owner of the right of entry for condition broken has “ a contingent possible estate; ” and then he goes on to say, that “ such an interest is devisable in England seems well established
1 21 Pick. 215.
2 5 Pick. 528.
3 10 Pick, 306.
by the case of Jones v. Roe,' and the cases there cited." He adds that Chancellor Kent states the rule to be that “ all contingent possible estates are devisable." He then adds that Hayden v. Stoughton? has given a construction “ to our statute authorizing devises, etc. And in Hayden v. Stoughton 3 the court says * that a right of entry for condition broken is a “contingent interest.'
And so, in Brigham v. Shattuck, the court speaks of a right of entry for condition broken as “ a contingent interest.” 6
It certainly would seem that, apart from any statute, a right of entry for breach of condition subsequent would descend in the same mode as does a reversion or a remainder.
It is said in Hurback on Succession,' that before the inheritance act, a right of action or of entry would so descend.
While at the common law, such right before entry is not assignable, it is yet releasable; and, under the modern law, it has been declared to be devisable.8
In Miller v. Miller, the question was under what law a reversion should descend. The particular estate was a tenancy by the curtesy. The married woman, who was the owner in fee, died leaving a husband and children. At the time of her death, the law gave two portions to her eldest son. Before the death of her husband, the tenant by the curtesy, the law was changed, providing for a descent in equal shares to the children. The decision
that the eldest son was to have two shares as under the old law. At the death of the husband, the ascertainment of the heirs resulted in this family, in precisely the same individuals taking as heirs under the modern system of ascertainment, as would take under the old law governing ascertainment. The only question, therefore, was whether the eldest son could have two shares or only one share; and the court held that he was entitled to two shares, as under the law, in this respect, as it stood at his mother's death. The law was changed in 1789,
13 T. R. 88.
6 See also Sackett v. Mallory, 1 Met. 357.
? (London, A. D. 1844), 140, 141.
8 See supra. See also Van Rensselaer v. Ball, 19 N. Y, 103-106.
9 10 Met. 393.
taking effect in 1790, 1st of January. But Chief Justice Shaw says 1 by way of dictum : “ But even if the vesting of the estate were suspended until the happening of any event, when the event does happen the right by descent must depend upon the law, as it stood when the descent was cast. Suppose an estate was granted sixty years ago, in 1785 upon a condition subsequent, and the grantor died the following year; and now, the event happens upon which the estate by force of the condition, is defeated, and the heirs of the grantor become entitled to enter; and the question is, who are his heirs? Would it not be those who were the heirs of the donor at the time of his decease in 1786? The benefit of the condition, the scintilla juris, then vested in them, viz.: the right to enter for condition broken; and whether the condition were broken before or after the change of the law 1st of January, 1790, the same persons would be heirs, constituted so by law, taking in the proportions fixed by that law when they became heirs.”
Thus Chief Justice Shaw likens the descent of a condition subsequent to the descent of a reversion; and under modern law in the United States, as above shown, the reversion descends like as an estate in possession in this country descends.
A noticeable feature is to be observed, regarding rights under conditions, in respect to the shifting inheritance; and we have referred to the shifting inheritance above.?
Another feature may be added : “ A man mortgaged lands upon condition that if he or his heirs repay £100 at such a day, that he shall re-enter, He dies, leaving issue a daughter only,
pp. 400, 401.
upon her, and yet there she is by dis21 Hughes's Abridgment, tit., cent (sic.), and the title of her entry, “ Discent," p. 673 (pl. 16), is as fol scil. the condition she hath as heir, lows: “If a lease be made to one for yet because she was the first in whom life, the remainder to the right heirs it vested, the son afterborn, shall not of J. S., he dying, having a daughter, devest the same." And so 1 Rep. 95a. his wife with child of a son, the But it is said that it would be otherdaughter claims the same by purchase, wise, if the condition had been broken and therefore, the son born after, shall in the life of the feoffor i Rep. 95a, never devest the same; and so if a Note, and 99a. Com. Dig.“ Discent” condition discendeth to the daughter, (C. 2). See Stat. 10 & 11 William 3d and she entreth for condition broken, Ch. 16. the son born after shall never enter
his wife priviment ensient with a son; the daughter and heir at the day pays the £100, and afterwards the son is born. It was the opinion of the justices in this case, that the sister should retain the land against the son born after the performance of the condition; for, inasmuch as she paid the money (and if she had not paid it the land had been lost), if she could not retain the land against the son, she had no remedy for the money; and by payment thereof, she hath gained the land and is in as a purchaser, though she be entitled thereto by the condition and as heir; and she shall retain it as she shall the perquisite of a villain, and as land gained by her care and vigilancy.!' 1
In 2 Hughes's Abr.? the above last mentioned case as to the sister and afterborn brother, is given ; 3 and here Hughes says that the above conclusion was the opinion of a greater part of the justices; but that some other justices held contrary, “ because she hath it as heir, and then the nearer heir being born, shall defeat her."
There would seem to be no reason why an intermediate heir to whom a right of entry for breach of condition subsequent descends should not have the same power over it to release it and to devise it which the ancestor had himself and upon the same principle of the power of an intermediate heir as is above set forth concerning remainders and reversions; and that too, whether the right be regarded as vested or as contingent; for, as we have above sought to show, a contingent or an executory right is as much within the power of the intermediate heir as is a vested right. If the descent be such under statutory systems as to do away with the intermediate heir, of course, no such question can arise.
FRANK GOODWIN. Boston, Mass.
1 Kirton's case, Cro. Car. 87; 2 Hughes's Abridgment, tit. “ Possessio fratris," p. 1483 (pl. 3); and so 1 Rep. 99a, Note; Com. Dig. “Discent" (C. 2),
2 Tit.“ Heirs."
4 See further Tobey v. Moore, 130 Mass. 450.