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■P% ■ 1^ ^a « «^ > • mm ■ ■« ■ « MM ^r^^W^V 


(Bx7BD.0ab.Bbal Pbop.) 


It is the purpose of the publishers to supply a set of Illustrative 
Casebooks to accompany the various volumes of the Hornbook Series, 
to be used in connection with the Hornbooks for instruction in the 
classroom. The object of these Casebooks is to illustrate the prin- 
ciples of law as set forth and discussed in the volumes of the Horn- 
book Series. The text-book sets forth in a clear and concise manner 
the principles of the subject; the Casebook shows how these princi- 
ples have been applied by the courts, and embodied in the case law. 
With instruction and study along these lines, the student should se- 
cure a fundamental knowledge and grasp of the subject. The cases 
on a particular subject are sufficiently numerous and varied to cover 
the main tmderlying principles and essentials. Unlike casebooks 
prepared for the ''Case Method" of instruction, no attempt has been 
made to supply a comprehensive knowledge of the subject from the 
cases alone. It should be remembered that the basis of the instruc- 
tion is the text-book, and that the purpose of these Casebooks is to 
illustrate the practical application of the principles of the law. 



Part I 




I. Things Movable and Immovable 1 


I. Land Includes What 5 


I. Rules for Determining Fixtures. 18 

n. Time of RttnovaL 29 


Part II 



I. Estates in Fee Simple 31 

IL Creation 31 


L Origin of Estates Tail 39 

n. Classification of Estates Tail 45 

1. Estates in Tail Special 45 

III. The Barring of Estates Tail 49 

IV. Estates Tail in the United States f 49 

1. Effect of Statutes 49 


I. life Estates Defined 50 

II. Rights and Liabilities of Life Tenant 60 


I. Estate during Coverture 64 

II. Curtesy 58 

IIL Estates Subject to Curtesy 62 

1. Equitable Estates ':.. 69 

IV. Dbwer 72 

1. Nature and Origin 72 

V. Estates Subject to Dower 75 

VI. Quarantine 77 

VII. Incidents of Dower 79 

VIII. Dower — How Barred 4 79 

1. Divorce 79 

2. Loss of Husband's Seisin 84 

8. Release by Wife. » 89 

4. Widow's Election 91 

Bi7bd.Ca8.Real Prop. (v) 



I. Who Entitled to Homestead 95 

II. How Acquired 97 

III. Loss x>t Homestead • 108 


(A) Estates fob Yeabs 

L Leases 112 

1. Must be In Writing When 112 

II. Rights and Liabilities of Landlord and Tenant 114 

1. Under Implied Covenants 114 

2. Independent of Covenants ISSi 

IIL Termination of Estates for Years 141 

1. Destmction of Premises 141 

(B) Tenancies at Witx, Fbom Yeab to Yeab, ANn at Suffebancb 

I. Tenancies at Will— Creation 14<5 

IL Tenancies from Year to Year 160 

' 1. Creation 160 

2. Termination 160 

III. Tenancies at Sufferance 160 

IV. Licenses— Revocation of 166 


I. Joint Tenancies. 160 

1. Definition— How Created 169 

2, Survivorship 172 

II. Estates in Entirety 175 

(II. Tenandes in Conmion , 181 

IV. Partition •. 184 

V. Community Property. 184 


I. Estates upon Condition 191 

IL Void Conditions 206 

III. Termination of Conditional Estates 206 

IV. Who may Enforce Forfeitures 206 

V. Estates upon Limitation 206 

VL Estates upon Conditional Limitation 212 

Vn. Modified Fees 226 

1. Base or Determinable Fees 226 


L The Statute of Uses , 23» 

II. Creation of Express Trusts 244 

1. In general 244 

2. Extent of Trustee's Estate 248 

8. Parties 248 

IIL ImpUed Trusts 268 

1. Resulting Truste 268 

IV. Incidents of Equitable Estates 265 

1. Merger 265 

V. Charitable or Public Trusts ,. 269 

1. Definition 269 

2. Beneficiaries 308 

8. Doctrine of Cy Pres 315 

I . 



L Reyersions 31tS 

n. PosslbiUtleB of Bererter SltS 

III. Fature BstatesH- At Common Law 316 

1. Vested Remainders 816 

2. Contingent Remainders 825 

8. Rule in Shelley's Case 832 

ly. Future Estates—tJnder the Statute of Uses 841 

1. Springing Uses 841 

2. Shifting Uses 341 

V. Future Estates— Under the Statute of Wills (Executory Devises) 341 

YL Alienation of Future Estates 851 


L The Rule Stated 866 

1. In general 856 

2. Application of the Rule 361 

8. Effect of Violating the Rule 862 

IL Estates and Interests Subject to the Rule 862 

IIL Exertions to the Rule • 862 



L Easement Defined 863 

1. Distinguished from License 363 

IL Creation of Easements 372 

L By Grant ' 372 

2. By Reservation or Exception r. . . • 372 

8. By Implied Grant.. 878 

4. By Prescription 880 

IIL Particular Easements 889 

L Rights of Way 889 

2. light and Air 889 

IV. Profits A Prendre 392 

V. Rents 895 

1. Rent Charge 395 

2. Ground Rents 897 

Part III 


MORTGAGES— (^) Gbwmai. Pbiwoiplbs 

I. Nature and Definition of a Mortgage 399 

IL Subject-Matter of Mortgage 405 

III. Form of Mortgages. 414 

L Defeasance in Separate Instrument. 414 

2. Deed Absolute on Face 416 

8. Mortgage or Conditional Sale 428 

4. Deed of Trust 433 

6. Agreement to Give a Mortgage 486 

rV. Consideration of Mortgages. • 439 




V. Sale of the Mortgaged Property 445 

1. Purchase of Equity of Redemption by Mortgagee 445 

VI. Assignment of Mortgages. 448 

(B) Pbiobitt and Noticb 

I. Notice by Registration 464 

1. Actual Notice 454 

2. Place of Registration 464 

3. To Whom Record is Notice 457 

II. Notice by Possession 466 

III. Notice by Lis Pendens 471 


I. Discharge by Performance T 471 

II. Effect of Tender of Payment 475 

III. Discharge by Redemption 482 

1. Who may Redeem 482 

IV. Foreclosure 486 

1. When the Right Accrues 486 

2. Judgment upon Foreclosure 487 

3. Foreclosure under Power of Sale 493 


I. Mechanics' liens • » 494 

II. Judgment Li^is. •• 600 

Part IV 




L PubUc Grant 613 

n. Private Grant 827 

1. Gonyeyances at Common Law and Under Statute of Uses 527 

in. Title by Estoppel 630 

lY. Title by Adverse Possession 535 

1. Requisites for Title by Adverse Possession 535 

2. Color of Title 559 

8. Tacking Poss es sions • 562 


I. CanoDB of Descent • OOD 


I. Tax Titles 676 

II. Eminent Domain. 684 


I. Restraints Imposed in Favor of Creditors 591 

II. Restraints Imposed in Creation of Estate 594 

III. Persons Under Disabilities 599 


L Powers of Appointment. • •.••••••••• • 603 



L Deed Defined.. 608 

II. Requisites of Deeds 608 

1. Consideration 608 

III. Description of Property Conveyed .• 611 

lY. The Habendum, Tenendum, and Conclusion 619 

y. Delivery and Acceptance of Deeds 624 

1. In General 624 

2. Delivery as an Escrow 634 


I. Conditions in General ^ 644 

II. Building Restrictions. 644 

III. Covenants in General 648 

1. Real and Personal Covenants 648 

IV. Covenant Against Incumbrances 663 


L Duties and Liabilities of Abstracters •• • 660 



AndeiBon y. Burnham 509 

Appleton, Appeal of 356, 362 

Ayer y. PhUadelplila & Boston 

Face BridE Go. 582 

Ayers y. BeideL 541 

BallB y. Dayis. 832 

Baird y. Baird 439 

Bamett y. Bamett 35, 184 

Barrett y. Hlnkley 399,471 

Bates y. Brown 569 

Blair y. Muse 621 

Bogert y. Bliss 471 

Bourn y. Robinson 500 

Bozarth y. Largent 62 

Batler y. Fitzgerald. 84 

Ganfleld y. Ford. 5, 81, 184 

Canning y. Owen 18 

Caryer y. Fennlmore 181 

Ghnrch y. Seeley 395 

City of Owatonna y. Rosebrodc. . 256 

Condnltt y. Ross 648 

Conners y. Lowell 576 

Cook y. Bartholomew 414 

Crenshaw y. Moore 72 

Cnmmlngs y. Cnmmings. 50, 75 

Daly y. Wise 127 

Darnell y. Golnmbns Show Case 

Co. 389 

Dayis y. Williams 135 

Decker y. Stansberry 630 

Dee y. King. 372 

De Martin y. Phelan. 445 

Dodd y. Witt 615 

Dow y. Whitney 459 

Doyle y. Union Pac R. Co 114 

Erck y. Church 562 

Eyerson y. McMuUen 482 

Ewlng y. Nesbltt 39, 49 

Ferguson y. Spencer 166 

Flake y. Mayhew 433, 493 

Foster y. Marshall 58 

Foster Immber Go. y. Harlan 

County Bank 436 

Frank y. Stratford-Handcock. . . . 

191, 644 
Fhller y. Missroon. 31 

Gay y. Dayey 141 

Geiszler y. De Graaf 656 

George A. Ijowc Co. y. Simmons 

Warehouse Co 653 

Gloyer y. Condell 343 

Godman y. Simmons 351 

Gordon y. Simmons 551 

Hall y. BoUen 599 

Hall y. Turner 231 

Hardage y. Stroope. 835 

HarknesB y. I>isle 594 

Hayden y. Stoughton 200 

Haynes y. Aldrlch. 133 

Helnemann y. De Wolf 603 

Hlggins Oil & Fuel Co. y. Snow 

10, 79 

Hildreth y. Googins .378, 389 

HinchlilTe y. Shea 89 

Hoban y. Cable 611 

Hobson y. Huxtable 316 

HoUaday y. WilUs 428 

Hughes y. Hammond 619 

Hunter y. Frost 146, 160 

Illinois Central R^ Co. y. Hough- 
ton 547 

Ingalls y. Hobbs 130 

Ingels y. Ingels 97 

Jackson y. PhilUps 269, 315 

Jackson y. Wood 527, 608 

Johnson y. Williams 461 

Kaiser y. Dalto 617 

Kennedy y. Harden 454 

Kent y. Dunham 312 

Kenyon, In re. 318 

Kern y. Clarke 582 

Kertacher & Co. y. Green 498 

Bi7Bd.Ca8.Rxal Pbop. 




Klrkland y. Goz 239, 248 

Laurence ▼. Laurence 269 

Lehigh Val. R. Co. v. McFarlan 

380, 584 
Lowe Co. ▼. Simmons Warehouse 

Co 653 

Lyford v. Laconla 226 

McDonough v. O'Niel 263 

McKaig V. McKalg ' 77 

McKay y. Gesford 103 

McTigue y. McTigue 69 

Mann y. Jackson 206 

Matheson y. Matheson 639 

Matthews y. Carlton 112 

Miller y. Meers 624 

Missouri Central Building & Loan 

Ass'n y. Eyeler /... 60 

Mooney y. Byrne • 421 

Morse y. Curtis 457 

Mt. Carmel Fruit Co. y. Webster 16 
Mueller y. Chicago, M. & St P. 

R. Co 29 

Mulcahy y. Fenwick 448 

Neligh y. Michenor 406,454 

Nellis y. Rickard 266 

Parker y. Beasley. 475 

People y. Cbgswell 806 

Perkins y. Coleman 630 

Peugh y. Dayis 416 

Pierce y. Keator 392 

Piatt y. New York & S. B. R. Co. 411 
Proprietors of the Church in 

Brattle Square y. Grant 

212, 316, 341, 862 

Rierson y. St Louis & S. F. R. Co. 621 
Riyerbank Imp. Co. y. Bancroft. . 644 
Rose Y. BoBB 54 


Rouse y. Caton 108 

Russell y. Fabyan. 160 

Ryan y. Monaghan....^ 341 

Seaver y. Fitzgerald 361 

Shaw y. Proffltt 366 

Sheehy y. Scott 95 

Shurtz y. Colvln 634 

Simons y. McLain 169 

Sims y. Morrison 524 

Smith's Estate, In re 244 

Snedeker y. Warring 24 

Stearns y. Fraleigh 248 

Steltz y. Armory Co. 494 

Strong y. White 1 

Sulliyan y. Garesche 325 

Talamo y. SpitzmiUer...-.....157, 160 

Thomburg y. Wiggins 175 

Todd y. Nelson 591 

United States ex. rel. McBride y. 
Schurz 513 

Van Cleaf y. Bums 79 

Vandiveer y. Stlckney 555 

Van Syckel y. O'Heam 486 

Vaughn y. Schmalsle 507 

Vemer y. Betz 487 

Vincent y. Walker 608 

Walker y. Bowman 660 

Ward y. Cochran 535 

Warner y. Bennett 197, 206 

Warren y. Warren 91 

Weart y. Cruser 45, 49 

Weed y. Lindsay 150 

White's Estate, In re 397 

Wilkens y. Young 172 

Wood y. Price 465, 471 

Yeager y. Tuning 863, 372 








L Things Movable and Immovable^ 


(Supreme Court of Errors of Ck)nnectlciit, 1848. 19 Conn. 288.) 

David White by his last will and testament ga ve to his son Jam es 
certain land s. The will further provided as follows: "I also giv e 
t o mv said son all mv moveable prop er ty f}\nt J p halj die possessed of," 
etc. There was due to th e testator at the tim e of his death ajrertain 
deb t by^irtue of a lUQgment aga in st one Stewart obtain ed _in the 
st ate of Ohio . The defendants claimed that according to the true 
intention of the testator, and the true meaning and construction of 
his last will and testament, the j udgmen t agains t Ste wart was part of 
t he moveable property which was bequea tlied to James White. The 
plaintiff claimed that it was not moveable property, and that it, there- 
fore, belonged to the residuary legatee.* ^ 

Stobrs^ J.' The principal que stion in this case is whethe r the be- /d<<^^ 
quesLlQ..ttl£jdefendant, James W. White, of the testator's "movesile 
proper^" embraced the judgment against Stewart. 

1 For discussion of principles, see Burdick, Beal Prop. {{ &-& 
3 The statement of facts is rewritten, 
s Part of the opinion is omitted. 
Bubd.Cab.Real Prop. — 1 



The law attaches no technical or artificial meaning to that phrase ; 
and we must therefore construe it according to its ordinary significa- 
tion, unless there is something in the other parts of the will, which 
shows, that the testator intended to use it in a different sense. But 
we find nothing elsewhere in that instrument, which sheds any light 
on the subject in this respect. The popular meaning must therefore 
prevail. The adjective "moveable.*' applied to prope rty, signifies j n 
i ts ordinary and proper sense, that which is^capable^of being moved . 
or put out of one p la ce into another . It therefore necessarily implies, 
that sucli property has an actual locality, and is susceptible of locomo- 
tion, or a change of place. But this is predicable of that only which is 
corporeal and tangible. A judgment is obviously not of this charac- 
ter ; since, like other choses in action it is, in its nature, incorporeal, 
and therefore has no real locality; although, as we shall hereafter 
have occasion to perceive, judgments sometimes have, in contempla- 
tion of law, for certain purposes, (not applicable to the point now be- 
fore us,) a fictitious or imaginary locality assigned to them and are 
deemed to exist in a particular place. 

I t is however insisted, that the word "moveable/^ applied as an 
epithet to property, is equivalent to the word " personal" ; ^nd in sup - 
p ort of this claim, we are referred tn Black^^ qne ^ This position how- 
ever, so far from being supported, is discountenanced by that writer. 
In his chapter describing the nature and kinds of personal property, 
(2 Comm. 383,) he commences, by stating, that "under the name of 
things personal, are included all sorts of things moveable, which may 
attend to a man's person wherever he goes;" and he subsequently 
adds : " gut things personal, by our law, do not , only include thing s 
moveable, but also something more; the whol e of_which is c ompr e- 
h ended und er the nam e o f /chattels / " He then proceeds to show, that 
this last term signifies not only goods or moveables, but whatever 
was not a feud, and adds: "It is in this latter, more ^extended, nega- 
tivsL-Scnsfijjthat our law adopts .iti^_the _kl^a oT goods~or moveables 
only, beinef not sufficiently comprehensive to take in every thing that 
the law considers asa chattel interest." From this p assag e it is quite 

dn> that he did not deem the phrases "nioveable property" and "pe r- 
s onal property" to be equivalent : but, on the contrary, that he cons id- 
e red moveable p r operty to be only one of the se veral species of p er- 

judge Blackstone, speaking of what is included in personal property, 
mentions "moveables which may attend a man's person," etc., it is, we 
think, moreover, plain from the context and his subsequent enumera- 
tion, (on page 387,) of what he intended to embrace by that expression, 
that he used it in its literal, primitive sense, as indicating that par- 
ticular species of personal property, which consists of tangible, cor- 
poreal, locomotive chattels, and not choses in action, to which it would 
apply only in an imaginary, artificial, legal sense; a chose in action 


having, as it is sometimes expressed, no corpus, but being a mere right, 
not in a thing (in re,) but to a thing (ad rem,) and having, therefore, 
no actual locality ; which right is indeed often evidenced by a written 
instrument, although such instrument does not constitute right itself, 
nor in any sense, the property therein. Indeed, those instruments, such 
as bonds, bills and notes, were not, at common law, the subjects of 
larceny, because they were not deemed to be of any intrinsic value. 
Calye's Case, 8 Co. 33 ; 1 Hawk. P. C. c. 33, § 55 ; 4 Bla. Com. 234. 
Nor do we find any case, in which they give a locality to the debts evi- 
denced by them, so that those debts pass by a general bequest of prop- 
erty described as being situated in the place where those instruments 
happen to be. On the contrary, it is held, that a bill of exchange, 
mortgage, bond, or banker's receipt, do not pass, by a bequest of all 
the testator's property in a particular house, where those instruments 
are ; and the reason given is, that bills, bonds, etc., are mere evidence 
of title to things out of the house and not things in it Fleming v. 
Brooke, 1. Scho. & Lef. 318; Lambert v. Lambert, 11 Ves. 607. So 
a bequest of in-door moveables has been held not to include notes and 
other choses in action. Penniman v. French, 17 Pick. (Mass.) 404, 
28 Am. Dec. 309. We cannot suppose, that Judge Blackstone intended 
to convey a different idea from that which we have imputed to him by 
those general and casual expressions to which we have been referred, 
in other portions of his commentaries, which, although not perhaps 
critically exact, were sufficiently so, for the purpose for which he in- 
troduced them in that elementary work, but were not designed to have 
any reference or application to such a point as the one now before 
us. See 1 Stephen's Com. 156; 2 Id. 65, part 2, ch. 1; Co. Litt. 
118, b. 1; Atk. 183; Com. Dig. tit. Biens, D, 2. 

The same remark also applies to the quotations, which have been 
made, by the defendants, from other elementary writers. 

We have looked in vain at the cases on the subject of devises, to 
find any judicial construction of the particular phrase "moveable prop- 
erty," used in the bequest here in question, either as connected or 
not with the other language of the will, in reference to the question 
whether choses in action are thereby embraced. In Sparke v. Denne, 
however, (Wm. Jones' Rep. 225,) is a determination upon the mean- 
ing of a bequest, the language of which is exactly synonymous with 
that phrase, and where, as in the present case, the construction of it 
was not aided by any other part of the will. The testator, in t ha t case, 
after dev ising ggyeral pecun iary legacies to severaTpersofis, JeviseTthe 
r esidue "of all my moveable goods and ^Kattels to His* wife. The 
Q uestion was, whether deb ts due on bond to the'testator, at the time 
o f his decease, passed bv that bequest; and it was held, after much 
a rgument and conside ration, that'tTiey did not. The court say, that 
**by the devise of 'all my moveable goods and~*chattels,' debts, which 
are jura, (rights or choses in action,) are not devised." The words 



moveable property," used in the devise before us, and the words 
moveable goods and chattels/' used in the devise in that case, are 
precisely equivalent, both phrases having relation to personal property. 
If, therefore, the bequest is restricted, by the word "moveable," in one 
case, it must be in the other. It is well settled, that a bequest of "a| l 
giy ^oods and chattels," is sufficientl y comprehensive to embrace ever y 
s pecies of personal pr operty, and consequently, choses in actio n; bu t 
it was there held to be restricted, by t he term "moveable," so as to ex- 
clude debt s; that word having been construed, according to its ordi- 
nary and proper meaning, as applying only to tangible personal prop- 
erty. This case, therefore, is in point; and we find no other that 
is inconsistent with it If the bequest, in th e pr esent case^ ha d been 
of all the testator's mo v(^l es, h is Tntenti on J:o exclude^debts .du^. Jo 
h im, would hav"eT>een mo re p alpable: but it is d ifficu lt to dis tinguis h 
t hat term, in meaning, fr om the_phrasg_."moveabl e prope rty," 

There are other cases, besides the one cited, which have some, al- 
though not such a particular bearing on the question before us, as 
renders it important for us to notice them. 

We th ink, therefore, that t he judgment aga inst Stewart did not pass 
by the devise m question.* ♦ ♦ ♦ Q/t^^AJc 

A Tbat the ter m "movable" dpes not embrace choees In action, g ee Jackson 
V. Vanaertprelglfe's Ex'rs, 2 Dall. (Pa.) 142, 1 L. Ed. 323 aT92). That It does 
not include a debt, see Wood v. George, 36 Ey. (6 Dana) 343, 844 (1838). In 
the cMl law, movables are classed as movables by nature or movables by 
law. The former Includes things which can move from one place to another, 
whether they move themselves as animals, or whether th^ cAnnot mov^ with- 
out the assdstance of extraneous power, such as inanimate things. French 
Civil Code, § 528. The same provision is found in the Civil Code of Louisiana 
of IdOO (article 473). Bonds and shares or interests in financial, commercial, 
or manufacturing companies are movables by operation of law. French Civil 
Code, § 529. When the word "movable" Is used alone, however, without any 
other addition, it does not include money in caidi, precious stones, book debts, 
books, instruments of trade, or provisions. French dvU Code, | 633. 


wbat is bbal fbopbstt 

L Land Includes What* 


(Supreme Court of New York, 186& 28 Barb. 886.) 

This was an appeal from a judgment entered upon the trial of the 
action at the St Lawrence circuit, before a justice of this court, with- 
out a jury, in June, 1857. The action was Jor partition of r^al. es- 
tate. Jonathan ^uller was orT i^inaTIy the_jDwner jn fee simple, and 
the common source of title to the lands and premises in question. On 
the 6th November, 1847, ^llUcr and wife conveyed to Chilliqn Ford, 
the defendant, th e int erest in the l ands in que stion^ in three parcels de- 
scribed in the^deed. The terms of the deed, with the covenants therein, 
sufficiently appear in the opinion. 

ChilKon For d, on the 8th February, 1856, bj li ke d eed as to form 
and covenan ts, c onveyed to John Canfiel d one u ndivided half of his 
interest in .the said^hree ^arcels^ of land. On the 19th January, 185'7, 
Tohp Canfield and wife by^a like deed as to form and covenants, con- 
veyed two undivided third parts of h is one-half interest in said es- /) 
t ate to the plaintiff Richa rd B^jChapman. Canfield and Chapman then /^y. >■- 
bring an action for partition ;^inst Ford, the owner of the other ""^ ^^ 
V^ lf- The respective interests of the parties are correctly set forth 
in the complaint. The other facts in the case are fully stated in the 
opinion of the court. ' 

Potter, J. The only re al _questionJbo be decided in this case is, / 
whether the parties to this action have such an estate or interest in ^^^ ' / 
the lands in question , as is susceptible of partition by action? 

It is conceded that Jonathan Fuller was the original source of ti- 
tle, and that he owned the entire estate in fee simple, in quantity and 
quality, and that the conveyance from him to the defendant, and 
from the defendant Ford to Canfield, and from Canfield to Chapman, 
in form and covenants, are alike. It is therefore sufficient to set forth 
one of these conveyances. On the 6th November, 1847, Fuller and 
h is wife conveyed by_ deed to'TJiilIion Ford the defendant "and to 
hjsjidrs and assigns forever, a// themines, ores, minerals and metals, * 
lying or being in^ or upon the lands of the parties of the first part, 
situate, lying and being in the town of Depeyster, in the county of St. 
Lawrence, [describing three parcels of land,] together with the right 
to raise, work, amiff carry away said* mines, ores, minerals and metals. 

1 For discussion of principles, see Burdick, Real Prop, i 8. 


And the right to put up all buildings, and to use all lands that may be 
necessary for the purposes aforesaid. And the rightjof ingress. jrid 
egress thereto, and t herefrom^ for the purpose of raising, dig ging and 
working; and carryi ng away said mines . preSi^niinerals and metals^ as 
aforesaid. And all the estate, right, title, interest, claim and demand 
whatsoever of the parties of the first part of, in and to the above 
granted mines, ores, minerals and metals. To have and to hold the 
a bove mentioned and described mines, ores, minerals and m etals , t o 
th e said party of the sec ond partjL!?i?Jl?^rs_^^.^ Assigns forever; with 
^ co venan t to ^arrant an3 defend the same, in the usual form of a 
d eed of warranty. 

The revised statutes provide, t hat when se veral pe rsons shall hold 
and be i n posses sion of any lands, tenements or hereditaments, as Join t 
tenants, or a s tenants in commo n, in which o ne or more of theiU-shall 
have estates of inheritance, or for li fe or li ves, ^r fo r ye a rs, aqy qn e 
o r more of such per sons being^f full age, may ap£ly to the co urt for 
a division or partition of such premi ses, accordi ng tc Kthe rights of th e 
r espective parties inter e sted therein, and for sale of such premises, if 
it shall appear that a partition cannot be made without great prejudice 

C, ) to the owners. Is the interest in question such an interest as comes 
rJ/ 1> within the meaning and intent of this statute ? Either of the terms 
employed in this statute would seem to include the estate of the parties 
in this action. "Land," in its most, geneisl.. sense, cqmprehends_any 
ground, soil or earth, wha ts oever, as meadow, pastures, woods, moors, 
waters, marshes, furzes and heathsT" Co. Xitt. 4 a. It., includes all 
things of a-permanent a nd su bstantial naturej._ not only the face of the 
earth but everything^under it or over it. 2 Bl. Com. 18. "Cujus 
est solum ejus est usque ad coelum, et ad inferos." "Tenements" is 
a word of greater meaning and extent, sometimes, than land, and in- 
cludes not only land, but rents, commons, and several other rights and 
interests issuing out of or concerning land. 1 Steph. Com. 158, 9. 
"Hereditaments" is a still more comprehensive term in law. and in- 
eludes whateve r ma_y be inh erited, corporeal or incorporeal. 2 Bl. 
Com. 17. These terms, therefore, seem to be comprehensive enough 

^to include the estate in question. I think there _can ^e no doubt tl^^^t 
♦;*^'f/~tbe.^tat^ in.question is 9.U estate. oL inheritance. It is so by the very 
terms and forms of the grant. The difficulty suggested upon the ar- 
gument was, how to describe this estate, so carved out of the whole 
fee. If it is an estate that can be partitioned, the precise description 
is not very material, nor is the question as to what would be the rights 
ofjthe parties, aft gr partition^ at all aec^ssary to be discussed heje. 
The latter question does not arise in this review. 

The counsel for the defendant has argued, with greait force, that the 
right or interest which was conveyed as above stated is not a fee 
simple. In^i^^JjJhiijak^e is mistaken upon authority. 1 Rev. St. 
(1st Ed.) p. 722, pt. 2, c. 1, tit. 2, § 2. It is not, however, necessary 


that it should be a fee simple, to entitle to partition. Whatever estate 
i t may be, the owner has such an interest in it that he can maintain 
trespass quare clausum f re^t for any wrong done to it . Worcester v. 
(5reen, i Pick. (Mass.) 429. True, Lord Coke, says, "an inheritance in 
fee simple expresses the largest estate that a man can have in land." 
But Littleton says, "This doth extend as well to all fee simples condi- 
ticMial and qualified, as to fee simples pure and absolute, for our au- 
thor speaketh here of the ampleness and greatness of the estate, and 
not of the perdurableness of the same, and he that hath a fee simple 
qualified hath as ample and great an estate, as he that hath a fee 
simple absolute. So as the diversity appeareth between the quantity 
and the quality of the estate." Littleton, 18 a. And so also Plowden 
says, "that two fees simple absolute, cannot be at the same time of one 
and the selfsame land." Plowd. 349. That is. the mines, ores and 
minerals being; land, a man may ha ve a fee simple in them as jffifilL&s 
he yyho holds the soil that remains unconveye d may have a fe e 
s imple^ for they are not the s^^sam^ l and. A man may have a fee 
simple not only in lands, but also in advowsons, common, estovers, 
and other incorporeal hereditaments. So if a man grants to another 
all woods, underwoods, timber trees, or others, saving the soil the 
grantee has a fee to take in "alieno solo." Crabbe on Real Property. 
§ 964. The estate so partitioned, therefore is an estate of inheritance, 
a fee simple. It is limited in quantity, not m quality. It is carved 
out of a fee simple absolute, and the latter having lost this quan- 
tity of estate, is itself qualified to that extent, without losing its qual- 
ity of a fee simple. The estate in^ con troversy, I think, may also be 
classified among estates, as^a "corporea l heredi tam^i t" ; and comes 
within the definition of that estate, to wit, " Such he reditam ents j is^ are 
of a material and t anpble nature, such as may be perceived by the 
senses, consisting wholly of substantial and permanent objects, and com£rghended_. under the general denominations of lands 
^ly. " Steph. Com. 159; Bouv. Diet.' 288. 

The class of cases referred to by the learned counsel for the de- 
fendant, which may not be partitioned, are cases of mere license, or 
authority to enter upon another's land, and to do a particular act, or 
series of acts, without possessing any estate in the land. Such inter- 
ests, it is true, cannot be partitioned. This class of cases is nearly al- 
lied to, and very often confounded with, a still superior interest in 
real property, called an "easement," which is described as "a liberty, 
privilege or advantage in land, existing distinct from an ownership 
in the soil, and is founded on a grant by deed, or writing, or upon 
prescription, which supposes one, being a permanent interest in an- 
other's land, without profit, with a right at all times to enter and en- 
joy it." 3 Kent's Com. 452. Such an interest, possibly, may not be 
partitioned. The distinction between the two classes of cases last 
above mentioned, and that of a permanent grant for a good consid- 


eration, of an interest in lands to be used for profit, to a man, and 
to hi^ heirs and assigns forever, is palpable. There is still another 
distinction found in the old law books, existing in regard to estates 
of inheritance. Entire estates of inheritance not divisible, and estates 
that are divisible, and yet shall not be parted or divided between 
coparceners. Among the examples given of them, is found the fol- 
lowing. If a man have reasonable estovers, as housebote, haybote, 
&c. appendant to his freehold, they are so entire, as they shall not 
be divided between coparceners." Co. 164 b. "So too of a pischarie 
incertaine, or a commons sauns nombre, or of a corody incertaine." 
Id. Another instance cited by Littleton, of estates that shall not be 
partitioned, is this : Lord Mountjoy, being seised of the manor of C. 
did by deed indented and enrolled, bargain and sell the same to one 
Browne in fee, in which indenture was contained a clause on the part 
of Browne, amounting to a grant by him of an interest and inherit- 
ance to Lord Mountjoy, his heirs and assigns, to dig for ore in the 
lands, (which were a great waste,) parcel of the said manor, and 
to dig for turf, also for the making of alum. In this case three points 
were resolved upon by all the judges, viz.: First That this con- 
veyance did amount to a grant of an interest and inheritance to Lord 
Mountjoy, to dig, etc. Second. That notwithstanding this gfrant, 
Browne and his heirs and assigns might dig also, and like to a case 
of common "sauns nombre." Thirdly. That the Lord Mountjoy might 
assign his whole interest to one, two or more, but then if there be 
two or more, they could make no division of it, but work together 
with one stock. Co. Lit 164 b. 

It will be seen that the reason given by the judges, why partition 
could not be made in the case above cited,- does not at all apply to 
the case in question. First, the exclusive right or all the rig^t to 
mines, ores, etc., was not granted in that case, but a mere right or 
permission to dig, etc., the grantor and his assigns might also dig; 
and second, the extent of the grant being uncertain, the grantee might 
surcharge, to the injury of the tenant of the land. Interests uncertain 
in their extent, could never be partitioned. In the case now in ques- 
tion, the tenant would be bound to take the estate, subject to the 
terms of the conveyance, granting the exclusive right to all the 
mines &c., and of the right to put up all buildings, and use all lands 
that may be necessary for the purposes expressed, and the right of 
ingress and egress thereto and therefrom. The terms of the grant, 
by construction, being taken most strongly against the grantor, and the 
whole interest in the mines, etc., being conveyed, it is immaterial to 
the grantor whether one person with fifty or more laborers, or fifty 
or more persons singly, should dig thereon, provided they use no 
more of the land than is necessary for the purpose of digging, &c 
all the mines, ores, &c. This is a certain grant, and no difficulty oc- 
curs in making equality of division. 


But if the provisions of our revised statutes are not broad enough 
to include the power to partition, it has been settled that this court, 
as now constituted, has common law jurisdiction to partition real 
estate; (Story's Eq. Jur. §§ 646, 658; Smith v. Smith, 10 Paige, 470;) 
limited however to the power to divide estates certain. It is only 
necessary in a court of equity, to entitle to partition, so far as this 
point is in question, to show that equality can be obtained, in value, of 
lands; especially in advantages and profits redounding from each 
share to the several owners. Allnat on Part. 10. Whatever is capable 
of being divided may be the subject of partition in equity. Id. 84. 

The only remaining question raised in the cage is^ whether the 
owner of the fee qua lified in qu antity^ out of which . the estat e v^as 
carved, j)ught„ not. to. be made a party tp the. action. The statute (2 
liev. St. [1st Ed.] p. 318, pt 3, c. 5, tit. 3, § 5,j requires that the 
petition (complaint) shall set forth the rights and titles of all persons 
interested therein, etc. Wb^t. interest can Fuller, tiie grant or of tiiis 
estate, have in t he estate, which by deedTie has conveyed away 7 "In 
the estate sought to be partitioned he has no interest whatever. The 
partition in no respect aflfects the titie of Fuller. He is not a tenant 
in common with the parties to the suit They own separate portions 
of the estate, in severalty. 

I think the judgment must be affirmed. 

Judgment affirmed.' 

[Franklin General Term, September 14, 1858, C. L. AlWn, Jahes^ 
RosEKRANS, and Pott^b^ Justices.] 

s In Bedlow y. StiUwell, 91 Hun, 884, 36 N. Y. Supp. 129 (1895), it is said: 
"The term 'lands, tenements, and hereditaments' is generaUy construed to in- 
dude aU lands and interests in lands, corporeal or incorporeal, which would 
descend to an heir at law." It is also held in Hutchinson y. Bramhall, 42 
N. J. Eq. 372, 7 Atl. 873 (1886), that the expression "lands, tenements, and her- 
editaments," as found in the statute concerning conyeyances, proyiding that 
eyery deed or conyeyance of or for any "lands, tenements, or hereditaments" 
to any purchaser of the same shaU be recorded, does not include leases for 
years, but appUes only to freehold estates. 

Tenement. — The word "tenement" in its legal sense means an estate in 
land, or some estate or interest connected with, pertaining to, or growing 
out of the realty, of which the owner might be disseised. A tenement com- 
prises eyerything which may be holden so as to create a tenancy in the feudal 
sense of the word, neld y. Higgins, 35 M& 889, 341, 342 (1853), citing 3 
Kent Ck)mm. 401. And see Sacket y. Wheaton, 84 Mats. a7 Pick.) 103, 105- 

10 /s.'^ , WHAT IS REAL PROPSBTT -- 


(Glrcalt Ck)urt of Apl^eals of the United States, Fifth arcuit, 1002. 113 Fed. 
^ 433, 61 0. C. A. 267.) 

Appeal from the Circuit Court of the United States for the Eastern 
District of Texas. 
The opinion of the circuit court, filed December 6, 1901, is in part 

as follows: 

Bryant, District Judge.' This is an application fo r the appoint - 
ment of a receiver . Th§ xomplain ant^ Annig fe. bn ovv^ a citizen of 
the state of California, joined pro forma by her husband, G. H. Snow, 
has fi led, a bill in equity against the defendants . Higgins Oil & 
Fuel Company and over 200 others, corporations and natural per- 
sons, citizens of the state of Texas, or of states other than California, 
alleging that s he is the owner of a life esta te in one-eig hteenth, un- 
divided, of the John A. Veatch survey of land in Jefferson county, 
Tex., less certain subdivisions that are excepted, embracing the 
gr eater portion of the Beaumont oi|[^fiel4 * and including at the date 
of the filing of the bill 66 flowing wells, all in the possession of the 
defendants, who are engaged in marketing the oil. She seeks an ac- 
counting in reg ard to the oil taken and markeje^i claiming an 
eighteenth thereof, and to recover the amount ascertained to be due. 
The bill also contains the prayer for the appointment of a receiver 
to take charge of the wells, so that they may be operated pending the 
litigation without risk or detriment to any party, or, in the alterna- 
tive, that a receiver be appointed to collect one-eighteenth of the 
revenues from said wells, and to hold or invest the same pending the 
litigationi with such powers and duties as the exigencies of the case 
may warrant. Those of the defendants who have appeared in re- 
sponse to the rule to show cause why a receiver should not be ap- 
pointed have f^t fid dem^^rrers ^nd am^^^^'gj and make substantially 
the following contentions: ♦ ♦ ♦ (4) That as a life tenant^the 
compla ina nt is ent itled to no inte r est in the oi l produ ced, her estate 
b eing limited to the surf ace ; a nd £5) that in no event should a. re- 

c eiver be app ointed. The^coniplainant filed a general replication. 
* ♦ ♦ 

A difficult question arises in regard to the rights of a life tenant, 
as respects petroleum oil obtained from the land. There seems to be 
no decision in Texas on the point, and but very few by the federal 
court; in fact, none directly in point. The statute under which the 
complainant acquired her life estate appears under the head, "Descent 
and Distribution," and reads as follows: "When any person having 
title to any estate of inheritance, real, personal or mixed, shall die 
intestate as to such estate, and shall leave a surviving husband or 


s Part of the opinion is omitted. . 


wife, the estate of such intestate shall descend and pass as follows: 
(1) If the deceased have a child or children or their descendants, the 
surviving husband or wife shall take one-third of the personal es- 
tate, and the balance of such personal estate shall go to the child or 
children of the deceased and their descendants. The surviving hu s- 
ba nd or wife shall also be entitled to an estate for life in onethir d 
o i tne land ot the Intestate, with remainder to the child or children 
of ~the intestate and their descendants/ ' Rev. St. Tex. 1895, art. 1689. 
Lt is noticeable that all property is classified, and its mode of de- 
scent regulated under two heads: ^j^^ffti "p<^^fi^"a1 pfopprty" and, 
second^ '*land .*' The latter term is therefore employed in its most 
comprehensive sense, and is nomen generalissimum. A life estate is 
given the survivor in one-third of the land of a deceased husband 
or wife, in this sense necessarily, because all property of inheritance 
that is not land is classified as personal property, and if the mineral 
rights that belonged to Andrew A. Veatch by virtue of his fee simple 
ownership of one-sixth of this land did not pass, one-third to his 
widow for life, as land, it passed as personal property, one-third to 
her absolutely. The life estate is given, not in the surface of the land, 
but in the land as land, and it is elementary that the land itself in 
legal contemplation extends from the sky to the depths. 

Coke says: '' The t erm 'land' includ es, not only the ground or sojl, 
but everything which is attached to the earth, whether by the course 
oj nature, as' trees","Tie rbage, and'^>yat er. or by the hand o f man, _ as 
houses and other buildings :" an3 it has an indefinite extent upwards 
as well as downwards, so as to include everytning terrestrial under 

nr nvpr tf/^ Co. XlFt. 4a. 

Blackstone says : "Land comprehends all things of a permanent and 
substantial nature, being a word of very extensive signification ; also, 
if a man grants all his lands, he grants all his mines of metals and his 
fossils, his woods, his waters, and his houses, as well as his fields and 
meadows." 2 Bl. Comm. 16-18. 

Washburn says: "Land is always regarded as real property, and 
ordinarily whatever is erected or growing upon it, as well as whatever 
is contained within it or beneath its surface, such as minerals and the 
like, upon the principle that *cujus est solum, ejus est usque ad caelum' 
in one direction, and 'usque ad orcum' in the other." 1 Washb. Real 
Prop. 3. 

The American and English Encyclopedia of Law (old edition) 
defines it as follows: "Land is the surface of the earth, whatever is 
attached to it by nature or by the hand of man, and all that is con- 
tained within or below it." Vol. 19, p. 1032. . 

In Koen v. Bartlett, 41 W. Va. 559, 23 S. E. 665, 31 L. R. A. 
130, 56 Am. St. Rep. 887, the court discussed this question of wheth- 
er a life estate in land is a mere interest in the surface, and said : "It 
must be conceded that the life tenant is vested with the ownership 


thereof as land, as being seised of the immediate freehold of pos- 
session, which possessi on extends^ from top to bottom, to the sub- 
surface as . much as the suflaceT in other words, to the land as a whole, 
or the tenant for life has a freehold as well as a tenant in fee, and 
that the owners of the inheritance have no more right to approach 
by a tunnel, and break and enter his superficial close, than they have 
to break and enter his close on the surface." 

Lenf ers v. Henke, 73 111. 405, 24 Am. Rep. 263, is to the same effect, 
and in that case the court said: "Land comprehends all things of a 
substantial nature, which includes all ground, soil, or earth whatever, 
and hath in its legal signification an indefinite extent upwards as well 
as downwards. Minerals are a par t of the land itself J and^ J.f _nQt 
susceptib le^ of division, the wife is entitledjto be endowe d of th ^^r^- 
its and rents.^*" 

' ^ f 

According to all the cases. and. text-books. a life estate in land in- 
variably extends to all miner als b eneath the surface; but, the right 
being merely to use ancTeiiJoy, and not to dispose of, the land, the 
diflSculty arises in determining what is proper use and enjoyment, and 
when a lij[e tenant may and when he may not sever and dispo3e Qf 
minerals without beings guilty_of_ waste. It is obvious that a life 
tenant, if alloweiJIto mine, might get a much larger proportion of the 
benefit of the estate than he would ordinarily receive. On the other 
hand, if not allowed to mine, he might get much less.. The courts 
have^ undertaken to draw the line, and it may be stated as a general 
r ule, at comm on law, that, while a life tenant may continue to work 
mines that were open when the tenancy ccwnmenced, and this even 

to exh austion^ a nd jnay construct new 2iP2^.9^-^^??i J^^.. c^^^^o^ ^pen 
new mines, so would be to commit waste. The rule allow- 
ing life tenants to mine, when the operations are ccwnmenced before 
the tenancy is created, is based on the theory that in such cases 
mining is a mere mode of use and enjoyment, and to extract minerals 
is but to take the accruing profits of the land. Raynolds v. Hanna 
(C. C.) 55 Fed. 801 ; Koen v. Bartlett, 41 W. Va. 559, 23 S. E. 664, 
31 L. R. A. 130, 56 Am. SjL Rep. 884; Seager v. McCabe, 92 Mich. 
186, 52 N. W. 299, 16 L. R. A. 247; Wentz's Appeal, 106 Pa. 301. 
The matter resolves itself, then,. into a question of when and under 
what circumstances mining may be adopted as a mode of using the 
land. The autho rities all agree that there is no restriction when the 
land h as once been used for mining purposes before the life tenant 
^ comes in; ,ajid theyjiow go a step further, and hold that mining will 

^ be_ allowed if the owner of the preceding estate has fixed on it the 

fi,"^: c^iaract^ of mining lanif by lease or the like, though no mines were 
' opened. Priddy v. Griffith, 150 111! 560, 37 N. E. 999, 41 Am. St. 
Rep. 397 ; Koen v. Bartlett, supra ; Seager v. McCabe, supra. 

In the case at bar, the remainder-men, being also the owners of 
seventeen-eighteenths absolutely, have taken possession of tlie entire 


property to the exclusion of the life tenant, and have converted it 
into an oil field. The latter has committed no waste, and the point 
to' be decided is, not whether she might drill for oil herself, but 
whether she may elect to acquiesce in the changing in the mode of 
use. The estates were joint when tlie change was made, and no par- 
tition was demanded. Consequentjy, any adva ntage that ensues^ must 
inure to the benefit of all the co-tenants in pfcSortion to their inter- 
ests^ Lenfers v. Henke, 73 111. 405, 24 Am. Rep. 263, is an applica- 
ble authority, in principle at least. The case involved two questions : 
(1) Whether a widow is entitled to dower in mines not open when 
her right of dower attached, but opened by the reversioner before 
assignment; and (2) whether a certain verbal agreement was valid as 
an assignment of dower. Both were decided in the affirmative. 

After announcing that the first question presented was one of first 
impression, the court proceeds with a review of the authorities. 
Speaking of the rule that a life tenant or dowress may not open new 
mines, the court observes : "In many of the later cases, as well as the 
earlier cases, no reason whatever is assigned for the adoption of 
the rule; but, where any is assigned it is, the dowress cannot open 
new mines when discovered, because she would be committing waste, 
which she is not permitted to do. On principle, why may she not 
be endowed of mines opened by the heir or owner of the fee, after 
the dower attaches and before there has been any assignment? By 
all the decisions, it is not waste for her to work mines opened, al- 
though the same had been abandoned before the death of the hus- 
band. She may construct new approaches, and not be guilty of waste. 
The reason for the rule adopted that bars dower in all mines not 
opened during the lifetime of the husband failing, the rule ought not 
to be extended to cases not strictly within its meaning." 

And finally: "The heir, by opening the mines, has destroyed all 
other profits of the land. There is no mode of enjoying mines, ex- 
cepting by working them. If this cannot be done, they are profitless 
to the dowress. As we Ihive seen, it is not waste in her to work 
mines opened by her husband, and, by a parity of reasoning, we 
reach the conclusion it is not waste for her to work mines opened 
by the heirs before assignment of dower." 

Priddy V. Griffith, 150 111. 560, 37 N. E. 999, 41 Am. St. Rep. 397, 
was decided by the same court, and language to the same effect 
used. ♦ ♦ * 

Thus far the question has been treated without distinction between 
conventional life estates and common-law dower on the one hand, 
and life estates inherited by the law of heirship and succession on the 
other. In Seager v. McCabe, supra, the supreme court of Michigan, 
construing a dower statute of that state reviewed the decisions at 
considerable length, made the distinction, and announced the follow- 
ing conclusion: "The rules applicable to a country where landed es- 


tates are large and diversified, where the laws of inheritance are ex- 
chisive, where the theory of dower is subsistence merely, and where 
there is a strong disposition to free estates from even that charge, do 
not obtain in a commonwealth like ours, where estates are small, and 
the policy of our laws is to distribute them with each generation, 
where dower is one of the positive institutions of the state, found- 
ed in policy, and the provision of the widow is a part of the law 
of distribution, and the aim of the statute is, not subsistence only, 
but provision commensurate with the estate. In the ^present case the 
grant is by operation of the statute, giving the use of all the lands 
of which the husband was seised. The grant must be held to include 
the use of these lands, irrespective of whether mines are opened 
upon them before or after the husband's death." 

The statute there construed was not as broad as the one of Texas, 
and was directed at the subject of dower. The Texas statute make s 
no mention of dower, but defin es th at which under the civil law woul d 
have bee n a usufruct, — an e state not impeac hable for wa ste. This 
IS specially significant, when it is remembered that the Texas system 
of land titles and laws of marital rights is devised largely from the 
civil law. Carroll v. Carroll, 20 Tex. 743. Under the civil law th e 
u sufructuary had a right to s eek f or and open ev ery k ind o f mines , 
s tone and lime q uarries, chalk pi ts, and gravel ba nks. 1 Dom. Civ. 
Law, 843 ; 2 Dom. Civ. Law, 045-968; Neel v. KTeel, 19 Pa. 323. 

Another noticeable feature of the statute is that it gives the sur- 
viving husband the same estate in the land of the wife upon her death 
that it gives her in his land at his demise. This^is a complete answer 
to the argument that the r ule shall depend upon whether mines a re 
op en or not at the time of the husband's death, becayse^he, by reason 
of his position as the he ad of the^f am ily, is de emed to fix for the use 
of his pro perty commensurate with the necessities of his family. I^ 
think the com plaihant Is entitTed .to oneHeighteenth o7 jHe~ oil j)ro- 
Q uced, afte r deducting all expenses of producing and marketing. If 
she is not entitled to the net one-eighteenth" absolutely, then she is 
entitled to have such net yield impounded and put at interest, the in- 
terest to be paid to her during her life, while the corpus of the fund is 
preserved for the remainder-men. Blakley v. Marshall, 174 Pa. 425, 
34 Atl. 564; Wilson v. Youst, 43 W. Va. 826, 28 S. E. 781, 39 L. R. 
A. 292 ; Bryan, Petroleum, 41 ; Macswinney, Mines, 65. In neither 
event, however, should a court of equity take from the defendants the 
control and management of the common property. But a spe cial re- 
ceiver, more in the nature of an auditor, will be appointed for the 
purpose of taking and, .keeping accurat e ac counts of^^ll oil^ marketed 
b^the defendants, toget her w ith grices_obtained and expenses in- 
curred, and to collect, receive, ancThold^ subject to the orders of the 
court, one^ighteenth of the net amount of all oil so marketed. Ul- 


man v. Clark (C. C.) 75 Fed. 868, Williamson v. Jones, 39 W. Va. 
231, 19 S. E. 436, 25 L. R. A. 222. • . * ♦ 

Before Pardee, McCormick, and Shelby, Circuit Judges. 

Per Curiam. As, by the record, the appellee, Mrs. Snow, is seised 
of an estate for life in one undivided one-eighteenth part of the lands 
described in the decree appealed from, and to that extent is a ten- 
ant in common with the owners of the fee, we all agree that she is 
interested in and entitled to an accounting for all oil developed and 
produced on and from the said lands to the prejudice of her estate, and 
to that end a receiver was properly appointed pending the litigation 
necessary to finally determine the full rights of the appellee. On this 
appeal no other questions need be passed upon. 

The decree of the circuit court is affirmed, with costs.* 



V - 


(Supreme Court of California, 1903. 140 CaL 183, 73 Pac. 826.) — 

Department 1. Appeal from Superior Court, San Bemadino 

Action by th e Mt C armel Fruit. Company against Joseph Webster 
and wife . From a judgment in favor of plaintiff, defendants aflS'eal. 

In this case a ques tion was raised whether, in violation of the fed- (I 
era| statute s re lating to h^nestead entries upon the public land, which \/^(j 
provide that the entrym an shall file an affidavit that no part of the 
l and has been alienated by him, an entryman's^ deed" wHich purported tlCO^.^ ^ 
merely to convev a water righ t was^ a conveyance of ^lan J.^ T3nly so 
much of the case as pertains to this question is here presented." • 

Van Dyks, j.« ♦ * * in this case the conveyance of the water 
rights in questio n was about four years before the homestead entry, 
and there is nothing to show that either of the parties to such con- 
veyances at that time contemplated that the land should be obtained 
from the government by a homestead entry on the part of Webster, 
or that the parties were not dealing in a fair and honorable way. 
To the compla i nt in this case, the answer on the part of defendants 
i s simply a denial of the right of the plamtiff, upon informatio n and 
belief, and an allegation ffiat the defendants did claim some fight, 

« For further Judicial definitions of land, see Mitchell v. Warner, 6 Conn. 
^7, 517 (1825), citing 1 Coke, Inst. 4a; Nessler v. Neher, 18 Neb. 649, 26 N. W. 
471 (1886), and Llghtfoot v. Grove, 52 Tenn. (6 Heisk.) 473, 477 (1871). See, al- 
so. Harder v. Plass, 57 Hun, 540, 11 N. Y. Supp. 226, 227 (1890), where it is said 
that the word "land" incTades many things b^des the earth we tread on, as, 
tor example, water, grass, buildings, fences, trees, and the llke^ for all these 
may be conveyed by the general designation of "land." 

s This statement of fact is rewritten. 

« Part of the opinion Is omitted. 


title, or interest adverse to the plaintiff. There is no issue raised 
by the pleadings that the claim on the part of the plaintiff is founded 
upon any transaction entered into against public policy. 

Further, the conveyances here were not, strictly speaking, for the 
land, or part of the same, but for an interest in appropriated water, 
and the right to convey the same over and across the land ; and by 
the seventeenth section of an amendatory act of Congress of July 9.. 
1870, c. 235, 16 Stat. 218, it is provided '* that a ll patents gr^nJtgdLor 
pre-emp tions or homesteads allowed, §halL be subject ta any. vested 
and accrued water rights, or rights .to ditches and reservoirs used in 
connection with such water righ ts^ as may have been acquired under 
or reco^ized by the nin th section ofjthg act^of which this is amenda- 
toQc;.! to wit. Act July 26, 1866, c. 262,^14 i5tat.'253. U. S. Comp. 
*^St 1901, p. 1437, § 2340. 

The principle that prior appropriation of water on the public lands 
in California, where its artificial use for agricultural, mining, and 
other like purposes is absolutely essential, is lawful has all along been 
recognized and sanctioned by the decisions of the Supreme Court of 
the United States, as well as those of this state. Osgood v. Water 
& Mining Co., 56 Cal. 580. In Broder v. Water Co., 101 U. S. 274, 
25 L. £d. 790, it is said "that rights of miners, who had taken pos- 
session of mines, and worked and developed them, and the rights 
of persons who had constructed canals and ditches to be used in 
mining operations and for purposes of agricultural irrigation in the 
region where such artificial use of the water was an absolute neces- 
sity, are rights which the government had, by its conduct, recognized 
and encouraged, and was bound to protect, etc. 

Our Code, following the common-law rule, makes a distinction be- 
tween real property and land — one of the elements of real property. 
"Real or immovable property consists of : (1) Land ; (2) that which 
is affixed to land ; (3) that which is incidental or appurtenant to land ; 
(4) that which is immovable by law." **Land is the solid material of 
the earth, whatever may be the ingredients of which it is composed, 
whether soil, rock, or other substance." "A thing is deemed to be 
afHxed to land when it is attached to it by root, as in the case of 
trees," etc. "A thing is deemed to be incidental or appurtenant to 
land when it is by right used with the land for its benefit ; as in the 
case of a way, or watercourse, or of a passage for light, air, or heat 
from or cross the land of another." Civ. Code, §§ 65&-660, 662. 

The United States homestead law, it will be seen, prohibits only 
an agreement to sell the land, or any part thereof, or the timber 
thereon. The Webster deeds in question did not purport to convey 
the land, or any part thereof, but only an undivided portion of the 
water flowing in the said stream or canyon, "being on or near sec- 
tion 28," and also the right of way to convey said water, by ditch or 
otherwise, across said lands, and they were not made in contempla- 



tion of the homestead entry. Such a transaction so far from being 
prohibited by the acts of Congress in question, or against public 
policy, is favored and encouraged, not only by the legislation of Con- 
gress, but by the decisions of the courts, federal and state. 
Judgment aflSrmed.^ 

T For further statutory defloitioiis of land, see Union Gompress Go. y. State, 
64 Ark. 136, 41 S. W. 62 (1897); People v. Board of Assessors of Brooklyn, 39 
N. Y. 81, 87 (1868); Missouri, K. & T. B. Go. y. Miami Gounty, 67 Kan. 434, 
73 Pac. 103, 105 (1903). See, also, WiUson's Bey. & Ann. St Okl. 1908, | 887 ; 
Giy. Gode S. D. 1903, | 187; Bey. St Mo. 1899, | 9123; Gode W. Va. 1899, p. 
134, e. 13, § 17; Hurd's Bey. St IlL 1901, c. 120, § 292, subd. 12; Bates' Ann. 
St Obio, 1904, I 2730; Oen. St Minn. 1894, i 206, subd. 8; Bey. Laws BCass. 
1902, c. 8, I 5, subd. a 

Bxtbd.Ga&Bbai. Pbop.-^ 

18 nzTUBU 

I. Rules for Detennining Fixtures ^ 


/Supreme Oourt of Rhode Island, 1901. 22 R. I. 624, 48 AtL 1033, 84 Am. St. 

Rep. 858.) 

Action by Letitia A. Canning against Ellen I. Owen and others. 
Judgment was rendered for plaintiff, and defendants filed a petition 
for a new trial. Petition granted. 

Tin^UNGHAST, J. One of the grounds of the defendant's petition for 
a new trial is that the trial court allowed testimony to be introduced 
by the plaintiff as to the conversion by defendants of certain elec- 
tric light fixtures which had been attached to the Lake View Hotel 
property by plaintiff while she owned the same, and which fixtures, 
at the time they were so attached, were intended by the plaintiff to be 
and remain a part of the real estate. She did not detadi, or attempt 
to detach, said fixtures until some time after the hotel property was 
sold under the mortgage thereof given by her. The question raised 
by the ruling complained of is whether such fixtures, so annexed to 
the freehold, remained personal property, so as to enable the mort- 
gagor to maintain trover against the purchaser of the real, estate at 
the mortgagee's sale, for refusal to give them up on demand. 

There is considerable conflict in the authorities as to whether such 
fixtures pass by a conveyance of the land on which they are placed 
or with which they are connected. Under the New York decisions, gas 
fixtures which are screwed onto the gas pipes of a building are held 
not to be so attached to the building as to form part of the realty. 
The decisions there seem to proceed upon the ground that such fix- 
tures as are capable of being easily detached from the building, with- 
out physical injury thereto, are mere furniture, and therefore not 
appurtenances to the building. See McKeage v. Insurance Co., 81 
N. Y. 38, 37 Am. Rep. 471, and cases cited. In Vaughen v. Halde- 
man, 33 Pa, 522, 75, Am. Dec. 622, it was held that gas fixtures at- 
tached to the gas pipes by the owner of the preniises were mere per- 
sonal chattels, and not "fixtures," in the proper sense of the term, 
and hence did not pass by a sheriff's deed of the real estate. In 
partial support of the opinion, the court cites Lawrence v. Kemp, 1 
Duer (N. Y.) 363, where it was decided that gas fixtures, when placed 
by a tenant in a shop or store, although fastened to the building, are 
aot fixtures, as between landlord and tenant ; and also Wall v. Hinds, 

1 For discussion of principles, see Burdlck, Real Prop. | 18. 


4 Gray (Mass.) 256, 64 Am. Dec. 64, where it was held that a lessee 
could take away gas pipes put in by him into a house leased to him 
for a hotel, and kept in place in the rooms by metal bands, though 
some of them passed through wooden ornaments of the ceiling, which 
>^re cut away for their removal. From the fact that the court cited 
these cases, it would seem that it took the view that substantially the 
same rule obtains regarding fixtures between vendor and vendee of 
real estate as obtains between landlord and tenant, which is clearly 
not so. The other case cited in support of the opinion, viz. Montague 
V. Dent, 10 Rich. (S. C.) 135, 67 Am. Dec. 572, was clearly in point, 
as there it was held that gas fixtures, such as chandeliers and side 
brackets, attached to the gas pipes by the owner of the premises, were 
mere personal property, and not fixtures, and hence did not pass by a 
sheriff's sale of the real estate to which they were attached. 

In Minnesota the same rule obtains as to gas fixtures, although the 
court, while holding that they are not part of the realty, admits that 
it is only by reason of an arbitrary and inconsistent exception, which 
has been established by the authorities, that it feels called upon to so 
hold. The court say that the distinction between radiators, which it 
holds to be part of the realty, and gas fixtures, is not clear in prin- 
ciple. See Capehart v. Foster, 61 Minn, 132, 63 N. W. 257, 52 Am. 
St. Rep. 582. 

In speaking of radiators, the court say: "Such radiators are an es- 
sential part of such plant, and are rarely furnished by tenants or 
temporary occupants of buildings as a part of the furniture brought 
with them or carried away with them, but the owner who furnishes the 
rest of such plant usually furnishes the radiators also. When, under 
ordinary circumstances, the owner of the building attaches such radi- 
ators to his steam plant, it should be held that he intended them to be 
permanently annexed to the realty. We are cited to Bank v. North, 
160 Pa. 303, 28 Atl. 694, which holds to the contrary. This case holds 
that such radiators are analogous to gas fixtures, and therefore not 
a part of the realty. By following the same process of reasoning by 
analogy, you would strip a house of all modern improvements, and by 
continuing the process you would overturn the greater part of the 
law of fixtures. A correct rule should not, in this manner, be over- 
turned by an inconsistent exception." The court did hold, however, 
that the electric annunciator, which was attached to the wall, and to 
all the wires of the electric call or electric bell system of the hotel, 
was a part of the realty. 

Massachusetts decisions are classed, in the American and English 
Encyclopedia of Law (volume 13, New Ed., 666), with those which 
hol4 that gas fixtures are not a part of the realty as between vendor 
and vendee; and the plaintiff's counsel cites Guthrie v. Jones, 108 
Mass. 191, and Towne v. Fiske, 127 Mass. 125, 34 Am. Rep. 353, in 
support of this view. The first-named case is clearly not in point, as 


it was a case between landlord and tenant And, moreover, it ap- 
pears, by the second opinion given in the case (see page 195), that 
the first one was materially modified. The second case, while it holds 
that gas fixtures are in the nature of fumitur/:, and do not lose their 
character as chattels by being affixed to the house by screws and cement, 
is not clearly in point as an authority in the case before us, for the rea- 
son that the gas fixtures and other fixtures in question in that case were 
purchased and afiixed to the house by the plaintiff, who was not the 
owner thereof, but who had taken possession under a mere verbal 
agreement for the purchase thereof. No deed wals ever given, and the 
question which arose in the case was whether the gas fixtures, port- 
able furnace, and certain other things which the plaintiff had attached 
to the house during the time of his occupancy thereof became part of 
the realty, and the court held that they did not. The fact that the 
court, in support of its opinion, cited Guthrie v. Jones, supra, would 
seem to indicate that it treated the case before it as one betwen land- 
lord and tenant, rather than as one between a vendor and vendee of 
real estate. 

McConnell v. Blood, 123 Mass. 47, 25 Am. Rep. 12, is more nearly 
in point as an authority for the plaintiff, and it may be that the lan- 
guage there used by the court is broad enough to include gas fixtures 
in the category of articles which do not become part of the realty by 
being affixed thereto. Like the case before us, it was one where the 
rights of the parties were to be determined by the rules which apply 
between mortgagor and mortgagee upon a foreclosure sale of the 
realty. The court said : "Many things which, as between landlord and 
tenant, would be removable as chattels, are regarded as part of the 
realty in favor of a mortgagee. In ascertaining what articles have be- 
come part of the realty, regard must be had to the manner in which, 
the purpose for which, and the effect with which, they are annexed. 
♦ * * Whatever is placed in the building by the mortgagor to 
carry out the obvious purpose for which it was erected, or to perma- 
nently increase its value for occupation, beccxnes part of the realty, 
though not so fastened that it cannot be removed without serious in- 
jury, either to 'itself or to the building. On the other hand, articles 
which are put in merely as furniture are removable, though more or 
less substantially fastened to the building. So, too, machines not es- 
sential to the enjoyment and use of a building, occupied as a manu- 
factory, nor especially adapted to be used in it, are removable, though 
fastened to the building, when it is clear that the purpose of fasten- 
ing them is to steady them for use, and not to make them a permanent 
part of, or adjunct to, the building." 

But, conceding that the Massachusetts decisions are in hanjiony 
with those of the other states above referred to, yet as the contrary 
view is taken by other courts of last resort, and as we are not bound 
by any previous decision of our own court in the premises, we feel 


at liberty to adopt a diflFerent rule, and one which, as it seems to us, 
is more logical, and more in keeping with the true idea as to what 
constitutes and goes to make up real estate as between the vendor and 
vendee thereof.. We think the correct rule of law in such cases is the 
common-law rule, viz. : That whatever is once annexed to the free- 
hold, which is designed by the owner thereof to be used and enjoyed 
in connection therewith, becomes a part of the realty, and passes with 
the conveyance thereof. Graeme v. Cullen, 23 Grat. (Va.) 290. And 
although this rule does not obtain as between landlord and tenant, in 
relation to articles attached to the freehold for ornamental or do- 
mestic use, and also with regard to "trade fixtures," so called, yet it 
does obtain and should be strictly enforced as between vendor and 
vendee. It is doubtless true that, as a general thing, a tenant may 
remove whatever he has added to the realty, when he can do so with- 
out injury to the freehold, "unless," as said by Field, J., in Sands v. 
Pf eiffer, 10 Cal. 264, "it has become, by its manner of addition, an inte- 
gral part of the original premises." "But not so a vendor. As against 
him all fixtures pass to his vendee, even though erected for the pur- 
poses of trade and manufacture, or for ornament or domestic use, 
unless specially reserved in the conveyance." And the same strict rule 
which applies between heir and executor applies equally between 
vendor and vendee and between mortgagor and mortgagee. 2 Kent, 
Codb. 411-413. 

We are aware that it has been held in some cases that, in order to 
give chattels the character of fixtures, they must be so affixed to the 
realty that they cannot be removed without^ physical injury thereto; 
but we think the better opinion, as well as the better reason, is the 
other way, and in favor of regarding everything as a fixture which 
has been attached to the realty, with a view to enhance the value there- 
of, and for the purpose of being permanently used in connection there- 
with. Nor is it necessary that the intention of the owner in affixing 
such articles should be expressed in words ; for it may be, and ordi- 
narily should be, inferred from the nature of the articles affixed, 
the relation and situation of the parties interested, the policy of the 
law in respect thereto, the mode of annexation, and the purpose or 
use for which it is made. Hutchins v. Masterson, 46 Tex. 554, 26 
Am. Rep. 286. Under the old law, the principal test as to what was 
or was not a fixture was said to be the nature of the physical attach- 
ment to the soil. But this theory has long since been exploded. And 
as said by Mr. Washburn in his work on Real Property (volume 1, 
5th Ed., p. 22): "While courts still refer to the character of the 
annexation as one element in determining whether an article is a fix- 
ture, greater stress is laid upon the nature and adaptation of the arti- 
cle annexed, the uses and purposes to which the land is appropriated 
at the time the annexation is made, and the relations of the party 
making it to the property in question, as settling that a permanent ac- 


cession to the freehold was intended to be made by the annexation of 
the article." See, also, Davis v. Mugan, 56 Mo. App. 311; Ewell, 
tixt. p. 43, and cases in note 2. 

In other words, the question whether chattels are to be regarded 
as fixtures depends less upon the manner of their annexation to the 
freehold than upon their own nature and their adaptation to the pur- 
poses for which they are used. See the leading English case of Elwes 
V. Mawe (8th Ed.) 2 Smith, Lead. Cas. 169, and note. In Farrar v. 
Stackpole, 6 Greenl. 157, 19 Am. Dec. 201, the court said: "Modern 
times have been fruitful of inventions and improvements for the more 
secure and comfortable use of buildings, as well as of many other 
things which administer to the enjoyment of life. Venetian blinds, 
which admit the air and exclude the sum whenever it is desirable 
so to do, are of modem use ; so are lightning rods, which have become 
common in this country and in Europe. These might be removed 
from the building without damage; yet, as suited and adapted to the 
building upon which they are placed and as incident thereto, they are 
doubtless part of the inheritance, and would pass by a deed as ap- 
pertaining to the realty." In Johnson's Ex'r v. Wiseman's ExV, 4 
Mete. (Ky.) 357, 83 Am. Dec. 475, the question arose whether chande- 
liers and gas fixtures passed by the sale of the house in question, and 
it was held that they did. The court said: "There can be no doubt 
that, upon the sale of the freehold, fixtures will pass, in the absbnce 
of any express provision to the contrary." Speaking of the fixtures 
in question, the court said: "Purchasers and strangers, seeing them 
in their appropriate places, and^no objections made to the sale, would 
regard them as a part of the freehold, and would bid for the prop- 
erty with the belief that the acquisition of it would confer upon them 
the right to these articles which, from their nature and position, seem- 
ed to be incident to and a part thereof, and thereby be induced to bid 
more than they would otherwise have done." Walmsley v. Milne, 7 
C. B. (N. S.) 115, is a strong authority for the principle that where an 
article is once affixed by the owner of the fee, though only affixed by 
bolts and screws, it is to be considered as a part of the realty ; at all 
events, where the object of setting up the articles is to enhance the value 

of the premises to which they are annexed for the purposes to which 
those premises are applied. See, also, Holland v. Hodgson, 7 L. R. C. 
P. 328 ; Parsons v. Copeland, 38 Me. 537 ; Strickland v. Parker, 54 Me. 
263; Price v. Brayton, 19 Iowa, 311; Teaff v. Hewitt, 1 Ohio St. 
511, 59 Am. Dec. 634; Bank v. Kercheval, 65 Mo. 682, 27 Am. Rep. 
310; Pea v. Pea, 35 Ind. 387; Fechet v. Drake, 2 Ariz. 239, 12 Pac. 
694; Arnold v. Crowder, 81 111. 56, 25 Am. Rep. 260. 

Adopting the general rule, then, as we do, that, as between the 
vendor and vendee of real estate, whatever has been physically an- 
nexed or affixed thereto by the owner, under the conditions aforesaid, 
becomes part and parcel thereof, and passes with the conveyance of 


the estate, it follows that the electric light fixtures in question, which 
take the place of and serve the same purpose as ordinary gas fix- 
tures, passed to the defendants by the conveyance referred to, and 
hence that the ruling complained of was erroneous. We can see no 
reason whatever why such fixtures are not as much a part of the 
realty as radiators, water faucets, set tubs, bath tubs, and bowls, port- 
able furnaces connected with hot-air pipes for heating the building, 
storm doors and storm windows, window blinds, whether inside or out- 
side, fire grates, pumps, mantels, and such other things as are annexed 
to the freehold with a view to the improvement thereof. All of these 
things, though mere chattels before their annexation to the freehold, 
are no longer such after their annexation, any more than the other 
materials which go to make up the house, but then become part and 
parcel of the real estate, and the mere fact that they can be re- 
moved therefrom without physical injury to the freehold does not 
change their character as between the vendor and vendee of the realty. 

That the authorities upon the question as to what are fixtures in 
cases of this sort are hopelessly at variance is apparent, upon even 
a casual examination thereof. Indeed, it has frequently been said 
that there is no other legal term in so general use as the word "fix- 
tures" to which there have been more different and contradictory sig- 
nifications attached. Ewell, Fixt. 1. We are therefore at liberty, as 
before suggested, to follow that line of decisions which seems to 
us the most reasonable and logical, and the conclusion already stated 
has been reached in that way. 

In relation to the statement, hereinbefore made, to the eflfect that 
we are not bound by any former decision of our own court in the 
premises, it is proper to say that we have not overlooked the definition 
of the term '^fixtures" as laid down by Greene, C. J., in Gas Co. v. 
Thurber, 2 R. I. 15, 55 Am. Dec. 621. But, as that was not a case 
where the gas company owned the land in which the pipes in question 
were laid, it is not opposed to the view which we have now taken. 
Indeed, it rather supports our view, as the court said, that. **if the 
gas company owned the land in which the pipes were laid, we should 
have no doubt they would be fixtures." 

Another ground upon which the defendants ask for a new trial is 
that the damages awarded by the jury were excessive. We think it 
is dear that this ground is also well talcen. The amount awarded was 
$1,069.87, which is the exact footing of the schedule values of the long 
and promiscuous list of articles which the plaintiff attached to her 
declaration. As to many of these articles, there is no sufficient evi- 
dence that they ever came into the defendants* possession; as to 
others, it is very clear from the evidence that they were included in 
the personal property mortgage to Mrs. Owen, which mortgage had 
been foreclosed by her before the commencement of this action; 
and as to nearly all of the articles it is evident that the prices fixed 

24 nxTURES 

thereon by the plaintiff are greatly in excess of their real value. The 
diamond ring, for which the jury allowed the plaintiff $300, had been 
pledged by the plaintiff, according to her own testimony, to Mrs. 
Owen as security for a loan, which loan had not been paid, and hence, 
of course, trover would not lie for it ; and the bath tub and coal grate 
sued for were evidently a part of the realty, under the rule afore- 
said. Moreover, as to the bath tub, although there was not a word of 
testimony offered concerning its value, the jury allowed the sum of 
$100 therefor. The evidence also shows that the plaintiff was in pos- 
session of most of the articles sued for at the time she made the 
demand therefor upon the defendants, and that she could then have 
removed the same from the premises if she had seen fit This being 
so, the demand and refusal, as to them, did not constitute trover. 

In short, under the evidence submitted, we think that in no event 
can the plaintiff recover, except as to a very few and relatively unim- 
portant part of the articles mentioned in said schedule. Petition for 
new trial granted.* ^ . ', U 


(Oonrt of Appeals of New York, 1854. 12 N. T. 170.) 

The plaintiff purchased a statue and sun-dial at a sale under execu- 
tion on a judgment against James Thom, a sculptor, and brought this 
action to recover their value of the defendant, who refused to allow 
the plaintiff to remove them from the places where they were erected 
on the grounds in front of the sculptor's house on Staten Island, the 
defendant having purchased the premises at a mortgage sale thereof. 
The facts are stated in the opinion. Judgment was rendered on a ver- 
dict in favor of the plaintiff for $1,675 and affirmed by the General 
Term. The defendant brought this appeal. 

Parker, J. The facts in this case are undisputed, and it is a ques- 
tion of law whether the statue and sun-dial were real or personal 
property. The plaintiffs claim they are personal property, having pur- 

sin the earlier cases, the sole test of a fixture was whether or not^it was 
physically annexed to the realty. See Walker v. Sherman, 20 Wend. (N. Y.) 
636 (1839); Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634 (1853). It Is stm 
a positive provision of the CJivil Law that an owner of a movable article is 
supposed to have placed it upon his estate to remain there perpetually when 
it is fastened with plaster, or mortar, or cem^t French Civil Code, § 525. 
In this country, gas fixtures and chandeliers are usually regarded as furniture, 
or "domestic fixtures," and not as fixtures proper. In support of this view, 
see L'Hote v. Fulham, 51 La. Ann. 780, 25 South. 655 (1899); Capehart v. Fos- 
ter, 61 Minn. 132, 63 N. W. 257, 52 Am. St Rep. 582 (1895) ; Rogers v. Crow, 
40 Mo. 91, 93 Am. Dec. 299 (1867); McKeage v. Hanover F. Ins. Co., 81 N. Y. 
38, 37 Am. Rep. 471 (1880). See, also, New York L. Ins. Co. v. AUison, 107 
Fed. 179, 46 C. C. A. 229 (1901) holding that, as between a mortgagee of realty 
and a vendee of the fixtures, the chandeliers in a theater are not fixtures. 
In BerUner v. Piqua Club Ass'n, 32 Misa Rep. 470, 66 N. Y. Supp. 791 (1900), 
It is held, however, that chandeliers in a clubhouse are included in a mort- 
gage of the realty. 


chased them as such under an execution against Thorn. The def end- 
^ant claims they are real property, having bought the farm on which 
they were erected at a foreclosure sale under a mortgage executed by 
Thorn before the erection of the statue and sun-dial, and also as mort- 
gagee in possession of another mortgage, executed by Thom after 
their erection. The claim of the defendant under the mortgage sale 
is not impaired by the fact that the property in controversy was put 
on the place after the execution of the mortgage. Corliss v. McLagin, 
29 Me. 115; Winslow v. Merchants' Ins. Co., 4 Mete. 306, 38 Am. 
Dec. 368. Permanent erections and other improvements, made by the 
mortgagor on the land mortgaged, become a part of the realty and are 
covered by the mortgage. 

In deciding whether the property in controversy was real or person- 
al, it is not to be considered as if it were a question arising between 
landlord and tenant, but it is governed by the rules applicable between 
grantor and grantee. The doubt thrown upon this point by the case 
of Taylor v. Townsend, 8 Mass. 411, 5 Am. Dec. 107, is entirely re- 
moved by the later authorities, which hold that, as to fixtures, the same 
rule prevails between mortgagor and mortgagee as between grantor 
and grantee. Union Bank v. Emerson, IS Mass. 159; Winslow v. 
Merchants' Ins. Co., 4 Mete. 306, 38 Am. Dec. 368; Robinson v. Pres- 
wick, 3 Edw. Ch. 246 ; 1 Hill, on Mort. 294, note f , and cases there cit- 
ed. And see Bishop v. Bishop, 1 1 N. Y. 123, 126, 62 Am. Dec. 68. 

Governed, then, by the rule prevailing between grantor and grantee, 
if the statue and dial were fixtures, actual or constructive, they passed 
to the defendant as part of the realty. 

No case has been found in either the English or American courts 
deciding in what cases statuary placed in a house or in grounds shall 
be deemed real and in what cases personal property. This question 
must, therefore, be determined upon principle. All will agree that 
statuary exposed for sale in a workshop, or wherever it may be be- 
fore it shall be permanently placed, is personal property ; nor will it be 
controverted that where statuary is placed upon a building, or so con- 
nected with it as to be considered part of it, it will be deemed real 
property and pass with a deed of the land. But the doubt in this case 
arises from the peculiar position and character of this statue, it being 
placed in a court-yard before the house, on a base erected on an arti- 
ficial mound raised for the purpose of supporting it. The statue was 
not fastened to the base by either clamps or cement, but it rested as firm- 
ly on it by its own weight, which was three or four tons, as if other- 
wise affixed to it. The base was of masonry, the seams being pointed 
with cement, though the stones were not laid in either cement or mor- 
tar; and the niound was an artificial and permanent erection, raised 
some two or three feet above the surrounding land, with a substantial 
stone foundation. 

If the statue had been actually affixed to the base by cement or 
clamps, or in any other manner, it would be conceded to be a fixture. 


and to belong to the realty. But as it. was, it could have been removed 
without fracture to the base on which it rested. But is that circum- 
stance controlling? A building of wood, weighing even less than 
this statue, but resting on a substantial foundation of masonry, would 
have belonged to the realty. A thing may be as firmly affixed to the 
land by gravitation as by clamps or cement. Its character may depend 
much upon the object of its erection. Its destination, the intention of 
the person making the erection, often exercise a controlling influence, 
and its connection with the land is looked at principally for the pur- 
pose of ascertaining whether that intent was that the thing in question 
should retain its original chattel character, or whether it was designed 
to make it a permanent accession to the lands. 

By the civil law, columns, figures and statues, used to spout water at 
fountains, were regarded as immovable or real (1 Pandects, lib. 19, tit. 
1, § 17, by Pothier, 107), though it was inferred that statues resting 
on a base of masonry were not immovable, because they were there, 
not as part of the construction, but as ornaments (Corp. Juris Civ., by 
Kreigel, lib. 19, tit. 1, § 17; Poth. Pand. 109; Burr. L?w Diet. 
"Affixus"). But Labeo held the rule to be "ea qliae perpetui usus 
causa in aedificiis sunt, aedificii esse ; quae vero ad prsesens, non esse 
aedificii" ; thus making the kind of property depend upon the question 
whether it was designed by the proprietor to be permanent or tempora- 
ry, or, as it was generally called by civilians, "its destination." Corp. 
Jur. Civ., by Kreigel, lib. 19, tit. 1, § 17. 

And Pothier says that when, in the construction of a large vestibule 
or hall, niches are made the statues attached ("attachees") to those 
niches make part of the house for they are placed there ad integran- 
dam domum. They serve to complete that part of the house Indeed, 
the niches being made only to receive the statues, there will fail to 
be any thing in the vestibule without the statues ; and he says, it is of 
such statues that we must understand what Papinianus says : "Sigilla 
et statuae affixae, instrumento domus non continentur, sed domus portio 
sunt" Pothier de Communaute, § 56. 

By the French law, statues placed in a niche made expressly to re- 
ceive them, though they could be removed without fracture or deterio- 
ration, are immovable, or part of the realty. Code Nap. § 525. But 
statues standing on pedestals in houses, court-yards and gardens retain 
their character of "movable" or personal. 3 Touillier, Droit Civil de 
France, 12. This has reference to statues only which do not stand on 
a substantial and permanent base or separate pedestal made expressly 
for them. For when a statue is placed on a pedestal or base of ma- 
sonry constructed expressly for it, it is governed by the same rule as 
when placed in a niche made expressly to receive it, and is immovable. 
2 Repertoire Generale, Journal du Palais, by Ledru RoUin, 518, § 139. 
The statue in such case is regarded as making part of the same thing 
with the permanent base upon which it rests. The reasons for the 
French law upon this subject are stated by the same author in the 


same work, page. 517, section 129, where the rule is laid down with 
regard to such ornaments as mirrors, pictures and statues, that the law 
will presume the proprietor intended them as immovable, when they 
cannot be taken away without fracture of deterioration, or leaving a 
gap or vacancy. A statue is regarded as integral with the permanent 
base on which it rests, and which was erected expressly for it, when 
the removal of the statue will oifend the eye by presenting before it a 
distasteful gap ("vide choquant") a foundation and base no longer ap- 
propriate or useful. Id. § 139. Things immovable by destination are 
said to be those objects movable in their nature, which, without being 
actually held to the ground, are destined to remain there perpetually 
attached for use, improvement or ornament. 2 Ledru Rollin, Reper- 
toire Generale, 514, § 30. 

I think the French law, as applicable to statuary, is in accordance 
with reason and justice. It effectuates the intention of the proprietor. 
No evidence could be received more satisfactory of the intent of the 
proprietor to make a statue a part of his realty, than the fact of his 
having prepared a niche or erected a permanent base of masonry ex- 
pressly to receive it ; and to remove a statue from its place, under such 
circumstances, would produce as great an injury and do as much vio- 
lence to the freehold, by leaving an unseemly and uncovered base, as it 
would have done if torn rudely from a fastening, by which it had been 
connected with the land. The mound and base in this case, though de- 
signed in connection with the statue as an ornament to the grounds, 
would, when deprived of the statue, become a most objectionable de- 

There are circumstances in this case, not necessary under the French 
law, to indicate the intention to make the statue a permanent erection, 
but greatly strengthening the presumption of such intent. The base 
was made of red sandstone, the same material as the statue, giving 
to both the statue and base the appearance of being but a single block, 
and both were also of the same material as the house. The statue was 
thus peculiarly fitted as an ornament for the grounds in front of that 
particular house. It was also of colossal size and was not adapted to 
any other destination than a permanent ornament to the realty. The 
<iesign and location of the statue were in every respect appropriate, in 
good taste, and in harmony with the surrounding objects and circum- 

I lay entirely out of view in this case the fact that Thom testified 
that he intended to sell the statue when an opportunity should offer. 
His secret intention in that respect can have no legitimate bearing on the 
<luestion. He clearly intended to make use of the statue to ornament 
his grounds, when he erected for it a permanent mound and base ; and 
a purchaser had a right so to infer and to be governed by the manifest 
and unmistakable evidences of intention. It was decided by the Court 
of Cassation in France, in Hornelle v. Enregistr. (2 Ledru Rollin, Jour- 
nal du Palais, Repertoire, etc., 214), that the destination which gives 


to movable objects an immovable character results from facts and cir- 
cumstances determined by the law itself, and could neither be estab- 
lished dr taken away by the simple declarations of the proprietor^ 
whether oral or written. There is as much reason in this rule as in 
that of the common law which deems every person to have intended 
the natural consequences of his own acts. 

There is no good reason for calling the statue personal property 
because it was erected for ornament only, if it was clearly designed to 
be permanent. If Thom had erected a bower or summer-house of 
wicker-work, and had placed it on a permanent foundation in an ap- 
propriate place in front of his house, no one would doubt it belonged 
to the realty ; and I think this statue as clearly belongs to the realty as 
a statue would, placed on the house, or as one of two statues placed on 
the gate-posts at the entrance to the grounds. 

An ornamental monument in a cemetery is none the less real proper- 
ty because it is attached by its own weight alone to the foundation de- 
signed to give it perpetual support. • 

It is said the statues and sphinxes of colossal size, which adorn the 
avenue leading to the temple of Karnak at Thebes, are secured on their 
solid foundations only by their own weight. Yet that has been found 
sufficient to preserve many of them undisturbed for four thousand 
years (Taylor's Africa, 113 et seq.); and if a traveler should purchase 
from Mehemet Ali the land on which these interesting ruins rest, it 
would seem quite absurd to hold that the deed did not cover the statues 
still standing, and to claim that they were the still unadministered per- 
sonal assets of the Ptolemies, after an annexation of such long du- 
ration. No legal distinction can be made between the sphinxes of 
Thebes and the statue of Thom. Both were erected for ornament, and 
the latter was as colossal in size and as firmly annexed to the land as 
the former, and by the same means. 

I apprehend the question, whether the pyramids of Egypt or Cleo- 
patra's needle are real or personal property, does not depend on the 
result of an inquiry by the antiquarian whether they were originally 
made to adhere to their foundations with wafers, or sealing wax, or a 
handful of cement. It seems to me puerile to make the title to depend 
upon the use of such or any other adhesive substances, when the weight 
of the erection is a much stronger guaranty of permanence. 

The sun-dial stands on a somewhat different footing. It was made 
for use as well as for ornament, and could not be useful except when 
firmly placed in the open air and in the light of the sun. Though it 
does not appear that die stone on which it was placed was made ex- 
pressly for it, it was appropriately located on a solid and durable foun- 
dation. There is good reason to believe it was designed to be a 
permanent fixture, because the material of which it was made was the 
same as that of the house and the statue, and because it was in every 
respect adapted to the place. 


My conclusion is, that th€ facts in the case called on the judge of 
the Circuit to decide, as a matter of law, that the property was real, 
and to nonsuit the plaintiff; and if I am right in this conclusion, the 
judgment of the Supreme Court should 1^ reversed. 

Johnson and Denio, JJ., dissent.* 

Judgment reversed. 

IL Time of Removal* 



(Snpreitae Ck>iirt of Wisconsin, 1901. Ill Wis. 900, 87 N. Wl 289.) 

Appeal from circuit court, Pepin county ; E. W. Helms, Judge. 

Action of conversion by Anton Mueller against the Chicago, Mil- 
waukee & St. Paul Railway Company. From a judgment in favor of 
defendant, plaintiff appeals. Affirmed. 

Cassoday, C. J. This is an action to recover damages for the 
wrongful conversion of a lean-to upon the section house of the de- 
fendant at Savoy, near Maxville station. Issue being joined, and trial 
had, the court, at the close of the testimony on the part of the plaintiff, 
granted a nonsuit, and from the judgment entered thereon the plaintiff 
brings this appeal. 

It appears from the record, and is undisputed, in effect, that in the 
spring of 1897 the defendant employed the plaintiff to work for it as 
section foreman on that section, with the understanding and agreement 
that the plaintiff and his family should occupy the section house of the 
defendant at that place ; that such section house was 16 feet wide by 
26 feet long, and 1^ stories, or 12 feet, high, and situated upon blocks, 
and upon the land of the defendant, and about 150 feet from the main 
track, and had an addition to it at the time, which the plaintiff removed 
after he moved into the section house ; that while the plaintiff was so 
occupying such section house with his family, he did, with the knowl- 
edge and consent of the defendant, purchase lumber, and constructed a 
small lean-to, for a kitchen, against said section house at the cost and 
of the value of $67, and also with such knowledge and consent put in a 
pump of the value of $7 ; that such lean-to had two common, middle- 
sized windows of four lights each, and one door; that the section 
house had boards up and down, and the plaintiff nailed a two by four 
pitce of lumber on the section house, and fastened the lean-to to that ; 
that the floor was a double floor, and matched, and overhead there was 
a single pine flooring, matched; that the inside was ceiled up with 
flooring ; that, after the section house and lean-to had remained in that 

* The dissenting opinion is omitted. 

« For discussion of principles, see Burdlck, Real Prop. | 17. 


condition for over two years, changes were made on the outside, and, 
while the plaintiff and his family were still occupying the same as ten- 
ant of the defendant, the defendant's bridge carpenters papered and 
sided the same as directed by the plaintiff, but so that the siding did 
not go further than the section house, leaving a seam between it and 
the lean-to; "that, after the plaintiff had placed the repairs and im- 
provements on said section house in the manner aforesaid, and while 
he was living in said house, the defendant covered all the same with 
outside sheeting or lap-siding in the usual way, and thereby converted 
all the same to its own use and benefit, and prevented the plaintiff from 
removing all the same, as he intended to do in case the defendant did 
not buy the same from him; and that, soon after the defendant had 
covered the lumber that the plaintiff had placed on its said building and 
put in said kitchen, it discharged him from its said emplo3n!nent/' The 
plaintiff was so employed by the month for no stated time, and could 
quit whenever he pleased, and could be discharged at the pleasure of 
the defendant. He was discharged in the spring of 1900. After he 
and his family had moved away, the plaintiff asked the defendant's 
road master if he could not pay the defendant for the siding it had so 
placed upon the lean-to, and for the two days' work in putting it on, 
and then be allowed to take the lean-to away, and remove it to Durand ; 
but the road master replied that that would destroy or injure the build- 
ing. The plaintiff paid no rent for so occupying the section house with 
his family, and never agreed to. 

' Upon the facts stated, it is obvious that the lean-to became a fixture 
on the premises of the defendant, within the principles of law repeat- 
edly and recently stated by this court. Gunderson v. Swarthout, 104 
Wis. 186, 190-192, 80 N. W. 465, 76 Am. St. Rep. 860, and numerous 
cases there cited; Fuller- Warren Co. v. Harter, 110 Wis. 80, 85 N. W. 
698, 700-702, 53 L. R. A. 603, 84 Am. St. Rep. 867, and cases there 
cited. It was physically attached to the section house, and hence to 
the realty. It was adapted to the use and purpose to which the realty 
was devoted. It was the intention of the plaintiff, in constructing 
the same, that it should be so attached, and that it should be used in 
connection with the section house. There is no claim nor pretense that 
th^ defendant ever agreed that the plaintiff might remove the lean-to 
from the premises. Certainly, a tenant of a dwelling house, in posses- 
sion under a lease which does not provide that he may remove fixtures 
placed thereon by him, cannot, after he has surrendered possession to 
his landlord, re-enter, and remove such fixtures, without permission 
of his landlord. Yates v. Bachley, 33 Wis. 185 ; Fitzgerald v. Ander- 
son, 81 Wis. 341, 51 N. W. 554; Keefe v. Furlong, 96 Wis. 219, 70 
N. W. 1110; Friedlander v. Ryder, 30 Neb. 783, 47 N. W. 83, 9 L. R. 
A. 700. 

We find no error in the record. The judgment of the circuit court is 


(A) Ownership 


I. Estates in Fee Simple *! 
See Canfield v. Ford, ante, p. 5. /V^ 

/ ..:, 

II. Creation' \ 


(Supreme Court of South Carolina, 1892. 85 8. C. 814, 14 S. B. 714.) 

Appeal from common pleas circuit court of Charleston county; J. 
J. Norton, Judge. 

Under the decree for partition in the case of Susan J. Fuller 
against Anna C. Missroon and others, the master in chancery sold the 
premises to J. H. Heinsohn on a contract which Heinsohn afterwards 
refused to perform ; and on the hearing of a rule to show cause spe- 
cific performance lyas decreed, from which Heinsohn appeals. Af- 

Pope, J.* On the 6th day of February, 1829, Thomas Hauscome, 
of the city of Charleston, executed his deed, whereby he conveyed 
unto Dr. 1?homas Logan, his heirs and assigns, forever, a certain 
house and lot situate in Charleston county, upon the following trusts : 
"To suffer and permit Mrs. Ann Holmes and her husband, for and 
during their joint lives to occupy and enjoy said premises, or to 
receive the income thereof, and upon the death of either of said 
parties, viz., Mrs. Ann Holmes or her said husband, then in trust to 
suflfer and permit the survivor to enjoy the income thereof during 
his or her life, and, upon the death of the survivor, then in trust to 

1 For discussion of principles, see Burdick, Real Prop. § 27. 

2 For discussion of principles, see Burdick, Real Prop. { 28w 
* Part of the opinion ^A omitted. 



be absolutely vested in such issue of their present marriage as may be 
living at the death of the survivor aforesaid, to be held by them, if 
more than one, as tenants in common ; and I, the said Thomas Haus* 
come, do hereby authorize and empower the said Dr. Thomas Logan, 
at any time hereafter, at the request of the said Mr. and Mrs. Holmes 
or the survivor, in writing, to that effect, to sell and dispose of the 
said property in such way as they may so direct, and to vest the 
proceeds in any other species of property, to be held, however, sub- 
ject to the trusts mentioned in the deed." * * * * 

In construing deeds, courts are bound to ascertain the intention 
of the grantor, and give effect to such intention, unless the same is 
repugnant to the law of the land. In this connection, we quote the 
very appropriate language of the late Chief Justice Simpson in deliv- 
ering the opinion of this court in the case of McCown v. King, 23 S. 
C. 233: "The object of construction as to deeds — ^in fact, as to all 
papers in contest before the courts — ^is to reach the intention of the 
parties, because it is this that must control; otherwise, the contract 
would be the contract of the court, and not of the parties." To the 
same effect is the ^guage of the present chief justice in delivering 
the opinion of the court in the case of Mellichamp v. Mellichamp, 
28 S. C. 129, 5 S E. 333. What, therefore, was the intention of Haus- 
come, as derived from the language employed in this deed? It is 
very evident that Mrs. Ann Holmes was the first person for whom he 
desired to provide; for the consideration expressed for the deed is 
"the r^ard I have for Mrs. Ann Holmes." The trustee selected is 
her father, Thomas Logan. Hauscome realized that his desire of 
benefiting Mrs. Holmes could only be exercised by the employment 
of a trustee to hold the property for her ; for at that time the wife 
could not hold property without danger of its loss, because of the 
marital rights of the husband attaching thereto. . Hence the grantor 
provides her a life-estate therein. But he does more; for he gives 
it into the power of Mrs. Holmes to have the property sold, and 
the proceeds arising from such sale invested "in any other species of 
property," to be held subject to the trusts enumerated in the deed. The 
grantor is not satisfied with his generous provision for Mrs. Ann 
Holmes ; for he looks beyond her life, and provides that the house and 
lot should vest absolutely in her issue living at the death of the surviv- 
or of herself and husband. To effectuate these appropriate objects, he 
grants the premises in question to Dr. Logan, "his heirs and assigns, 
forever," upon the foregoing trusts. What estate did the grantor in- 
tend for such issue? Was it a life-estate, as appellant contends, or 
was it an estate in fee-simple, as is contended by the respondents? 

* In connection with this case, the court below held that the deed of 
Thomas Hauscome to Logan, trustee, created a fee simple estate in favor of 
the issue of the marriage of Mrs. Ann Holmes and her husband, living at the 
death of the survivor. This was one of the grounds of appeal, it being con- 
tended by the appeUant that the above issue took merely life-estates. 


We have, as in duty bound, given this matter the best consideration 
that we could, under the circumstances that surround the members of 
this court; for we have studied their case, carefully considered their 
arguments, and referred to the authorities cited by them, respectively. 
We are constrained to hold that the issue, at the death of Mrs. Ann 
Holmes, in October, 1889, took a fee-simple title to these premises 
as tenants in common therein. We are satisfied that the principles 
announced and the authorities cited in the opinion of the court in 
the case of Bratton v. Massey, 15 S. C. 281, are decisive of the mat- 
ter of the construction of this deed. Briefly, what was there decided : 
Gilman had made a deed of certain property to B. H. Massey, his 
heirs and assigns, forever, in trust for the wife of Oilman, to be used 
and enjoyed by her as if she were sole and unmarried, with power in 
her to have her trustee sell any or all of the property, real or personal, 
such trustee to make titles to such property so sold, and with full 
power to devise or bequeath the same by will. Mrs. Gilman died 
after her husband, not having made a will. Gilman having died in- 
solvent, his creditors sought to make the property held by the trustee 
liable to Oilman's debts, on the ground that, by the terms of the 
deed, no provision was made of aught but a life-estate to Mrs. Gil- 
man, and therefore that her heirs could not inherit the same. But the 
court, held that the intention of Gilman was that his wife should have 
the fee-simple to such property. The court admitted in that case that 
the trusts' were not created to Mrs. Gilman and her heirs by words to 
that effect, and that it was true that in the conveyance of a legal 
estate the word "heirs" is necessary to create a fee-simple, and also, 
as a general proposition, that courts of equity, in construing limita- 
tions of trusts, adopt the rules of law applicable to the legal estate, 
(Washb. Real Prop. bk. 2, c. 3, § 2,) yet, as the same writer, Mr. 
Washbume, says, at page 40 of the same section, there are some ex- 
ceptions to such rule, one of which he states as follows : "Another ex- 
ception is that the word 'heirs' is not always necessary in order to give 
an equitable estate the character of inheritability, if it requires that 
such an effect should be given to carry out the clear intention of the 
party creating it. Thus it is said, if land be given to a man without 
the word 'heirs,' and a trustee be declared of that estate, and it can be 
satisfied in no other way but by the cestui que trust taking an inherit- 
ance, it has been construed that a fee passes to him, even without the 
use of the word 'heirs.' " Citing the cases of Villiers v. Villiers, 2 
Atk. 71, and Fisher v. Fields, 10 Johns. (N. Y.) 505, in both of which 
cases deeds, not wills, were being construed. .This decision quoted the 
words of Kent, C. J., in Fisher v. Fields, supra: "There never was 
a greater mistake, as I apprehend, than the supposition that this trans- 
fer of the soldier's rights to Birch is to be tested by the strict technical 
rules of a conveyance of land at common law, and that Birch did not 



take the whole interest of the soldier, because the word lieirs* was not 
inserted in the assignment" Again: "A trustee or cestui que trust 
will take a fee without the word 'heirs' where a less estate will not be 
sufficient to satisfy the purposes of the trust/' Again: *'A trust 
is merely what a use was before the statute of uses, and the same 
rules apply to trusts in chancery now which were formerly applied to 
uses ; and in exercising its jurisdiction over executory trusts the court 
of chancery is not bound by the technical rules of law, but takes a 
wider range, in favor of the intent of the party." 

In the case of Bratton v. Massey, supra, the court seized upon the 
almost unlimited power of disposition given to Mrs. Gilman to deduce 
the intention of the grantor that the estate created by his deed was a 
fee-simple, by, in effect, supplying the word "heirs." In the case at 
bar the intention of the grantor, after the termination of the life-es- 
tate therein created, to vest the fee in "issue" living at death of sur- 
vivor, is also made manifest by the terms of the instrument; the 
same power of sale over the entire premises. In Bratton v. Massey, 
no words of inheritance were used. In the case at bar the words "to 
vest in issue absolutely" are found. It is true in the case of Menden- 
hall v. Mower, 16 S. C. 303, this court said : "But the word used in 
this case is the word 'issued.' This, as to real property, is not the apt 
word of inheritance, and does not in itself [italics ours] carry a fee 
in a deed. Hence, when this word is used in a deed, the question is 
open as to the intent of the grantor." Fortunately, the words "to 
vest absolutely*' occur here. As said by the circuit judge: "Mr. 
Blackstone, in 2 Comm. p. 104, in speaking of freehold estates of 
inheritance, uses 'absolutely' as synonymous with 'fee-simple.' " In 
Rapalje & Lawrence's Law Dictionary, in speaking of the owner of 
the estate in fee-simple, it is said he "is the absolute owner of land 
or other realty." The same dictionary, in speaking of the legal defini- 
tion of the term "absolute," says the meaning is, "complete, final, per- 
fect, unconditional, unrestricted." 

But we are not left to this examination without some decisions from 
our court of last resort. In Myers v. Anderson, 1 Strob. Eq. 344, 47 
Am. Dec. 537, after the bequest for life, the limitation was to the is- 
sue, to be their absolute property forever. The word "absolute" 
carried the fee. Chancellor Johnston, in delivering the opinion of the 
court, said : "It appears to the court that the testator in this case, by 
the gift to the issue, not only of the property or slaves, but of the 
absolute property in them (a term importing the quantity of interest 
intended to be given) has as effectually given them the fee (so to 
speak) as if the bequest had been made to the issue and their heirs, 
and that the gift of the absolute property or fee rebuts the idea that 
he intended," etc. In McLure v. Young, 3 Rich. Eq. 559, the court 
quoted approvingly the language in the foregoing case, and held the 
words after a life-estate, "to lineal descendants absolutely and for- 


ever," to mean that such descendants took as purchasers. See the 
effect in this same direction of the case of Moseley v. Hankinson, 22 S. 
C. 323. The use of the five dollars paid by the trustee to the grantor 
is in support. of this view. While it is true the only evidence of this 
payment is in the recital of the deed itself, yet the only person who 
could gainsay it would be a creditor of the grantor. It would cer- 
tainly bind his heir so as to prevent a reverter. A very slight cir- 
cumstance in the way of consideration, even if it be "a peppercorn," 
our own courts declare, will be sufficient evidence of the intention of 
the parties to carry the whole estate. * ♦ - * • 

I,— o 


(Court of Appeals of Blaryland, 1912. 117 Md. 266, 83 Atl. 160, Ann. Cas. 

1913E, 1284.) 

Appeal from Circuit Court of Baltimore County. 

Action between Amelia Emma Barnett and De Warren Beauregard 
Bamett and others. From the decree, Amelia Emma Barnett appeals. 

Argued before Boyd, C. J., and Briscgk, Pearce, Bubke, Thomas, 
Pattison, Urneb, and Stockb ridge, J J. 

Stockbridge, J. On December 5, 1888, Amelia Elizabeth Barnett 
executed her will for the express purpose of "making some disposition 
of my real estate." By this instrument she provided that, in the event 
of tier husband surviving her, he should have entire control of the 
farm belonging to her on the Reisterstown turnpike road, in Baltimore 
county, comprising about 63 acres, but without the power to sell the 
farm or any part of it, or to permit it to be incumbered by debts or 
mortgages, or to depreciate from neglect, and with the further ex- 
pressed wish that her unmarried children should "have a comfortable 
support from the proceeds of the farm." At her husband's death, and 
after all debts were paid, and the sum of $3,000 paid to her daughter, 
Amelia Emma Barnett, her will continues as follows : 

"Then an equal division of my property, or if sold, an equal division 
of proceeds among my five children, Amelia Emma Barnett, Estella 

s It is familiar doctrine that a trustee will take a fee without words of in- 
heritance when necessary for the purposes of the trust See Chamberlain v. 
Thompson, 10 Conn. 243, 26 Am. Dec. 390 (1834), holding that the doctrine is a 
general one, and appUes to trusts created by deed as well as to trusts created 
by will. And see Packard y. Old Colony R. Co., 168 Mass. 92, 46 N. E. 433 
(1897), holding that, where a deed in trust for a cemetery corporation requir- 
ed a legal estate In the trustees for a period beyond their own lives, they will 
take in fee, although no words of limitation to heirs were used. In Allen y. 
Baskerville, 123 N. C. 126, 31 S. E. 383 (1898), it is held, however, that where 
a deed ftills to convey a title in fee to a trustee for a beneficiary which has 
no corporate existence (a certain academy), the court cannot supply the words, 
"and his heirs," after the name of the trustee, when there is no allegation 
that the words were omitted by mistake. 


Virginia Barnett, Jessie Davis Barnett, De Warren Beauregard Bar- 
nett, Florence Lee Barnett, and in the event of the death of any of my 
children before the settlement of the estate, then their portion shall go 
to their children, but if they have no children, then their portion shall 
be equally divided among my surviving children, and to the children 
left by any of my other deceased children, should there be any. It is 
my desire that my children shall have their portion of my estate for v 
their exclusive benefit or maintenance and at their death go to their 
children absolutely, but if any of my children should marry and die 
without children then their portion shall revert to my surviving chil- 
dren and children left by any of my deceased children." 

Nine years after the execution of this will the testatrix executed a 
codicil in the following language : 

"Finding portions of my original will not arranged to my entire sat- 
isfaction I desire to make some alterations. 

"I desire all of my children to have absolute control of their portion 
of my estate. I also desire that my children shall be very guarded in 
advancing their money to anyone. Should any loan be made to secure 
themselves against loss and in the event of the death of any of my chil- 
dren without issue what remains of their portion shall revert to my 
living children and children of my deceased children should there be 

"It is my ejcpress desire that there shall be no dissention among my 
heirs over the division of my estate, and I furthermore stipulate that 
my property shall not be forced into market and sacrificed, but shall 
be held at least five years unless they can all agree to dispose of same 
to advantage before the expiration of five years." 

The testatrix died on the 1st July, 1900, leaving her husband surviv- 
ing her, and he died in February, 1909. The children of the testatrix 
are all adults, and the record in this case discloses but a single question 
which this court is called to pass upon. 

That question involves a construction of the will, and the determina- 
tion whether the language of the will and codicil operate to vest in the 
children of the testatrix an absolute fee or a life estate only. The ex- 
press terms of the will created in the husband of the testatrix a life 
estate which has now been terminated by his death. The limitation up- 
on sale imposed by the concluding words of the codicil, being a time 
limitation of five years, has now expired, more than the stipulated pe- 
riod having passed since both the execution of the codicil and the death 
of the testatrix. 

The rules of construction are simple and readily understood. Thus 
it has always been recognized that wills are to be construed more liber- 
ally than deeds, in order that the intention of a testator may be carried 
into effect, and therefore, in order to pass a fee, it is not necessary to 
make a strict use of technical expressions. Page on Wills, § 561. It 
is always the object of the court to ascertain, if possible, the intention 
of the testator, and to do that the particular situation of the testator, or 


ether circtimstances which existed at the time of the execution of the in- 
strument, are always proper subject-matters of consideration in con- 
nection with the language which is actually employed. Henderson v. 
Henderson, 64 Md. 185, 1 Atl. 72 ; Levi v. Bergman, 94 Md. 204, 50 
Atl. 515. 

The testimony in this case abundantly establishes the character of 
the relation which existed between Mrs. Bamett and her children to 
have been one of entire confidence. The subject-matter of the will and 
its provisions were talked over in the family as a matter of general 
interest and agreement prior to the execution of the will. 

The provision for the life estate for her husband, if he survived her, 
was made in clear and apposite terms. It was only when she came to 
make the provision for the devolution of the property after his life es- 
tate that any question could arise. Even then it is by no means clear 
that it was the intent of the testatrix to create a life estate in the chil- 
dren, for the reason that express provision is made for a division of 
the proceeds of the property. But even if it be assumed that by rea- 
son of the strict construction of the language employed in the will 
there were created successive life estates in her husband, and then in 
her children, that doubt was entirely removed by the first paragraph 
of the codicil, where t*he language is plain and unmistakable. She there 
said : "I desire all of my children to have absolute control of their por- 
tion of my estate." It is true she does not use the words, "in fee/' or 
"heirs," but the terms "absolute," or "absolute control," or "absolute 
disposal," have k well-defined signification in testamentary law. Thus 
it is said in the case of Greenawalt v. Greenawalt, 71 Pa. 487, that 
"absolute" is not a word used to distinguish a fee from a life estate, 
but to distmguish a qualified or conditional from a fee-simple estate ; 
and in the will which was under construction in Jackson v. Babcock, 
12 Johns. (N. Y.) 393, the term "absolute disposal," was held to vest a 
fee fn the devisee. See, also, Anders v. Gerhard, 140 Pa. 153, 21 Atl. 
253 ; Dills v. Adams (Ky.) 43 S. W. 680. And in the case of Johnson 
V. Mcintosh, 8 Wheat. 588, 5 L. Ed. 681, it was said by Chief Justice 
Marshall that "an absolute must be an exclusive title, or at least a title 
which excludes all others not compatible with it." See, also, cases cit- 
ed in 1 Words and Phrases, p. 38 et seq. 

But even as further indicating the intention of the testatrix in this 
case, the concluding words of the codicil, where a limitation of time is 
sought to be placed upon any alienation of the property, the language 
of the testatrix clearly indicates a power of disposal even within that 
time by the agreement of all of the parties, an intention entirely incon- 
sistent with the creation of a life estate, and, if the devise in this case 
were to be treated in the nature of a general devise with a power, it 
would come under the ruling of this court in the case of Welsh v. Gist, 
101 Md. 606, 61 Atl. 665, where the late Chief Justice McSherry said : 
That if "an estate is given to a person generally or indefinitely, with a 
power of disposition, such gift carries the entire estate, and the devisee 



or legatee takes, not a simple power, but the property absolutely.** 
Without prolonging this opinion further, it is sufficient to say that the 
construction placed upon the will and codicil of Amelia Elizabeth Bar- 
nett by the circuit court for Baltimore county as set forth in the decree 
of July 22, 1911, was correct, and that decree will be affirmed. 
Decree affirmed, costs to be paid out of the estate/ 

• Although, at common law, the word ''heirs" is not necessary in a devise 
for the purpose of passing the fee (Bassett v. Nickerson, 184 Mass. 169, 68 N. 
E. 25 [1903]. But see Gannon v. Albright, 188 Mo. 238, 81 S. W. 1162, 67 L. 
R. A. 97, 105 Am. St Rep. 471 [1904]), yet the intention of the testator to cre- 
ate an estate of this character must be manifest from the will (Little y. Giles, 
25 Neb. 313, 41 N. W. 186 [1889]). A devise in "fee simple" (2 Jar. Wills, 253), 
or to one '^forever" (Idle v. Cooke, 2 LdL Bay. 1144, 1152), has, for example, 
been held sufficient to pass the fee. Likewise, a devise of "all my estate** 
(Webster v. Wiggin, 19 R. I. 73, 31 AU. 824, 28 L. R. A. 510 [1895]) ; of "aU 
my real estate*' (Boston Safe Deposit, etc., Ck>. v. Stich, 61 Kan. 474, 59 Pac. 
1082 [1900]); of my "land" (Williams v. Parker, 84 N. O. 90 [1881]), has been 
held sufficient to pass a fee. It has been held, however, that the use of the 
word "tenements'* when used alone will not pass a fee. Wright v. Page, 10 
Wheat 204, 6 L. Ed. 303 (182(9. 


of Estates Tail^ 


(Supreme Court of Kansas, 1918. 88 Kan. 708, 129 Pac. 1131.) 

Appeal from District Court, Johnson County. 

Action by Thomas J. Ewing and others against William J. Nesbitt. 
Judgment for defendant, and plaintiffs appeal. Affirmed. 

BuRCH, J. In the year 1893 John JJwitjig made his lyilL The fourth 
paragraph reads as follows: "Fourth. I will and bequeath to my 
daughter, Mary A. Nesbitt, nee Ewing, and to the heirs of her body, 
the south half (^^) of the northwest quarter (J4) of section No. twen-* 
ty-one (21), township thirteen (13), of range twenty-four (24), in John- 
son county, Kansas.'^ 

Devises using the same language were made to the testator's other 
children, four in number. Besides these, the will contained four other 
devjses, which were expressly stated to be "free and clear of all entail- 
ment," thus clearly indicating the intention of the testator to create 
e states tail by the ph raseology employe d in parag raph 4 and th'ose iljce 
jL . In 1895 John Ewmg died, leaving as his heirs the five children, who 
were the beneficiaries of his will. The will was duly pirobated, the es- 
tate was administered and closed, and Mary A. Nesbitt entered into 
possession of the tract of land devised to her. In the year 1909 she 
di ed witho ut having borne children, and was survived by her husband, 
Wiiliam J. Nesbitt, who continued in possession of the land. Soon 
after Mary A. Nesbitt's death her brothers and sisters commenced an 
action j)f^ ejectment, and for rents and profits, against William J. Nes- 
bitt,"""claiming to be owners in fee simple. He answered, claiming a 
one-fifth inter est in the land, and praying f or'partition. Judgment was 
rendered for tHe defendant, and the plaintiffs appeal.' 

The will contained a residuary clause, in which the testator gave to 
his children surviving him, share and share alike, "all other property, 
goods, chattels, moneys, stocks, credits, and effects" of which he might 
die seised. The defendant claims that his wife was the donee of an 
estatejtail ; that the donor retained a reversionary interest in fee pim- 
ple expectant upon the estate tail ; that if, by virtue of the residuary 
clause of the will, this reversion was not disposed of it descended, up- 
o n the death of the donor,'to his heirs, one of whom was his daughter, 
Mary A. Nesb it t; "ah^'t hat upon her death the defendant, as her siir- 
viving husband, took her share of the fee, wfiich was one-fifth. If, 

1 For discnsslon of principles, see Burcliclc, Real Prop. | 32. 


however, the residuary clause of the will was effectual to devise the re- 
version to the testator's children, Mary A. Nesbitt took a one-fifth in- 
terest, which, upon her death, descended to the defendant. Under ei- 
ther theory the defendant's claim to a one-fifth interest in the land is 
valid, if Jhe law of this state recognizes estates tail as they existed un- 
der the common law of England at the time of the colonization of this^ 

TTnder the early common law a grant to a man and the heirs of his 
body was a grant of a fee, on condition that he had heirs of his body. 
The fee so granted was designated a conditional fee. If the donee had 
no heirs of his body, the condition was not performed, and the land 
reverted to the donor. If heirs of the donee's body were born, the 
condition was regarded as performed, and the donee was at liberty to 
make a conveyance which would bar him, his issue, and the donor's re- 
version. He could likewise charge the land with rents and incum- 
brances which would bind his issue, and the estate was forfeitable for 
his treason. If the condition were performed, but the donee made no 
conveyance, the land descended, upon his death, to the specified issue, 
who were at liberty to convey. If they made no conveyance, the land 
reverted to the donor. If the condition were performed, but the issue 
died, and the donee then died without having made a conveyance, the 
land reverted to the donor. In order to bar the possibility of reverter 
to the donor and to restore the descent to its ordinary course under the 
common law, donees of conditional fees were in the habit of making 
conveyances as soon as issue was born and taking back warranty deeds. 

To stop this practice, which evaded the condition and defeated the 
intention of the donor, the nobility of the realm, who were desirous of 
perpetuating family possessions, procured the passage of the statute of 
Westminster II, known as the statute **de donis conditionalibus." 13 
Ed. I, c. 1, June 28, 1285. This statute took away the power of aliena- 
tion, and declared that the will of the donor, plainly expressed, should 
be observed, and that tenements given to a man and the heirs of his 
body should go to his issue if there were any, and, if not, should revert 
to the donor. The judges interpreted this statute to mean that the 
donee no longer took a conditional fee capable of being disposed of 
as soon as issue was bom, but that he took a particular estate, denomi- 
nated an estate tail, and that, instead of a possibility of reverter only 
remaining in the donor, he had a reversion in fee simple expectant upon 
the failure of issue. Some of the social consequences of this statute 
are thus described by Blackstone: "Children grew disobedient when 
they knew they could not be set aside ; farmers were ousted of their 
leases made by tenants in tail ; for, if such leases had been valid, then, 
under colour of long leases, the issue might have been virtually dis- 
inherited; creditors were defrauded of their debts; for, if a tenant 
in tail could have charged his estate with their payment, he might also 
have defeated his issue by mortgaging it for as much as it was worth ; 
innumerable latent entails were produced to deprive purchasers of the 


lands they had fairly bought, of suits in consequence of which our an- 
cient books arc full; and treasons were encouraged, as estates tail 
were not Uable to forfeiture longer than for the tenant's life. So that 
they were justly branded as the source of new contentions and mis- 
chiefs unknown to the common law, and almost universally considered 
as the common grievance of the realm." 2 Commentaries, *116. Not- 
withstanding these mischiefs, the statute forms one of the fundamental 
institutes of the lancj law of England, which three and a quai-ter cen- 
turies later was transplanted in the New World. 

Before the settlement at Jamestown in the fourth year of James I 
(1607), a numbef of statutes had been passed whereby the privileges at- 
tending estates tail were much abridged. ' They were made forfeitable 
for treason. 26 Henry VIII, c. 39. Certain leases by the tenant in 
tail, not prejudicial to the issue, were allowed to be good in law. 32 
Henry VIII, c. 28. The statute of fines (4 Henry VII, c. 24) was con- 
strued to permit the tenant in tail and his heirs to be barred by levying^ 
a fine. 32 Henry VIII, c. 36. Such estates were chargeable with the 
payment of certain debts due the king (33 Henry VIII, c. 39), and by 
construction of the statute 43 Bliz. c. 4, an appointment to charitable 
uses by a tenant in tail was held to be good. 2 Bl. Com. 117 et seq. 
The most serious blow, however, to the evils fostered by estates tail 
under the statute de donis was struck by a bold piece of judicial legis- 
lation. In Taltarum's Case, reported in Year Book, 12 Edw. IV, 19* 
(1472), the judges, upon consultation, held that a common recovery 
suffered by a tenant in tail accomplished the complete destruction of 
the estate tail. 

This mode of barring estates tail is thus described in 1 Washburn 
on Real Property (6th Ed.) § 186 : "This was a fictitious suit, brought 
in the name of the person who was to purchase the estate, against the 
tenant in tail, who was willing to convey. The tenant, instead of re- 
sisting this claim himself, under the pretense that he had acquired his 
title of some third person who had warranted it, vouched in, or by a 
process from the court, called his third person, technically the vouchee, 
to come in and defend the title. The vouchee came in as one of the 
dramatis persons of this judicial farce, and then, without saying a 
word, disappeared and was defaulted. It was a principle of the feudal 
law, adopted thence by the common law, that if a man conveyed lands 
with a warranty, and the grantee lost his estate by eviction by one hav- 
ing a better title, he should give his warrantee lands of equal value by 
way of recompense. And as it would be too barefaced to cut off the 
rights of reversion, as well as of the issue in tail, by a judgment be- 
tween the tenant and a stranger, it was gravely adjudged, first, that the 
claimant should have the land as having the better title to it; and sec- 
ond, that the tenant should have judgment against his vouchee to re- 
cover lands of equal value, on the ground that he was warrantor, and 
thus, theoretically^ nobody was harmed. If the issue in tail or the re- 
versioner or remainderman lost that specific estate, he was to have one 


of equal value through this judgment in favor of the tenant in tail; 
whereaS) in fact, the vouchee was an irresponsible man^ and it was 
never expected that he was anything more than a dummy in the game. 
The result of this, which Blackstone calls 'a kind of pia f raus to elude 
the statute de donis/ was that the lands passed from the tenant in tail 
to the claimant in fee simple, free from the claims of reversioner, re- 
mainderman, or issue in tail, and he either paid the tenant for it as a 
purchaser, or conveyed it back to him again in f^e simple." 

The precedent of fictitious suits as means of acquiring or conveying 
property was found in the Roman law, and the practice of resorting to 
them was supposedly introduced in England by the'^ clergy to evade 
the statute of mortmain. Spence's Equitable Jurisdiction of the Court 
of Chancery, 114, note. The solemn piece of jugglery already describ- 
ed later became more involved. "Complex, however, as the proceed- 
ings above related may appear, the ordinary forms of a common recov- 
ery in later times were more complicated still ; for it was found expe- 
dient not to bring the collusive action against the tenant in tail himself, 
but that he should come in as one vouched to warranty. The lands 
were therefore, in the first place, conveyed, by a deed called the recov- 
ery deed, to a person against whom the action was to be brought, and 
who was called the tenant to the praecipe or writ. The proceedings then 
took place in the Court of Common Pleas, which had an exclusive jur- 
isdiction in all real actions. A regular writ was issued against the ten- 
ant to the praecipe by another person, called the demandant ; and the 
tenant in tail was then vouched to warranty by the tenant to the prae- 
cipe. The tenant in tail, on being vouched, then vouched to warranty 
in the same way the crier of the court, who was called the common 
vouchee. The demandant then craved leave to imparl or confer with 
the last vouchee in private, which was granted by the court ; and the 
vouchee, having thus got out of court, did not return, in consequence 
of which judgment was given in the manner before mentioned, on 
which a regular writ was directed to the sheriflF to put the demandant 
into possession." Williams on Real Property (17th Ed.) 108. 

In all cases there was an agreement or understanding that the person 
who acquired an estate tail by means of a common recovery should pay 
for it, or convey it to the original tenant in tail in fee simple, or dis- 
pose of it as such tenant might direct. The result was that estates tail 
and all remainders over and the reversion were effectually barred. As 
Blackstone said, by long acquiescence and use these recoveries came to 
be looked upon as a legal mode of conveyance, by which a tenant in 
tail might dispose of bis land. 2 Com. 117. This right of conveyance 
became, in contemplation of the law, an inherent and inseparable in- 
cident of an estate tail, and covenants and conditions attempting to re- 
strain the exercise of the right were held to be void. 2 Washburn on 
Real Property, 188. The same purpose was accomplished by the equal- 
ly fictitious proceeding of fine. 


In the fourth volume of his Commentaries (14th Ed.) *14, Chancellor 
Kent said: "Estates tail were introduced into this country with the 
other parts of the English jurisprudence, and they subsisted in full 
force before our Revolution, subject equally to the power of being bar- 
red by a fine or common recovery." These estates are now very gen- 
erally changed by legislation into fee simples, or reversionary estates in 
fee simple, or may be converted into fee simples by ordinary convey- 
ance. 2 Bl. Com. 119, Cooley's note. In the pages following the above 
quotation from Kent, much of this legislation is referred to. 

The territorial Legislature of 1855 passed an elaborate act relating 
to conveyances. Stat, of Kan. Terr. 1855, c. 26. Section 5 of this act 
reads as follows : "That from and after the passage of this act, where 
any conveyance or devise shall be made whereby the grantee or devisee 
shall become seised in law or equity of such state, in any lands or ten- 
ments, as under the statute of the thirteenth of Edward the First (call- 
ed the statute of entails), would have been held an estate in fee tail, ev- 
ery such conveyance or devise shall vest an estate for life only in such 
grantee or devisee, who shall possess and have the same power over 
and right in such premises, and no other, as a tenant for life thereof 
would have by law ; and upon the death of such grantee or devisee, the 
said lands and tenements shall go and be vested in the children of such 
grantee or devisee, equally to be divided between them as tenants in 
common, in fee ; and if there be only one child, then to that one, in fee ; 
and if any child be dead, the part which would have come to him or 
her shall go to his or her issute ; and if there be no issue, then to his or 
her heirs.'* 

This, of course, constituted a deliberate legislative modification of 
the common law relating to estates tail. In 1859 the territorial Legis- 
lature completely revised the act of 1855,*relating to conveyances, mak- 
ing radical changes in its substance, and content. Laws 1859, c. 30. 
The subject-matter of the section quoted was entirely omitted, and noth- 
ing whatever was substituted for it, either in the revision or in any otfi- 
er statute. The result was that section 5 wa§ repealed by implication ; 
and, since the Legislature had its attention specially directed to estates 
tail by that section the purpose evidently was to restore the common 
law on the subject. This intention is made more apparent by the pas- 
sage of the following act at the same session : "The common law of 
England and all statutes and acts of Parliament in aid thereof, made 
prior to the fourth year of James the First, and which are of a general 
nature, not local to that kingdom and not repugnant to or inconsisteitt 
with the Constitution of the United States and the act entitled 'An act 
to organize the territory- of Nebraska and Kansas,' or any statute law 
which may from time to time be made or passed by this or any subse- 
quent Legislative Assembly of the Territory of Kansas, shall be the 
rule of action and decision in this territory, any law, custom or usage 
to the contrary notwithstanding." Laws 1859, c. 121, § 1. 

The Constitution^ adopted in July, 1859, under which the state was 


admitted to the Union on January 31, 1861, contains nothing which 
bears upon the subject, either directly or remotely; and the Legisla- 
ture has not since dealt with it. Nothing is to be found in the acts re- 
lating to conveyances, descents, and distributions, or wills, incompati- 
ble with the existence of such estates; and in their unfettered form 
such estates are not out of harmony with the conditions and wants of 
the people of Kansas. On the other hand, they exactly meet the re- 
quirements of testators in the situation of John Ewing. He desired to 
give his daughter an estate for life, in order to secure to her a home 
and some measure of comfort and welfare while she lived. After that 
he desired that the remainder should go to her children in fee. But he 
did not desire that his son-in-law should take the whole gift should she 
die childless, to be enjoyed by him and, perhaps, a strange second 
wife and their children. The court knows of no reason in law, morals, 
or public policy why these sentiments should not be respected, and they 
were clearly and fully expressed by the language of the will, interpret- 
ed by the common law. The overweening propensity to perpetuate 
family name and family property which made estates tail so obnoxious 
in the middle ages is fairly curbed by the right of a tenant in tail to 
convert his tenancy into a fee simple, and is not a menace to the gen- 
eral welfare of the people of this state; and it will be remembered 
that this right became one of the characteristics of the estate. 

Fines and recoveries, however, are not adapted to any of our needs, 
are inconsistent with the Code of Civil Procedure, and consequently 
cannot be resorted to, as portions of the common law, in aid of the 
general statutes of this state. Gen. Stat. 1909, § 9850. The effect of 
these indirect, fictitious, and operose proceedings was merely that of a 
deed of record, and the same jend may now be accomplished by an ordi- 
nary conveyance. The fiction and the form alone are obsolete. The 
substance of the proceeding (a conveyance) and the essential character 
of the estate tail (the right to convert the estate into a fee simple by a 
conveyance) are preserved. If, therefore, Mary A. Nesbitt had chosen, 
in her lifetime, to make a conveyance of the land devised to her, she 
would thereby have barred herself, her issue, bom and unborn, and 
her father's reversion. 

While the mere possibility of a reverter such as attended conditional 
gifts under the ancient common law is not a subject of disposal by will, 
reversions in fee under the statute de donis may be devised. The re- 
sult is that Mary A. Nesbitt was. given by the will an estate tail in the 
land in controversy. She also took, by virtue of the residuary clause 
of the will, one-fifth of the reversion in fee expectant upon her death 
without issue. Upon her death this interest passed to her husband, the 

The judgment of the district court is affirmed. All the Justices con- 


II. Classification of Estates Tail * 
1. Estates in Taii,,Speciai, » 


(Court of Errors and Appeals of New Jersey, 1887. 40 N. J. Law, 475^ 

13 AtL 36.) 

Error to supreme court. 

The action was in ejectment, and brought to recover an equal one- 
eighth part of a farm in the county of Somerset The cause was tried 
in the Somerset circuit without a jury. Judgment was rendered in 
favor of the plaintiff, and the following reasons were assigned for 
the judgment by Mag^e, J.: 

"The cause is of such importance as to justify and demand a state- 
ment of the views of the court on the legal question presented. That r 
question respects the title which Matthias Van Dike Cruser,.JJifi. father f* 
of the plaintiflf> took under the will of . Frederick Cruser, deceased. 
If the title was or became a fee-simple, then the defendant piust suc- 
ceed. If the title, under the statute of 13 Edw. I., (called the 'Stat- 
ute of Entails/) was a fee-tail, then the plaintiff has a right to re- 
cover. Xhfi.^olution of the question depends on the construction of 
the following clause of the will of Frederick Cruser, deceased, viz. : 
'I give and devise unto my son, Matthias Van Dike Cruser, his heirs 
and assigns by his present wife, Sally Ann, forever, the farm/ etc. 

"The argument of defendant's counsel was mainly directed in the 
line of two opinions given by eminent counsel respecting the true con- 
struction of this clause. Both these opinions have been before me, 
and have received, as they deserve, most careful consideration. The 
opinion of Mr. Bradley, now associate justice of the supreme court of 
the United States, was given in 1866. He first takes the position that 
the clause in question contains no words of procreation, nor any equiv- 
alent words, and that its words do not necessarily imply the descend- 
ants of the devisee, for, he says, *the heirs of M. V. D. C. by his pres- 
ent wife, Sally Ann, must be descended from her, but need not nec- 
essarily be descended from him; for if he should die first, and his 
wife should marry his next cousin, and have issue, this issue might be- 
come the collateral heirs of M.' He then likens the estate devised to 
a qualified fee, which he described as being, in the language of Mr. 
Preston, an interest given in its first limitation to a man, and to cer- 
tain of his heirs, and not extended to all of them generally, nor con- 
fined to the issue of his body. He then concludes that the limitation 
of this clause, restricting the descent to such of the heirs of M. V. 

s For discussion of principles, see Bnrdick, Real Prop. | 33. 


D. C. as should be descendants of Sally Ann, his wife, creates a source 
of descent different from that prescribed by our laws, and so is repug- 
nant to the estate granted to M. V. D. C, and void. This conclusion 
seems to indicate that the estate which M. V. D. C. took was a fee- 
simple. The foundation of -this conclusion is evidently the alleged 
lack of words of procreation, or words of equivalent meaning. His 
contention is that the words, 'heirs of M. V. D. C. by his present wife, 
Sally Ann,' do not necessarily import the issue of M. V. D. C. If this 
premise is incorrect, the conclusion must be rejected. I feel constrain- 
ed to regard the words as entirely equivalent to 'heirs of the body 
of M. V. D. C, by his present wife, Sally Ann.' This instrument to be 
construed is a will. What we are to ascertain is the intent of the 
testator. No one who reads the clause will doubt that his intent was 
to limit the estate to the issue of M. V. D. C. by Sally Ann. The 
books are full of illustrations of precisely similar inferences of in- 
tent, drawn from the use of similar language. Thus, in Den v. Cox, 
9 N. J. Law, 10, the phrase, 'his lawfully begotten heir,' was held to 
create an estate tail, and to be equivalent to 'lawfully begotten heir of 
his body.' Yet the words did not necessarily import the issue of the 
devisee and would have been entirely satisfied by a descent to any 
heir lawfully begotten, though not of his issue. The words 'heirs 
male,' in a devise, have always been held to import heirs of the body ; 
and yet they would be entirely satisfied by any male heirs, lineal or col- 
lateral. Den V. Fogg, 3 N. J. Law, 819. These illustrations might be 
indefinitely multiplied. The present case is not without precedent, 
and the view I have taken is not without the support of authority. In 
Vernon v. Wright, 7 H. L. Cas. 49, a devise to 'the right heirs of 
my grandfather by Mary, his second wife, forever,' was held to cre- 
ate an estate tail. The words were said to comprehend words of pro- 
creation, and to be equivalent to heirs of the body of the grandfather, 
b^otten on the body of the wife named. In Somers v. Pierson, 16 
N. J. Law, 181, a devise to J. S., and 'to his heirs by his present 
wife, Anne,' was held to create an estate tail. The opinion was by 
Ford, J., and concurred in by Hornblower, C. J. The judgment of 
the supreme court was afterwards reversed by the court of errors; 
but no opinion seems to have been delivered, and the reversal was in 
1841. It is not necessary to infer that the reversal went on the ground 
that the construction given to this clause by the supreme court was er- 
roneous. There was a subsequent clause in the will then under con- 
sideration which provided that the lands devised were, after the death 
of the widow, to whom they were given for life, to 'cede to J. S., his 
heirs and assigns, to all intents and purposes.' It was contended in the 
supreme court that this clause controlled and passed a fee-simple. 
We may fairly presume the same contention was made in the court 
of. errors, and the reversal was probably on that ground. The case 
therefore, is not without weight. Upon these grounds, I think the 


words of this clause arc to be taken as including the idea of procre- 
ation, and as meaning 'heirs of the body' of M. V. D. C. by his wife, 
Sally Ann^ 

"The other opinion was by A. O. Zabriskie, afterwards chancellor. 
His conclusion is that M. V. D. C. took an estate in fee-simple. This 
conclusion is put upon the force of the word 'assigns/ which, he in- 
sists, indicates a clear intention to give to M. V. D. C. a power to 
sell. The remaining part of the devise, he thinks, would have its due 
effect if held to mean that, if M. V. D. C. should die without having 
sold the farm, his heirs by his wife, Sally Ann, would take as pur- 
chasers. He admits that, unless that construction be given, the clause 
will come literally within the eleventh section of the descent act, which 
provides for the disposition of estates which would be estates tail un- 
der the statute of entails. But he suggests that an estate tail special 
is not within that section, because, as he well observes, a literal appli- 
cation of the sections to such estates will invariably thwart the will 
of the testator. This suggestion need not be considered, because, in 
Zabriskie v. Wood, 23 N. J. Eq. 541/ the court of errors expressly 
decided that the eleventh section did apply to all estates tail, whether 
general or special. The force attributed by Mr. Zabriskie to the word 
'assigns,' in this clause, is, in my judgment, excessive and inappropri- 
ate. In Den v. Wortendyke, '7 N. J. Law, 363, the question was 
whether an estate in fee or in tail passed under a clause of a will, 
and the same contention was made. Chief Justice Kinsey uses the 
following language: 'In the outset, I will remark that little or no 
importance is to be attached to the us^ of the word "assigns," in this 
case ; a circumstance upon which a considerable part of the argument 
was founded. I am not aware of a single case wherein, a certain in- 
terest having been given in a will, this word has been held to enlarge, 
or in any manner to aflEect, this interest. Every interest recognized 
by the law, unless under particular circumstances, is the object of 
an assignment. It belongs^ essentially to every species of interest or 
property ; and the introduction of the term is, therefore, in every case, . 
superfluous and inoperative in a conveyance of property. The first 
section of Littleton shows that the word has no enlarging power in 
a conveyance, and Coke * * * shows that it is the same in a case 
of a will. The argument, therefore, resting on the basis, is entitled 
to no consideration.' In the section referred to by the learned chief 
justice, Littleton declares that a purchase by the words, 'to have and 
to hold to him and his assigns forever,' would only pass an estate for 
life. Coke, in his Commentary, says that a devise 'to him and to 
his assigns forever' will pass a fee-simple by the intent of the devisor. 
But it is plain that this intent is drawn, not from the use of the 
word 'assigns,' but the use of the word 'forever;' for he adds that 
under a devise 'to one and his assigns,' without saying 'forever,' the 
devisee hath but an estate for life. Co. Litt. 96. In Lutkins v. Za- 


briskie, 21 N. J. Law, 337, on a devise to A., and to her heirs lawfully 
from her body begotten, and assigns, forever, it was contended that 
A. took a fee-simple, and, among other reasons, because of an inten- 
tion to be inferred from the use of the word 'assigns.' Chief Justice 
Hornblower held that the word 'assigns' had never been considered 
sufficient to control previous words of limitation. Upon these cases it 
seems to me the word relied on has never been applied to enlarge an 
estate under the circumstances such as appear in this case. The force 
attributed to the word is inappropriate, because, in any event, the 
estate taken by M. V. D.. C. was vendible and assignable. Under such 
circumstances, there is no inference to be drawn except of an intent 
to pass a vendible and assignable estate. 

"It was contended on the argument that the word 'forever,' in this 
clause, tended to the same construction reached by Mr. Zabriskie. 
But, although this word often operates to indicate an intent to cre- 
ate a fee-simple, yet it will not operate to create or impede the crea- 
tion of an estate tail. Such was the view of Chief Justice Ewing in 
Den V. Cox, 9 N. J. Law, 10, and the cases there cited, and many 
others sustain that view. In Vernon v. Wright, ubi supra, Crowder, 
J., expresses the same view and says the word would not enlarge the 
limitation of the estate tail, but only import its continued duration. 
The result is that, in my judgment, the plain intent of testator was to 
create an estate which, under the statute of 13 Edw. I., commonly 
called the 'Statute of Entails,' would have been an estate in special 
tail. Upon the authority of Zabriskie v. Wood, ubi supra, that estate 
fell within the provisions of section 11 of the descent act, and became 
an estate for life in M. V. D. C, the devisee, with remainder to his 
children in fee-simple. See also Redstrake v. Townsend, 39 N. J. 
Law, 372. 

"It was suggested on the hearing that there might be a question, 
under section 11, as to the amount of estate to which plaintiff would 
be entitled. He is one of seven children pf M. V. D. C. by his wife, 
Sally Ann. M. V. D. C. had a child by a previous wife. If the last- 
named child obtains an interest under section 11, it is plain that the 
intention of the testator is not regarded. But the question is not 
before me, because plaintiff only claims one-eighth of the land. If 
before me, the case of Zabriskie vx Wood, ubi supra, settles it, for in 
that case the statute was so construed as to cast the devised estate 
upon a child to whom it was the evident intent of the testator that 
the estate should not pass. I am therefore constrained to find for the 
plaintiff, and that he is entitled to judgment for the lands claimed, 
etc., and his costs of suit," etc. 

A writ of error was brought to remove the judgment and proceed- 
ings to this court. 

Per Curiam. The judgment in this case should be affirmed,, for the 
reasons g^ven by the court below. Unanimously affirmed. 


III. The Barring of Estates Tail * 

See Ewing v. Nesbitt, ante, p. 39. 

t IV. Estates Tail in the United States^ 

1. Ef^ct o^ Statutes 



See Weart v. Cruser, ante, p. 45. 

• For dlscnasion of principles, see Bnrdick, Real Prop. | 30. 
« For discnssion of principles, see Bnrdlck, Beal Prop. | 8S. 

Bubd.Oah.Reat. Pbop.- 


I. Life Estates Defined^ 

ings V. Cummings, post, p. 75. ] f //^^a..^^^'^^^^^' 

Set Cummings 

II. Rights and Liabilit^^ of Life Tenant ' 


{Supreme Court of Missouri, DiTlsiou No. 1, 1911. 237 Mo. 679, 141 S. W. 
* 877, Aon. Gas. 1918A, 486.) 

Appeal from Circuit Court, Cole County ; W. H. Martin, Judge. 

Action by the Missouri Central Building & Loan Association against 
John B. Eveler and others, minors, and Nellie A. Eveler, an adult, 
f'rom a judgment for defendants, plaintiff appeals. Affirmed. 

Graves, P. J. Cast upon demurrer below, the plaintiff stood upon 
its petition, and after such adverse judgment upon the demurrer brings 
the case here by appeal. Learned counsel for the plaintiff has made 
a very concise statement of the case, which statement is adopted in the 
brief by learned counsel for the defendants. We shall likewise adopt 
such statement. In words, it is as follows : 

"The petition alleges, and the demurrer admits, that in the year 
190 L H er man Ev e le^f being in possession of a part of certain inlots 
in Jefferson City, Missouri, described in the petition, applied toj)lain- 

tjff for a loan of $8QPjan ^aid ^mpprty^rpj-^ofint^'^g h'TmgpTT''tn"hp'][Vifi 

owner tKe reoi in fee pimple: that in the year 1903, under the same 
representations, he applied to plaintiff for a further loan of $600 on 
said property, and in the year 1904, under like representations, he 
applied to plaintiff for a further loan of $400 on said property ; that 
plaintiff, believing said representations of. ownership to be true, and 
believing that the s aid Jlerman Eveler was t he ownerj_jn fee sim ple, 
of the property, granted the loans thus applied for, ^mountjng in all_ 
|p^$ 1,800, and took the said Eveler's notes for said amounts of $800, 



and $400j said note *^ Hi^^ng Qprnrpr! by deed^jif. trust on ^aid 
property , executed by the said Herman Eveler and his wife, de- 
fendant Nellie A. Eveler ; that all of the money so loaned by plaintiff 
ta^the said Hennan Eveler was ujed by him m makmg lasting and 
permainent improvements on said property, which resulted in greatly 
increasing the rental and market value thereof; that the improve- 

1 For discussion of principles, see Burdlck, Real Prop. | 40. 
3 For discussion of principles, see Burdlck, Real Prop, i 44. 


ments so made consisted in the building of another story on the two- 
room brick house theretofore standing on the land, and in erecting 
on the same land a seven-room, frame, two-story building ; the former 
being occupied by the defendants as a home, and the latter being 
rented by defendants at $29 per month. The petition further allege s 
that Herman Eveler die d in May, 19Q7. leaving as hi s only^jchUdien 
le minor defendants, and his widow, d efendant Nell ie A. 'Eyel^r, 
and that since his death defendants have enjoyed the rents and profits 
of all the buildings erected with the money so borrowed from plain- 
tiff as aforesaid ; that no payments have been made on said loans since 
the death of the said Eveler, and that there is now due plaintiff on said 
loans the sum of about $1,380.70; that it now appears that the saij 
Eveler's re preR^ntatinnj; nf fee-simple title in himself were unfjue: 

that by the terms of his father's will, under which he was in posses- 
sion and claimed said property, the said Herman Eveler neve r had the 
fee-simple title ^19 ^aid orooertv^ but had only a life estate th erein, and 
tha t on his death the fee-simple title to said prop erty, vested, jp "Eve- 
ler's children, the minor defendants herein . The petition further 
states that defendants refuse to make any further payments upon the 
loans; that plaintiff is remediless at law, and prays the court, in 
the exercise of its chancery powers, to ascertain the amount yet due 
plaintiff, to declare such amount a lien upon the improvements, and 
to adjudge that the frame building now standing upon the minor de- 
fendants land be subjected to tfte payment of plaintiff's debt in such 
way as to the court may seem best; and for such other proper and 
equitable relief as to the court maf seem proper. Defendant Nellie 
A. Eveler demurred to the petition, on the ground that she was not 
a necessary party defendant, and the minor defendants demurred, 
on the ground that the petition did not state facts sufficient to consti- 
tute a cause of action. The trial court su stained the demurrers,. and, 
on plaintiff's declining to plead further, rendered judgment for de- 
fendants, whereupon plaintiff duly appealed to this court." (' / 

"^ h g f y^^ flicrlngefl |%y thLs recorc;! show a hard ca.^e for. the plain- ^^//iN. 
tiffy but has it any redress in a court of equity ? We think n ot. The " C^ 
good faith of plaintiff in loaning this money may be conceded, and by 
the demurrer is conceded, yet that does not avail the plaintiff in a 
case environed as is this case. WiihJEhfi^ mon^ borrowed, th e de - 
ceased life tenant made valua ble i mpro vements upon the lands^ t^yt 
under the facts this cannot ava il as against these remaindermen. The 
father, the life tenant, could not by trust deed incumber the estate of 
these minors. His (:SiJ}y£^nsj^.SQ^yS^^ ^^ mftrfi.than the. e^tat^e 
which he held,' i. e., the lif g. estate. Th^§ is the le ^l stalUSa^Anci^jn qu r 
judgment, equity cannot reli eve the, legal situation. If life tenants 
could borrow money, whether upon deeds of trust or otherwise, with 
which to improve the estate of remaindermen, and the parties loaning 
the money could show that it went into actual improvements, and for 


that reason be adjudged a lien upon the property or any part thereof, 
estates in remainder would certainly be left in a precarious situation. 
Remaindermen would be at the mercy of the life tenant Such would 
be a dangerous precedent, and one which we do not feel called upon to 

When the plaintiff lo aned thes e sums of mo ney to the ^jfi^ teT^afl^ 
it-d id so with the constructive notice imparted by the will of th^ life 
tenant's 7ather. That the title was defective could have been ascer- 
tained and this lawsuit averted is evident. The situation is harsh, but 
was not made by these defendants. The w i dow of the life ten ant has 
no interest in the controversy, and as toher the demurrer w as cer - 
tamly well taken . » ^-'y 

* Uoing now to the remainderman, we take it as well settled that a \ 
life tenant cannot charge the corpus of the estate with improvements, j 
What he himself cannot do cannot be done by those from whom hey 
borrows money for that purpose. / 

In a recent Kentucky case (Frederick v. Frederick's Adm'r, 102 
S. W. 859, 31 Ky. Law Rep., loc. cit 584, 13 L. R. A. [N. S.] 514), 
it is said : "It is a familiar rule that th e life tenant cannot charge 
t he corpu s of Jhe^ ^.state with improvements^ and that he is not entitled 
to comjj^^sation for the mh^"^^"^^"<- oi the property by reason of \^s 
impfovements. Henry v. Brown, 99 Ky. 13, 34 S. W. 710. We do 
not see that there is anything in this case to take it out of the rule. 
If the improvements had been made by Mrs. Frederick, the' life tenant, 
they would not be a charge upon the estate. They are certainly no 
more a charge upon the estate when made by her husband. * * * 
It is a sou ^id rnV ^^ publicj)pljcy which denies the lije tenant tbe 
power to charge th e estate for his improvements, although th^ jn^y 
enfiahce the value of the property." 

he above "case Ts also "reported in 13 L. R. A. (N. S.) at page 514, 
where it is made the subject of a very lengthy note, in which are 
collated numerous authorities. The learned annotator thus announces 
the general rules : " It is the ge neral rule that a life tenant has bo. right 
t o recover from t he remainderman for improvements made during 
the continuance of the lite estate," "And it is also the well-establish- 
ed law that no charge upon the lands or the inheritance can be made 
for such improvements." "The court, in Caldwell v. Jacob, supra 
[22 S. W. 436, 27 S. W. 86, 16 Ky. Law Rep. 21], gives two reasons 
for this rule : First, preventing the life tenant from consuming the in- 
terest of the remanderman by making improvements that the re- 
mainderman cannot pay for, or that he does not desire; second, im- 
provements are made for the immediate benefit of the life estate, and 
usually without reference to the wishes of the remainderman." 

In 16 Cyc. p. 631, the rule is thus stated: "If the life tenant himself 
makes permanent improvements, it will be presumed that they were 
for his own benefit, and he cannot recover anything therefor from the 


remainderman or reversioner. Exceptions to this rule have been made 
in the case of a life tenant who completes a dwelling house begun by 
the donor of the estate, or who makes improvements upon mining 
property to prevent its forfeiture. A life tenant who makes improve- 
ments, believing himself to be the owner in fee, is not entitled to the 
benefit of the betterment or occupying claimant laws." 

There are exceptions to these general rules, as will be/ disclosed by 
the collation of cases under the Frederick Case, supra, in 13 L. R. A. 
(N. S.) p. 514 et seq., but the facts of this case do not bring it within 
the exceptions found in the cases there cited. In the case at bar, th e 
remaindermen were all infants. Thev could not assent to the con - 
tract made by their father, the life tenant, and they are in no way es- 
topped by th eir own conduct. 

it is also the general rule that one holding under the life tenant is 
entitled to no more consideration than the life tenant. Vide authori- 
ties collated in note to the Frederick Case, supra, 13 L. R. A. (N. S.) 
loc. ciL 516. Among the cases there cited is the case of Schorr v. 
Carter, 120 Mo. 409, 25 S. W. 538. In the Schorr Case, the action 
was one in ejectment by a remainderman. Defendants had possession 
and claimed title through a conveyance from the life tenant. It was 
urged that defendants were at least entitled to recover for repairs 
made to the property, and have such oflfset against the damages for the 
unlawful holding. -This court said : "Defendants were not entitled to 
a reduction of damages for outlays expended in the preservation of 
the property, and the court committed no error in excluding all evi- 
dence with respect thereto." 

With the general trend of the authorities as we find them, we are 
unwillin g to establish a pr ecedent m tKis, state* ty which the intexests 
of minor remaindermen may be frittered away by a life tenant. ,£lairi- 
tiff, by the exerci ^^e ftf t^at rare whirh is required of one taking a 
conveyance of rea l estate, could have discovered the exact status of 
the title m this property . Defendants did nothing to induce action 
upon part of plaintiff. They were minors, and could do nothing which 
would bind them. 

The judgment of the trial court is right, and is therefore affirmed. 
All concur.* 

3 See, also, Hlggins Fuel & Oil Co. v. Snow, ante, 10. The husband of a 
life tenant, who makes improvements on the estate, cannot recover from the 
remainderman. Creutz v. Heil, 89 Ky. 429, 12 S. W. 926 (1890). In Broyles 
V. Waddel, 11 Heisk. (Tenn.) 32 (1872), it is held that, where the tenant for 
lite is also a tenant in common of the remainder, he will be allowed, on parti- 
tion with his cotenants, compensation for Improvements made during the con- 
tinuance of the life estate. And see Gambril v. Gambril, 3 Md. Ch. 259 (1853), 
where a Ufe tenant who had made permanent Improvements was allowed to 
recover the value of such improvements out of the proceeds of the sale of 
the property, the sale being under order of the court. In Arkansas, a statute 
permits a lif^ tenant to recover for improvements made under the belief that 
he was the owner in fee. See Bloom v. Strauss, 70 Ark. 483, 09 S. W. 548 


« • ,^ 


rl. Estate During Coverture^ ^^. 

(f ^ ROSEfv. ROSE. ^ 

(Court of Appeals of Kentucky, 1898. 104 Ky. 48, 46 S. W. 524, 41 L. R. A. 

358, 84 Am. St Rep. 430.) 

Appeal from circuit court, Logan county. 

Action by Bi llie Rose^ by nt ^\ f "f n^if against J. A. Rose, and others, 
to recover the possession of land. Judgment for defendants, and plain- 
tiff appeals. Affirmed. 

Paynter, J. It appears from thp petition, to which the court sus- 
tained a demurrer, that the appel lant is the wife^of .ai>pelleeXji.t,BfiSfi.; 
that they were married in the year 1890; t hat a seo^ ration \\^^ talj;^n 
place, which is permanen t ; that they will never live together as hus- 
band and wife. It also appears from the petition that after the mar- 
riage took place, and before the. passaf;e gf the art nf ^^^^ (sections 
2127, 2128, Ky. St.). d efining^ the righ tsof married .wamen^ <^b^ app^^- 

^iP°*^ ^y gi^^ ac quired title to a tf a^t fff T^"^ cnniajping >\Q8. acres, agd 

by Du rchaje another tract of, 12Q. ACXfig. Tt ig al^^grp^ that tllf; ^"g^T^^ 
i s in pyssession of this land, and refus e*^ \q surrender it icy the apppl- 
J^at.^ She therefo r^ pff^y^ ^^^^ ^^^ possession ^f it be adjudged to her. 
) /The question involved is whether, under the act referred to, the rights \ 
of the husband — as they eicisted at the time of its passage — ^to the use \ 
of the land have been destroyed ; that is to say, did the legislature in- 
tend to deprive husbands of their interests in the lands of their wives, j 
\pr, if it so intended, did it have the power to do so? ^ 

comrflunJaaLlh^bilsbandbec^ine the owner of thepersonaLproCi. 
ert y gf ^tl C ^^if^ He likewise became seised in an estate for their joint 
lives of her freehold lands and chattels real. He could sell the personal 
property thus acquired, and vest the vendee with a title thereto. .He. 
could sell the interest which he. acquired in„ the 'real estate, and vest the 
urcnaser with the t itle to the interest which became vested in him. by 
operation of law. 2 Dembitz, Land Titles, 788; 2 Kent, Comm. 130; 
2Bl.Commri2d The court held in McClain v. Gregg, 2 A. K. Marsh. 
804, t hat marriage g^ves the husband an estate in the lands of his wife> 
which he couldjell, and that his ven3ee coulf maintain ejectment. 
TTiat'opinion wa? before an actoTtEe legislature reducing the interesT 
of the husband in the wife's land. A divorce restores to the wife the 
exclusive right to her land. Hays v. Sanderson, 7 Bush, 489. As civil- 
ization advanced, and as the men who made the laws began to recog- 

1 For discusalon of principles, see Burdlck, Real Prop. | 47. 


nize that a wife should not be compelled to surrender practically all of 
her estate to the husband, but should be g^ven a reasonable protection 
in the enjoyment of her property, the legislature of Kentucky passed 
an act which supplanted the common law with reference to the rights 
of a husband in his wife's real estate. It is section 1, art. 2, c. 52, p. 
720, Gep, St., and reads as follows : ' [Marriage shall give to t he hus- 
band, during the life of the wife, no estate or interest in her real estate, 
including chattels real, owned at the time, or 'acquired by her alter 
marriage, except tn<^ nsp fhp r#>nf w\f \\ power to rent the real estate fo r 
not more than three years ^t a time, and receive the rent . If, however , 
the wife die during th e term for which he r land is rented, the rent 
shall go to the husband. ij[ alive, subject to her debts, contracted a s 
stated in the next sectio n. Hu t , i f during such term the husban^ die. 
the rent accruing thereafter shall go to the wife or her repres entatives, C 
subject to her oebts a^ ^foresaid /* This section was i " fnrrft a^f \^e Pi^ v 
time the parties to this action* were married, an^ at the tjmf the wife ^ 

uire4 the lap d. It g^ves the husband the use of the wife's land, with 
power to rent it for not more than three year^ at a time, and receive 
the rent. It does not allow this rent to be subjected to the payment of - 
his debts, because the legislature thought it wise to place it in tlie pow- 
er of the husband to appropriate the rents for the benefit of his wife 
and children, if he chose to do so. 

In obedience to the requirements of the statute, this court has repeat- 
edly held that the rents of the wife's land could not be subjected to the 
pa)mient of the husband's debts. If the husband cultivates the land 
himself, then the products of the land have been adjudged to belong to 
him. The court, in Moreland v. Myall, 14 Bush, 474, held that corn 
standing on the wife's land (her general estate) is subject to levy and 
sale under execution against the husband. While the rent of the wife's 
land is not liable for the husband's debts, yet, as between the husband 
and wife, the rent belongs to him. Barnes* v. Burbridge, 7 Ky. Law 
Rep. 445. While, under the act in force when the parties married and 
when the land was acquired, the husband's interest in the wife's land 
was not so great as at common law, still it is a vested right ; and the 
legislature could not deprive him of the use of his wife's land, and the 
right to rent it for three years at a time. The act of 1894 declares that '^ ' ■ 
marriage shall give to the husband no interesFln the wife's property, 
and that she shall hold it and own it for her separate and -exclusive use, 
free from the debts and control of her husband. The act is not retro- ^. sa * 
sj>ective in its operation . It cannot take from a husbanH the righ't^ rM>v ,- 
which existed under the law in force at the time of its passage. It is 
said by Mr. Cooley, in his work on Constitutional Limitations (5th 
Ed. p. 442): " At the common law the husband, immediatelv on th e 
marri age succ e eded to certain righ ts in the real and personal estate 
which the wife then possesse d. Thes^ rjg;hts became vested rights at 
once, a nd anv sub gennent alteratinn in the law could not take them 
away." It is held in Railroad Co. v. Harris, 9 Ind. 184, 68 Am. Dec. 


618, that a husband's estate in the wife's land is not impaired by a stat* 
ute declaring it separate property. Under the law of New York, a 
husband had a certain interest in his wife's property. Subsequently the 
legislature passed an act which, in eflfect, declared that such property 
should no longer belong to the husband, but should become the proper- 
ty of the wife, as though she were a single female. The court held that 
the husband's rights could not be impaired by the act of the legislature. 
Westervelt v. Gregg, 12 N. Y. 202, 62 Am. Dec. 160. 

It was held in Rose v. Sanderson, 38 111. 247, that a legislative enact- 
ment cannot take from the husband a vested life estate in the wife's 
land, and give it to her. Bishop on the Law of Married Women (vol- 
ume 2, § 40), ^it£r f^tfjtiagwhat angL thft ■ right&,oi-thc. husbanj^at £Qni- 
qipn law in the wif e's _re al estate, savs : " This is a vested estate in him ; 
anc^. within th e joctrine Hi«;rii«tc;pH iinfl^|- our hr^t subtitJ e. it is no t 
competent for legisla tio n, witho ut his consentj to take it from him and 
giv e it back to tne wife The views we have expresseH are supported 
by Jackson v.' Jaclcsbn; 144 111. 274, 33 N. E. 51, 36 Am. St. Rep. 427; 
Clark V. Clark, 20 Ohio St. 135 ; Wyatt v. Smith, 25 W. A^a. 813. 
Many authorities could be cited in support of these views. A wife 
who was married before the act of 1894 took effect is entitled to all 
the rights in property acquired after the act took effect which it pur- 
ports to give her. Although the marriage took place before the act 
took effect, the husband has no right to complain that the legislature has 
given his wife the control of such property as she acquired after the 
act took effect The act did not impair any vested right of the husband 
in property so acquired. His right was expectant, not vested. Mr. 
Cooley in his work on Constitutional Limitations (page 443), in speak- 
ing in regard to the husband's expectant interest in the after-acquired 
property of the wife, said : "It is subject to any changes made in the 
law before his right becomes vested by the acquisition." In Allen v. 
Hanks, 136 U. S. 300, lO-Sup. Ct. 961, 34 L. Ed. 414, it was held com- 
petent for a state, in its fundamental law or by statute, to provide that 
all property thereafter acquired by or coming to a married woman shall 
constitute her separate estate, not subject to the control or liable for the 
debts of the husband. Such requirements do not take away or impair 
any vested rights of the husband. The same doctrine was announced 
in Jackson v. Jackson. It is hardly necessary to observe that, if Mrs. 
Rose should be divorced from her husband, she is entitled to be restor- 
ed to the possession and use of her land ; or should she, in an appropri- 
ate proceeding, show herself entitled to alimony or equitable settle- 
ment, the products of her land, or the rents thereof, would be subject 
to the payment of it, in the same manner and to the same extent as they 
would be if the land belonged to the husband. This is upon the idea 
that the products of the land, or the rents of it, belong to him. 

The only case to which the court's attention has been called which 
militates against the conclusion we have reached, as to the incompe- 
tency of the legislature to take from a husband his vested rights, is the- 


case of Rugh v. Ottenheimer, 6 Or. 231, 25 Am. Rep. 513. To sustain 
its conclusion in that case, the court cited Maguire v. Maguirc, 7 Dana, 
183. A similar question to the one involved in this case was not before 
the court in the Maguire Case ; neither did the court express an opin- 
ion on a question like the one involved in this case. The part of the 
opinion which the Oregon court relied upon to sustain its conclusion 
was dictum, and that does not even sustain the conclusion of the court. 
The court in Gaines v. Gaines, 9 B. Mon. 308, 48 Am. Dec. 425, did 
not adhere to the doctrine which was declared in Maguire v. Maguire, 
but said: "And if it were conceded, as intimated in Maguire v. Ma- 
guire, supra, that the marriage contract is not, as a contract, wholly re- 
moved, like other contracts from the power of the legislature to dis- 
solve it in any particular case by special act of divorce, and that the 
dissolution of a marriage, if required by the public good, may be a 
legislative function, still it cannot be admitted that a power thus de- 
duced, uncertain, upon principle, as to its existence, and still more un- 
certain as to the grounds of its legitimate exercise, can override the 
express and highly conservative prohibitions in the constitution, in- 
tended for the protection of private rights of property. We are of 
opinion, therefore, that whatever power, to be exercised in view of the 
public good, the legislature may have to enact divorces in special cases, 
as it cannot, even for the public good, change the right of private prop- 
erty from one to another without compensation, much less can it do so 
by a special act of divorce, sought by one of the parties against the 
consent of the other, with the purpose or effect of operating upon the 
rights of property incident to the marriage relation, as created and 
sustained by the general laws applicable to that relation." The act of 
the legislature in question does not attempt to dissolve the marriage 
contract, nor does it give any additional grounds upon which a court 
might do it. So the dictum in the Maguire Case, to wit, "And there- 
fore marriage, being much more than a contract, and depending essen- 
tially on the sovereign will, is not, as we presume, embraced by the 
constitutional interdiction of legislative acts," could be regarded as a 
correct statement of constitutional law, and still would have no appli- 
cation to the question at bar. 

We have not felt it necessary to discuss marriage as a social relation, 
nor the necessity of the regulation and control of it by the sovereign 
power of the state. Neither have we felt it necessary to discuss the 
question as to the power of the legislature to prescribe the causes for 
which the marriage contract or relation may be dissolved. Neither 
would it be profitable to determine the question whether marriage is a 
contract sui generis, or one publici juris, or both. The marriage re- 
lation was assumed by the parties, it still exists, and no effort is made 
to have the court dissolve it. The questions we have. been called upon 
to determine were: (D What rights d id the marriage j;iye_the hus- 
ban d in the w jf e^'sJi^iQperty ? (2) Can the rights thu s acquir ed be tap- 
in "fronTth^ husband by the legislature an'J'given to the wife? Our 






conclusions are suonorte^ hv \h^ rnmmnn law hv fhp rnn^senQiig nf-iti. 

d icial opinion, and by the ablest writers on c ^TiQ^j|^^^j^pa| law We 
hgtvejho ugnt it neither wise nor jud i cial to disrega rd th e rules of law . 
which a,re the crystallization of judicial opi njpn. Neither do we think > 
b ecause lawmakers mav have j^een slow in giving to wives freedom in 
the control of their nrnpertv. ^hat we should givc our. sanctio n tQ a 
l aw which, if uphel^, will take the prpp erty of the husband and fiiye jt 

iq \}\f wifp Tf rhangrp anH franc;i^ipn are in take plar<^ in th^ domestic 

r elatio nship, alt hough right and for the publi c good> s till it shouldjot 
b e done at the sacrifice of vested rights. Judgment is affirmed.' 
"HazSurigg, l)u Rei<lK, and Burnam, JJ., dissent. • 


• I 


) /» 



II. Curtesy* 



(Superior Court of Judicature of New Hampshire, 1851. 22 N. H. 491.) 

Writ of entry. The facts in this case are sufficiently stated in the 
opinion of the court, delivered by 

BEI.L, J. The principiil question a rising .iu fliis casfi* ia..aa Jto ^he 
effect of the statute olJimitarions.yppi; the demandant'^ rigI;^jL.of ac- 
lioiu I t^appeared that the d emandej prgn;iisg;s were set off by a CfllP- 

mitt^y of p artition, ^^^\r\\eA \)y ^he COUrt jof probat^jJtiLMary -EostCT^ 

formerly Mary Eastman, themother of the demandaj^t, as her share of 
the estate of her father, Samuel Eastman, deceased, on the 14th of 
May, 1814. Mary Foster was then the wife of Frederick Foster, by 
whom she then had one or more children. Frederick Foster died in 
1834, and his wife in 1836. They had six childrgp, whose£^ 
suidJkSLi^^ now vested in tlie.plaintifF. 

The defendant proved, that in 1817, trnf M2rnU_Yi^a£Li2X42QSsessian, 
claimingJoie. thcLXL^neuaf Jh^ demanded premises. He- amYeyed.tbe 

s See» also, the case of Myers t. Hansbrough, 202 Mo. 495, 100 S. W. 1137 
(1907), holding that, while the Missouri statute creating a separate estate for 
married women deprives the husband of his common-law right to the posses- 
sion of his wife's estate during coverture, nevertheless th^ statute is pro- 
spective and not retrospective, and that where the marriage occurred before 
the enactment of the statute, and the wife owned the land before that enact- 
ment, the husband's rights remained as they were at common law. That the 
husband's vested interests in general, in the property of his wife, cannot be di- 
vested by removal to another state or by subsequent legislation, see Bush v» 
Garner, 73 Ala. 162 (1882); Tinkler v. Cox, 68 111. 119 (1873); Smith v. Mc- 
Atee, 27 Md. 420, 92 Am. Dec. 641 (1867). The law, however, of the state 
where the real property is situated governs the respective rights of husband 
and wife thereto. Nelson v. Goree, 34 Ala. 565 (1859); Depas v. Mayo, 11 
Mo. 314, 49 Am. Dec 88 (1848); Kneeland v. Ensley, Meigs (Tenn.) 620, 33 Am. 
Dec. 168 (1838). 

> For discussion of principles, see Burdick, Real Prop. {{ 48-52. 



s ame by deed, dated Tu?v 3. 1817. to on e M arshall, who e ntere d an d 
occupied, claiming title, till April 30, 1847, when he conv eyed to Jhe 
tenant, who has since remained in possessio n. TJie tenant claims that 
he has a perfect title bv thirty years undistu rbed and peaQc^bk..PQSses- 
siop- The demandant alleges that his right is not h^rre<;i . because at 
the time when the disseisin occurred, in 1817, ^Irs. ^Q fyter was a feme 
covert, and up to 1«34 hpr hnshanH T^^^ gy ^«;tate for lifeTn fhe prem- 
Ises.and she baH nn nVht f|f ^n^ry im^^l his decease, and consequently 
no right of action till then, and that since th at time twe nty years h ave 
tiot elapsed . "" 

Under the statute of limitation s, which was in force in this state be- 
fore the Revised Statutes, it must be con sidered settled^ that the stat- 
ute did not affect the right oF^ remainderm an or re versioner during tT ie 
Luancy of tVi<> partjpilar pQt;^tP ; and that neither the acts nor the 
laches of the tenant of the particular estate could affect the party enti- 
tled in remainder. Wells v. Prince, 9 Mass. 508; Wallingford v. 
Hearl, 15 Mass. 471 ; Tilson v. Thompson, 10 Pick. (Mass.) 359. 

No right of entry or action accrued to, or vested in the heirs of the 
wife during the continuance of an estate by the curtesy. Jackson v. 
Schoonmaker, 4 Johns. (N. Y.) 390. 

Lut the pa rty ^ntit1#^ ic nnf Kg^rf^ji until th<* us ual oe rjo d of lim ita- 
tion after the termination of tl^e Hfe esta te. Heath v. White, 5 Conn. 
228 ; Witham v. Perkins, 2 Greenl. (Me.)lbO. 

If, then, the husband had. in this case, an estate by the curtesy, or 
any interes t ^" ^PfJand which would entitle n is wife, who survived, to 
be regarded as seised only in r emainder or reversion, sh e and her heirs 
wouia have the full pe riod of twenty y ears after.the, death of the^hus^ 
bang , to commenc^ j|]|^p'QrVlr>n ** 

^o con stitu t;^ a tenancy by t he curtesy, the death of the Ayitei&aap 
^\ thf ^^"*" »v»«»g'^ ^^rY-^'r^^A ^u^ estate of the husband is initiate up- 
on the birth of issue. It is Consummate on the death of the wife. 4 
Kent's Comm. 29 ; Co. Litt. 30, a. 

By the intermarriage, the husband acquires a freehold interest, dur- 
ing the joint lives of himself and his wife, in all such freehold property 
of inheritance, as she was seised of at the time of marriage, and a like 
interest vests in him in such as she may become seised of during the 
coverture. IJiehusband acquires jointly with the wife, a seisin in fee 
'"^ ^ be wife's freehold estates gj jonp.n^anrpj thp Viii<;hanH and wife be- 
c^ic^H tn ^^/> \T^ ri'ijVif /^f fh^ xErif^ Qjib. Teu. 108 ; Co. Litt. 67, a. ; 


'aiyblank v. Hawkins, 1 Saund. 253, n. ; s. c. Doug. 350. 

This interest may be defeated by the act of the wife alone ; as if .at 
common law, the wife is attainted of felony, the lord by escheat could 
entef ftfl fl eject ihe nusband . 4 Hawk. P. C. 78; Co. Litt. 40, a.; Vin. 
AR Curtesy, A; cjo. Litt. 351, a. 

After the birt h of issue th e husband is entitled to an estate for his 
own life, and in his own right, as tenant by the curtesy initiate. Co. 
Litt. JM, a. »d, a. 1Z4, b. ; Schermerhom v. ftimer,^ Cow. (N. Y.) 439. 

I ' \ ': 


♦ r 

• ■ » t\ 


He then becomes sole tenant to the lord, and is alone entitled to do 
homa^fe for the land, and to receive homage from the fenants of it, 
which until issue born must be done by husband and wife. 2 Black. 
Comm. 126 ; Litt. § 90 ; Co. Litt. 67, a. 30, a. 

Then he may forfeit his estate for life by a felony, whiqh, until issue 
born, he could not do, because his wife was the tenant. 2 Black. 
Comm. 156 ; Roper, Hus. & Wife, 47. 

If the husband, after the birth of issue, make a feoffment in fee, and 
then the wife dies, the feoffee shall hold the land during the husband's 
life; because by the birth of issue, he was entitled to curtesy, which 
beneficial interest passed by the feoffment. Co. Litt. 30, a. 

If such feoffment is made before issue bom, the husband's right to 
curtesy is gone, even though the feoffment be conditional and be after- 
wards avoided. And if in such case the husband and wife be divorced 
a vinculo piatrimonii, the wife may enter immediately. Guneley's Case, 
8 Co. Rep. 73. 

The husband's estate after issu^ bom, will not be defeated by the 
attainder of the wife, for his tenancy continues, he being sole tenant. 
1 Hale, P. C. 359; Co. Litt. 351, a. 40, a. ; Bro. Ab. Forf. 78. 

The obvious conclusion from these views of the nature of the inter- 
est of a tenant by the curtesy initiate is, that such tenant is seised of a 
freehold estate in his own right, and the interest of his wife is a mere 
reversionary interest, depending upon the life estate of the husband. 
The necessary result of this is, that the wife cannot be prejudiced by 
any neglect of the husband, and of course she may bring her action, or 
one may be brought by her heirs, at any time within twenty years after 
the decease of the husband, when his estate by the curtesy, whether in- 
itiate, or consummate, ceases, and her right of action, or that of her 
heirs, accrues. In this respect there is no distinction between curtesy 
initiate and curtesy consummate. Melvin v. Locks & Canals, 16 Pick. 
(Mass.) 140. 

So far as we are aware, this principle has never been questioned, 
where the inheritance of the wife has been conveyed to a third person,, 
either by the deed of the husband alone, or by a deed executed by 
husband and wife, which from some defect did not bind the interest of 
the wife. Miller v. Shackleford, 3 Dana (Ky.) 289; CoUer v. Motzer, 
13 Serg. & R. (Pa.) 356, 15 Am. Dec. 604; Pagan v. Walker, 27 N. C. 
634; McCorry v. King, 3 Humph. (Tenn.) 267, 39 Am. Dec. 165; 
Melius V. Snowman, 21 Me. 201 ; Meramon v. Caldwell, 8 B. Mon. 
(Ky.) 32, 46 Am. Dec. 537; Gill v. Fauntleroy, 8 B. Mon. (Ky.) 177; 
Melvin v. Locks & Canals, 16 Pick. (Mass.) 140. But it has been held 
(Melvin v. Locks & Canals, 16 Pick. [Mass.] 161 ; Kittridge v. Locks 
& Canals, 17 Pick. [Mass.] 246, 28 Am. Dec. 296) that where a dissei- 
sin has been committed upon the wife's estate, the disseisin is done 
alike to the husband and wife; that a joint right of entry and of action 
accrued to both for the recovery of it, and that if such remedy is not 
prosecuted within twenty years, it is barred. 


This IS true where the husband has acquired no estate by the curtesy, 
and is seised merely in the right of the wife of her estate. Such are 
the cases of Guion v. Anderson, 8 Humph. (Tenn.) 298; Melius v. 
Snowman, 21 Me. 201. 

And if the husband is tenant by curtesy, as he and his wife are seised 
of the fee in right of the wife, the action must be brought by husband 
and wife, and a joint seisin in fee alleged in them in her right. Anon. 
Buls. 21. Their joint right of action is barred by the lapse of twenty 
years after it accrues. But it by no means follows, that the reversion- 
ary right of the wife, accruing in possession after the estate of her hus- 
band has ceased, is also barred. It is well settled, that the same party 
may have several and successive estates in the same property, and sev- 
eral rights of entry by virtue of those estates, and one of those rights 
may be barred without the others being affected. Hunt v. Bum, 2 
SaUc. 422 ; Wells v. Prince, 9 Mass. 508 ; Stevens v. Winship, 1 Pick. 
(Mass.) 318, 11 Am. Dec. 178; Tilson v. Thompson, 10 Pick. (Mass.) 

And every re ason, which can exist iiL.f^yor of the right of wy re- 
versioner ^ a pplies equally in this ca se, n ame ly^ t hat a reversion§xJia^j 
as such, no ri^ht of entrv and no right of action during 
e state, an d consequently is not barre d until twen ty jye ar g g ,f ^fi r V^^ "^" 
ngt^ oi^ntiX-acSH&d. 2 Sugd. V. & P. 353; 3 Steph. N. P. 2920, n. 
10 ; Wells V. Prince, 9 Mass. 508 ; Stevens v. Winship, 1 Pick. (Mass.) 
318; Wallingford v. Heart, 15 Mass. 471; Tilson v. Thompson, 10 
Pick. (Mass.) 359; Jackson v. Schoonmaker, 4 Johns. (N. Y.) 390, be- 
fore cited. Besides, the wife by reason of her disability can make no 
entry to revest her estate during the coverture. Litt. p. 403 ; Co. Litt. 
246, a. Coke says, in express terms, "after coverture, she (the wife) 
cannot enter without her husband." 

In Jackson v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433, and Heath 
V. White, 5 Conn. 228, this question arose, and was decided in accord- 
ance with our views, j^nd we think upon sounder principles than the 
cases in Massachusetts, to which we have referred. 

We have compared the provisions of the Revised Statutes with the 
older statutes, and do not perceive, that there is, as to the point in ques- 
tion, any difference in their effect. Under neither would the plaintiff 
propose to claim any advantage from the proviso. His ground is not 
that the ancestor was a married woman, when her right accrued ; Jtut 'j 
t hat her ^ciarriage and the birth of one 9r more children had vested a (/ 
life estate in her husband, and that the disseisin was done to him, and ^„ \j 
tftat no right o f action accrued to her in virtue of the reversionary ^^^ 
i nterest, under wh irf^ }i[pr Vipirc nnw rj^i'm ^ u ntil she J)ecatne_a jrjdow, 
aiid the husbancTs estate ,had_ terminated ; and that the aclion is brpught 
w ithin tw enty years^ aiJer tha^t .event. 

This appears to us a correct view of the case, and of the law ; and 
the verdict must therefore be set aside, and a new trial granted. 



III. EsUtes Subject to Curtesy* 


(Supreme Court of Illinois, 1889. 128 IlL 95, 21 N. B. 218.) 

Error to circuit court, Tazewell county ; N. W. Green, Judge. 

Shope, J. This was an action of ejectment, brought by James Boz- 
arth, Mary L. Bozar^h, and Ida B. Cook, the heirs at law of Louisa 
Bozarth, deceased, against William Largent, for the recovery in fee 
of the E. y2 S. W. 14 section 17, and the W. Vs of the S. W. % of 
section 8, all in township 23 N., range 2 W. of the third P. M., in 
Tazewell county. General issue was filed, and a trial had, resulting 
in a finding and judgment for defendant. Plaintiffs below prosecute 
this writ of error. The facts are as follows: Louisa Bozarth, now 
deceased, being the owner in fee of said lands, which she had in- 
herited frwn her father, was, on August 19, 1863, married to Asa 
Bozarth. They lived together as husband and wife until November 
1, 1868, when she died, intestate, leaving her husband, who is still 
living, and the plaintiffs, her children and only heirs at law, surviv- 
ing her. On March 5, 1868, she and her husband executed their niort- 
gage upon the lands in controversy, and other lands of the husband, 
to Anna R. Cohrs, to secure the payment of $2,500 evidenced by the 
note of Asa Bozarth, the husband, payable two years after date, with 
10 per cent, interest, payable annually, and containing a clause that, 
in default of the payment of the annual interest, the principal should 
become due. The mortgage was in the usual form, and contained a 
release of all homestead rights; and the wife acknowledged the re- 
lease of all her rights of homestead, but the husband did not acknowl- 
edge the release of homestead, his acknowledgment being simply that 
he acknowledged the mortgage to be his free act and deed for the 
uses and purposes therein set forth. On March 27, 1873, Mary C. 
Maus, the assignee of said note and mortgage, filed her bill in the cir- 
cuit court of Tazewell county against the said Asa Bozarth, and the 
plaintiffs and others, for the foreclosure of said mortgage. Summons 
was duly served on all the defendants, and a guardian ad litem 
was appointed for James, Ida B., and Mary Bozarth, the plain- 
tiffs, they being then minors, who answered. At the May term, 
1873, a decree was entered, foreclosing said mortgage, and finding 
due thereon the sum of $2,973.75, and a solicitor's fee of $125, pro- 
vided for in the mortgage, and ordering a sale of the premises, etc. 
Sale was made under said decree July 12, 1873, to William Don Maus, 
for the sum of $3,048.84. The sale was made en masse, the master 

4 For discussion of principles, see Burdick, Real Prop. { 49. 


having failed to obtain bids on the several tracts when separately 
offered. Certificate of purchase was made and recorded the same 
day. At the May term, 1874,« of the McLean circuit court, Albert 
Welch recovered a judgment against the said Asa Bozarth, John Bo- 
zarth, and Elihu Bozardi for $1,250.50 and costs. Execution was is- 
sued to the sheriflf of McLean county, and retutned August 19, 1874, 
when Welch assigned the judgment to George W. Thompson. On 
the same day an alias execution issued to the sheriff of Tazewell 
county, which came to that officer's hands August 20, 1874, and was 
levied on all the land sold under the foreclosure decree, and a cer- 
' tificate of levy was filed and recorded August 31, 1874. On October 
10, 1874, a certificate of redemption from the sale under the decree 
of July 12, 1873, was executed by the sheriff of Tazewell county, 
and recorded the same day. On October 31, 1874, the land was sold 
en masse by the sheriff to Welch for redemption money and costs. 
On January 14, 1875^ after the term of oflSce of the sheriff had ex- 
pired, he made and delivered to Welch a deed for the premises, dating 
the same as of the day of sale. On the same day, Pratt, the then 
sheriff, also executed a deed to Welch for the lands on the same sale. 
Welch and wife, by their deed of December 1, 1875, conveyed the 
land to John Bozarth, and he, on May 22, 1882, conveyed the same 
to William Largent, defendant in error, who went into possession of 
the same. 

At the con;imon law a husband held in right of his wife all her 
lands in possession, and' owned the rents and profits thereof absolute- 
ly. I Washb. Real Prop. 276; Tied. Real Prop. § 90; Haralson v. 
Bridges, 14 111. 37; Clapp v. Inhabitants of Stoughton, 10 Pick. 
(Mass.) 463; Decker v. Livingston, 15 Johns. (N. Y.) 479. The birth 
of issue was not necessary to this right of the husband, which con- 
tinued during the joint lives of the husband and wife. It was called 
an estate during coverture, or the husband's freehold estate jure uxoris. 
Kibbie v. Williams, 58 111. 30; Butterfield v. Beall,.3 Ind. 203; Mont- 
gomery V. Tate, 12 Ind. 615; Croft v. Wilbar, 7 Allen (Mass.) 248. 
It differed from curtesy initiate, in its being a vested estate in pos- 
session, while the latter is a contingent future estate, dependent upon 
the birth of issue. Wright's Case, 2 Md. 429-453, 56 Am. Dec. 723. 
It is held in right of the wife, and was not added to or diminished when 
curtesy initiate arose. Subject •to the husband's beneficial enjoyment 
during coverture, the ownership remained in the wife, and, on dis- 
solution of the marriage, was discharged from such estate of the 
husband. Stew. Husb. & W. § 146. Where there was marriage,, 
seisin of the wife, and birth of issue capable of inheriting, the hus- 
band, by the common law, took an estate in the wife's land during 
coverture. This was an estate of tenancy by the curtesy initiate, and 
which would become consummate upon the death of the wife in the 
life-time of the tenant. A tenant by the curtesy was seised of an 
estate of freehold, which was subject to alienation, and was liable to 


be taken on execution for his debts. Tied. Real Prop. § 101 ; Howey 
V. Goings, 13 111. 95, 54 Am. Dec. 427 ; Jacobs v. Rice, 33 111. 369 ; 
Cole V. Van Riper, 44 111. 58; Beach v. Miller, 51 111. 206, 2 Am. Rep. 
^ 290; Lang v. Hitchcock, 99 111. 550. 

The act of 1861, known as the "Marrie.d Woman's Act" provides: 
"That all the property, both real and personal, belonging to any mar- 
ried wcmian as her sole and separate property, or which any woman 
hereafter married owns at the time of her marriage, or which any 
married woman during coverture acquires in good faith from any 
person other, than her husband, by descent, devise, or otherwise, to- 
gether with all the rents, issues, increase, and profits thereof, shall, 
notwithstanding her marriage, be and remain during coverture, her 
sole and separate property, under her sole control, and be held, owned, 
possessed, and enjoyed by her the same as though she was sole and 
unmarried, and shall not be subject to the disposal, control, or inter- 
ference of her husband, and shall be exempt i^rom execution or at- 
tachment for the debts of her husband." In this case, Louisa Bozarth, 
who was c(Hnmon source of title, was the owner of the land in con- 
troversy, as it is conceded, at the time of her marriage, August 19, 
1863, to Asa Bozarth. The marriage having taken place after the act 
of 1861 took effect, and the wife being then the owner of the land in 
question, it. was not, during her coverture, subject to the control, in- 
terference, or disposal of her husband, or liable for his debts or other 
obligations. The effect of the statute was to abrogate the husband's 
estate m her lands, or the estate he would have had at common law 
during the coverture, and consequently during that period he had 
no estate therein liable to execution or attachment. The act did away 
with the estate he would have had at common law, growing out of 
the mere marital relation, and of his curtesy initiate; and it there- 
fore follows, if the wife had been living at the time of the redemption 
and sale by the creditor of her husband, that proceeding would not 
have divested any right of herself or husband, nor conferred any right 
upon the purchaser. 

The question, however, remains whether Asa Bozarth, the husband, 
on the death of his wife, in 1868, acquired an estate in her land as 
tenant by the curtesy. We have already seen that the property of 
a married woman, under the act of 1861, notwithstanding her mar- 
riage, was to be and remain during coverture her sole and separate 
property, and was not subject to the husband's control, or liable for 
his debts. The general effect of statutes of this kind is to destroy 
the marital rights of the husband in his wife's estate; but a statute 
may exempt her property from his debts without in any way destroy- 
ing his rights therein. Unless tenancy by the curtesy is destroyed by 
the statute by express words or necessary implication, or by the wif e s 
disposition of her property by virtue of her power over it, he will be 
held to have an estate by the curtesy at her death. The prevailing 
opinion seems to be that while separate property acts do suspend 


during coverture all the rights of a husband, or his creditors, in statu- 
tory separate property, they do not destroy curtesy, or prevent its 
vesting on her death, unless such an event is clearly excluded by the 
statute; as where the statute not only provides that the property of 
the wife shall be hers, etc., but also defines her husband's interest 
therein, if she dies intestate, in which case curtesy is excluded. Where 
she has power to alienate or charge her property, she may thereby 
defeat curtesy, but the statute must contain express words to enable 
her to convey alone ; and, also, when she has power of disposition of 
the property by will she may thereby defeat curtesy. Stew, Husb. & 
W. §§ 161, 243 ; In re Winne, 2 Lans. (N. Y.) 21 ; Hatfield v. Sneden, 54 
N. Y. J80; Noble v. McFarland, 51 111. 226; Freeman v. Hartman, 45 
111. 57, 92 Am. Dec. 193 ; Cole v. Van Riper, supra. 

It will be seen that the married woman's act of 1861 does not at- 
tempt to define the husband's rights in his wife's property after her 
decease, nor does it give her any power of disposal of her separate 
property, independent of the husband. The purpose and effect of 
the statute was to secure to the wife the control of her separate prop- 
erty during coverture. During that period the husband's common-law 
rights in her property are suspended. We are of opinion that this act 
did not have the effect of destroying the estate by curtesy, but that, 
after the passage of that act, and prior to the passage of the act of 
1874, the husband, on his wife's death, leaving issue of the mar- 
riage, took a life-estate in her land as tenant by the curtesy. After 
the passage of the act under consideration, the estate, by the curtesy 
in the lands of the wife, did not vest in the husband until the death 
of the wife, (Lucas v. Lucas, 103 111. 121; Beach v. Miller, 51 111. 
206, 2 Am. Rep. 290,) but upon her death such estate became consum- 
mate, and vested in the husband in all respects as at common law. 
Noble V. McFarland, 51 111. 226; Shortall v. Hinckley, 31 111. 219; 
Gay V. Gay, 123 111. 221, 13 N. E. 813; Castner v. Walrod, 83.111. 171, 
25 Am. Rep. 369. It follows that we are of opinion that upon the 
death of the wife, in 1868, leaving issue surviving, the husband, Asa 
Bozarth, became seised of a freehold interest in the lands in con- 
troversy as tenant by the curtesy, and which was subject to seizure 
and sale on execution against him. 

The validity of the sale of the premises imder the decree of fore- 
closure, and the redemption upon the execution issued upon the judg- 
ment in favor of Welch, and against the said Asa Bozarth, and the 
sale thereunder, are questioned by plaintiff in error. If the fore- 
closure sale was void for any cause^ the judgment creditor redeeming 
therefrom acquired no title under his purchase, for the reason that 
his rights, like those of the purchaser at the sale under the decree of 
foreclosure, are dependent upon a valid judgment or decree and 
sale. Johnson v. Baker, 38 111. 99, 87 Am. Dec. 293 ; Mulvey v. Car- 
penter, 78 111. 580 ; Keeling v. Heard, 3 Head (Tenn.) 592. 
Bubd.Cas.Real Prop.- 


It is objected that there was no sufficient service of summons upon 
the plaintiffs in error, who were defendants in the foreclosure suit. 
The return to the summons therein is as follows : "Executed this writ 
by reading the same to the within-named Asa Bozarth, James Bozarth, 
Ida Bell Bozarth, and Mary Bozarth, and by delivery to each a true 
copy hereof, on the 10th day of April, 1872," and properly signed by 
the sheriff. The process was returnable to the May term, 1873. 
The service was in apt time. The fact that the summpns was read to 
the defendants did no harm, and that part of the return may be dis- 
regarded. It is apparent that the circuit court had, therefore, juris- 
diction of the subject-matter and of the parties, and mere errors or ir- 
regularities, if any, cannot be taken advantage of in this collateral pro- 
ceeding. ^ 

It is objected that the mortgaged premises were improperly sold en 
masse. If this be conceded, it would not render the sale void; at 
most, it would only be ground for setting the sale aside on proper appli- 
cation to the court in apt time. It, however, appears that the land 
was offered by the master in separate parcels, and, receiving no bids 
therefor, it was then offeredi and sold en masse. We are not pre- 
pared to say that the action of the master was not warranted. . 

It is next objected that all the lands sold under the decree were re- 
deemed en masse, and so sold to Welch under the execution. A judg- 
ment creditor's right of redemption is no greater or more extensive 
than that of the original debtor. He cannot redeem in a case where the 
original owner cannot redeem, and within the time allowed by law for 
redemption by the debtor. In Hawkins v. Vineyard, 14,111. 26, 56 
Am. Dec. 487, a quarter section of land had been sold, of which the 
debtor owned only 65 acres, and it was held he could not redeem the 65 
acres, but that he must redeem the whole or none. A person cannot 
redeem an undivided share of land by paying his proportional share 
of the 4cbt; and a part owner must redeem the whole. Durley v. 
Davis, 69 111. 133. A purchaser of a part of mortgaged land cannot 
redeem that part by paying his proportion of the debt. Meacham v. 
Steele, 93 111. 135. When the purchaser at a n/aster's sale of an entire 
tract of land afterwards assigns an undivided interest in such pur- 
chase, there can be no legal redemption of such undivided interest by 
a judgment creditor. Groves v. Maghee, 72 111. 526; Tits worth v. 
Stout, 49 111. 78, 95 Am. Dec. 577. 

Section 25, c. 77^ Rev. St., provides: "Any person entitled to re- 
deem may redeem the whole or any part of the premises sold in like 
distinct parcels or quantities in which the same were sold." If the 
several mortgaged tracts had been sold separately, redemption might 
have been made of any one or more of the tracts. In such case the 
amount that each tract sold for would furnish the basis for determin- 
ing the amount to be paid in order to redeem; but, as the several 
parcels of land were sold together, and for a gross sum, neitlier the 


debtor nor his judgment creditor could redeem without paying the 
full amount for which the same sold, with interest. The law gives the 
debtor 12 months in which to redeem, after which time any judgment 
creditor of the debtor may also redeem within IS months from the 
date of the sale; but, in so doing, the creditor will possess no greater 
right than his debtor had within the time limited for redemption by 
him. After the expiration of 12 months from the sale, the right of 
redemption of the judgment debtor is gone. He no longer has any 
interest in the pr'emises, and cannot take advantage of mere irregu- 
larities in making redemption by his judgment creditor, and his ac- 
quisition of title by virtue of a sale in pursuance of such redemption. 
The purchaser at the foreclosure sale makes no objection to the 
validity of the redemption, and, having accepted the money, the re- 
demption was complete. The title of Asa Bozarth being gone by his 
failure to redeem within the time allowed by law, he was not injured 
by a sale en masse on the execution, if, indeed, the sale could have 
been otherwise made. 

There is no force in the objection that the redemption should have 
been made in the name of Thompson, assignee of Welch, the judgment 
creditor. Swcezey v. Chandler, 11 111. 445. It in no way concerns 
the plaintiffs in error whether redemption was made in the name of 
the plaintiff in the judgment against Asa Bozarth or in the name of 
his assignee. No proof was made or offered at the trial tending 
to show that the premises, when sold under the decree of foreclosure, 
or when the mortgage was given, were occupied by the mortgagors, or 
either of them, as a homestead ; nor docs it appear that they were at 
any time so occupied. Therefore, the question of the right of home- 
stead was not presented for adjudication, and cannot now be con- 
sidered in this court. It may, however, be observed that the mortgage 
was executed and acknowledged before the act of 1872, relating to 
conveyances, took effect, and the cases cited by counsel were deter- 
mined under the provisions of that act. 

It is claimed that only the title of Louisa Bozarth passed by the 
sale under the decree of foreclosure, and therefore a creditor of her 
husband could not redeem from that sale. This contention is not 
well grounded. While the husband, as we have seen, at the time of 
the execution of the mortgage had no estate in the land, it was nec- 
essary to the execution of a valid mortgs^ge or conveyance of his 
wife's estate therein that he should join in the mortgage or convey- 
ance, which he did. The mortgage was in the usual form, and con- 
tained covenants of both the husband and wife of good right to con- 
vey, seisin in fee, and of general warranty, and was sufficient to 
pass not only the estate of the wife, but also all the estate, right, and 
interest of the husband in the property, which he then had, or might 
subsequently acquire. If he had no estate by the curtesy initiate or 
otherwise during the life of the wife, upoh her death, he took an 


estate for life in this land as tenant by the curtesy, which, tinder the 
covenants of the mortgage, inured to the benefit of the mortgagor, 
Gochenour v. Mowry, 33 111. 331. The sheriff's deed was dated Oc- 
tober 31, 1874, the date of the sale upon the redemption, but was, in 
fact, executed January 14, 1875, after the term, of office of the sheriff 
had expired. Section 21 of the act relating to judgments, etc., provides 
that the redeeming judgment creditor shall be considered as having bid 
at the sale the amount of the redemption money paid by him, with in- 
terest thereon, and the costs of the redemption and sale; "and, if no 
greater amount is bid at such sale, the premises shall be struck off to 
such person making such redemption, and the officers shall forthwith 
execute a deed of the premises to him, and no other redemption shall 
be allowed." It is urged that the provision of the statute requiring 
the deed to be made "forthwith" is mandatory, and that a failure in 
this respect would render the sale void. We are not prepared to so 
hold. The purchaser is entitled to a deed forthwith in such case, but 
the failure of the sheriff to make the deed immediately after the sale will 
not render the redemption and sale invalid. This provision of the 
statute must be regarded as directory only. 

It is lastly objected that Reeves, the sheriff, had no authority to 
make the deed after his term of office had expired. Section 30 of the 
act relating to judgments, etc, provides : "The deed shall be executed 
by the sheriff, master in chancery, or other officer who made such sale, 
or by his successor in office, etc." Freeman, in his work on Execution, 
(section 327,) says : "The officer who made the sale, whether he con- 
tinues in office or not, is, in ordinary circumstances, and in the ab- 
sence of statutory provisions to the contrary, the 'proper person to 
make the conveyance. * * * When the term of the officer who 
made the sale terminates, his power to make the conveyance continues. 
In fact, unless the new sheriff is specially authorized by statute, he 
seems to have no authority whatever to make a conveyance based on a 
sale made by his predecessor." 

We are of opinion that the deed made by the retiring sheriff, under 
our statute, was valid. If this is so, it will be imnecessary to de- 
termine whether the deed made by his successor in office is good or 
not. In any event, under the section of the statute quoted, by one 
deed or the other, the title acquired under the redemption sale passed 
to the grantee in said deeds. The plaintiffs claimed an estate in fee in 
the land in controversy, with a present right of possession. Their 
father having a life-estate in the property, which has passed by virtue 
of the foreclosure sale, the redemption and sale thereunder, and the 
deeds in pursuance thereof to the defendant, they are not entitled 
to recover of the defendant the possession of said lands during the 
continuance of such estate. Until the termination of that life-estate 
by the death of the life-tenant, their right to a recovery must be post- 


Some questions are raised as to the effect of the proceedings be- 
fore mentioned upon the fee to the land, which is not now before us 
for consideration, and no adjudication is made in respect thereof. 
The judgment of the circuit court will be af&rmed.' 

L Equitable Estates 


<Bnpreme Cotirt of MIssoDri, Division No. 1, 1888. 116 Mo. WW, 22 S. W. 501.) 

Appeal from St. Louis circuit court; D. D. Fisher, Judge. 

Ejectment by Mamie McTigue, by her next friend, James Hal- 
loran, against John McTigue. Judgment for plaintiff. Defendant 
appeals. Affirmed. 

. Brace, J. This is an action in ejectment to recover possession of 
a lot in the city of St. Louis, in which the plaintiff had judgment, 
and the defendant appeals. 

Both parties claim title under Hannah McTigue, deceased; the 
plaintiff being the only child and heir of the said Hannah, who died 
intestate; and the defendant the surviving husband of the said Han- 
nah, and the father of the plaintiff. The title of the said Hannah 
was acquired by the following deed: "This deed, made and entered 
into this 12th day of January, 1876, by and between Adolphus Meier, 
(widower,) of the city of St. Louis, state of Missouri, party of the 
first part, and James Halloran, of the same place, party of the second 
part, and Hannah McTigue, wife of John McTigue, party of the 
third part, witnesseth : That the said party of the first part, in con- 
sideration of the sum of seven hundred dollars to him in hand paid 
by said party of the third part, the receipt of which is hereby ac- 
knowledged, and the further sum of one dollar to him paid by the 
said party of the second part, the receipt of which is hereby also 
acknowledged, do by these presents, grant, bargain, and sell unto the 
said party of the second part the following described lot or parcel of 
ground being and laying in the county of St. Louis, state of Mis- 
souri, to wit : Lot numbered fourteen, in block No. 7, Adolphus Mei- 

B Although, under the lUinois statute, in the foregoing case, it was held that 
the estate of curtesy initiate is not abolished, it is generally held, however, 
that the effect of the married women's acts is to abolish curtesy initiate in 
the property of the wife acquired after the passage of such statutes. See 
Luntz V, Greve, 102 Ind. 173, 26 N. E. 128 (1885) ; Hm v. Chambers, 30 Mich. 
422 (1874); HUl v. Nash. 73 Miss. 849, 19 South. 707 (1896); Williams v. Cas- 
ualty Co., 150 N. C. 597, 64 S. E. 510 (1909). Under the Missouri statute, how- 
ever, it is held that the husband is not deprived of his curtesy initiate, the 
effect of the statute being only to take away the husband's right to possession 
and usufruct during the wife's ilfe. Donovan v. Griffith, 215 Mo. 149, 114 S. 
W, 621, 20 L. E. A. (N. S.) 825, 128 Am. St. Rep. 458, 15 Ann. Cas. 724 (1908). 


er's First addition to the city of St. Louis, a plat of which is on file 
in the office of the recorder of deeds for St. Louis county, said lot 
having a front on the south line of Cozens street of twenty-five feet, 
by a depth of one hundred and twenty-three feet, to an alley of 
fifteen fee^ wide; to have and to hold the same, with all the rights, 
privileges, and appurtenances thereto belonging or in any wise apper- 
taining, unto him, the said party of the second part, his heirs and 
assigns forever; in trust, however, to and for the sole and separate 
use, benefit, and behoof of the said Hannah McTigue. And the said 
James Halloran, party of the second part, hereby covenants and 
agrees to and with the said Hannah McTigue that he will suffer and 
permit her, without let or molestation, to have, hold, use, occupy, 
and enjoy the aforesaid premises, with all the rents, issues, profits, 
and proceeds arising therefrom, whether from sale or lease, for her 
own sole use and benefit, separate and apart from her said husband, 
and wholly free from his control and interference, -debts, and liabil- 
ities, curtesy, and all other interests whatsoever, and that he will at 
any time and all times hereafter, at the request and direction of said 
Hannah McTigue, expressed in writing, signed by her or by her au- 
thority, bargain, sell, mortgage, convey, lease, rent, convey by deed 
of trust for any purpose, or otherwise dispose of said premises, or 
any part thereof, to do which full power is hereby given, and will 
pay over the rents, issues, profits, and proceeds thereof to her, the 
said Hannah McTigue, and that he will, at the death of said Hannah 
McTigue, convey or dispose of the said premises, or such part thereof 
as may then be held by him under this deed, and all profits and pro- 
ceeds thereof, in such manner, to such person or persons, and at such 
time or times, as the said Hannah McTigue shall by her last will and 
testament, or any other writing signed by her, or by her authority, 
direct or appoint ; and the said Hannah McTigue shall have power at 
any time hereafter, whenever she shall from any cause deem it neces- 
sary or expedient, by any instrument in writing under her hand and 
seal and by her acknowledged, to nominate and appoint a trustee or 
trustees in the place and stead of the party of the second part above 
named, which trustee or trustees, or the survivors of them, or the 
heirs of such survivors, shall hold the said real estate upon the same 
trust as above recited ; and upon the nomination and appointment of 
such new trustees the estate in trust hereby vested in said party of 
the second part shall thereby be fully transferred and vested in the 
trustee or trustees so appointed by the said Hannah McTigue. And 
the said Adolphus Meier hereby covenants to warrant and defend 
the title to the said real estate against the lawful claims of all per- 
sons whomsoever, except all taxes, special or general, for the year 
1876; and the said party of the second part covenants faithfully to 
perform and fulfill the trust herein created. In testimony whereof the 


s^d parties have hereunto set their hands and seals the day and year 
first above written." 

The plaintiff, who is a minor suing by her next friend, the said 
James Halloran, trustee in said deed, claims the right to the posses- 
sion of the premises as the only child and heir at law of her mother. 
The defendant is in possession, and has been ever since the death of 
his wife, and claims as tenant by the curtesy. 

There can be no doubt that by the terms of the deed an equitable 
estate of inheritance was vested in the said Hannah, which, upon her 
death intestate, descended to the plaintiff as her only heir at law, and 
that such estate was her separate equitable estate. It is also well- 
settled law in this state that the husband is entitled to curtesy in the 
equitable estate of the wife of which she died seised, although such 
estate was limited to her separate use. Alexander v. Warrance, 17 
Mo. 228 ; Baker v. Nail, 59 Mo. 265 ; Tremmel v. Kleiboldt, 75 Mo. 
255 ; Id., 6 Mo. App. 549 ; Soltan v. Soltan, 93 Mo. 307, 6 S. W. 95 ; 
Spencer v. O'Neill, 100 Mo. 49, 12 S. W. 1054. Such seems to be the 
law generally in this country, except in those states w^iere the estate 
of curtesy has been abolished by statute. Tied. Real Prop. (2d Ed.) 
§ 105. And while "it is not competent at common law, in the grant 
to a woman of an estate of inheritance, to exclude her husband from 
his right of curtesy, a like rule does not prevail in equity, where an 
estate may be so limited as to give the wife the inheritance, and de- 
prive the husband of curtesy, if the intent of the devisor or settlor 
be express." 1 Washb. Real Prop. (5th Ed.) p. 176, § 15; 4 Amer. 
& Eng. Enc. Law, p. 965, note 3. 

As such was the evident intention expressed in the foregoing deed, 
the defendant's curtesy was barred, and the judgment of the circuit 
court so holding is affirmed. All concur, except Barclay, J., absent* 

« Accord: Woodward v. Woodward, 148 Mo. 247, 49 S. W. 1001 (1899) ; Don- 
ovan v. Griffith, 216 Mo. 149, 114 S. W. 621, 20 L. R. A. (N. S.) 825, 128 Am. 
St Rep. 458, 15 Ann. Gas. 724 (1908). When no provision is made otherwise 
on the death of the wife, the husband will have curtesy' in estates conveyed 
to her by deed, or devised to her, for her sole and separate use. Rank v. 
Rank, 120 Pa. 191, 13 Atl. 827 (1888); Depne v. Miller, 65 W. Va. 120, 64 S. E. 
740, 23 l4 R. A. (N. S.) 775 (1900). 




• • 'v 




1^^ 7 ^' 

/ IV. Doww^ 

L Nature and Origin 



(Supreme Court of Tennessee, 1911. 124 Tenn. 528, 137 S. W. 024, 84 L. B, A. 

[N. S.] 1161, Ann. Cas. 1913A, 165.) 

Appeal from Circuit Court, Shelby County; J. P. Young, Judge. 

Action by Thoma s B. Cr enshaw and others against Charlotte Blood 
Moore and others . Decree for defendants, and plaintiffs appeal. Af- 

Lansden, J. William R. Moore died ip Shelhv cQutn ty »<>g<-atp^ and 
his wjdn w. ^rg. r.h^|-1ntti> Ttln^d Moore^ dissented from his will . 
Such proceedings were had in the county court of Shelby county that 
she was assi^ed a y ear's suooort, ^q th^ value qf ^^Oflfl "*"^ {^r^^"^^ 
Af V^g-t^''"^ ^^ ^^'^ ^^^^ ""iStat^ The complainant brought thia suit tg 
collect from her an inher itance or succession tax on both her year' s 
support and dower^ under the act of l89o (Shannon's Code, § 724), 
as amended by chapter 4/y of the Acts of 1909. 

The act of |$p.^ imposed a tax upon "all estates, real, p^rsnn;^! , gnd 
mixed, of every kind whatsoever, situated within this state, whether 
the person or persons dying seised thereof be domiciled within or 
out of this state, passing from any p er son who may die seised or po s- 
sessed of such e s tgites ^ eitheJclaLwill Qr under the inte state laws g f 
this state , or any part of such estate or estates, or interest therein, 
transferred by deed, grant, bargain, gift, or sale, made in contempla- 
tion of death, or intended to take effect in possession or enjoyment 
after the death of the grantor or bargainor," passing to collateral 
kindred of the owner ; and section 20, c. 479, Acts of 1909, provided 
"that inheritances not taxed under the present laws shall pay a tax 
as follows : All inherit ances of ^5^0 00 an^ over, but less than $20,QQ0. 
^ tax of one per centum of their valu e. All inheritances of $20,000 
and over, a tax of one and one-fourth per centum of their yalue, to be 
collected by the county court clerk of each county." 

'his is a privilege tax imposed on the righ t of ac quiring pr opjgity 
ion. State v. Alston, 94 Tenn. 674, 30 S. W. 750, 28 L. R. 
A. 178; Knox y. Emerson, 131 S. W. 972. Li kewise it is a specia l 
tax. and_the rule js that law s imp osing s uch taxes are to be construed 
s trictly against the gfo vernment, and favora bly to the t^xiiax£.r. Eng- 
lish V. Crenshaw, 120 'Tenn.""5JT7 ITO S. \V. 2l6,l7 L. R. A. (N. S.) 
753, 127 Am. St. Rep. 1025. 

T For discussion of principles, see Burdlck. Real Prop. f{ 53-OOt. 

^ DOWJDB 73 

The widow's year's support is given her by statutory provision, 
which is found in sections 4020 and 4021 of Shannon's Code. It is 
inconceivab le that the Legislature int ended to ^ gyy ^^^ t^y^ i" q"gi?^'f^" 

tipnn |hift hniintv ni ttiP wiHnw yiven ^^f bv the law OUt of her 

husband's personal estate. She does not succeed to the husband's 
title to the property set apart to her as a year's support, but acquires 
it adversely to his administrator by virtue of the statute. By the 
act of se pftratifjn of the personalty assi^ed to her bv the commis - 
sioners, and the subsequent confirmation of their report by the court , 
the title to the speci fic property thu s set ap art be comes absolutely 
vest ed m the w idow. The obvious mtention of the Legislature in 
passing this statute was to provide a temporary support for her and 
her family immediately on the death of her husband. It is an exten- 
sion by law of her right of support out of the personal estate of her 
husband for one year after his death, and is founded in a sound 
public policy, which has for its purpose a conservation of the family 
upon the death of the husband. Ttie witfpw does not succeed to the 
ri^ht of the husband, nor does she take the oropertv under the intes - 
tate laws of this state. It is ;i special provision made for her in Jhe 
law for tfif* cfippr^rf f^^ ^ffc^^f ^"^ ^^f ^^^vi^iy Baykss V. Baylcss,. 
4 Cold. 363; Railway Co. v. Kennedy, 90 Tenn. 185, 16 S. W. 113. 
^or do we think that the widow's dower is ^u biect to this tax . By 
the common law, if a husband acquire an estate which is subject to- 
descend to his heirs, the wife, at the same time the husband acquires 
his title, has vested in her the right of dower ; and although the hus- 
band aliened the estate, the wife's dower would attach. By the acts 
of 1784 and 1823, carried into Shannon's Code at section 4139, Ihs 

widow is do wahle in one-thirH part \i all the lands of which her ^lus- 
band died ff^jf^^^ ^"^ r^*'°f^S^di ^^ ^^ whiVVi he _was^ eauitable^ P.¥an§r. 
In all other respects, the widow's right of dower in this state is the 
same as it was at common law. It has the same qualities as the com- 
mon-law right of dower, but its quantity was cut down by the stat- 
utes ,ref erred to. This right originates with the marriage. It js an 
incu mbrance up on the title of the heir at law, and is superior to the 
claims of the h usband's credito rs. Its oriein is so ancient that neither 
Coke nor Blackstone can trace it, and it is as "widespread as the 
Christian religion and enters into the contract of marriage among all 

"By a fiction of law, the estate in dower relates to the marriage. 
It is adjudged in Fulwood's Case, 4 Co. 65, that the widow shall 
hold her dower discharged from all judgments, leases, mortgages, or 
other incumbrances made by her husband after the marriage, because 
her title, being consummated by his death, has relation to the time 
of the marriage, and, of course, is prior to all other titles. She claims 
by and through her husband, has the oldest title, is under him for 
the valuable consideration of marriage, the best respected in the law^ 


and cannot be disturbed by any other claiming under the husband." 
Combs V. Young, 4 Yerg. 226, 26 Am. Dec. 225. 

The preamble to the act of 1784, which was the first passed in this 
state reducing the quantity of the widow's dower estate, recites, in 
substance, that the dower allotted by law in lands for widows, in the 
then unimproved state of the country, was a very inadequate pro- 
vision for the support of such widows; that it was only just and 
reasonable that those who, by their prudence, economy, and industry 
had contributed to raise up an estate to their husbands, should be 
entitled to share in it — thus showing that the Legislature recognized 
that the widow's dower under this act had the same origin and was 
of the same quality as her dower existing at common law. 

So, it is seen that, whether it be considered that the widow holds 
her dower in the nature oTsl purchaser from her husband by virtue 
oj the marriage contract^ or whether it be merely a provision of th e 
law made for tier i)enefit, it cannot be c onsidered^t hat her ri ght is in 
succession to that of her husband uponTiis death, or tha t the husband 
besiows it upon her in contemplation of death. While it is true that 
her right to dower is not consummated until the death of the hus- 
band, and that it is c arved out of onlv such r< ^^^tY V ^^ -owned a t 
his death , it does not 7ollow from this premise that the widow suc- 
ceeds to his title by the intestate laws. She d eri vg^ it by virtue of the 
marriage, and in her right as wife to be cQnsun;imated in severa}l;y ^q 
her upon the death of her h usband. Boyer v. Boyer, 1 G)ld. 14. 

The Supreme Court of Illinois, in Billings v. People, 189 111. 472, 
59 N. E. 798, 59 L. R. A. 807, upon a construction of the inheritance 
tax law of that state, together with the laws governing the descent 
and distribution of the property of persons dying intestate, reached 
a different conclusion from that reached by us. The reasoning of that 
court is predicated chiefly upon a construction of the statutes of that 
state, which are essentially different from those of this state. It is 
stated, however, that, while the husband cannot deprive his wife of 
her inchoate right of dower, the state may, and that she does not hold 
by contract, but holds by laws which the state may change. Without 
undertaking to meet all of the arguments set forth in support of this 
very able opinion, w^ ar^ contend to hold tl;^ at. under a.-P rope r coji- 
st]; '^ct^on of the statute in que sti on, the L egislature 4i$J not intend^ to 
t ax thiTwidow's dower as an inhe ritancc-from th.e estate, of her hus- 
band, or a succession to his rights therein. As stated heretofore, she 
does riof inherit from her nusband, but derives her right by virtue 
of her marriage, which is consummated upon her husband's death, 
and becomes an incumbrance upon the inheritance of the heirs at law, 
and is, to that extent, an interest adverse to the inheritance from the 
husband. For the same reason she does not succeed to the rights of 
the husband. Her dower is intended for her support and mainte- 
nance, and an intention to tax it will not be imputed to the Legisla- 


turc, except where the language employed makes it plainly impera- 
tive to do so. 

Billings V. People, supra, is the only case cited by counsel which 
discusses the question at issue in any way, and no case is cited dis- 
cussing the liability of the widow's year's support for the tax involv^ - r 
here. But, upon reason, we are content to hold that neither the yeara^V^^^^-c 
support nor dower is subject to the tax. It results that the decree L^j^ 
of the court below is affirmed, with costs, \ ^^^ 


V. Estates Subject to Dower • . . J 4aa/0^ 

\ It i 


(Court of Chancery of New Jersey, 1910. 76 N. J. Bq. 568, 76 Att. 210.) 

Partition by Thomas Cummings and others against John Cummings 
and others. Decree advised for defendants. 

Wai^ker, V. C. This is a suit for part ition in which the property 
has been sold and the proceeds remam to be distributed. Xte-ftues- ^^ 

tion before the court is wh eth er th^ ^^^^n d a ^t M^^y iPuwiIpiUCS* wic}- '^ J 
dwof Christopher Cumnf^iT^VQ iq #>ntitl#>H tr^ ^^w^r jj^ the estatqjaibe ^U^^ 

laildg- Which descended to he r husba nd upp iL the death of his^father. 
Patrick Cummings, the ancestor, died intestate, seised of the prop- 
erty sold, leaving Bridget Cummings his widow and certain children 
and heirs at law, among whom was Christopher Cummings. He 
joined theother children in executing a quitclaim deed to their mother, 
t he wTi J Qw. by y^hicT] tTie y rgl^^gpff gpfT qiiTtf-lafff^pr] unto her the lands 

in question during the term of her natural life. The habendum clause 

oi the deed reads as follows : "To Tiave and to hold the said premises /v 

as before described, with the appurtenances, unto the said party of C 

the second part, to the sole and only proper use, benefit and behoof of J/LiJh^ 

the said party of the second part, for and durin g her natural ]ife.J)u t ^"^n 

ai^er hey Heat^ the same^ to revert^ to the grantors^ their hei rs and 

assies f greyg r." After joining in t he" deed nienti^Qn^cf, .Chris^^Opher 

' :ummin^s ma rped the defendant Mary Xummings and died in the 

lifeti me of his mother, who has since^died. ^ The mother and son both 

died before the filing of the bill. 

By our act relative to dower (Gen. St. 1895, p. 1275, § 1), it is 
provided: " TJiat th e widow whether alien or not, of any person 
dyine intestate, or otherwise, shall be endowed, for the term of her 
natural life, of the one full and equal third part of all land§, tepe- 
ments and other real e state, whereof her husband^ or any other to 
his use^was_se ised of an estate of inheritance, at any time during the 

• For discussion of principles, see Burdick, Real Prop. { 54.- 


coverture/ to which she shall not have relinquished or released her 
right of dower, by deed executed and acknowledged in the manner 
prescribed by law for that purpose." {^ 

The question is: Was Christophe r Cummine^s seised of %cutstBXt^ 
of inheritance in the lan ds men tioned during the lifetime oi hjs ^^ 
moiher, notwitftstandmg th e quitclaim deed to h er in which he jo inedT 
UpojaJthe death of his iatlicf he became seised of an equal undivided 
one-fourth interest and e state of mheritance m fee in the pre imse s, 
a nd it must npw be d ecided whether he divested himself of th at m - 
heritance by expmHnfr^ th^ quitclaim *deed."^ll'^sb, that estate was out- 
standing in his mother at and during the time of his marriage and 
at the time of his death. The deed bargains, sells, remises, releases, 
and quitclaims the lands to the grantee, the mother, during the term 
of her natural life only. The habendum is as above set out There Q 
are no words of inheritance in the deed. #,>, 

Notwithstanding Christopher's execution of the quitclaim deed, J^ • "k? 
^ think he was at all times after the death of his father un til h i s ow n 

/i ,» ij- death seised of a rem ainder in t ee, w hich is an estate of inheritance, 
in tne lands, and, consequgail^^wa^ so seised" '^^^"". he^ marr fed T Ke 
defendant Mary Cumminfirs after the execution of that deed. The life 
estate which passed to the grantee in the quitclaim deed did not con- 
vty a fee for want of words of inheritance. Qansejipentlx the^fee 
and the Jnheritance remained in the grantors. See Kearney v. Ma- 
comb7l6 N. J. Eq. 189; Trusdell v. Lehman, 47 N. J. Eq. 218, 20 Atl. 
391 ; Melick v. Pidcock, 44 N. J. Eq. 525, IS Atl. 3, 6 Am. St. Rep. 
901 ; Chancellor v. Bell, 45 N. J. Eq. 538, 17 Atl. 684. A deed to one 
for life does not gran t an estate io fee. Adams v. Ross, 30 N. jTXaw, 
505, 82 Am. Dec. 237. **Fee" originally signified the right of the 
tenant to the use of the land held of a superior, but this meaning 
passed into the modern signification of an eststfe of inheritance. 2 Bl. 
Com. 106. "Inheritance" is defined to be a perpetuity in lands to a 
man and his heirs, and the property which is inherited is called the 
"inheritance." Bouv. Law Diet. (Rawle's Revision) p. 1037. An "es- 
tate for life" is a "freehold estate" not of inheritance. Id. 692. All 
freehold estates are estates of inheritance, except estates for life. 
Id. 693. An estate for life created by deed is not an estate of in- 
heritance. Am. & Eng. Ency. of Law (2d Ed.) vol. 11, p. 377. 

The estate which the widow acquired by the conveyance from the 
heirs was a n estate T or li f e^ an d w^s less than an estate of inheritan(!5r - 
J ^. . Tnmj opinion Christopher Cummings was seised in fee of an es ^ate^ 
of inheritance at all times during the coverture, and I will advise 
that his widow is ^titled to dower in that estate. 

. . . ^ 


VI. Quarantine • r. \ J ; . 


(Court of Chancery of New Jersey, 1892. 60 N. J. Eq. 825, 25 AtL 181.) 

Bill for partition by William H. McKaig and wife against Charles 
P. McKaig and others. 

Pitney, V. C. The bill is by a brother against brothers and sisters, 
asking for partition of land which descended to them from tneir fa- 
ther, George McKaig, deceased. There is no dispute as to the shares 
in which the land is held, and it clearly appeared at the hearing that 
it could not be divided without great prejudice, and so there must 
be a sale. The bill alleges that Charles P. McKaig, one of the de- 
fendants, had been in the exclusive possession, and had enjoyed the 
rents and profits, of the premises from the death of the father, which 
occurred in February, 1879, up to the spring of 1888, a period of nine 
years, and had during that time cut and carried away therefrom, for 
his own use, a quantity of wood and timber ; that such possession by 
Charles was had by virtue of an agreement or understanding with 
the other heirs that he should pay an annual rent of $150 therefor, 
and that the widow of George McKaig was entitled, as dowress, to 
one third of the rents and profits ; and it prays that an account may 
be taken of such rents and profits, and Charles be decreed to pay two 
thirds of the same, or that the same may be deducted from his share 
of the proceeds of the sale of the land. Charles McKaig only has 
answered, and he denies that he occupied the premises under any 
agreemeat or understanding with his brothers and sisters, but alleges, 
in substance, that he entered and kept possession as the tenant of the 
widow, who was entitled to such possession and to the rents and prof- 
its until her dower was assigned to her, which was never done. 

The serious and important question in the case is whether the 
widow of George McKaig, who died seised, was entitled to the ex- 
clusive possession and use of the premises in question under the sec- 
ond section of the dower act, (Revision, p. 320,) which enacts that, 
"until such dower be assigned to her, it shall be lawful for the widow ' 
to remain in and hold and enjoy the mansion of her husband, and 
the messuage or plantation thereto belonging, without being liable to 
pay any rent for the same." The facts are as follows : The widow, 
Sarah McKaig, owned in her own right a farm, upon which was a 
dwelling and the ordinary outbuildings, and in and upon which she 
resided with her husband for many years before and at the time of 
his death. This was their only home and mansion. Immediately ad- 

• For discussion of principles, see Burdlck, Real Prop. § 65. 


joining this farm of the wife — the dividing line running near the 
buildings — were situate the lands in question, belonging to the hus- 
band. They comprised plow, meadow, and wood land, the proportion 
of plow land being small, and containing 148 acres in three parcels 
of 98, 33, and 17 acres, respectively, of which, however, only the 
larger one adjoined the wife's farm. The husband worked and used 
these lands in common with his wife's lands, making no distinction. 
There was no dwelling or other buildings upon them. 

The question is. was the widow entitled to q uaran tine in them ? I 
can find no judicial expression or decision on the p6int. The maustry 
of counsel was unable to cite any. Nevertheless, I think the ques- 
tion reasonably free from doubt. There is here no "mansion house 
of the husband," and without it I am unable to perceive how there 
can be any statutory quarantine. It is the messuage or plantation 
belonging "thereto," — that is, to the mansion house of the husband, — 
of which the widow is given the exclusive right until her dower is 
assigned. The statute does not give her such right in the messuage 
and plantation of her husband belonging to and used with her own 
mansion. The words "belonging to," as here used, clearly indicate 
uniformity of title, as* well as contiguity of location and community 
of use. The right given by this enactment is greater than that en- 
joyed at the. common law. It is not a declaration of what the law 
was, but a decided change in it; and, while our courts have mani- 
fested a disposition to construe this section favorably towards the 
widow, I can find in such disposition no warrant for changing what 
seems to me to be the plain meaning of the language used. I thinjc 
t he widow was not entitled to the exclusive us e o f these lanjs, 
hence that the son, who was in possession, riiiist account for two 
thirds ot tne rents and profits. 

' vvith regard to the amount of the rents and profits, the proof shows 
ihat the defendant Charles moved into the mansion house with his 
mother immediately after his father's death. His mother was far 
advanced in years, and infirm, and was, besides, at the time quite ill 
from some temporary disorder, from which, however, she so far re- 
covered as to live eight or nine years. The complainant and his 
brothers and sisters other than Charles understood and supposed, and 
there was evidence tending to show, that Charles entered under an 
agreement and understanding that he was to pay rent at the rate of 
$150 per year for the whole farm, including botih the part belonging 
to his mother and that belonging to his father, and that the same 
should be applied to the support of his mother during her life; in 
other words, that he was to support his mother for the use of both 
farms, and his brothers and sisters supposed that this was the ar- 
rangement until after their mother's death, when, to their surprise, 
Charles made a claim against her estate for a large sum ($1,314) for 
her support and maintenance from her husband's death, and this claim. 


after litigation in the orphans' court, was sustained, and Charles 
received payment therefor without any allowance for the use of either 
farm. This result could only have been arrived at on the ground that 
the arrangement and understanding upon which the other heirs sup- 
posed that Charles was occupying these premises had no legal exist- 
ence, and the heirs are therefore free to demand an account of the 
rents and profits in this suit 

Much evidence was given as to^the annual value of the land here 
involved. It would be profitless to discuss it. The amount involved 
is trifling, and I will simply state the result at which I have arrived. 
I find the value of the use of the land here in question to be $36 a 
year over and above taxes, and the defendant must account for two 
thirds of that sum, or $24 a year for nine years, making $216. The 
wood cut by him I find to be worth $25. He should pay interest on 
these siuns from April 1, 1888. The defendants did not set up the 
statute of limitations. I think the defendants, other than the com- 
plainant, though they have not answered or filed cross bills, are en- 
titled to the benefit of this adjudication, although, strictly speaking, 
made only upon complainant's prayer. The practice in partition cases 
does not require that each party should assert his rights by a separate 
pleading. To require them to do so would greatly increase the cost 
of the proceedings. 

VII. Incidents of Dower *• 

See Higgins Oil & Fuel Co. v. Snow, ante, p, 10. 

VIII. Dower— How Barred « 
1. Divorce 


(Goart of Appeals of New York, Second Division, 1890. 118 N. T. 549, 23 N. 

B. 881, 16 Am. St. Rep. 782.) 

Appeal from supreme court, general term, second department, affirm- 
ing a judgment entered upon the decision of the court at special term. 

The plaintiff brought this action to recover dower in certain lands 
situate in the city of Brooklyn, of which one David Van Cleaf , deceas- 

10 For discussion of principles, see Burdlck, Real Prop. § 58. 

11 For discussion of principles, see Burdlck, Real Prop. { 59. 
IS Reversing 43 Hun, 461. 


ed, was seised while he was her husband. She alleged in her complaint 
that she was married to said Van Cleaf on the 6th of July, 1875, and 
that he died November 12, 1884; that during said period he was seised 
and possessed of the premises in question, and that the defendants are 
in possession thereof, claiming to own the same. Without denying any 
of said allegations, the defendant Catherine Burns answered, alleging 
that on the 9th of April, 1881, said David Van Cleaf, who was then a 
resident of the state of Illinois, was duly divorced from the plaintiff, on 
account of her misconduct, by the judgment of a court in that state 
which had jurisdiction of the subject-matter and of the parties. 

The trial court found the following facts : "That in an action in the 
circuit court of Cook county. 111., in which David Van Cleaf was plain- 
tiff, and said Mary B. Van Cleaf was defendant, brought for a divorce 
and dissolution of the marriage for the cause) and ground that said 
Mary B. Van Cleaf had willfully deserted and absented herself from 
said David Van Cleaf, her husband, without any reasonable cause, for 
the space of more than two years before the commencement of such 
action, which by the laws of Illinois was a ground for absolute divorce 
and dissolution of the bond of marriage, such proceedings were had 
that on April 9, 1881, judgment was granted and perfected therein in 
favor of said David Van Cleaf against said Mary B. Van Cleaf, dis- 
solving the bond of marriage between them for die cause and ground 
aforesaid, which cause and ground was by said judgment adjudged to 
exist. That said court, in pronouncing said judgment, had jurisdic- 
tion of the subject-matter of the action and judgment, and of the par- 
ties thereto. That said David Van Cleaf was at the time of said action 
and judgment domiciled in Chicago, in the state of Illinois; and said 
Mary B. Van Cleaf, on October 18, 1880, appeared in said action in 
person, and filed her answer in writing to the complaint, having first 
received notice of the commencement of the suit by the service on her 
in this state of the summons and complaint That the plaintiff was 
during all the time above mentioned a resident of the city of Brooklyn, 
in the state of New York." The court found, as a conclusion of law, 
that the complaint should be dismissed upon the merits, with costs, to 
which the plaintiff duly excepted. 

The only proof given by either party on the trial was a stipulation 
admitting the facts as found. The case states that no other facts ap- 
peared ; and the parties stipulate, for the purpose of any appeal, that 
David Van Cleaf was seised in fee-simple of the premises in question 
between the date of his marriage to the plaintiff and the date of said 
divorce, and that such admission shall have the same effect as though 
found by the trial judge upon proper evidence. 

Vann, J., (after stating the facts as above.) Our Revised Stat- 
utes provide that "a widow shall be endowed of the third part of all 
the lands whereof her husband was seised of an estate of inheritance 
at any time during the marriage," (1 Rev. St. p. 740, § 1 ;) but that, 
**in case of divorce dissolving the marriage contract for the misconduct 


of the wife, she shall not be endowed," (Id. p. 741, § 8.) It is further 
provided by the Code of Civil Procedure that, where final judgment is 
rendered dissolving the marriage in an action brought by the wife, her 
inchoate right of dower in any real property of which her husband 
then was, or was theretofore, seised, shall not be affected by the judg- 
ment ; but that, when the action is brought by the husband, the wife 
shall not be entitled to dower in any of his real property, or to a dis- 
tributive share in his personal property. Sections 1759, 1760. These 
provisions of the Code replaced a section of the Revised Statutes which 
provided that "a wife, being a defendant in a suit for a divorce brought 
by her husband, and convicted of adultery, shall not be entitled to dow- 
er in her husband's real estate, or any part thereof, nor to any distribu- 
tive share of his personal estate." 3 Rev.' St. (6th Ed.) p. 157, § 61, re- 
pealed Laws 1880, c. 245, § 1, subd. 4. An absolute divorce could be 
granted only on account of adultery, either under the Revised Statutes 
or the Code. 3 Rev. St. (6th Ed.) p. 155, §§ 38-42; Code Civil Proc. 
§§ 1756, 1761. According to either, an action could be brought to 
annul, to dissolve, or to partially suspend the operation of the marriage 
contract A marriage may be annulled for causes existing before or at 
the time it was entered into ; and the decree, in such cases, destroys the 
conjugal relation ab initio, .and operates as a sentence of nullity. Id. 
§§ 1742, 1754. 

A marriage contract may be dissolved, and an absolute divorce, or a 
divorce proper, granted for the single cause already mentioned. Such 
a judgment operates from the date of the decree by relieving the par- 
ties from the obligations of the marriage, although the party adjudged 
to be guilty is forbidden to remarry until the death of the other. It 
has no retroactive effect, except a's expressly provided by statute. 
Wait v. Wait, 4 N. Y. 95. An action for a separation, which is some- 
times called a "limited divorce," neither annuls nor dissolves the mar- 
riage contract, but simply separates the parties from bed and board, 
either permanently or for a limited time. Code Civil Proc. §§ 1762- 
1767. Neither the nature nor effect of the judgment of divorce grant- 
ed by the court in Illinois in favor of David Van Cleaf against the 
plaintiff appears in the record before us, except that the bond of mar- 
riage between them is stated to have been dissolved upon the ground 
that she had willfully deserted and absented herself from her husband, 
without reasonable cause, for the space of more than two years prior to 
the commencement of the action. It does not even appear that the de- 
cree would have the effect upon her right to dower in the state where 
it was rendered that is claimed for it here. Apparently, it simply dis- 
solved the marriage relation ; and whether it had any effect, by retro- 
action, upon property rights existing at its date, is not disclosed. A 
judgment of a sister state can have no greater effect here than belongs 
to it in the state where it was rendered. Suydam v. Barber, 18 N. Y. 
468, 75 Am. Dec. 254. There is no presumption that the statutes of the 
Bubd.Cas.Real Pbof.- 


State of Illinois agree with our own in relation to this subject Cutler 
V. Wright, 22 N. Y. 472; McCulloch v. Norwood, 58 N, Y. 562. If 
they do, the fact should have been proved, as our courts will not take 
judicial notice of the statutes of another state. Hosford v. Nichols, 1 
Paige, 220; Chanoine v. Fowler, 3 Wend. 173; Sheldon v. Hopkins, 7 
Wend. 435 ; Whart. Ev. §§ 288, 300. Adequate force can be given to 
the Illinois judgment, by recognizing its effect upon the status of the 
parties thereto, without giving it the effect contended for by the re- 
spondent. Barrett v. Failing, 111 U. S. 523, 4 Sup. Ct. 598, 28 L. Ed. 
505 ; Mansfield v. Mclntyre, 10 Ohio, ZI. 

The judgment appealed from, therefore, can be affirmed only upon 
the ground that a decree dissolving the marriage tie, rendered in anoth- 
er state, for a cause not regarded as adequate by our law, has the same 
effect upon dower rights in this state as if it had been rendered by our 
own courts adjudging the party proceeded against guilty of adultery. 
This would involve, as a result, that the expression, "misconduct of the 
wife," as used in the Revised Statutes, means any misconduct, however 
trifling, that by the law of any state is a ground for divorce. Thus it 
might happen that a wife who resided in this state, and lived in strict 
obedience to its laws, might be deprived of her right to dower in lands 
in this state by a foreign judgment of divorce, based upon an act that 
was not a violation of any law of the state of her residence. It is im- 
portant, therefore, to determine whether the provision that a wife shall 
not be endowed in case of divorce dissolving the marriage contract for 
her misconduct refers only to that act which is misconduct authorizing 
a divorce in this state, or to any act which may be termed "miscon- 
duct," and converted into a cause of divorce by the legislature of any 
state. In SchifFer v. Prudep, 64 N. Y. 47, 49, this court, referring to 
said provision of the Revised Statutes, said that "the misconduct there 
spoken of must be her adultery ; for there is no other cause for a di- 
vorce dissolving the marriage contract" It had before said, in Pitts 
V. Pitts, 52 N. Y. 593, that "a wife can only be barred of dower by a 
conviction of adultery in an action for divorce, and by the judgment of 
the court in such action." While these remarks were not essential to 
the decision of the cases then under consideration, they suggest the 
real meaning and proper application of the word "misconduct," as 
used in the Revised Statutes, with reference to its effect upon dower. 
When the legislature said, in the chapter relating to dower, that a wife 
should not be endowed when divorced for her own misconduct; and, 
in the chapter relating to divorce, that she should not be entided to 
dower when convicted of adultery, — ^the sole ground for a divorce, — 
we think that, by misconduct, adultery only was meant, or that kind of 
misconduct which our laws recognize as sufficient to authorize a di- 
vorce. The sections relating to dower, and to the effect of divorce up- 
on dower, are in pari materia, and should be construed together ; and, 
when thus construed, they lead to the result already indicated. Beebe 
V. Estabrook, 79 N. Y. 246, 252. 


.The repeal of section 48, which provided that the wife, if convicted 
of adultery, should not be entitled to dower, has not changed the re- 
sult, as sections 1759 and 1760 of the Code have been substituted, leav- 
ing the law unchanged. They enact, in effect, that, when judgment is 
rendered at the suit of the husband dissolving the marriage for the 
adultery of the wife, she shall not be entitled to dower in any of his 
real property. There is no change in meaning ; and the slight change 
in language, as the commissioners of revision reported, was to consoli- 
date and harmonize the new statute with the existing system of proce- 
dure. Throop, Anno. Code, § 1760, note. The repealed Action was 
pronounced in the Ensign Case, 103 N. Y. 284, 8 N. E. 544, 57 Am. 
Rep. 717, "an unnecessary and superfluous provision as respects dow- 
er." It was also held in that case that while the relation of husband 
and wife, both actual and legal, is utterly destroyed by a judgment of 
divorce so that no future rights can thereafter arise from it, still exist- 
ing rights, already vested, arc not thereby forfeited, and are taken 
away only by special enactment as a punishment for wrong. It follows 
that depriving a woman of her right to dower is a punishment for a 
wrongful act perpetrated by her. Is it probable that the legislature 
intended to punish as a wrong that which it had not declared to be 
wrong? If a divorce granted in another state for willful desertion re- 
lates back so as to affect, by way of punishment, property rights pre- 
.viously acquired, must not a divorce for incompatibility of temper, or 
any other frivolous reason, be attended with the same result? Does 
the penalty inflicted upon the guilty party to a divorce granted in this 
state for a single and special reason attach to any judgment for di- 
vorce, granted in any state, for any cause whatever, including, as is 
said to be the law in one state, the mere discretion of the court ? 

Our conclusion is that as nothing except adultery is, in this state, 
regarded as misconduct with reference to the subject of absolute di- 
vorce, no other misconduct is here permitted to deprive a wife of 
dower, even if it is the basis of a judgment of divorce lawfully ren- 
dered in another state, unless it expressly appears that such judgment 
has that effect in the jurisdiction where it was rendered, and as to that 
we express no opinion. The judgment should be reversed, and a new 
trial granted, with costs to abide event All concur, except FottETT, 
C. J., dissenting. 


2. Loss OF Husband's Seisin (Judiciai. Sau) 


{Supreme Court of Nebraska, 1895. 43 Neb. 192, 61 N. W. 64D, 27 L. B. A. 

252, 47 Am. St Bep. 741.) 

Appeal from district court, Lancaster county; Tibbets, Judge. 

Action by Lydia Butler against John Fitzgerald and others to re- 
cover dower in land. Judgment was rendered for plaintiff, and de- 
' f endants appeal. Affirmed. 

Ragan, C.** It appears, from a stipulation of the parties to this suit 
in the record, that the material facts in this case are: That Lydia 
Butler and David Butler were husband and wife, and resided, as 
such, in this state from the year 1866 imtil David Butler's death, in 
May, 1891, and that Lydia Butler still resides in this state; that on 
the •6th of October, 1879, David Butler was the owner in fee simple 
of certain real estate, which on said day was levied upon by an 
execution issued on a judgment obtained against David Butler alone, 
and sold to satisfy such judgment; that John Fitzgerald became the 
purchaser of said real estate at said execution sale, and said sale was 
followed by a judicial confirmation and conveyance to him of said 
real estate. Lydia Butler brought this suit to the district court of 
Lancaster county against John Fitzgerald and others, to recover her 
dower in said real estate, which had been sold and conveyed under ex- 
ecution as aforesaid. She had judgment, and John Fitzgerald and 
others interested in said real estate have appealed. The stipulation of 
facts referred to, and on which the case was tried in the court below, 
provides that, if the court shall find that Lydia Butler was entitled to 
dower in said real estate, the court shall ascertain the value of such 
dower interest, and render judgment therefor in her favor; that 
said Lydia Butler agrees to accept a gross sum of money in lieu 
of s^id dower. 

The two important questions presented by this appeal are: 

1. Does the sale of the real estate of a husband under execution, 
on a judgment against him alone, — followed by judicial confirmation 
and conveyance,— extinguish the dower interest of the widow of said 
husband in said real estate? Blackstone defines "dower" at common 
law thus : " 'Tenant in dower' is where the husband of a woman is 
seised of an estate of*inheritance and dies. In this case the wife 
shall have a third part of all the lands and tenements whereof he was 
Seised at any time during the coverture, to hold for herself for the 
term of her natural life." And he further says that the object of the 
common law in giving a widow dower in the estate of her husband 
was "to provide for the sustenance of the widow, and for the nurture 

IS Part of the opinion Is omitted. 


and education of the younger children." Bl. Comm. bk. 2, pp. 128, 
129. Section 1, c. 23, p. 401, Comp. St. 1893, provides: "The widow 
of every deceased person shall be entitled to dower or the use, during 
her natural life, of one-third part of all the lands whereof her husband 
was seised, of all (an) estate of inheritance at any time during the 
marriage unless she is lawfully barred thereof." It will be seen that 
our statute in the matter of a widow's dower follows the rule of the 
common law, or, more properly speaking, the statute is but declar- 
atory of the common law. In Scribner on Dower (volume 2, p. 2, § 
2) it is said: "It will be observed that this estate [dower] arises 
solely by operation of law, and not by force of any contract, ex- 
pressed or implied, between the parties. It is the silent effect of the 
relation entered into by them, not as in itself incidental to that re- 
lation or as implied by the marriage contract, but merely as that con- 
tract, calls into operation the positive institutions of the law." And 
it was expressly held in Shearer v. Ranger, 22 Pick. (Mass.) 447, that 
"an inchoate right of dower is an existing incumbrance on land, with- 
in the meaning of the covenant against incumbrances." However this 
may be, it is clear that, "when lawful marriage of a man and woman 
and the ownership of real estate by the former concur, an inchoate 
dower right attaches, in the nature of a charge or incumbrance upon 
the real estate of the husband." 

Under certain conditions, unnecessary to notice here, the dower right 
may never attach ; but when it has once attached it remains and con- 
tinues a charge or incumbrance upon the real estate, unless released 
by the voluntary act of the wife or extinguished by operation of law, 
and is consummate upon the death of the husband, and in certain 
other contingencies not involved in this case, provided for by section 
23 of chapter 25 of the Compiled Statutes, entitled "Divorce and Ali- 
mony." In this case none of the conditions existed which prevented 
the inchoate dower right of Lydia Butler from attaching to the real 
estate of her husband owned by him at the time of his marriage to 
her, or acquired by him thereafter. The husband is dead; and we 
now proceed to inquire whether his widow, within the meaning of 
section 1, c. 23, quoted Nabove, has been or is "lawfully barred" of a 
dower interest in the real estate in controversy. The rule of the com- 
mon law as to the effect of a husband's acts during the coverture, 
on the dower interest of his wife in his real estate, is thus stated by 
Scribner on Dower (volume 1, p. 603, § 1) : "After the right of dower 
has once attached, it is not in the power of the husband alone to 
defeat it by any act in the nature of an alienation or charge. It is 
a right attaching in law, which, although it may never become abso- 
lute, — as if the wife died in the lifetime of the husband,— yet, from 
the moment that the facts of marriage and seisin concur, it is so 
fixed on the land as to become a title paramount to that of any per- 
son claiming under the husband by subsequent act. The alienation 
of the husband, therefore, whether voluntary, as by deed or will, or 


involuntary, as by bankruptcy or otherwise, will confer no title on the 
alienee as against the wife in respect of her dower, but she will be en- 
titled to recover against such alienee in the same manner as she would 
have recovered against the heir of the husband had the latter died 

In the case at bar the real estate in controversy was not "aliened" 
by the husband, as that phrase is ordinarily understood. He was de- 
prived of the title to this real estate involuntarily, and we may pre- 
sunie that the only act of his which led to his being deprived of his 
real estate by the law was his voluntarily contracting the debt made 
the basis of the judgment under which the real estate was sold. The 
decisions of the courts of last resort of the states in construing stat- 
utes like our own, and the decisions of the courts of last resort of the 
states whose statutes do not define dower, but follow the common- 
law rule, sustain the proposition quoted above from Scribner, as to 
the inability of a husband, by any voluntary act of his, to bar his 
wife's right of dower to his real estate after such right has once at- 
tached, either directly or indirectly. 

In Pifer v. Ward, 8 Blackf. (Ind.) 251, it was held that "if a me- 
chanic's lien accrue after the employer's marriage, and the employer 
die after the accruing of the lien, the right of dower of the em- 
ployer's widow will be paramount to the lien." And in Bishop v. 
Boyle, 9 Ind. 169, 68 Am. Dec. 615, it was held that "the widow's 
right of dower extends to and includes a house erected on land of her 
husband, and her claim is superior to a mechanic's lien for which the 
property was sold under a decree against the husband to enforce the 
lien." The court said: "The wife's dower is a favorite of the law, 
not resting in contract or resulting from the marriage relation. Hers 
is the elder lien. The mechanic bestows his labor with a knowledge of 
her prior right to the real estate, and he knows that the house he 
is building, as brick is added to brick and nail after nail is driven, 
becomes real estate. He may protect himself by security, or not ven- 
ture. She is passive, and can do nothing. It is for this reason that 
she is declared to be a favorite of the law." See, also Mark v. Mur- 
phy, '76 Ind. 534. 

In Schaeffer v. Weed, 3 Oilman (111.) 511, it was held that "a 
widow's dower cannot be affected by the lien created by the statute for 
the benefit of mechanics," etc., "but she is entitled to dower of all the 
real estate of which her husband was seised during coverture, unless 
she had released it in the form prescribed by law." In Gove v. Gather, 
23 111. 634, 76 Am. Dec. 711, it was held: "The enforcement of a 
mechanic's lien for improvements, made by the husband in his life- 
time, will not cut off his wife's right of dower, even to the extent of 
the value of such improvements." See, also, Dingman v. Dingman, 39 
Ohio St. 172. 

In Grady v. McCorkle, 57 Mo. 172, 17 Am. Rep. 676, William 
Grady owned certain lands, and agreed with his son Leonard that, if 


the latter would go on the lands and improve them, he would convey 
the same to him by way of advancement, and charge him with their 
value. Leonard took possession of the lands, and made improve- 
ments on them, and occupied the lands until his death. William 
Grady died not having conveyed the lands to Leonard. The widow 
and heirs of Leonard Grady brought a suit against the widow and 
heirs of William Grady for specific performance of William Grady's 
contract, and the court decreed a specific performance of the con- 
tract. The widow of William Grady was a party to this suit, and 
served with process, but made no appearance. After this the widow 
of William Grady brought suit for her dower interest in the lands, 
and the court held: "The alienation of real estate by the husband, 
whether voluntary, as by deed or will, or involuntary, as by pro- 
ceedings against him or otherwise, will confer no title on the stlienee, 
as against the wife, in respect to her dower;'* and that the suit for 
specific performance of the contract made by the widow's husband, 
and the decree enforcing such contract, did not bar the widow's dower 
rights, as they were not drawn in question in the specific performance 
suit; that the decree in that case had the same effect, and no more, 
than a deed would have had executed by William Grady alone at the 
time the decree was rendered, had he then been living. 

Section 3, c. 46, Gen. St. Minn. 1878, provides that a surviving hus- 
band or wife shall be entitled to and shall hold in fee simple an un- 
divided one-third of all lands of which the deceased was at any time 
during the marriage seised or possessed. A wife owned certain real 
estate. A judgment was obtained against the wife, and her lands 
levied upon and sold to satisfy the judgment The wife then died, 
and the husband brought suit against the purchasers of the real es- 
tate at the execution sale to recover his rights in said real estate; 
and in Dayton v. Corser, 51 Minn. 406, S3 N. W. 717, 18 L. R. A. 80, 
the supreme court of Minnesota held tfiat "the inchoate contingent in- 
terest of a husband or wife in real estate owned by the other, fixed 
[by the statute just quoted], and commonly called the 'dower right,' 
is not divested by a transfer of title from the owner of the property 
to a purchaser at an execution sale founded upon a judgment against 
such owner." The court said : "It hardly seems necessary to cite au- 
thorities to the proposition that at common law a wife could not be 
deprived of her dower rights in the real estate of her husband through 
a sale upon execution on a judgment obtained against him subse- 
quently to the marriage." See, also. Barker v. Parker, 17 Mass. 564. 

It is to be remembered that the^ language of our statute is that the 
widow shall have dower in all the real estate of which her husband 
was seised during the marriage, "unless she is lawfully barred thereof." 
Keeping in view the nature of a dower interest as defined by the com- 
mon law, and the reason and spirit of the common law on the subject, 
and the authorities just cited, we would feel safe in saying that the 
dower rights of the appellee in this case were not extinguished or 


barred by the sale on execution of her husband's real estate during 
his life, on a judgment rendered against him. But our statute has not 
remitted the courts for guidance entirely to the common law, and 
common-law decisions in respect of dower, for determining in what 
manner a wife or widow may be lawfully barred of her dower rights. 
Sections 12, 13, 15, c. 23, Comp. St. 1893, provide in what manner 
a married woman may bar her dower rights in the real estate of her 
husband. Substantially, these provisions provide that a married wo- 
man shall be deemed to have released or waived her rights to dower 
in her husband's real estate only by her voluntary act or contract 
And section 43, c 73, Comp. St. 1893, provides that a married woman, 
"to convey her right of dower she must execute a deed with or with- 
out her husband." And section 7 of said chapter 23 provides that 
"when a widow shall be entitled to dower out of any lands which shall 
have been aliened by the husband in his lifetime * * * that such 
lands shall be estimated in setting out the widow's dower according to 
their value at the time when they were so aliened.'* This statute is of 
itself a legislative recognition of the inability of a husband to de- 
prive his wife of her dower rights in his real estate by a direct or 
indirect alienation thereof ; and section 477 of the Code of Civil Pro- * 
cedure provides that judgments shall be a lien upon the lands of a 
debtor; and section 491a of the Code provides that, when an exe- 
cution shall be levied upon real estate, the sheriff shall cause the in- 
terest of the execution debtor in such real estate to be appraised at 
its real value; and by sections 499 and 500 of the Code it is pro- 
vided, in substance, that the sale of a debtor's real estate on exe- 
cution, and the conveyance of such real estate to the purchaser thereof 
at such sale, shall vest in such purchaser the interest which the execu- 
tion debtor had in said real estate at the time the judgment under 
which it was sold became a lien thereon. 

In the case at bar, David Butler had the title to the real estate in 
controversy at and before the time it was sold on execution, but that 
title was incumbered or burdened with the inchoate dower interest of 
his wife, the appellee ; and when the judgment was rendered against 
David Butler it became a lien upon the interest of David Butler in 
said real estate, but that lien was subject to the inchoate dower in- 
terest of the wife therein. When this real estate was sold, and the 
sale confirmed, and the sheriff executed a deed in pursuance thereof, 
he conveyed to Fitzgerald all the interest that David Butler had in this 
real estate; and such purchaser took the title to this real estate 
charged with the same burdens and incumbrances thereon that it was 
charged with* while the title rested in David Butler, — ^the wife's in- 
choate dower right. The rule of caveat emptor applies to a purchaser 
of real estate at a judicial sale thereof on execution ; and the convey- 
ance made to such a purchaser by the sheriff has no greater effect and 
conveys no greater estate than would a quitclaim deed for the premises 
executed by the execution debtor. Norton v. Trust Co., 35 Neb. 466^ 


53 N. W. 481, 18 L. R. A. 88, 37 Am. St. Rep. 441 ; lA, 40 Neb. 
394, 58 N. W. 953 ; Hamilton v. Mining Co. (C. C.) 33 Fed. 562. 
What the law. does not permit a husband to do directly he may not do 
by indirection; and, as we have seen it was not in the power of 
David Butler, by voluntarily alienating his real estate during his mar- 
riage, to deprive his wife of her dower rights therein, it logically fol- 
lows that the sale of David Butler's real estate on execution, on a 
judgment rendered against him alone, did not bar or extinguish the 
dower right of his wife or widow therein ; and it is immaterial wheth- 
er the debt on which such judgment was rendered was contracted vol- 
untarily or otherwise by the husband. We accordingly hold and decide 
that the sale of the real estate of a husband under execution on a judg- 
ment against him alone, followed by judicial Confirmation and convey- 
ance, does not extinguish the inchoate dower of the wife in such real 
estate^ and that upon the death of the husband the widow is entitled to 
have her dower assigned out of such real estate, ♦ ♦ ♦ 

3. Re^EASH BY WiPit 


(Court of Appeals of New Tork, 1886. 103 N. T. 153, 8 N. B. 477.) 

Appeal from judgment of general term of the supreme court, Sec- 
ond department, affirming judgment of Kings county special term. 

A mortgage by Shea, his wife joining, was of a date subsequent 
to the recovery of a judgment against him by a third person; and 
the sheriflF, proceeding upon a writ of execution regularly issued, lev- 
ied upon the mortgaged premises, and sold them, and, there being no 
redemption, executed his deed to one Anne Horgan, she being the 
highest bidder. Shea afterwards died, and consequently his wife's 
inchoate right of dower became a vested one, Anne Horgan there- 
after conveyed her interest to the widow. Afterwards, by the pres- 
ent suit, the widow's dower was sought to be subjected to the pay- 
ment of the mortgage debt. PlaintiflF had judgment below, and de- 
fendant appealed. 

Andrews, J. The joinder by a married woman with her husband 
in a deed or mortgage of his lands does not operate as to her by 
way of passing an estate, but inures simply as a release, to the gran- 
tee of the husband, of her future contingent right of dower in the 
granted or mortgaged premises, in aid of the title or interest conveyed 
by his deed or mortgage. Her release attends the title derived from 
the husband, and concludes her from afterwards claiming dower in 
the premises, as against the grantee or mortgagee, so long as there 
remains a subsisting title or interest created by his conveyance. But 


it is the generally recognized doctrine that when the husband's deed 
is avoided, or ceases to operate, as when it is set aside at the in- 
stance of creditors, or is defeated by a sale on execution under a 
prior }udgment, the wife is restored to her original situation, and 
may, after the death of her husband, recover dower as though she had 
never joined in the conveyance. Robinson v. Bates, 3 Mete. (Mass.) 
40; Malloney v. Horan, 49 N. Y. Ill, 10 Am. Rep. 335; Kitzmiller 
V. Van Rensselaer, 10 Ohio St, 63 ; Littlefield v. Crocker, 30 Me. 192. 

In short, the law regards the act of the wife in joining in the deed 
or mortgage not as an alienation of an estate, but as a renunciation' 
of her inchoate right of dower in favor of the grantee or mortgagee 
of her husband in and of the title or interest created by his convey- 
ance. It follows, therefore, that her act in joining in the conveyance 
becomes a nullity whenever the title or interest to which the renuncia- 
tion is incident is itself defeated. Scrib. Dower, c. 12, § 49. The 
wife's deed or mortgage of her husband's lands, cannot stand inde- 
pendently of the deed of her husband, when not executed in aid 
thereof, nor can she by joining with her husband in a deed of lands 
to a stranger, in which she has a contingent right of dower, but in 
which the husband has no present interest, bar her contingent right. 
Marvin v. Smith, 46 N. Y. 571. 

These principles are, we think, decisive of this case. The plaintiff's 
mortgagee has been defeated by the paramount title derived under 
the execution sale. It was the husband's mortgage, and not the mort- 
gage of the wife, except for the limited and special purpose indicated. 
The lien of the mortgage, as a charge on the lands of the husband 
has, by the execution sale, been subverted and destroyed; nor can 
the security be converted into a mortgage of the widow's dower, now 
consummate by the death of her husband. This would be a perver- 
sion of its original purpose. Her act in signing the mortgage became 
a nullity on the extinguishment of the lien on the husband's lands. 
If on the execution sale there had been a surplus applicable to the 
mortgage, it might very well be held that the widow could not be 
endowed therein, except after the mortgage had been satisfied. The 
surplus would represent in part the mortgaged premises. See Elmen- 
dorf V. Lockwood, 57 N. Y. 322. 

We think the authorities require a reversal of the judgment. Judg- 
ment reversed, and complaint dismissed, with costs. All concur, ex- 
cept MiLi^EB, J., absent. 


4. Widow's Election 


(Supreme Court of niinois, 1893. 148 lU. 641, 36 N. E. 611.) «* 

Appeal from circuit court, Winnebago county; John D. Crabtree, 

Bill by Eliza A. Warren against John H. Warren, individually, and 
as executor of the last will and testament of Alpha Warren, deceased, 
Edward S. Warren, Harriet N. Warren, and Roy Warren. There 
was a decree granting complainant only part of the relief prayed 
for, and she appeals. Reversed. 

Magrudkr, J.,*" (after stating the facts.) The first question aris- 
ing upon the assignments of error is whether or not the appellant is 
entitled to have dower assigned to her in the lands of her deceased 
husband. Sections 10 and 11 of the present dower act, which was 
approved on March 4, 1874, and went into force on July 1, 1874, are 
as follows: 

(10) "Any devise of land, or estate therein, or any other provision 
made by the will of a deceased husband or wife for a surviving wife 
t)r husband, shall, unless otherwise expressed in the will, bar the 
dower of such survivor in the lands of the deceased, unless such sur- 
vivor shall elect to and does renounce the benefit of such devise or 
other provision, in which case he or she shall be entitled to dower in 
the lands and to one-third of the personal estate after the payment 
of all debts." 

(11) "Any one entitled to an election under either of the two pre- 
ceding sections shall be deemed to have elected to take such jointure, 
devise or other provision, unless, within one year after letters testa- 
mentary of administration arie issued, he or she shall deliver or trans- 
mit to the county court of the proper county a written renunciation 
of such jointure, devise or other provision." 

Section 13 prescribes the form of renunciation, by the terms of 
which the surviving husband or wife does thereby "renounce and quit- 
claim all claim to the benefit of any ♦ * * devise or other pro- 
vision made to me by the last will and testament of the said * * * 
and I do elect to take in lieu thereof my dower and legal share in 
the estate of the said * * *." 

As the appellant did not renounce the provisions of the will within 
one year after letters testamentary were issued to the executor of 
Alpha Warren's estate, it would seem to be clear that she had elected 
to take under the will, and that she is not entitled to an assignment 

14 Rehearing denied. 

15 The statement of facts and part of the opinion is omitted. 


of dower in the testator's lands under the decisions of this court. 
Cowdrey v. Hitchcock, 103 111. 262; Stunz v. Stunz, 131 111. 210, 
23 N. E. 407; Cribben v. Cribben, 136 111. 609, 27 N. E. 70. 

It is contended by counsel for appellant that the acceptance by the 
widow of the provision made for her in the will will not bar her 
dower, luiless such provisions shall be a reasonably adequate com- 
pensation for the loss of what she would have been entitled to under 
the statute if there had been no will. This contention is based upon 
the decision of the circuit court of the United States for the seventh 
circuit in the case of U. S. v. Duncan, 4 McLean, 99, Fed. Cas. No. 
15,002, where a liberal construction was given to sections 39 and 40 
of the act of this state in. regard to wills in force in 1829, (Rev. Laws 
1833, p. 624.) But a comparison of sections 39 and 40 of the act 
of 1829 with sections 10 and 11 of the act of 1874 will show that 
the phraseology of the former is different from the phraseology of 
the latter. By the terms of said section 11, if the surviving husband 
or wife fails to renounce within the year, he or she shall be deemed 
to have elected to take the provision given by the will. The direc- 
tions of the statute are explicit, and a compliance with them can work 
no harm to any of the parties concerned. Section 10 directs that the 
devise or other provision made by the will shall be a bar to dower 
"unless otherwise expressed in the will." If, therefore, a husband de- 
sires to make, in his will, a provision for his wife, which shall not 
operate as a bar to her dower, he can therein state that such pro- 
vision is not to be in lieu of dower, in which case she will take both 
her dower and what is devised or bequeathed to her. If the widow 
deems such devise or bequest an inadequate compensation for dower, 
she can file her renunciation within the time specified, and thereby 
take what she is entitled to under the statute. 

In the present case, however, we are not satisfied that the provi- 
sion made for the appellant by the will is not a reasonably adequate 
compensation for her dower, if the doctrine of the Duncan Case 
should be held to be applicable. It is conceded that the personal es- 
tate of the deceased testator has been exhausted in the payment of 
Lhe debts and expenses of administration, and that no personal prop- 
erty would have passed to appellant if her husband had died intes- 
tate. All that she could have received in any event was dower in the 
lands. All that her dower, when assigned and set off would amount 
to, would be the right to use the one-third in value of her husband's 
lands, and draw the rents and profits thereof, during her life. The 
will, by directing that one-third of the annual rents and interest, after 
deducting certain expenditures, shall belong to her, gives her what is 
substantially equivalent to the value of her dower in the real estate. 

Counsel refer us to a number of cases which hold that the wife 
cannot be deprived of her dower by a testamentary disposition in her 
favor, so as to put her to her election, unless the testator has de- 



dared the same to be in lieu of dower, either in express words or by 
necessary implication. Under the rule laid down in most of these 
cases, the testator will not be presumed to have intended the provi; 
sion in his will to be a substitute for dower, unless the claim of dower 
would be inconsistent with the will, or so repugnant to its provisions 
as to disturb and defeat them. Adsit v. Adsit, 2 Johns. Ch. (N. Y.) 
448, 7 Am. Dec. 539; Smith v. Kniskem, 4 Johns. Ch. (N. Y.) 9; 
Wood V. Wood, 5 Paige, 595 ; Fuller v. Yates, 8 Paige (N. Y.J 325 ; 
Church V. Bull, 2 Denio (N. Y.) 430, 43 Am. Dec. 754. The deci- 
sions referred to will be found, upon examination, to have been ren- 
dered in the absence of such statutory provisions as exist in this state, 
and such decisions are consequently inapplicable to the case at bar. 
The great object in construing the wills which the courts there had 
under consideration, was to ascertain the intention of the testator 
upon the question whether or not the testamentary disposition was 
to be taken in lieu of dower. Even in the Duncan Case« supra, the 
reasoning of the court proceeds largely upon the ground that the 
testator will not be presumed to have intended his bequest or devise 
to be a substitute for dower if its amount or value is, to a very con- 
siderable extent, less than the amount or value of the dower. But, 
under the peculiar terms of the Illinois statute, the provision in the 
will is declared to be a bar, unless the intention that it shall not be a 
bar is expressed in the will. The statute makes the silence of the 
testator the conclusive index to his intention, and it also makes the 
failure to renounce within a specified time conclusive evidence that 
the surviving husband or wife has elected to take under the will. 

We think, however, that if the rules laid down in the authorities 
relied upon are applied to the interpretation of the will in this case, 
there will be disclosed an intention, to make the testamentary provi- 
sions a substitute for dower, and not a gift in addition to it. Alpha 
Warren drew his own will, and he therein designates the portion of 
the "annual rents and interest" given to his wife >s "one-third of 
income belonging to her as dower." If the one-third of the income 
specified in the will was to be her dower or "dowery," he could not 
have intended that she should have another dower outside of and in 
addition to that given by the will. Again, after directing that one- 
third of his net annual income shall belong to his wife, he directs 
that the other two-thirds thereof shall belong to his son, John H. War- 
ren. If the wife was to have dower besides the third of the income 
given her by the will, the son could not take the two-thirds of the 
income therein devised to him. The widow, in such case, would vir- 
tually have two-thirds, and only one-third would be left for the son. 
It follows that the claim of dower on the part of the widow is incon- 
sistent with the provisions made for the son in the will, and so re- 
pugnant to them that, if allowed, it would defeat them. A case might 
arise where the widow, in accepting the testamentary disposition, acted 


without full knowledge and understanding of her true situation and 
rights, and of the consequence of her acceptance. 4 Kent, Comm. 
p. 58. It might then be necessary to determine whether the lapse of 
more than a year without renunciation would cut her oflF from the 
privilege of making her election. U. S. v. Duncan, supra ; Cowdrey 
V. Hitchcock, supra. But here it appears that the widow was correctly 
advised as to her testamentary rights and her statutory rights and 
the value of the one as compared with the other. 

Counsel further insists, that the dower of the appellant is not barred 
because the devise is not to the wife, but to the executor in trust for 
her benefit. Under the English statute of uses a jointure was not 
available to bar the witlow's dower, unless the settlement was to the 
wife herself, and not to any other person in trust for her. Van Ars- 
dale V. Van Arsdale, 26 N. J. Law, 404. It has also been held that 
a devise of lands to trustees for the benefit of the wife does not nec- 
essarily indicate intention to defeat dower, as the trustee may take 
the lands subject to its legal incidents, that of dower included. Wood 
V. Wood, supra ; CBurch v. Bull, supra. But the language of our 
statute is broad enough to include devises toVustees for the benefit 
of the wife, as well as those directly to the wife herself. It would be 
a narrow construction that would exclude a devise to a trustee from 
the meaning of the following words in section 10: "Any other provi- 
sion made by the will of a deceased husband or wife for a surviving 
wife or husband/' The use of the word "for" forbids a limitation 
of the meaning to devises made to the wife. * * * 


x^ HOMBBTISADS , , ^ ; / 


L Who Entitled to Homestead * 



(Supreme Court of Iowa, 1905. 128 Iowa, S61, 104 N. W. 1139, 4 L. R. A. 

[N. S.] 866.) 

Appeal from District Court, Muscatine County ; James W. Bollinger, 

Mary A. Scott, a widow, died intestatp May 13, 1903, seised of the 
following real estat e: Lot 9 in block 71, in the city of Muscatme; 
also lot 8 and the east half of lot 9 in block 106, and lot 8 in block 107. . 
Ten children survived her , one of whom ^ Georye E. S cott^ yas in- 
d ebted to the plaintiff on a promissory no^ e of $1,500, dated February 
14, 1898, with interest at 6 per cent, per annum on which this action 
was begun June 2, 1903, a jded by writ of attachment, which was levied 
on Scott's interest in the above reai estate June 20, 1903. He answered 
bv admitt infr j^^ indpl;>t<^dne..^j^ anH ^ll egjng that lot 9 in blo ^1<- 7^ ^T^*^ 
the homestead of deceased and for that reason exempt from th e lew. 
Tf?^n Fi ^"^ f^^tnp i ptervftned . and in his petition alleged the purchase 
of the east half of lot 9 and lot 8 from Mary A. Scott January 3, 1903 ; 

'^J^^?^g^ ^' -^^^^ ^^^ ronvev^^ his interest therein to him, and he 
^ld tP^*""^ pr^cc^c^c^jpn^ a^l prinr to th e |yw, which he p rayed t9 hgye 
va g^^ed . The reply put in issue the allegations of the answer and pe-/^ 

tition of intervention. On hp^^jt^y iiiHym<^i^t yrag ^nt^rp^ flgraJt^RtV^ 
George E. Scott as proved. Tnt Q in WncV 71 waq aHjnHypH tr> lv> ^-^O^ 
exempt as the hymf >gtpaH nf Hprp^<^pH Emma De Camp was substitute ^ 
ed as intervener, an d her petition dismissed, and the oropertv othe r 
t han the homestead ordered to be sold and the proceeds applied (Qn 
t he judgmen t. The plaintiff and intervener both app eal ; that of the 
former being first perfected. Affirmed. 

Ladd, J.* The husband of Mary A. Scott died in 1898. From that 
time until April, 1903, she operated the Scott House, a hotel in Musca- 
tine. .In April, 1902, she purchased lot 9 in block 71, but did 
not move into the house thereon until April 7, 1903. Shortly after- 
wards she was taken sick, and died May 13th of the same year. The 
contention of the plaintiff is that this lot was no t her ho meste^4 ft t ^ ^ 
t ime of her _ deathy and theretore the interest ^f 9^,orfi^ ^ ^"^Qtti ^"^^ 
o f her ten surviving children, therein should be subjected to the lien 
of her judgment . Qur statute provides thai; the homestea^ j \^ pvpinpt 
f rom the precedent debts of the heirs of the owner . All of Mary A. 

1 For discussion of prindples, see Burdick, Real Prop, i 63. 
t Part of tbe opinion is omitted. 



Scott's children had attained their majority. One son, Frank E. Scott, 
and a daughter, Mrs. Fahey, and the latter's daughter, had been living 
in the house with her for over a month, when she died. It was her 
hpme^ and tl^^ controversv is whether her rel^ tjffims witfy fhfi'if ^^^^^<-<^" 
ere such that she and thev. or eit her ftf fht^m^ rr^ncHHiti^H a family ; 
in this state th e exemption of the homestead is to the family . A 

amily, and therefore cannot claim a homestead, 
unless continuing in possession as surviving spouse. FuUerton v. Sher- 
rill, 114 Iowa, 511, 87 N. W. 419; Emerson v. Leonard, 96 Iowa, 311, 
65 N. W. 153, 59 Am. St. Rep. 372. ** Familv'> has been defined as 
a roll^c^^ ve ho^y ^^ pprQni^<^ Y^ho live in one house under one head or 
manager. Tyson v. Re3molds, 52 Iowa, 431, 3 N. W. 469; Parsons 
V. Livmgston, 11 Iowa, 104, 77 Am. Dec. 135. But thi s is not ac - 
A curate, for strangers might thus band themselves together and liv e 

tytfr- Tinder the direction of a lead er. To constitute one or more ^persons, 
with another, iiving together in the same house, a family, it must ap- ^ 
pear that they are being supported by that other in whole or in part, V^ 




and are dependent on him therefor^ and, further, that he is under a 
natural or moral obligation to render such support. Fox v. Ralston, '' 
126 Iowa, 481, 102 N. W. 424. 

Does the evidence indicate that such . a relation existed between 
Mrs. Scott and those who lived with her? The record has convinced 
IS that Frank E). S^cntt tb^^iyr h Over 40 vears^ol d. waf; depen Hent ()p 
the deceased for his support . He had been married, but was divorced. 
He was lazy, addicted to the excessive use of intoxicating liquors and 
morphine, and was reputed a gambler. He had kept a butcher shop, 
but, upon his father's death in 1898, returned to the Scott House, 
where he lived until his mother's removal to the premises in contro- 
versy. For several years one Weaver had charge of the hotel office, 
and Frank did chores about the hotel. After Weaver left he took 
charge of the office; kept the books, and received money, but one Kline 
was allowed part of his board for sleeping in the office and caring 
for him when disabled by the use of alcohol or morphine. That during 
this time his mother supplied him with money is doubtless true, and 
he may have construed that received as wages. Indeed, he testified 
that she had paid him "diflFerent prices at diflferent times — ^about $10 
a week and my board"; that "mother always paid all of her children 
wages; that mother paid me wages up to her death, and I know she 
paid my sister Mrs. Fahey every Saturday night." Nowhere does he 
undertake to state that any agreement was had as to what he was to 
receive, or what was in fact paid or when ; and, aside from his desig- 
nation of what she gave him as wages, his testimony is not inconsistent 
with the thought that she merely gave him enough to supply his wants, 
which may have been more or less than wages. During the six weeks 
prior to his mother's death, he did nothing but chores about the house, 
and since then he had continued in that occupation for his board with 
his sister. Of course, he always has been intending to leave, but, 


through the persuasion of mother and sister, remained "until he got 
ready to settle." He admits that he threatened the defendant that 
he would "swear to a lie," rather than allow him to succeed, and this, 
with his appearance on the stand, doubtless led the district court to re- 
ject the story of having been merely an employe of his mother, and 
adopt the more reasonable conclusion, deducible from the record, that, 
through excesses, he had become practically incapable of caring for 
himself, and was being maintained by his mother, because of the natu- 
ral obligation to her child. The relation of Mrs. Fahey was not shown 
to have been that of a dependent, though she lived with her. But the 
two jgere enough to. and did, con stitute a family, withiq t^^ meaning 
of the law . Fox v. Ralston, supra, and cases cited. 

Lulii^s on objections to question^ propounded to different witnesses, 
and also the taxation of costs, are assigned as errors, but not argued, 
and for this reason not decided. The proof ^ indeoe []ftff|]t nf *^"^^ 
e vidence, however, was sufficient to show that deceased, who was 79 
years of ae;e. was occupving the premises as h^r jiome; a nd as she. 
with her r ^,^pendpnt .<sr)^, ^ftjp stituted a family, the co urt ^ight^ dSfiidsd 
lat the property was exempt as a homestead. *'*'y" ♦/ *" •- 



\ 11. How Acquired * ^ ^^^Z/ 

'X^JX.^^ (jb 


(Supnune Court of Kansas, 1883. 50 Kan. 765, 82 Pae. 887.) 

Error from district court, Atchison county ; Robert M. Eaton, Judge. 

Action by Lemuel Ingels against Milliard F. Ingels and Eliza Ingels. 
There was judgment for plaintiff, and defendants bring error. Af- 

All^n, J. On the 22d day of June, 1889, 4fifendant inj^rrnr nh- 
tained a judgment in the district court of At chison county*. Kan., 
a gainst T. T. Ingels and M. F. Ingels for the sum of $906.90 ajid 
costs of suit . On the 9th day of August, 1889, execution was issued 
on said judgment to the sheriff of Atchison county. On the 19th of 

s In North Dakota it has been recently held that a divorced husband, de- 
prived of the custody of the chUdren, is not the head of a family. Holcomb 
V. Holoomb, 18 N. D. 561, 120 N. W<. 547, 21 Ann. Cas. 1145 (1909). In Missis- 
sippi, it is held, however, that a widower whose minor chUdren are absent at 
school in another state may claim a homestead. Roberts t. Thomas, 94 Miss. 
219, 48 South. 408, 136 Am. St Rep. 573 (1908). Under some of the statutes, 'v^ ' 
pgraon^ ofc h^^ *'^*'" *iefl(li? ^ f families may iiflvft the exemption p'HvIlQsajQf !a ^ ^ 
hol besbad . «*»^ Wnim y. P«ii]y, ii ^«i Ann 7^4,-106 ■£&&. 266 09091; Mc- 
LangEBS^. CoUins, 75 N. H. 557, 78 Ati. 623 (1910). 

4 For discussion of principles, see Burdick, Real Prop. 8 64. 

Bubd.Gas.Real Prop. — 1 



August, 1889, s^jd sheriff levied the same on lot 11. anrl th^ wi>st 40 
feet of lot 12, block 11, in that part of the city of Atchison commonly 
known as "West Atchison." The sheriff duly advertised this property 
for ^al e. and on the 26th day of September. 1889, sold the same to th e 
p laintiff below for the sum of $157 . Motions were thereafter filed 
both to confirm and set aside said sale. These motions were heard 
at the same time. The motion to set aside the s? >1<* w^a nvprmlpH, ^d 
the ipnti on to confirm was sustained . The defendants below excepted 
to the ruling of the court on tiiese motions, and bring the case here 
for review. 

Two points are urgred bv rnnnQPl inr tfi^ plainfiffQ in ^ttc^t One 

is that the appraisement is defective, because the appraisement fail s 
to state that the appraisers made an estimate of the real valine of tfie^ 
property . The appraisement does state that the appraisers, being .first 
duly sworn impartially to appraise the said property upon actual view, 
had truly and impartially appraised said property^ and that the par- 
ticular property in controversy was appraised at $150 . We i;hjn1f thjs 
a substantial compliance with the statute . Jt is not necessary that 
the precise language of the statute be used in the report of the ap- 
praisers. We think that the appraisement in this case fairly shows 
that the property was appraised at what the appraisers deemed its real 
lvalue. This is a substant ial compli ance with th e requir eme nt of th e 

The principal question presented for our consideration is whethe r 
' *^ pr not this property ^a§ a homestead, and therefore exempt f r om lev y 
and sale. The facts with reference to the matter, as appears from the 
record, are as follows: The plaintiflFs in e xx^^ fnrmAriy r>wTipH ^^A 
occu pied a homestead in West >\trhiQon lyfnjgt? \\\ ^v sold i n the yg ar 
1887^ expecting and intenc^iflf at the fi'm^ fc^ rPinvP<s^, the prnrpeHg jn 
another homestead . 5>flfm t,t]y yeaf ter they invested a part pf the pr o- 
pe^^s of thjj; f^^\^ in thig PfftP^^tY ^'" OT^^^^^^^^Yi fPF t^^ £urpos<SJ^id 
odth the intention of making it their permanent . homestead. Atjthe 
time of the purc hase there was no house or other buil ding thereon, 
apH the, same was not inclosed. They inclosed the lots with a fenc^, ^ 
and, as fast as they were able, proceeded to and had hauled on said>^ 
lots materials, stone, lumber, etc., with v yhir.h to hnild a dwelling hous e 'iL^\ 
apH hiiilH iny to occupy as a homestead. Milliard F. I ngels the n took 
a contract at Valley Falls to bore for coalp ^d tg mporarilv mo vec^ to 
V alley Falls, to be nea r his^vork, and intending to return to his home- 
stead, complete his dwelling house, and occupy the sa(ne as his perma- 
nent homestead. While he was still engaged on his contract at VaHe y 
Fall s, and before he had completed the same, on the 19th dav of An- 
^ust, 1889, the sheriff levied said execution on said property, an d sold 
tne^ame a s be fore^tated. The plaintiffs in error have no other home- 
stead, an3^ no other real estate of which to make a homestead. Aiter 
t h^ levy the defenda nts below built a laOUS£^on_^^Sai4..iotS; whi ch they 
occupied at the time of the" sale. The defendants never occupied the 


premises in question from the time they were purchased by the defend- 
ants, in March, 1887, till after the making of the levy thereon; and 
at the time said judgment was rendered and at the time the levy was 
made, t he said premises v^fere. vacant and unoccupied^ excepting tha t 
thev were incloj^pd hv an old ie.ncf. 

The facts in this case are to be gathered from the affidavit made by 
both plaintiffs in error, and also from an agreed statement of the 
facts made by both parties, and included in the record. The state- 
ments with reference to the placing of building materials on the lots 
are contained in the affidavit. From the agreed statement it appears 
t hat the def endants never occupied the premises in question from th e 
time thev purchased them to the time of ^he Iqw. ;^ty(| ^hat at the 

t ime the mdgment was rendered and at the ^\me of the lew the premi s- 
e s were vacant and unoccupied, except that they were inclosed by 
an old fence, we can only harmonize the facts gathered from the 
affidavit with those contained in the agreed statement of facts by con- 
cluding that whatever building materials had been placed on the lots 
were removed therefrom before the levy was made. It clearb 
pear<8 frnm the wh ple record f\f^i; fhe nremisei^ v^ ere ney^r m ^^gj : 99 - 
CUpied b y the Higf^nHantc ag a Vinmes ^^aH ai^^ also tha t ^j; ]^\\^ tiTT|e 

the^ ludpnent was rendered and the lew niade the lots were vacant and 

The question is now presented for our consic^eration as to whethe r 
the purchase of ttiis property for a homestead, and the int ention in 
t Re minds of these parties to make it a homestead in the future, is 
s ufficient to supply the reoi^irement of occupancy contained in th^ co n - 
sti tution. Section 9, art. 15. of the constitution reads as follows : 

ec. 9. A homestead to the extent of one hundred and sixty acres of 
farming land, or of one acre within the limits of an incorporated town 
or city, occupied as a residence by the family of the owner, together 
with all the improvements on the same, shall be exempted from forced 
sale under any process of law, and shall not be alienated without the 
joint consent of husband and wife, when that relation exists; but no 
property shall be exempt from sale for taxes, or for the payment of 
obligations contracted for the purchase of said premises, or for the 
erection of improvements thereon: provided, the provisions of this 
section shall not apply to any process of law obtained by virtue of a 
lien given by the consent of both husband and wife." 

This section of the constitution has been considered and construed 
by this court in numerous cases. In the case of Edwards v. Fry, 9 
Kan. 417, Mr. Justice Brewer, speaking for the court, used the follow- 
ing language: "We know the spirit which animates the people of 
Kansas, the makers of our constitution and laws, on this homestead 
question. We note the care with which they have sought to preserve 
the homestead inviolate to the family. We have no disposition to 
weaken or whittle away any of the beneficent constitutional or statu- 
torj provisions on the subject. We know that the purchase of a home- 


Stead, and the removal onto it cannot be made momentarily contempo- 
raneous. It takes time for a party in possession to move out, and then 
more time for the purchaser to move in. Repairs may have to be 
made, or buildings partially or wholly erected. Now, the law does 
not wait till all this has been done, and the purchaser actually settled 
in his new home before attaching to it the inviolability of a homestead. 
A purchase of a homestead with a view to occupancy, followed by 
occupancy within a reasonable time, may secure ab initio a homestead 
inviolability. Vpj^ pT^i pation is nevertheless an essential element to 
s ecure this inviolabilitv ." 

Agam, m the case of Monroe v. May, 9 Kan, 466, it was held : "A 
purchase of a homestead with a view to occupancy, followed by oc- 
cupancy within a reasonable time, receives from the time of purchase 
a homestead exemption from seizure upon execution or attachment." 
The facts in that case with reference to the occupancy are briefly these : 
Monroe, the judgment debtor, owned a farm, which he sold in No- 
vember, 1870, receiving in exchange a house and lot in Atchison and 
$1,600 in notes. Possession, by agreement, was to be exchanged on 
the 1st of March following. The exchange was so made, and this 
city property was occupied and claimed by Monroe and wife as their 
homestead. The court in that case came to the conclusion that the 
Monroes became actual occupants of this property within a reasonable 
time after its purchase, and that it was exempt to them as a homestead. 
The time intervening between the purchase and taking possession was 
four months or less. 

Again, in the case of Gilworth v. Cody, 21 Kan. 702, it appeared 
that Cody, on December 1, 1877, purchased 80 acres of land for the 
purpose of present use as a' residence. The land was vacant at the 
date of the purchase. Cody commenced at once to dig a cellar, and 
haul stone for a dwelling house. On December 5th, he started to a 
neighboring town to purchase materials out of which to erect a dwell- 
ing house. He made such purchase, and returned with the materials 
on December 7th. He unloaded the materials adjoining the premises 
on the same day the premises were levied on under the order of attach- 
ment. Cody continued the construction of his dwelling house, and 
completed the same December 28, 1877, and moved at once with his 
family into the dwelling, and occupied it as the residence of himself 
and family. Chief Justice Horton, in delivering the opinion of the 
court, used the following language, after having reviewed the author- 
ities on the subject: "These decisions clearly establish the doctrine 
that our homestead laws, beneficial in their operation, and founded 
in a wise policy, should be liberally construed, so as to carry out their 
spirit. Considered in this light, in this case there was such an actual 
purpose and intention of present occupancy, accompanied with such 
acts on the part of the defendant in error in the commencement and 
completion of his dwelling, together with his residence therein with his 
family, that this might reasonably be held to amount in substance to 


actual occupancy at the date of the levy. While, therefore, we hold, 
within the terms of the law, that occupation is an essential element to 
secure a homestead inviolability, under the exceptional circumstances 
which appear from the findings of the court, the intentions and acts 
of the purchaser of the land in controversy may be construed into 
a legal equivalent of actual occupancy of such premises. Law is en- 
titled to and can command respect only when it is reasonable, and 
adapted to the ordinary conduct of human affairs; and the construc- 
tion we have given above to the provisions securing homestead exemp- 
tions is certainly within their spirit, and more in consonance with a 
reasonable interpretation thereof, than if we adopted the opposite 

Counsel for the plaintiffs in error calls our attention to the case 
of Reske v. Reske, 51 Mich. 541, 16 N. W. 895, 47 Am. Rep. 594. 
The opinion in that case was delivered by Justice Cooley, and carries 
the doctrine of constructive occupancy for a homestead to the furthest 
limit yet reached by any court, so far as we have been able to review 
the authorities. It appeared in that case that the defendant purchased 
the lot in controversy in Detroit in January, 1880. He was a single 
man at the time of the purchase, but soon thereafter married. He then 
fenced the lot, and commenced making use of it. He built a barn and 
shed, dug a well, kept his horses, his hogs, and his poultry, and also 
piled wood, which he kept for sale, on the lot. At first he lived at 
some considerable distance, but afterwards took board across the way, 
and remained there while building. In the spring of 1881 he obtained 
figures from a builder on the cost of a house, but, not being able to 
go on, he did not then build. It was towards the end of 1882 before 
they were able to put up a house, and they were not living in it till 
1883. In November, 1882, judgment was taken against the defendant, 
and execution levied on the lot. The court in that case comments on 
the fact that the defendant was all the time in the actual occupancy 
of the lot, and was from time to time, doing various acts tending 
towards the construction of such buildings and conveniences as were 
required in order to make it a home. The period of time intervening 
between the purchase of the lot and the levy of the execution was a 
few months longer than in this case. It will be noted, however, that 
in this case it is expressly admitted that there was not at any time 
actual occupancy of the premises by the defendants from the time of 
the purchase till the date of the levy. In that case the defendant testi- 
fied, and the court quotes from his testimony the following language, 
"I built every day as soon as I got a little money ahead." The court 
evidently took the view of the case that the defendant's delay in the 
construction of his dwelling house was due solely to his poverty, and 
that he was all the time making a determined effort to actually fit the 
premises for occupation by himself and family. He not merely had 
the purpose in his mind to make the lot his homestead, but was actu- 
ally at work, from time to time, on the lot, preparing it for a home. 


In the case of Swenson v. Kiehl, 21 Kan. 533, the syllabus of the 
case is as follows: "(1) Homestead occupation. Occupation, actual 
■or constructive, is essential to give the character of homestead to 
premises. (2) * * * Intent when purchased. While occupation 
need not always be instantaneously contemporaneous with purchase to 
create a homestead, yet the purchase must always be with the intent 
of present, and not simply of future, occupancy." In that case the land 
was purchased by the execution debtor on November 13, 1876. The 
judgment on which the execution was issued was rendered in 1873. 
One execution was issued February 5, 1877, and another February 23, 
1877. The sale was made under the latter execution. There was a 
house on the land, but the defendant failed to occupy it as a residence 
for more than a year after the purchase, and in iiiat case Mr. Justice 
Brewer, in the opinion, says : " 'Occupied as a residence by the family 
of the owner,' is the language of the constitution defining a homestead 
exemption. We are aware that occupancy is not always possible at 
the instant of purchase, and that, as we have heretofore said, a reason- 
able time is allowable in which to prepare for and to complete the 
removal and occupation of the intended homestead, but the purchase 
must be for the purpose and with the intent of present, and not simply 
of future, use as a residence." 

In the case of Farlin v. Sook, 26 Kan. 398, it was held: "Under 
the homestead exemption laws no person can hold property exempt 
from execution or forced sale unless the property is 'occupied as a 
residence by the family of the owner.' Therefore, where the owner of 
the property resides upon the same, but his family, consisting of a 
wife and children, have never been in Kansas, but reside in Illinois, 
and it is not, and never has been, the intention of the owner to bring 
them to Kansas, or to have them reside upon the property, held, that 
the owner cannot hold the property exempt from execution and forced 
sale under the homestead exemption laws." In the case of Koons v. 
Rittenhous, 28 Kan. 359, it appeared that a husband and wife resided 
in New York in 1871. The husband, desiring to change his place of 
residence, came to Kansas, and purchased real estate, and resided 
thereon for about four years, then sold the same, and executed a deed 
therefor, representing himself to be a single man. About a year after- 
wards the wife came to Kansas, and thereafter resided upon the land 
with her husband, and it had been at all times the intention of the 
husband and wife that she should at some time come to Kansas, and 
reside upon the land with him. It was held that the land had never 
been occupied as a residence by the family of the owner in accordance 
with the exemption law, and that the deed from the husband alone 
was therefore not void. Again, in the case of Bradford v. Trust Co., 
47 Kan. 587, 28 Pac. 702, in concluding the opinion, Chief Justice 
Horton says: "Under the constitution, there must be occuoanc v as 
a residence by some one of the family of Jhe owner to consti tute a 
homestead." ' 



We do not think there is any real conflict in the authorities cited, 
nor do we think that the Michigan case goes to the limit which the 
plaintiff in error asks us to reach in this case. Whatever our views 
might be as to the propriety of allowing a debtor to hold a tract of 
land for a homestead, whether occupied or not, we are bound to de- 
clare the law as we find it, and, while this court in the cases cited 
has given the constitutional provision a liberal construction for the ' 
purpose of fully securing to needy debtors the beneficent exemption 
secured to them by the constitution, yet we may not wholly dispense 
with the requirement of occupancy. Can it be sai d that th ese lots , 

ttiniiyyji y^t^rif a^^ whollv uno <;^yniVH inr a nerinH nf fllQjp^ .tfean. tWO 

years, were in the construc^yg pccuoancy of the defendants, becaus e 
t hey were_ purchased with the proceeds o f a former, ho^Qfigiifif fj,, and 
t he^def endants intended, as soon as they should be able to build ther e- 
on, to occupy them ? If we hold these lots to have been a homestead 
lurmg all this time, by what course of reasoning can we ever fix a 
limit within which actual occupancy must take place? The ^(J mj g gion 
contained in the. rprnrH f]\^f fhp Hpf PnHantQ npver ocriinied the lots or 

p remises if] giipgtmn [ifff tn from tj^^ ijpi^ fh^y w ^ r f purc hased b y 
t he defendants, in M^^cji, '[ 9R7. up iq \\\^ ^imp snhgpgnpnt to the maJ c- 
i h^ of the lew herein, (which was on Auyist 19^ 1889,) and that a 
t he time oftheJesQLJh^-D remiseg lyef^ va cant and mioccupied. seems 
to us to be decisive of this case : and that the defendants have admitted 

that occupancy by the family of the defendants did not exist, and 
therefore the defendants cannot claim the premises exempt to them as 
a homestead. The fact that the defendants took possession of the 
lots and constructed a house thereon after the levy of the execution 
cannot of itself defeat the lien of the judgment. Bullene v. Hiatt, 12 
Kan. 98. The rigr|it«^ pf tb^ poffi'***; wPTf; f ^"^^.^^ the time of the levy, 
ani no ^llltnffll^**^^ ""^t ftf the debtor <"9^ 1 (^ rhanye thgji. 

rnd no error in the rulings of the district court, and its orders 
will be affirmed. All the justices concurring. ^ 



^t.t^< ^ ' ' 

(Supreme Court of Galifomia, 1912. 163 Cal. 243, 124 Pae. 1016, 41 L. R. A. 

[N. S.] 303, Add. Cas. 1913B, 1253.) 

In Bank. Appeal from Superior Court, Modoc County; John E. 
Raker, Judge. 

Action by Rose McKay, as special executrix of Julia D. Ferguson, 
deceased, against Frances Helen Gesf ord. Judgment for plaintiff, and 
defendant appeals. Reversed and remanded, with directions. 

Per Curiam. This action is in ejectment . It was brought by plain- 
tiff as special administratrix of the estate of Julia D. Ferguson, de- 
ceased, claiming that certain real property belonged to the estate of her 


Defendant admitted th at »Via jt-np^r^y jp g^iocfinn \\^A nriginaHy ^e^n 

t he separate property of TuH^ D. Ferguson^ but averred and showed 
that Julia D. Ferguson, w hile the wif e of A. H. FerjBfuson and whil e 
s he with her husband was residing in the h ouse u p Qn tllS land in contr o- 
v ersy, filed her decla r ation of homestead Igr. tb^ j'^^^t h<^ppfi» nf ^pr- 
self and her hushan^l. Tulia D. Fe r^son having died- it \f rnnreHed 
t|iat thp j^ropfirtY P?^^^^ ^? t^^ jsi^p/iving hnghanH (Civ. Code, §§ 1263, 

1265; Code Civ. Proc. §§ 1474, 1475), if at t he time c^i her de^th there 
was, under her homestead declaration, a va lici subs ist^"g hgyppstpaH up- 
QIlJjifi4m2fi£rty- De fendant and appellant is the gra ntpp of ^1^^ |^]is- 
band. clai ming t itle by jegH executed by hi^ after the, r^^ttl ^^ ^^'^ 
wife- The^rnnrt made vol uminous fin dings, and frnm tli<*m rparVj^rl 

thg conclusion that in law ffie homestead ^Ar;|>^|-fl|ir^n wa«^ j|^va1i'H 
Judgment passed for plaintiff, and from that judgment and upon. the 
judgment roll defendant appeals, contending that the findings do not 
support the judgment 

The findings are that in 1884 Julia D. Ferguson, then Julia D. Ed- 
wards, 4^^ spinster, owne d the land in controversy, and in 1884 con- 
structed a buildrng^tTiereon consisting of four rooms "as and for a 
hotel, and to keep boarders and lodgers as she could accommodate." 
In 1888 she married A YL FfifgU'iP" At the time of her marriage she 
was residing "on said premises in the hotel building thereon, and con- 
tinued to keep such boarders and lodgers as could be accommodated in 
said hotel buUding, and to run said hotel and hotel business with all the 
customers, boarders and lodgers that could be obtained." In 1891 or 
1892 she "built two additional rooms onto said hotel building." Shfi 
conti nued th us in occupan cy ,> and.U-Se o.f ^hf> pff^jpigps nntil )^er dtf^tb- 
After her marriage with her husband in 1888 she with her husband 
continuously resided upon the premises and "in the hotel building 
thereon," and th is was their. .soJg.iind. only home and residgi;ife. She 
was so residing with her husband upon the premises, w hen in 1894 she 
made the homestead declaration in due and regular form, clai ming the r\ 
premises as a honieste ad for thejomt benefit of herself and he r hus - 'I'^tr^ 
ban d. This homestead declaration was duly acknowledged and record- 
ed. "From the time of the erection of said hotel building on said 
premises described in the complaint, in the year 1884 and up to the 1st 
day of January, 1895, the said Julia D. Ferguson conducted a hotel on 
said premises, and her residence upon said premises and in said build- 
ing was but incidental to the running of said hotel, and that the said 
building and premises were used primarily and principally as and for a 
hotel, and not otherwise." During all of this time "Julia D. Ferguson 
performed the principal labor necessary to keep the said hotel, did the 
cooking and waiting on table, and otherwise attended to the wants of 
her boarders and lodgers ; but at times hired a cook and waiter girls, 
and other help, when necessary to run said hotel, and, after her mar- 
riage to the said A. H. Ferguson, the said A. H. Ferguson when not 
otherwise engaged would give his help and assistance to his wife in 


and about the said hotel in doing the work and in conducting the same. 

* * * Said hotel building was not dedicated to residence purposes 
primarily, and was actually used by said Julia D. Ferguson and was 
occupied for business purposes for the accommodation of the public. 

* * * No particular room or rooms on the premises were reserved 
for the exclusive use of said Julia D. Ferguson and her husband, or ei- 
ther of them, but that she and her husband used any of them for them- 
selves as was convenient, when not needed to be used by their boarders 
and lodgers, and that no particular portion of the premises was used 
exclusively, primarily, or principally for a home by either of them. 

* * * A sign bearing the words 'Star Hotel' was continually kept 
on the building from the time of its construction, and a bell was rung 
at regular intervals at meal hours to call persons to meals ; that occa- 
sionally advertisements of the Star Hotel were published in a newspa- 
per by the said Julia D. Ferguson, and that Julia D. Ferguson solicited 
many of the business men of the town to send her patronage to her 
hotel." At no time were the premises of a greater value than $1,000. 
The residence of Julia D. Ferguson before her marriage and of herself 
and her husband after their marriage upon the premises in question 
"had been and was but incidental to the running of the hotel business 
and conducting of a hotel business thereon ; and the said building on 
said premises was used and occupied by said Julia D. Ferguson and by 
said Julia D. Ferguson and said A. H. Ferguson, at all the times herein 
specified and found in these findings, primarily and principally and 
chiefly as and for a hotel to accommodate the public, and not otherwise. 

Finding 20 : "That said lands and premises, together with the build- 
ing thereon known as the Star Hotel, being occupied and used as here- 
inbefore found, primarily and principally and chiefly as and for a hotel 
and doing a hotel business, and the resilience of the said Julia D. Fer- 
guson and A. H. Ferguson in said hotel and on said lands and premises 
being but incidental at all times to the running of said hotel and not 
primarily and principally as a home, said house known as the Star Ho- 
tel, and the land and premises which it occupied, being the lands and 
premises described in the complaint, was not, nor was any part there- 
of, impressed as a honiestead and with the homestead character as 
homestead property, and was not a valid homestead. And said build- 
ing known as the Star Hotel, and the premises being occupied and used 
as hereinbefore found could not be impressed with the title and char- 
acter of a valid homestead interest, nor was it thus impressed, and it 
did not exist as a valid or any homestead of said Fergusons or of ei- 
ther of them." * 

All of the above quotations are from the findings, and by finding 20 
quoted in extenso it will be seen that the court there makes its ultimate 
finding of fact from the probative facts previously found. It is, of 
course, well settled that a general and ultimate finding such as that de- 
clared in finding 20 which is drawn as a conclusion from facts previ- 
ously f otmd cannot stand if the specific facts upon which it is based do* 


not support it. Sav. & Loan Socy. v. Burnett, 106 Cal. 540, 39 Pac. 
922 ; McDonald v. RandaU, 139 Cal. 254, 72 Pac. 997. 

T he question, then, before us is whether the ultimate findinp fif ^^^ 
rnt^rt pa melv. that by reason of the facts prev i ously foun <;| th^^ yrooer- 
t v could not h^ j p^pressed with tne nomestead ^^^^Tailt**"*^^^^ ^^ ^^ ^^ "^^ 
<tiippnrtf>^ It was recognized at a very early day that questions of 
difficulty would arise under our homestead law touching the character 
of the property sought to be exempted under its provisions. Ackley 
V. Chamberlain, 16 Cal. 181, 76 Am. Dec. 516. It is there said "that 
t he question whether property devoted chiefly to business purposes ca n 
be subjected to a homestead claim i s f ull of embarrassment. '' But, 
when it is borne in mind that the homestead law is a beneficent law 
calling for liberal construction (Heathman v. Holmes, 94 Cal. 291, 29 
Pac. 404), we think all difficulty will be removed and all doubt resolved 
by the following suggestion: If under these identical circumstances 
of ownership of the property, of the construction of the building there- 
on, and of the use of that building Mrs. Ferguson, instead of being a 
married woman with a husband, had been a widow with minor children 
to support, and an attack had been made upon a declaration of home- 
stead which she had duly made and recorded upon the property, would 
any court say, or would any one say, that, notwithstanding that it was 
the residence and sole and only home of herself and babies, it could 
not be impressed with the homestead characteristics because the prin- 
cipal purpose and use of the premises was its conduct by her as a hotel 
or boarding house in order that she might thus support herself and 
babies and give them a home? T^^it thf, \^Yf i*i r^^ A\fFf>rt^^f j f ypt^ sub- 
stitute a. husband for the babies^ The .dominant anH rnnfrnllinor iuct 
still remains that this^w^s t^y residence and home of the family, ^at 
it was suita ble for the purpose^ and y^f} used f ^f t^^ pnrpnc^ 

We are not in this case embarrassed by difficulties which have arisen 
in other cases where the character of the business maintained is one 
entirely foreign to tlie conception of a home, if not repugnant to it — 
such a case, for example, as is instanced by Chief Justice Field in Ack- 
ley V| Chamberlain, supra, of an effort to impress a gas factory with 
homestead characteristics because the owner lived in it. Here the very 
business which was carried on was conducted for the purpose of main- 
taining the home, for, if this be not so, then it must follow that any ) 
widow seeking to support herself and perhaps her children by taking^v^ 7-^ 
boarders or lodgers under circumstances where it can be truly said ' ^^ ' 
that the principal business conducted upon the premises is that of a 
lodging house or a boarding house cannot have a homestead, although 
she is conducting this very business so as to maintain herself and her 
ofiFspring in a home. Each case of this character stands by itself and 
is to be governed by its own facts. Our own cases have passed recent- 
ly under review in Estate of Levy, 141 Cal. 646, 75 Pac. 317, 99 Am. 
St. Rep. 92. Without again reviewing them, it is sufficient to refer to 
this case. Therein, after extended consideration of our decisions, and 




amongst them Heathman v. Holmes, 94 Cal. 291, 29 Pac. 404, where 
it is said, " Using a huildin^ partly or even ch iefly for business pur - 
pns^^f?. nr r^ntinfr part of it. Js not inconsistent with the"right of hom e- 
stead^^DTOvided it is and continues to be the bpn^ fi<je r^^idence of the 

f amily'* t^ ]i<^ fflift g^<^ • "^| ipse <;\^e.^ art* all authority Jor the^opos 

t ion that, if a building is th^ yc^u^l bona fide r esidence of .ap^rty^JiP 
may legally seler^ it ^nd the land on which itTs situ ated as a honie^ 
steady ev^p though, inridentallv^ a p art thereof, no matter how large, 
may be usej ^v him fnr other purposes than those o f faniily^ ^^^?id^en£p- 
There is no decision of this court in conflict with this vTew. 

Under the rule of liberal construction which it has been repeatedly 
declared should be extended to homestead laws, in every permissible 
case where the premises are the bona fide home of the parties, it should 
be held that the business conducted within the premises is not the para- 
mount and principal purpose, but the incidental and subordinate pur- 
pose ; that the home is the main thing, not the business ; that the busi- 
ness is conducted to enable the parties to maintain a home, and not 
that the parties are incidentally inhabiting the premises for the pur- 
pose of maintaining the business. this i;rii<|^ in such a easy 
a s^ the, one at bar, where it aoqears from .ftf JindingS that tb^ pPrtifif 
d uring all their married life never ha^ anv Qt^ ]fif JIQ^^ ^^^n thf^^ "^ITf- 
room hote l. Nor is it of determinative import that thev occupied one 
or another of these six rooms or shifted themselves about as the exi- 
gencies of their business demanded. In some cases the actual occu- 
pancy of a room or rooms in a building has become important as evi- 
dence showing residence. These were cases like Skinner v. Hall, 69 
Cal. 195, 10 Pac. 406, and Heathman v. Holmes, 94 Cal. 291, 29 Pac. 
404, but in this case the permanent occupancy of one or another room 
is of no material significance, since it is shown that these spouses either 
lived and made their home and residence upon the premises in con- 
troversy, or they lived and made their home and residence nowhere. 

It follows from the foregoing that the ultimate finding of the court 
to the effect that the property could not be impressed with the charac- 
teristics of a homestead is not supported by the specific facts upon 
which the finding is based, and that the judgment itself is therefore 
unsupported by the findings. Wherefore the judgment appealed from 
is reversed and the cause remanded, with directions to the trial court 
to enter its judgment for the appellant. 

Beatty, C. J., does not participate in the foregoing. 

108 * H0MBSTCAD8 

in. Loss of Homestead* 



(Supreme Court of Mlssonrl, DMslon No. 1, 1902. 168 Mo. 288, 67 S. W. 578, 

90 Am. St. Rep. 456.) 

Error to circuit court, Linn county; John P. Butler, Judge. 

Suit by J. W. Rouse against Harry L. Caton and others. Fr(Mn a 
decree for plaintiff, defendants bring error. Affirmed. 

Brace, P. J. The defendants in this case are Luke T. Caton and his 
two sons, Leo T. Caton and Harry L. Caton. By deed dated August 
26, 1895, acknowledged SeptemKer 5, 1895, aYid recorded on the 20th 
of July, 1896, the said Luke T. Caton and wife conveyed to the said 
Leo T. Caton and Harry L. Caton the E. % of the S. E. }i and the S. 
W. ^ of the S. E. }i of section 16, and the N. E. }i of section 21, 
in township 58, range 18, in Linn county, containing 280 acres. On 
the 23d of July, 1896, the plaintiff, J. W. Rouse, instituted a suit by 
attachment in the circuit court of said county against the said defend- 
ant Luke T. Caton, which was duly levied on said lands, and which 
was thereafter duly sustained, and therein, on the 26th of April, 1897, 
the plaintiff obtained judgment against the said Luke T. Caton in the 
sum of $4,600.57 and costs. In pursuance of an execution issued on 
this judgment, the said real estate was duly sold, and the plaintiff became 
the purchaser thereof for the sum of $2,000, received a sheriflf's deed 
therefor, and thereafter instituted this suit. 

The petition is in twQ counts, — ^the first in the nature of a bill in 
equity to set aside said deed of Luke T. Caton, of date August 26, 
1895, on the ground that it was made without consideration, and for 
the purpose of hindering, delaying, and defrauding his creditors, and 
the second in ejectment, to recover possession of the premises. The 
finding on both counts was in favor of the plaintiff, and; defendants' 
motion for rehearing and new trial having been overruled, they bring 
the case here by writ of error. 

The facts of this case, so far as they can be made out from the im- 
perfect transcript of plaintiffs in error, wbich contains but a fragment 
of the evidence, eked out by that of the defendant in error, seem to be 
about as follows : 

In 1890 Luke T. Caton was the owner of the 280 acres of land in 
controversy, which in connection with another 40-acre tract, the title 
to which was in his wife, constituted his home place, on which he resid- 
ed with his family. He owned other lands and a one-half interest in a 
saloon in the town of Bucklin, some two or three miles distant from 
his home farm, and some personal property. He was then in com- 

• For discussion of principles, see Burdlck, Real Prop. ( 70. 


fcrtable circumstances, and entirely solvent. In the fall of that year 
he and his wife signed and acknowledged a deed conveying the home 
farm to one John C. Whittaker, and a few days thereafter the said 
Whittaker signed and acknowledged a deed conveying said premises 
to Fannie Caton, the wife of the said Luke T. Caton, and fiis two sons, 
Leo T. Caton and Harry L. Caton. These deeds were never recorded, 
and remained in the possession or under the control of the said Luke 
T. and his wife from the time they were so signed until they were pro- 
duced on the trial of this cause. At the time these deeds were so sign- 
ed and acknowledged his son Leo was aged about 20 years, and his son 
Harry was about 9 years old. It is conceded that these deeds were 
without valuable consideration. As counsel for defendants say in 
their brief, "This roundabout transaction was only to avoid a direct 
conveyance to the wife." Afterwards the deed in controversy, con- 
veying the 280 acres aforesaid to the said Leo T. and Harry L. Caton, 
was signed by the said Luke T. Caton and wife, and acknowledged on 
the 5th day of September, 1895. This deed was also without any valu- 
able consideration, and remained in the possession and under the con- 
trol of the said Luke T. and his wife until it was filed for record on the 
20th of July, 1896. 

Up to the time of the filing of this deed for record Luke T. Caton al- 
ways claimed and treated this land as his own, gave it into the asses- 
sor, paid the taxes on it, and incumbered it 6y mortgage, and was con- 
sidered by every one dealing with him as its owner, and neither Leo T. 
nor Harry L. ever made any claim of ownership to it. In the spring of 
1891 Luke T. Caton, with his family, except his son Leo, moved from 
his home farm to the town of Bucklin, distant two or three miles there- 
from, where he and his family continued thereafter to reside until 
about the middle of May, 1897, when they moved back to the home 
farm. In the meantime Leo was left in charge of the farm, its stock, 
and equipment, with the understanding between him and his father 
that he should run the place, and if anything was made in operating it 
he should have half the profits. On removing to Bucklin, Luke T. 
Caton purchased an interest in a flouring mill in operation there and 
other property, and, after renting for a short time, purchased a dwell- 
ing house and lot on the 3d of August, 1891, into which he then moved 
with his family, and where thereafter they continued to reside until 
about the middle of May, 1897, when he returned to the farm. The 
purchase money for this homeste^ was paid by Luke T. Caton, but 
the deed was taken in the name of his wife, and duly recorded Decem- 
ber 16, 1893. Thus the said Luke T. Caton continued livii}g with his 
family in this homestead in Bucklin, carrying on his farming, milling, 
and saloon business, from the spring of 1891 until the fall of 1895, dur- 
ing which time he incurred an indebtedness in excess of the value of 
all his property, and became insolvent. It was under these circum- 
stances that the deed in question was thereafter made. The plaintiff's 
debt was one of the many incurred by him during this period on the 


faith of his ownership of this 280 acres of land in question, and other 
lands, as shown by the records. 

No error is assigned upon any action of the court in the trial of the 
case. But a reversal of the decree and judgment is urged on the 
ground : 

First. That Luke T. Caton had a homestead in this land which was 
not set off to him before the sale under the execution, hence under the 
rulings of this court in Macke v. Byrd, 131 Mo. 682, 33 S. W. 448, 52 
Am. St. Rep. 649; Ratliff v. Graves, 132 Mo. 76, 33 S. W. 450, and 
Creech v. Childers, 156 Mo. 338, 56 S. W. 1106, the salp was void. 
This contention is not tenable. At the time when the indebtedness of 
Luke T. Caton to the plaintiff was incurred, when he was sued thereon 
by attachment, and the writ levied on the premises, and even when 
judgment therein was rendered against him, he was living with his 
family on his homestead in the town of Bucklin. This was none the 
less his homestead (as he declared he intended it to be at the time he 
purchased it) because he took the deed thereto in his wife's name. 
While he continued to own the farm of which the 280 acres sold under 
execution was a part, and in which he formerly had a homestead, he 
had abandoned it as a homestead in 1891, and as against the rights 
which had accrued to the plaintiff after that time, and before his re- 
turn to it in 1897, he had no homestead right therein. It requires both 
ownership and occupancy to constitute a homestead, and no head of 
a family can have two homesteads at the same time ; neither can hus- 
band and wife, while living together, each have a separate homestead 
at the same time. Thomp. Homest. & Ex. §§ 225, 245, 246; Freem. 
Ex'ns, § 248; 15 Am. & Eng. Enc. Law, pp. 566, 575, 602; Associa- 
tion V. Howard, 150 Mo. 445, 51 S. W. 1046; Peake v. Cameron, 102 
Mo. 568, 15 S. W. 70; Kendall v. Powers, 96 Mo. 142, 8 S. W. 793, 9 
Am. St. Rep. 326 ; Bunn v. Lindsay, 95 Mo. 250, 7 S. W. 473, 6 Am. 
Rep. 48; Finnegan v. Prindeville, 83 Mo. 517. 

Second. That, as the amount plaintiff bid at the sale, less the costs, 
was credited on the execution, and no new consideration passed, the 
plaintiff was not an innocent purchaser, but took his title subject to all 
infirmities. The rule of caveat emptor applies, and the unrecorded 
deeds conveying the 280 acres by Luke T. Caton and wife to Whittak- 
er, and from Whittaker to Luke T. Caton's wife, and his sons Leo and 
Harry Caton, in 1890, when Luke T. Caton was entirely solvent, stand 
good and valid as against the plaintiff. This is an attempt to protect 
one fraud by another. It is true that, if the deeds of 1890 had been 
delivered and recorded when they were signed and acknowledged, they 
would have vested Luke T. Caton's title in the grantees therein named as 
against subsequent creditors. But these deeds were never in good faith 
delivered for the purpose of vesting title in such grantees, but ever re- 
mained either in the possession or under the dominion and control of 
Luke T. Caton from the day of their date until they were produced on 
the trial of this cause, until which time neither plaintiff nor any other 


of his creditors had any notice of their existence, and were purposely 
kept oflE the records, whereby he was enabled, on the faith of hist)wner- 
ship of these and other lands, to incur the very indebtedness which 
he now seeks to defeat by them. They were fraudulent and void as to 
plaintiff, and as to such creditors passed no title as against the plaintiff, 
and the court committed no error in vesting the title in the plaintiff and 
in awarding him the possession of the premises. 

The decree and judgment of the circuit court will therefore be affirm- 
ed. All concur. 


(A) Estates for Years 

L Leases^ 

1. Must Be in Writing When 


(Supreme Judicial Court of Massachusetts, 1905. 188 Mass. 286, 75 N. E. 637.) 

Appeal from Superior Court, Worcester County. 

Action of contract by Robert F. Matthews against Herbert E. Carl- 
ton. Judgment was rendered for defendant upon agreed facts, and 
plaintiff appealed. Affirmed. 

Knowlton, C. J. This case comes before us on an agreed state- 
ment of facts, by which it appears that, in the early part of June, 1904, 
the defendant '^ orally aprp^d tn V>irf; ^ J;f!i^"Tf_",^_^^ Aj?-plai|ltiff 
* * * at $25 per month, beginning on.the^lst day of July^i904." 
The tenement was then occupied by a tenant, who was to hold it 
until July 1, 1904, and who paid the plaintiflf his rent up to that date. 
With the consent of this tenant, who was then occupying the tene- 
ment, the defendant moved a part of his goods into the tenement The 
tenant afterwards moved out, and the defendant moved other goods 
in, but subsequently, before the 1st day of July, moved all the goods 
^ out and notified the plaintiflf that he should not take the tenement 
. * -The question is whether the defendant is liable to the plaintiff for 
rent for th e mo nth of July. His movmg a part of his goods mto the 
house in June, with the consent of the tenant then in possession, and 
his subsequent removal of them before the expiration of the term of 
the tenant, does not affect his rights. He was not in possession under 
his contract, with the plaintiff, and he never became a tenant of the 
plaintiff. He never entered under his agreement, but, on the con- 
trary, before the time when his term was to begin he gave the plain- 
tiff notice that he should not enter. 

By Rev. Laws, c. 127, § 3, it is provided that an estate or interest 
i pjand, crea ted without an instrument in^writing signed by the gran- 
tor or his attorney, shal l have the force and .effect of an estate at^iU 
only, and that * no estate or interest in land shall be assigned^ gra.nted, 
ocsurjceu^red, unless by such writing or by operation of law." _Tlie 
oral agreement, tliereTo fe^J^yCtlie^efendant no estate or inte rest_i n 
the land, and under this sectionj as well..a5. under Rev. Laws, c. 74, § 
1, ci. 4, no action could be maiutained^fxir the enforcement of it. 

The plaintiff's declaration contains two counts— one for so-called 

1 For discussion of principles, i^ Burdick, Real Prop. { 77. 

LBASB8 113 

rent or for use and occupation, and the other for damages for a 
breach of the oral agreement. The first count cannot be maintained, 
be cause the relation of landlord ana tenant never existed between the 
parties . The defendant declineoto become the plaintiff's tenant before 
the time fixed for the beginning of the term. There ca n be no lia- 
bility of this k ind without an occ upation fey a. t^ant, actual gv con- 
structive. as well as a contract, express or implied. Rogers v. Coy, f64 
Mass. 391, 41 N. E. 652; Bacon v. ParTcerT 13?' Mass. 309-312; Cen- 
tral Mills V. Hart, 124 Mass. 123; Leonard v. Kingman, 136 Mass. 
123; Merrill, Adm., v. Bullock, 105 Mass. 486; Easthan v. Anderson, k 
119 Mass. 526-531; Larkin v. Avery, 23 Conn. 304. X^e second W^ 
count is upon an agre ement w hich is within the statute of fr auds. 
Rev. Laws, «. ^4, § 1, cT 4; WKile V. Wieland, 109 Mass. 291 ; Tarlcer 
V. Tainter, 123 Mass. 185. 
Judgment for the defendant* 

t The foUowlng note is appended to tbls case In the Northeastern Reporter: 
"A parol demise, void under the statute of frauds, creates a tenancy at wiU 
only ; but this may be changed into a tenancy from year to year, by payment 
and acceptance of rent; but a subsequent ratification, so as to make it a valid 
lease, must be In writing. Dumn v. Bothermel, 112 Pa. 272, 3 AtL 800 (1886). 
An oral agreement to z^new a lease for three years is extinguished by a sub- 
sequent written lease for one year. Stuebben v. Granger, 63 Mich. 30(3, 29 N. 
W. 716 (1886). See, also, Kramer v. Amberg (Sup.) 3 N. Y. Supp. 240 (1888). 
A verbal agreement to rent for one year at a certain price per month, and for 
a second year at a different price per month, creates a tenancy from year to 
year, and not at wm. Schneider v. Lord, 62 Mich. 141, 28 N. W. 773 (1886). 
A lease which has been reduced to writing, acted on, and partly performed, is 
binding, though not signed. Farmers* Loan & T. Go. v. St Joseph, etc., R. 0>. 
(G. G.) 2 Fed. 117 (1880). A lease which is void, because resting in parol, may 
be rendered valid for the full term by part performance. Baid v. Elston, 31 
Kan. 274, 1 Pac. 666 (1884) ; Wallace v. Scoggin, 18 Or. 602, 21 Pac. 668, 17 Am. 
St. Rep. 749 (1890). A note for rent given by a lessee under a parol lease is, 
with letters referring to it, a sufficient memorandum to take the lease out of 
the statute of frauds, as against the lessee. Oliver v. Insurance Ck>., 82 
Ala. 417, 2 South. 446 (1886). A parol lease for a year is not rendered invalid 
by the fact that it is to commence in futuro, and thus cannot be performed 
within a year. McGroy v. Toney, 66 Miss. 233, 6 South. 392, 2 L. R. A. 847 
(1888). A tenancy from year to year cannot be created by an oral agreement 
to work land on shares for a term of five years, followed by occupancy of the 
land for two years under the agreement Ungllsh v. Marvin, 66 Hun, 46, 8 
N. Y. Supp. 283 (1889)." 

BtrBD.GAs.REAL Prop.' 



•' - (A . 


II. Rights and Liabilities of Landlord and Tenant * 
1. Undee Implied Covenants 


(Supreme Court of United States, 1893. 147 U. S. 413, 13 Sup. Ct. 333, 37 

L. Ed. 223.) 

In error to the circuit court of the United States for the district 
of Colorado. 

These were tw o^ actions brought by Marcell a Dnylft against t he 
Union Pacific Railway Com pany, one of them bein^ for personal in - 
iuries to herself, and the other to recover for the death of her chi l- 
dren; s uch injuries and death be in^ c aused by a snowslideL whi9h d e- 
s tioyed th e ho use in which she_ way^ living, and whic ^ g^^ h^(^ leased 
f rom the defendant com pany. There were verdict and judgment for 
defendant, and plaintiff appeals. Affirmed. 

Mr. Justice Shieas delivered the opinion of the court. 

In the early part of November, A. D. 1883, Marcella Doyle, a widow 
with a family of six children, agreed with the Union Pacific Railway 
Company to occupy the company's section house situated on the line 
of the railroad at or near Woodstock, in the county of Chaifee and 
state of Colorado, and to board at said section house such section hands 
and other employes of the company as it should desire at the rate of 
$4.50 per week, to be paid by the persons so to be boarded, and the 
company agreed to aid her in collecting her pay for such board by 
retaining the same for her out of the wages of the employes so to be 

Mrs. Doyle moved with her children into the section house, and con- 
tinued in the discharge of her duties as boarding housekeeper until the 
10th day of March, A. D. 1884, when a snowslide overwhelmed the 
section house, injured Mrs. Doyle, and crushed to death the six chil- 
dren residing with her. 

Subsequently, Marcella Doyle brought, in the circuit court of the 
United States for the district of Colorado, two actions against the 
Union Pacific Railway Company,— one for her personal injuries; the 
other for damages suffered by her in the loss of her children, — ^and 
which latter action was based on a statute of the state of Colorado. 

The actions resulted in verdicts and judgments, in favor' of the de- 
fendant company, and the cases have been brought to fliis court by 
writs of error. As the cases turn upon the same facts and principles 
of law, they can be disposed of together. 

The record discloses that the facts of the case, as claimed by the re- 

s For discussion of principles, see Burdick, Real Prop. IS 78-80. 


spective parties, and certain admissions by the defendant company, 
were stated in a bill of exceptions, and upon which instructions by the 
court were given which are made the subject of the assignments of 

The bill of exceptions was as follows : 

"Be it remembered that on the trial of this cause, at the November 
term, A. D. 1886, of the said circuit court, the defendant admitted, and 
such admissions were received in evidence before the jury : 

"That the plaintiff was at the several times named in the complaint a 
widow and the mother of the said Martin Doyle, Andrew Doyle, Chris- 
topher Doyle, Catharine Doyle, Marcella Doyle, and Maggie Doyle, 
mentioned and named in the complaint as the children of the plaintiff, 
and as having each and all been killed by a snowslide at Woodstock 
in the month of March, A. D. 1884. 

"That her husband and the father of said children had died previous- 
ly to their death. That each of said children was of the age and sex 
stated in the complaint; was each unmarried and had no child nor 
children, and had each lived with their said mother, making their 
home with her, up to the time of their death; and were each then 
living with the plaintiff, aiding and assisting her in and about making 
a living, and in and about her duties and labors in the keeping of the 
section house of the defendant at Woodstock, in the county of Chaffee 
and state of Colorado, where said children were killed. That said 
children were all killed while in said section house, on the 10th day of 
March, A. D. 1884, by a snowslide, which then and there occurred 
from the mountain side above said section house. That said section 
house was built and used by the defendant as and for a section house 
and a place at which the section hands of the defendant who should 
work on said section could board and lodge. 

"That on or about the 5th day of November, A. D. 1883, at the in- 
stance and request of the defendant, and for the mutual benefit of 
herself and the defendant, the plaintiff undertook and agreed with the 
defendant to keep for it, during its will and pleasure, its section house 
situated at or near Woodstock, on the line of its railroad, in the coun- 
ty of Chaffee and state of Colorado. That by the said agreement be- 
tween her and the defendant the plaintiff was to provide and furnish 
board at said section house for such section hands and other employes 
of the defendant as it should desire, at the rate of four and one-half 
doUa'rs per week, to be paid by the persons so furnished with such 
board ; but the defendant was to aid and assist the plaintiff in collecting 
her pay for such board by stopping and retaining the same for her out 
of the wages of those so furnished with such board. That plaintiff 
thereupon, to wit, on the said 5th day of November, A. D. 1883, moved 
into said section house with her family, and entered upon the discharge 
of her duties as the keeper thereof, and remained there in the dis- 
charge of such duties until the occurrence of the snowslide, on the 
10th of March, A. D. 1884. That the defendant did not at any time 


notify or apprise the plaintiff (w either of her said children, or cause 
her or cither of them to be notified or apprised, of the danger of a 
snowslide or snowslides or of the liability of a snowslide or snowslides 
at such place where said section house then was, or in that locality. 

"And the plaintiflf, further to maintain the issues on her part, intro- 
duced evidence tending to show that said section house was a one- 
story frame building, and was constructed in 1882, about the time that 
said railroad was first operated in that section of the country ; was situ- 
ated in the mountains, near the base of a high and steep mountain, and 
in a place subject to snowslides, and dangerous on that account. That 
the sides of the mountain at the base of which was the house in ques- 
tion were marked by the tracks of former snowslides, but only liiose 
familiar with snowslides and their effects would know what they 
meant. That the defendant was aware of said danger at and before 
the time it engaged the plaintiff to keep its said section house. That 
the plaintiff and her said children had never before resided in a region 
of country subject to snowslides, and had no knowledge of snowslides 
or of their indications, or of the dangers incident thereto, and was 
not aware of the particular danger in question. That there was a 
prominence or hip on this mountain side, about ten or twelve hundred 
feet above the section house, which cut off a view of the mountain side 
above said hip from the section house or its immediate vicinity. That 
above said hip there was a large depression or draw on the mountain 
side extending from said hip to the summit, into which great quantities 
of snow fell and drifted during the winter season of each year, thus 
tending to create snowslides of danger to persons in said section house 
or its vicinity. That this danger was not apparent even to a person 
having knowledge of snowslides and their causes without a view or 
examination of this mountain side above said hip. That the altitude 
of said section hoAse was about 10,200 feet, and of the summit of said 
mountain nearly 12,000 feet. That the snowfall there was great in 
the winter season of each year, and that depressions on the mountain 
side were filled with snow by drifting. That the snowslide of March 
10, 1884, which killed the said children, proceeded from this depres- 
sion above said hip. That a snowslide of less dimensions, and of less 
scope and extent, occurred there in February, 1883, in the same place 
and from the same source, which reached to within about two hundred 
feet of said section house, and of which the defendant had knowledge 
at the time thereof. 

"That the attention of the superintendent of the construction of said 
railroad and of said section house was called to the fact of such danger, 
at or about the time said section house was built, by one of the civil 
engineers of said defendant who assisted in locating the line of said 

"That her said son Andrew Doyle was an employ^ of the defendant 
— a section hand- on the same section where said section house was lo- 
cated — at the time he was so killed by said snowslide. That the plain- 


tiflf and her said children were in said section house at the time the 
said children were killed, and that neither of said children were aware 
of said danger before the said snowslide of March 10, 1884, occurred. 

"That through this prominence or hip on the mountain side there 
was a chasm or draw from twenty to thirty feet wide, which continued 
on down to the section house, but became wider after leaving the hip. 
That with this draw another draw united about midway between the 
section house and the said hip, and formed one draw from their point 
of union to the section house. 

"That this mountain is a part of the range of mountains known as 
the 'Continental Divide,' which divides the waters of the Atlantic from 
those of the Pacific. At this point above Woodstock station the course 
of the mountain is nearly east and west. This railroad passes this 
mountain by means of a tunnel called 'Alpine Tunnel,' which is to the 
westward of a line north of Woodstock, and descends this mountain at 
a heavy grade, along the side thereof, about midway between the sec- 
tion house and the said hip on the mountain, (which hip is termed a 
'projection of rocks' by some of the witnesses,) and passes on to the 
eastward of Woodstock a considerable distance, where it turns, and, 
forming a kind of horseshoe shape, runs back again past Woodstock, 
but between the section house and said hip, — ^the section house being 
below and distant from this lower track about two hundred and thirty 
feet ; and the two tracks forming this horseshoe are both between the 
section house and said hip, and on a direct line from the section house 
up to the hip. The two tracks are about five hundred feet apart, the 
upper track being about seventy feet higher in point of altitude where 
they cross this line from the section house to the hip on the moun- 
tain side above. That there was a water tank on the upper side of the 
lower track fifty or sixty feet to the westward of the section house, 
which water tank was injured by the snowslide of February, 1883. 

"That the snowslide of March 10, 1884, spread out as it descended 
the mountain, so that where it passed over the lower railroad track 
its space in width was six or seven hundred feet, and the section house 
was not far from the center of said snowslide track. 

"That the contour of this mountain, beginning at the section house 
and ascending the mountain, is about as follows, to wit: Above the 
section house it slopes slowly to the first railroad track ; then there is 
a rockslide; then there is a bench above that, and on the same level 
of the upper railroad track, and above that a steep gorge, and on each 
side of said gorge there is a thin belt of timber, and between these 
belts of timber and along the gorge there is a space from three to four 
hundred feet in width of nothing but rock, with a very steep slope, 
and above this slope some very steep rocks, (the hip on the mountain 
side,) and above this hip is a large basin or depression extending on 
up the mountain side three or four thousand feet long to the summit 
of the mountain, which has an elevation or altitude of about 11,500 
feet, the mountain side above the hip being very steep, having a slope 


of more than thirty-three degrees, and from the hip down there is quite 
a precipitous piece of rock, not perpendicular, but quite steep, and after 
or below that the slope is at an angle of about twenty-five degrees. 
In the basin above the hip there is no timber, and in and about the 
section house there is a space of eight or nine hundred feet square on 
which there is no timber except three or four trees. 

"That the timber on the mountain side was sparse and scattered. 
That only a few trees were carried down by the snowslide. That snow- 
slides do not always follow beaten tracks made by former snowslides 
on the same mountain side, but frequently depart therefrom. That 
the snowslide of March 10, 1884, separated into broken fragments or 
divisions before reaching the base of the mountain, one of which 
struck the section house, resulting in the injuries complained of. 

"That, the winter of 1883-84 was severer, and the snow fell some 
deeper, than the winter previous thereto, and that it snowed heavily 
and continuously from about the 1st of March to the 10th of March, 
1884, and the trains had ceased to run on account of the snow. That 
ordinarily in the winter season the snow was from five to seven feet 
deep in said locality in places where it did not drift, and after it had 
settled compactly. That it drifted greatly, filling up basins and de- 
pressions on the mountain sides. That there were rockslides and ex- 
isting evidences of former snowslides on this mountain side above 
said section house. 

"That the snowslide of February, 1883, deposited snow and debris 
on the upper track of the railroad above said section house from twen- 
ty to twenty-five feet deep ; and for a considerable space of time from 
then, during the remainder of that winter and the following spring, 
the said railroad was not operated on account of the snow. 

"And the defendant, to maintain the issues on its part, introduced 
evidence tending to prove that said section house was built below the 
said tracks and behind, and protected by a thick growth of timber 
above and between said section house and the mountain; that there 
were no marks or tracks of former snowslides directly above or in the 
vicinity of said section house; that the defendant was not aware of 
any danger from snowslides at the place where the section house was 
built, but, on the contrary, that the officers of the company had care- 
fully examined the locality where the same was built, and the contour 
of the mountains above the same to the summit of the range, and that 
said section house was built at that place because the officers of the 
company thought that it was — safe place, and could not be endan- 
gered by snowslides, which were apt to occur in that part of the coun- 
try; that the prominence or hip spoken of was a protection against 
snowslides which might occur on the mountain sides above said section 
house; that an examination of the ground, timber, and rocks in the 
vicinity of where the house was built, and above, on the mountain 
side, showed that there had not been a snowslide there for at least 
two hundred years ; that the snowslide of March 10, 1884, was caused 


by a storm of unprecedented severity and duration, and that the same 
came down through the timber above said house, breaking down and 
carrying with it standing trees, from bushes up to trees two feet in 
diameter ; that the snowslide mentioned as occurring in February, 1883, 
came down a considerable distance to the north of where the one came 
down in 1884, and that the snowslide in 1883 did no damage except 
to cover up a short distance of the railroad track, and break in some 
boards of the house under the water tank; that the attention of the 
superintendent of construction of said railroad was not called by any 
one to the fact of there being any danger from snowslides at the place 
where said section house was built, but that the conversation or notice 
referred to was in regard to a place a mile or more further up Quartz 
creek; that the said Andrew Doyle had been an employe of the de- 
fendant as a section hand, but had quit work some days before on ac- 
count of the road being blockaded by snow, and all attempts to open 
it having been abandoned, and for ten days or more before the snow- 
slide no work whatever was being done by defendant on said road for 
a distance of several miles each way from said Woodstock ; that said 
prominence or hip on the mountain side mentioned by the witnesses 
tended to protect said section house and its immediate locality from 
snowslides; that there. was no chasm or draw immediately above said 
section house, and that whatever formation of that kind there was 
on said mountain was a distance of two hundred feet or more north 
of said section house ; that said section house was broken down by said 
snowslide of March 10, 1884, by a spreading out of the snow as it 
came down the mountain, and that said«section house was on the south- 
erly side of said snowslide; that the gorge referred to is simply an 
opening a few feet wide in the ridge of rock referred to as the *hip' 
or 'prominence ;' that a short distance above said prominence the gen- 
eral timber line of the country is reached, above which no timber oc- 
curs; that there was a considerable amount of timber between said 
section house and the first railroad track, and a thick growth of large 
timber immediately above the first railroad track, extending up some 
distance towards the second track of the loop, and some scattering 
timber above the upper track ; that there are no rockslides or existing 
evidences of former snowslides on the mountain sides immediately 
above said section house. 

"And the foregoing was all the evidence in the case." 

To the answers of the court to the pray-ers for instructions, and to 
the charge, the plaintiff has filed 13 assignments of error. 

The twelfth assignment alleges that "the circuit court erred in charg- 
ing the jury substantially to the effect that they must find for the de- 
fendant;" and in the brief of the plaintiff in error it is asserted that 
the answers of the court to the several requests for instructions were 
in effect directions to the jury to find for the defendant. 

Although, in point of fact, the court did not give the jury peremp- 
tory instructions to find for the defendant, but left the cases to them 



on instructions under which they might have found verdicts for the 
plaintiff, yet the validity of the plaintiff's exceptions to the court's 
treatment of the cases may be conveniently tested by assuming, for 
the present, that the charge and instructions legally amounted to a 
direction to find for the defendant. If an examination of the facts 
and of the principles of law involved warrants us in concluding that 
the court would have been justified in so doing, it will not be neces- 
sary to consider each and every assignment of error, nor to minutely 
scan isolated expressions used by the court. 

The first q uestion to be determined is, what was the relation be- 
tween the plaintiff and the railway company? Was Mrs. Doyle a serv- 
ant or employe of the company, aiding in the transaction of its business 
and subject to its directions, or was she a tenant at will holding the 
premises by an occupation during the will of the company? The facts 
averred by the plaintiff show that the company was not interested, in 
a legal sense, in the management of the boarding house; did not re- 
ceive the board money, pay the expenses, take the profits, or suffer the 
losses. The company could not call upon her for any account, nor 
could she demand pa3mient from the company fdr any services ren- 
dered by her in carrying on the boarding house. The fact that the 
company agreed to aid her in collecting what might be due to her 
from time to time by the boarders, by withholding moneys out of the 
wages payable to them by the railroad company, did not convert Mrs. 
Doyle into a servant of the company, or change her relation to the 
company as a tenant at ^yill of the company's house. Such an ar- 
rangement might equally have, been made if Mrs. Doyle had been the 
owner of the house. T he co urt below was not in error in holding 
■ iOb ^^^ -^^ relation of the parties wasfhat oFlariaiofd and "tenant. 

If, then, such was the relation of the parties, upon what principle 
can a liability for the damages occasioned by the snowslide be put upon 
the company ? There was^ neither allega tion ngrproof of fraud, mis- 
representation, or deceit on the j)art of the defendant company as to 
the condiHpnjQjLtiie premises. In deed, it w as not even pretended tlj^at 
t Ee' catastr oph.e-jiyas_ in^ any way occasioned by the condition oi th e 

It was, indeed, alleged that the section house was built near the 
base of a high and steep mountain, and in a place subject to snowslides,. 
and dangerous on that account; that the company was aware of said 
danger ; that the plaintiff and her children had never before resided in a 
region of country subject to snowslides, and had no knowledge of 
snowslides or of their indications, or of the dangers incident thereto ; 
and that the company did not at any time notify or apprise the plain- 
tiff or her children of the danger of snowslides or of the liability of 
snowslides at such place where said section then was, or in that lo- 
cality; and upon this alleged state of facts it was contended that the 
jury had a right to find that the railway company was guilty of care* 


lessness or disregard of duty towards the plaintiff such as to make it 
liable in these actions. 

It is, however, well settled that the lafw do es n ot imply anv war - 
ranty on the part of the landlord th at the house^ls^ reasonably fit, for 
■\ occtipation : much less does it imply a warranty that no accident should 

/ /If. befall the tenant from external forces, such as storms, tornadoes, 
'^ , earthquakes, or snowsli des. The law is thus stated in a well-known 
w ork on Landlord and Tenant: 

"There is no implied warranty, on the letting of a house, that it is 
safe, well built, or reasonably fit for habitation; or of land, that it 
is suitable for cultivation, or for any other purpose for which it was 
let ; and where a person hired a house and garden for a term of years, 
to be used for a dwelling house, but subsequently abandoned it as unfit 
for habitation, in consequence of its being infested with vermin and 
other nuisances, which he was not aware of when he took the lease, 
the principle was laid down, after an elaborate review of all the cases 
where a contrary doctrine seemed to have prevailed, that there is no 
implied contract on a demise of real estate that it shall be fit for the 
purposes for which it was let. Consequently an abandonment of the 
premises under these circumstances forms no defense to an action for 
rent ; and in all cases where a tenant Tias been allowed, upon sugges- 
tions of this kind, to withdraw from the tenancy, and refuse the pay- 
ment of rent, there will be found to have been a fraudulent misrepre- 
sentation or concealment as to the state of the premises which were 
the subject of the letting, or else the premises proved to be uninhabita- 
ble by some wrongful act or default of the landlord himself. The 
lessor is not, however, always bound to disclose the state of the premis- 
es to the intended lessee, unless he knows that the House is really unfit 
for habitation, and that the lessee does not know it, and is influenced 
by his belief of the soundness of the house in agreeing to take it ; for 
the conduct of the lessor may, in ^his respect, amount to a deceit 
practiced upon the lessee." Tayl. Landl. & Ten. § 382. 

The principles applicable to the present case have been well stated 
in the recent case of Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 
471. The syllabus states the case and decision as follows : 

''A tenant cannot maintain an action against his landlord for an 
injury caused by falling upon a stair in the tenement, the tread of 
which has been sawed out and left unsupported by a previous tenant, 
there having been full opportunity to examine the stair at the time 
of hiring, and no warranty of the fitness of the tenement having been 
given by the landlord ; the only evidence of knowledge on the part of 
the landlord being that he knew the stair had been sawed out, that 
he tried it, and it bore his weight, and he thought it would bear any- 
body's weight.'^ 

The judge directed a verdict for defendants, and the supreme court 
sustained this ruling. Field, J., giving the opinion of the court, said, 
(page 383 :) 


"There is no implied warranty in the letting of an unfurnished house 
or tenement that it is reasonably fit for use, [citing cases.] The tenant 
takes an estate in the premises hired, and persons who occupy by his 
permission, or as members of his family, cannot be considered as oc- 
cupying by the invitation of the landlord, so as to create a greater lia- 
bility on the part of the landlord to them than to the tenant. The 
tenant is in possession, and he determines who shall occupy or enter 
his premises, [citing cases.] 

"In the case at bar there was no express or implied warranty, and 
no actual fraud or misrepresentation. If the aqtion can be maintained 
it must be on the ground that it was the duty of the defendants to in- 
form the tenant of the defect in the staircase. This duty if it exists, 
does not arise from the contract between the parties, but from the 
relation between them, and is imposed by law. If such a duty h im- 
posed by law, it would seem that there is no distinction as a ground 
of liability between an intentional and an unintentional neglect to per- 
form it ; but in such a case as this is there can be no such duty with- 
out knowledge of the defect. There is no evidence of any such knowK 
edge, except on the part of C. D. Hunking, and the other defendants 
cannot in any event be held liable, unless his knowledge can be. im- 
puted to them, as the kno\yledge of their agent in letting the premises. 
The evidence is insufficient to warrant the jury in finding that C. D. 
Hunking intentionally concealed the defect from the tenant; and the 
action, if it can be maintained, must proceed upon the ground of neg- 
lect to perform a duty which the law imposed upon the defendants. 

"A tenant is a purchaser of an estate in the land or building hired ; 
and Keates v. Earl of Cadogan, 10 C. B. 591, states the general rule 
that no action lies by a tenant against a landlord on account of th^ 
condition of the premises hired, in the absence of an express warranty 
or of active deceit. See, also, Robbins v. Jones, 15 C. B. (N. S.) 240. 
This is a general rule of caveat emptor. In the absence of any war- 
ranty, express or implied, the buyer takes the risk of quality upon him- 
self. Hight V. Bacon, 126 Mass. 10, 30 Am. Rep. 639 ; Ward v. Hobbs, 
3 Q. B. Div. 150; Howard v. Emerson, 110 Mass. 320, 14 Am. Rep. 
608. This rule does not apply to cases of fraud." 

This rule of caveat emptor has been applied also in many other 
cases, some of which we now refer to. 

Keates v. Earl of Cadogan, above cited, was an action on the case. 
The declaration stated in substance that the defendant knew that the 
house was in such a ruinous and dangerous state as to be dangerous 
to enter, occupy, or dwell in, and was likely to fall, and thereby do 
damage to persons and property therein ; that the plaintiff was with- 
out any knowledge, notice, or information whatever that the said house 
was in said state or condition; that the defendant kt the house to 
plaintiff without giving plaintiff any notice of the condition of the 
house ; and that plaintiff entered, and his wife and goods and business 
were injured. Defendant demurred to the declaration, and the court 


unanimously sustained the demurrer. Jervis, C. J., giving the opinion, 
said, (page 600:) 

"It is not contended that there was any warranty that the house 
was fit for immediate occupation ; but it is said that, because the de- 
fendant knows it is in a ruinous state, and does nothing to inform 
the plaihtiff of that fact, therefore the action is maintainable. It is 
consistent with the state of things disclosed in the declaration that, 
the defendant knowing the state of things, the plaintiff may have come 
to him and said, 'Will you lease that house to me ?' and the defendant 
may have answered, 'Yes, I will.' It is not contended by the plaintiff 
that any misrepresentation was made, nor is it alleged that the plaintiff 
was acting on the impression produced by the conduct of the defendant 
as to the state of the house, or that he was not to make investigations 
before he began to reside in it. I think, therefore, that the defendant 
is entitled to our judgment, there being no obligation on the defendant 
to say anything about the state of the house, and no allegation of de- 
•ceit. It is an ordinary case of letting." 

The rule of caveat emptor was also applied in the recent case of 
Woods V. Cotton Co., 134 Mass. 357, 45 Am. Rep. 344. Defendant 
was owner of a tenement house fitted for four families, and plaintiff 
was tenant at will, or wife of tenant at will. There were three stone 
steps leading down from the yard to the street, on which ice and snow- 
had accumulated, and on which plaintiff slipped and received the injury 
-complained of. There was evidence tending to prove that at the time 
plaintiff was injured she was in the exercise of due care. The jury 
viewed the premises. Plaintiff contended that the steps were of such 
material, and constructed in such manner, that they occasioned the 
accumulation of snow and ice thereon improperly, and that the defend- 
ant's omission to place a rail on either side, or to take other reason- 
able measures to prevent one from falling, was such \negligence as 
would render the defendant liable; but the trial court held there was 
no evidence to go to the jury, and directed a verdict for defendant, and 
the supreme court sustained this ruling. Field, J., giving the opinion, 
sa}'s, (page 359 :) 

"There may be cases in which the landlord is liable to the tenant 
for injuries received from secret defects which are known to the land- 
lord and are concealed from the tenant, but this case discloses no such 
defects in the steps. * * * [Page 361.] The ice and snow were 
the proximate cause of the injury. 

"The exceptions state that no railing had ever been placed on either 
side of the steps, that the jury viewed the premises, and that it was 
contended 'that the steps were of such material, and constructed in 
such manner, that they occasioned the accumulation of ice and snow 
thereon improperly.' The steps were of rough-split, unhewn granite, 
and the 'structure of the steps remained unchanged from the time of 
the plaintiff's first occupancy of the tenement to the time she received 



her injury/ The defendant was under no obligation to change th© 
original construction of the steps for the benefit of the tenant." 

Hazlett V. Powell, 30 Pa. 293, was an action of replevin, in which 
an apportionment of rent was claimed by the tenant of an hotel, on 
the ground that he had been partially evicted by the act of an adjoining 
owner in building so that the tenant's light and air from one side of 
his hotel were shut oif or obstructed, and, as a result, that the hotel 
was rendered pro tanto unfit for the purpose for which it was intended 
to be used. There was an offer to prove certain facts, (page 294,) 
which the court states as follows, (page 297 :) 

"But the rejected proposition also contained an offer to prove that 
the lessor knew at the time of executing the lease that the adjoining 
owner intended building on his lot, — at what time is not offered to be 
shown, — and did not communicate this information to the lessees. 
We think he was not bound to do so, and that, if the evidence had been 
received, it would have furnished no evidence of fraud on the part of 
the lessor, or become the foundation in equity for relief of the lessees. 
The substance of the complaint regarded something that the lessor was 
no more presumed to know than the lessees. It was nothing which 
concerned the title of the lessor, or the title he was about to pass to 
the lessees. It was a collateral fact, — something only within the knowl- 
edge and determination of a stranger to both parties; and, if ma- 
terial to either, I can see no obligation resting on either side to fur- 
nish to the other the information. It was not alleged that the lessor 
made any representations on the subject, or that there was any conceal- 
ment of the information ; or that any relation of trust and confidence 
existed between the parties; or that the lessees were misled by his 
silence, and entered into the contract under the belief that the vacant 
lot would not be occupied; or that they were in a position in which 
they could not by diligence have ascertained the fact for themselves^ 
and that they were not legally bound to take notice of the probability 
that the ground would be occupied by buildings, and inquire for them- 
selves. These were elements to be shown to constitute fraud, and make 
the testimony available. 

" 'The general rule, both in law and equity,' says Story on Contracts^ 
(section 516,) 'in respect to concealment, is that mere silence in regard 
to a material fact which there is no legal obligation to disclose will not 
avoid a contract, although it operates as an injury to the party from 
whom it is concealed.' But the relation, generally, which raises the 
legal obligation to disclose facts known by one party to the other, is 
where there is some especial trust and confidence reposed, such as 
where the contracting party is at a distance from the object of nego- 
tiation, when he necessarily relies on full disclosure ; or where, being 
present, the buyer put the seller on good faith by agreeing to deal only 
on his representations. In all these and kindred cases there must be no 
false representations nor purposed concealments; all must be truly 
stated and fully disclosed. 'The vendor and vendee,' says Atkinson 


on Marketable Titles, 134, 'in the absence of special circumstances, 
are to be considered as acting at arm's length. When the means of in- 
formation as to the facts and circumstances affecting the value of the 
subject of sale are equally accessible to both parties, and neither of 
them does anything to impose on the other, the disclosure of any su- 
perior knowledge which one party may have over the other is not req- 
uisite to the validity of the contract.' Id. 

"Illustrative of this is the celebrated case of Laidlaw v. Organ, 2 
Wheat. 178, 4 L. Ed. 214. The parties had been negotiating for the 
purchase of a quantity of tobacco. The buyer got private information 
of the conclusion of peace with Great Britain, and called very early 
in the morning following the receipt of it on the holders of the tobacco, 
and, ascertaining that they had received no intelligence of peace, pur- 
chased it at a great profit. The contract was contested for fraud and 
concealment. Chief Justice Marshall delivered the opinion of the 
court, to the effect that the buyer was not bound to communicate in- 
telligence of extrinsic circtunstances which might influence the price, 
though it were exclusively in his possession. And Chief Justice Gib- 
son, in Kintzing v. McElrath, 5 Pa. 467, in commenting on this de- 
cision, says : 'It would be difficult to circumscribe the contrary doc- 
trine within proper limits, where the means of intelligence are equally 
accessible to both parties.' See also, Hershey v. Keembortz, 6 Pa. 129. 
When the information is derived from strangers to the parties ne- 
gotiating, and not affecting the quality or title of the thing negotiated 
for, it is not such as the opposite party can call for. We see no error 
in the rejection of the evidence on account of this part of the proposi- 
tion, as there was no moral or legal obligation for the lessor to disclose 
any information he had on^the subject of the intended improvement 
of the adjoining lot. It was not in the line of his title. It was derived 
from a stranger ; it might be true or false ; and the lessees could have 
got it by inquiry, as well as the lessor. 

"It is well settled that there is no implied warranty that the premises 
are fit for the purposes for which they are rented, [citing authorities,] 
nor that they shall continue so, if there be no default on the part of the • 

In the recent case of Viterbo v. Friedlander, 120 U. S. 712, 7 Sup. 
Ct. 962, 30 L. Ed. 776, Mr. Justice Gray, who delivered the opinion 
of the court, said, in contrasting the doctrines of the common and 
civil law: "By that law (the common law, unlike the civil law) the 
lessor is under no implied covenant to repair, or even that the premises 
shall be fit for the purpose for which they are leased." 
The plaintiff^s evidence f ailed wholly to show that there was any \ 
>ecial and secr et danger Tro m sriowsTides' which was known only to \^ 
te railway company, and whi ch ^could not have been ascertained iy '^\;. 
the plaintiff . It was, indeed, alleged that '^e section house was in a 
place of danger from snowslides;" but this was plainly the danger 
that impended over any house placed, as this one necessarily was, on 





a mountain side in a country subject to heavy falls of snow. The dan- 
ger referred to was that incident to the region and the climate, and, 
in the eye of the law, as well known to the plaintiff as to the defend- 

On a careful reading 6f the plaintiff's evidence we are unable to see 
that the jury could have been permitted to find any positive act of neg- 
ligence on the part of the railroad company, or any omission by it to 
disclose to the plaintiff any fact which it was the company's duty to 

If, then, the plaintiff's case, as it appeared in her evidence, would 
not have justified a verdict on the ground of negligence or a fraudulent 
suppression of facts, and as the determination of the nature of the 
relation between the parties, as that of landlord and tenant, was clear- 
ly the function of the court, there would, in our opinion, have been 
no error if the court had really g^ven a peremptory instruction to the 
jury \o find for the defendant. 

However, the record discloses that the court permitted the cases to 
go to the jury. It is true that the remarks made by the judge must 
have indicated to the jury that his own view was against the plain- 
tiff's right to recover; but it has often been held by this court that it 
is not a reversible error in the judge to express his own opinion of the 
facts, if the rules of law are correctly laid down, and if the jury are 
given to understand that they are not bound by such opinion. Balti- 
more & P. R. Co. V. Baptist Church, 137 U. S. 568, 11 Sup. Ct. 185, 
34 L. Ed. 784; Simmons v. U. S., 142 U. S. 148, 12 Sup. Q. 171, 35 
L. Ed. 968. 

It is not necessary for us to review in detail the criticisms made in 
the several instructions, for, as we have seen, even if such instructions 
had amounted, in a legal effect, to a direction to find for the defendant, 
no error would have been committed. 

It is obvious that these views of the case of Marcella Doyle, claiming 
for her personal injuries, are equally applicable to her suit, under the 
statute, for the loss of her children. The latter must be regarded as 
having entered under their mother's title, and not by reason of any in- 
vitation, express or implied, from the railway company; and hence 
they assumed a like risk, and are entitled to no other legal measure of 
\ redress. 

Noerror being^disclosed by these records, the judgment of the cour t 
below is in each case affirmed. "" " ~ 




(Court of Appeals of New York, Second DiTision, 1892. 132 N. Y. 306, 30 N. 

E. 837, 16 L. B. A. 236.) 

Appeal from common pleas of New York city and county, general 

Action by Maria L. Daly a^nst John S. Wise to recove r reqt . 
Plaintiff obtained judgment, which was affirmed by the general term. 
Defendant appeals. Affirmed. 

The other facts fully appear in the following statement by Foi.- 
wrr, C. J.: 

September 27, 1888, t he litigants entered into a written lease by 
which the plaintiff let to tlie aexendant an unfurnished dwelling, known 
as "334 West Fifty-Eighth Street,*' m the city of New York, for one 
year from October 15, 1888, for $1,800, payable $150 October 15, 
1888, and a like sum on the 15th day of eadi succeeding month. The 
l ease contained no covenant in respect to th e then condition ©£"3^ 
house, nor that the lessor should put or keep it in rep air. November 
15, 1888, the defendant began to occupy the premises, paid the rent 
for four months, until January 15, 1889, and continued in occupation 
until February 2, 1889, when he abandoned them because pf their 
unsanitary condition, arising from defective pIumbTng . February 4, 
iS^, this action was begun to recover the sums due by the terms of 
the lease on the 15th day of February, March, April, and May, 1889, 
$600 in all, with interest. 

The defendant answered that he was induced to enter into the 
lease by the oral representation of the plaintiff's agent "that the build- 
ing on said premises was properly constructed and in thorough repair, 
the more especially <4n the matter of plumbing and sanitary arrange- 
ments; and that this defendant signed said lease, relying upon the 
faith of said representations so made as aforesaid." It was also al- 
leged: "That, when defendant entered into possession of said prem- 
ises, it was discovered that said representations were untrue, and 
that said premises were unfit for the purposes of a residence, in that 
there existed hidden defects in the plumbing and construction of the 
sewer and other pipes, and the sanitarian arrangements in the build- 
ings thereon. That such defects were concealed from view, and were 
not discovered until the effect thereof became apparent in the health 
of the defendant's family. That by reason of said defects the said 
building became charged with sewer gas and other foul and poisonous 
odors, thereby causing the defendant, his wife, children, and servants, 
to become sick, and in great danger of death ; and they so continued 
sick and in danger until the defendant was evicted from said premises, 
as hereinafter set out." "* 

At the close of t he evide nce, neither party asked to have any ques- 
tioijl ot tact submitted to the jury^ put each moved" tTiat a verdict be 
directed in his or her favor. The defendant's motion was refused, 


and he excepted; \mt the plaintiff's piotion w^s g|-anted. apd <;fie de-^io.eJ^^C.egted. No other exceptions are contained in the 
record, and the only questions reviewable in this court are those 
presented by the two exceptions mentioned. A judgment was entered 
on the verdict for the plaintiff, which was affirmed at general term. 
No opinion was written, but the case was decided upon the opinion of 
the same court in another action, arising over the same lease. 7 N. 
Y. Supp. 902. 

FoLL^T, C. J., (after stating the facts.) In case neither party re- 
quests to have any question of fact submitted to the jury, but each 
asks that a verdict be directed in his favor, the court is authorized to 
determine the f a ct in j ssue; ,and upon appeal Jthe disputed f acts ar e 
deemed to have been de termined in favor of the party for whom t he 
verdict is directe d. Kirtz v.TeckT 113'N. Y. 222, 21. N. E. 130; Dil- 
lon V. Cockroft, 90 N. Y. 649; Provost v. McEncroe, 102 N. Y. 
650, 5 N. E. 795. This case must b e determined upon the theory th at 
all the disputed facts have been found in favor of the plaintiff. 

N j< /" In case the whole of an unfurnished dwelling is leased for a definite 
\/.]£i / term, under a single contract, which contains no covenant that the 
.^^:^ I premises are in good repair, or that the lessor will put or keep them 
\ j,^ I so, the law does not imply a covenant on the part of the lessor that 
/'•^^ J J \ the dwelling is without inherent defects, rendering it unfit for a 
.^ '" \ residence. Franklin v. Brown, 118 N. Y. 110, 23 N. E. 126, 6 L. K 
/^,^r A. 770, 16 Am. St Rep. 744. In Smith v. Marrable, 11 Mees. & 
r /v'-* W. 5, a contrary rule was laid down by Baron Parke. That case arose 
out of a contract to let a furnished dwelling for six weeks at eight 
guineas per week. The tenant moved in, but found the house so 
infested with bugs that it was uninhabitable, and at the end of the 
first week left, paying the rent for that week. Tn an action brought, 
it was held, in the opinion delivered by Baron Parke, concurred in 
by Barons Alderson and Gurney, "that if the demised premises are 
incumbered with a nuisance of so serious a nature that no person can 
reasonably be expected to live in them the tenant is at liberty to throw 
them up. This is not the case of a contract on the part of the land- 
lord that the premises were free from this nuisance. It rather rests in 
an implied condition of law, that he undertakes to let them in a habit- 
able state." Chief Baron Abinger concurred upon the ground that 
"a man who lets a ready-furnished house surely does so under the im- 
plied condition or obligation — call it which you will — ^that the house is 
in a fit state to be inhabited." 

The opinion of Baron Parke was rested on the authority of Ed- 
wards V. Etherington, Ryan & M. 268, 7 Dowl. & R. 117, and Col- 
lins V. Barrow, 1 Moody & R. 112, both of which cases, together with 
Salisbury v. Marshal, 4 Car. & P. 65, are expressly overruled by Hart 
V. Windsor, 12 Mees. & W. 68, in which Parke, B., said: "We are 
under no necessity of deciding in the present case whether that of 
Smith V. Marrable be law or not. It is distinguishable from the pres- 


cnt case on the ground on which it was put by Lord Abinger, both . 
on the argument of the case itself, but more fully in that of Sutton 
V. Temple, 12 Mees. & W. 52, for it was the case of a demise of a 
ready-furnished house for a temporary residence at a watering place. 
It was not a lease of real estate, merely. But that case certainly can- 
not be supported on the ground on which I rested my judgment." 
Smith V. Marrable was decided at Hilary term, 1843, and Hart v. 
Windsor and Sutton v. Temple at Michaelmas term of the same year. 
The rule laid down in Smith v. Marrable by Abinger, C. B., as ap- 
plicable to furnished houses, has been followed in Campbell v. Lord 
Wenlock, 4 Post & F. 716, and Wilson v. Hatton, 2 Exch. Div. 336 ; 
but the rule as stated by Parke, B., has not been followed in Eng- 
land or in this state. Franklin v. Brown, 118 N. Y. 110, 23 N. E. 
126, 6 L. R. A. 770, 16 Am. St. Rep. 744. The defendant cannot 
e scape liability for rent on the ground that the law implied a cove- 
nant tha t the dw elling wa s fit for h abitation., 

^~Is the evidence contained in the record sufficient to have required ^y") 
the trial court t oTiav e held^ ^j§ ^ piatte j ;- ^f law, th at the plamtiff fraud- / 
ulently represented that the dwelling and its fi xtures were in good <> t// "> 
condi tion, or that she fraudulently concealed from the plaintiff the 
fact that it \^as in an unsanitary cond ition? In case the owner of \ 
a dwelling knows tnat it Has secret detects and conditions rendering it \ 
unfit for a residence, and fraudulently represents to one who be- 
comes a tenant that the defects and conditions do not exist, or if he I 
fraudulently conceals their existence from him, the lessee, if he aban- / 
doUs the house for such cause, will not be liable for subsequently / 
accruing rent Wallace v. Lent, 1 Daly, 481 ; Jackson v. Odell, 12' 
Daly, 345; Rhinelander v. Seaman, 13 Abb. N. C. 455; Cesar v. 
Karutz, 60 N. Y. 229, 19 Am. Rep. 164. 

In the case at bar the defendant testified, and in this he was not 
contradicted, that, when he first went to the house with the plaintiff's 
agent, he said: **I co mplai ned to him_ [the agent] at the^time that I 
thought some of th$^ glumbing looked pld. He said that Mrs. Daly 
was ve ry stiffp-cf^ tf V^'"^^ ^9^, ^^ put in any newj^ that it was all 
[ood cfindmon.; .that_they^had"*fixed' il as they thp.Pght it ought 
tys is the only representation wHich was made by the plain- 

in goo< 

t iff^ or her agen t in respect to the sanitary condition of the dwelling. 
It was not shown that 'flie "plamtiff or the agent knew that the repre- 
sentations were false, or that the plumbing was out of order, and 
fraudulently concealed the fact. This takes the case out of the rule 
above referred to, in respect to the owner's Hability iii case he fraudu- 
lently m isrep resents the condition of the dwelling, or, knowing that 
it is in bad con diti on, fraud ulently conceals the fact. from the £erson 
who becomes th e lessee. 

Is the plaintiff liable for having stated that a material fact ex- 
isted which did not exist, i. e., that the plumbing was in good order, 
Bubd.Ca8.Beal Prop. — 9 


upon the theory that she was bound to know whether or not the state- 
ment was true? In case a party, for the purpose of inducing another 
to contract with him, states, on his personal knowledge, that a material 
fact does or does not exist, without having knowledge whether the 
statement is true or false, and without having reasonable grounds to 
believe it to be true, he is liable in fraud, if the statement is relied 
on, and is subsequently found to be false, although he had no actual 
knowledge of the untruth of the statement. Bennett v. Judson, 21 
N. Y. 238 ; Marsh v. Falker, 40 N. Y. 562 ; Oberlander v. Speiss, 45 
N. Y. 175; Wakeman v. Dalley, 51 N. Y. 27, 10 Am. Rep. 551; 2 
Pom. Eq. Jur. §§ 887, 888 ; Story, Eq. Jur. § 193. It does not ^fifiSSr 
tl^at \\it^ p lumbing h ad not been fix ed as stated^ nor that the statemen t 
thgt **it yr ^^ all in good co ndi'tJQa " ^^^ ^ ^de w ithou t actual or su p- 
posed kno wled ge of its cond ition, nor that it was made in bad faith ; 
and we think the case does not fall withm the prmciple of the a u- 
thorities last cited. ' 

i!hiI2efsadafliIcannot^ '^?.^^}JS^ on ^^g K^^""^ ^^^ ^^ state - 

ment of the agen t amounte Jtb a warranty f^be c ause it is not so plead - 
ed in the answer, The jtrdgment should be affirmed, with costs. All 


(Supreme Judicial Court of Massacliusetts, 1892. 156 Mass. 848, 81 N. E. 286, 

16 L. R. A. 51, 32 Am. St. Rep. 460.) 

- jc-* Appeal from superior court, Suffolk county. 

\ i^\ Artinn l^y -^^^^h ^ Tn^alk and Others against Vyftryfn p. T^y^j^s 

c/ » tCLXfiS^Qvej; rent for__a dwelling: house. Defendant had judgment on an 
agreed statement of facts, and plaintiffs appeal. Affirmed. 

KnowlTON, J. TJlisisanjaction to recover $SQn for t^ie, iiqp anrf nr. 

cugation of a furnished .d^yelhng hpua? at Swampscott during the 
summer of 1890. Tt wai snhmjttf j JlL.^^"^ superior court on what 
is entitled an "agreed statement of evidence," by which it appears 

« Where there is no fraud or concealment on the part of the lessor, the rule 
. of caveat emptor applies as to the condition of the property at the time of the 
^ . ^'^ V lease, in absence of any agreement by the lessor that the premises are suit- 
\ ,- ' able for occupation or for any other intended purpose. Transfer Co. v. Ma- 
^ ^ lone, 159 Ala. 325, 48 South. 705 (1909); Bennett v. SulUvan, 100 Me. 118, 60 
Atl. 886 (1905); Rand v. Adams, 185 Mass. 341, 70 N. E. 445 (1904). Cf. Hard- 
man Estate V. McNair, 61 Wash. 74, 111 Pac. 1059 (1910). In the case of Hart 
V. Windsor, 12 Mees. & W. 68, cited in the foregoing case, the house, accord- 
ing to the plea of the defendant, who had quitted the premises and refused 
to pay rent, was "overrun with noxious, stinking, and nasty insects, called 
bugs." His plea was held no defense, however. Likewise in the case of Fos- 
ter V. Peyser, 9 Cush. (Mass.) 242, 57 Am. Dec. 43 (1852), the tenant was held 
liable for rent although the conditions of the drains made the house unfit for 

In Georgia, however, it is held to be the duty of a landlord to have a ten- 
ement on the day when the term begins in a condition reasonably suited for 
the purposes for which it is rented. White v. Montgomery, 58 6a. 204 (1877) ; 
Thompson v. Walker, 6 Ga. App. 80, 64 S. E. 336 (1909). 



that the defendant hir^H thp prpmiQP« ; nf ^hp plaintiffs for the season , ^^^^ 
as a furnished house, provided with beds, mattresses, matting, cuftains, s«^ 

chairs, tables, kitchen utensils, and other articles which were appar- 
ently in good condition, and that when the defendant took possession 
it was found to be more nr Ip^s infested with bugs, so that the de- 
fendant contended that it was unfit for habitation, and for that reason 
gave it up, and declined to occupy it. T h^ agr e ed stalep ient concludes ^/^t^ 
as follows": * *If, under the above circumstances^ said hpuse wa^ no t 
fit for occupation as a furnished hot jsf pnH hpiny i^^ as surh. t^^r e 
was an implied agreement or warranty that the said house and furn i- 
ture therein should be fit for use and occupati o n, judgment is to b e 
for the defendant, with costs . If. however, under said circumstances, 
said house was fit for occupation as a furnished house, or there was 
no such implied agreement or warranty, judgment is to be for the 
plaintiffs in the sum of $500, with interest from the date of the writ, 
and costs." Ju dgment was ordered for the defendant , and the plain- 
tiffs appealed to this court. 

The agreement of record shows that the facts were to be treated 
by the superior court as evidence from which inferences of fact might 
be drawn. The only "matter of law apparent on the record" which 
can be considered as an appeal in a case of this kind is the question 
whether the judgment is warranted by the evidence. Pub, St. c. 152, 
§ 10; Rand v. Hanson, 154 Mass. 87, 28 N. E. 6, 12 L. R. A. 574, 
26 Am. St. Rep. 210; Mayhew v. Durfee, 138 Mass. 584; Railroad 
Co. y. Wilder, 137 Mass. 536; Hecht v. Batcheller, 147 Mass. 335, 
17 N. E. 651, 9 Am. St. Rep. 708; Fitzsimmons v. Carroll, 128 Mass. 
401 ; Charlton v. Donnell, 100 Mass. 229. Xhe facts agr eed warra nt 
a finding that the house was unfit for h abitation when it was hire3, 
and we are therefore brought direc tly t o tlie question whether there 
was an^ implied agreement on the part of t he plaintiff that it was in 
a proper condition for immediate use a s a dwelling House, It is well 
settled, both in this commonwealth and "uTEngland, that one who lets 
an imfurnished building to be occupied as a dwelling housQ does not 
impliedly agree that it is fit for habitation. Button v. Gerrish, 9 
Cush. 89, 55 Am. Dec. 45 ; Foster y. Peyser, 9 Cush. 242, 57 Am. 
Dec. 43; Stevens v. Pierce, 151 Mass. 207, 23 N. E. 1006; Sutton 
v. Temple, 12 Mees. & W. 52 ; Hart v. Windsor, Id. 68. 

In the absence of fraud or a covenant, the purchaser of real es- 
tati, or the hirer of it for a term, however short, takes it as it is, and 
determines for himself whether it will serve the purpose for which he 
wants it. He may, and often does, contemplate making extensive 
repairs upon it to adapt it to his wants. But there are good reasons 
why a different rule s hor^^ ^PP^y.J^^ o"C who hires a furnished room, 
or a furn is hed house, for a few days, o r a few weeks or months. Its 
fitness for immediate use of a particular kind, as indicated by its 
appointments, is a far more important jelement entering into the j:qn- 

' - -i ; '. .-^ ^ * 

\^^- ■' [>■■■ ■'•■ ' 


tract than when there is a jiere le^g^ ^f xfiSil fSt?!^ One who lets 
for a short term a house provided with all furnishings and appoint- 
ments for immediate residence may be supposed to contract in ref- 
erence to a well-understood purpose of the hirer to use it as a habita- 
tion. A n impor tant part of what the hirer pays for is the oppor - 
tunitv to enjoy it without delay, and without the expense of prepari ng 
il.iOJLU§e. It is very difficult, and often impossible, for one to deter- 
mine on inspection whether the house and its appointments arc fit for 
the use for which they are immediately wanted, and the doctrine 
caveat emptor, which is ordinarily applicable to a lessee of real es- 
tate, would often work injustice if applied to cases of this kind. Jx ^^ . 
would be unreasonable to hold, under such circiunstances, that the '^ ^ 
landlord does not impliedly agree that what he is lettin g is a hou se 
s uitable for oc cupation in Itsc6n3Rtion a t the time . 

This distinction between furnished and unfurnished houses in ref- 
erence to the construction of contracts for letting them, when there 
are no express agreements about their condition, has long been rec- 
^ ognized in England, where it is held that there is an i mplied contrac t 
JL V that a furnish ed house let for a short time js jn proper condit ion fo r 
/'l^n ijIPP^^^iQfp o^ri^atinT i as a dwelling. Smith v. Marrable, 11 Mees. 
& W. 5; Wilson v. Hatton, 2 Exch. EHv. 336; Warehouse Co. v. 
Carr, 5 C. P. Div. 507 ; Sutton v. Temple, ubi supra ; Hart v. Wind- 
sor, ubi supra; Bird v. Lord Greville, 1 Cababe & E. 317; Charsley 
V. Jones, 53 J. P. Q. B. 280. In Dutton v. Gerrish, 9 Cush. 89, 55 
Am. Dec. 45, Chief Justice Shaw reccjgnizes the doctrine as applica- 
ble to furnished houses; and in Edwards v. McLean, 122 N. Y. 302, 
25 N. E. 483, Smith v. Marrable, and Wilson v. Hatton, cited above, 
are referred to with approval, although held inapplicable to the ques- 
tion then before the court. See Cleves v. Willoughby, 7 Hill (N. Y.) 
83; Franklin v. Brown, 118 N. Y, 110, 23 N. E. 126, 6 L. R. A. 770, 
16 Am. St. Rep. 744. 
'" , . V ^'*'*^/^We are of opinion that in a lease of a completely furnished dwell- 
■ * / ing house for a single season at a summer watering place there is 
/ an implied agreement that the house is fit for habitation, without 
I grea'ter preparation than one hiring it for a short time might reason-/ 
\ ably be expected to make in appropriating it to the use for which i( 
^ was designed. Judgment affirmed." 

/ s As stated in the text, it is the EngUsh rule that in the letting of a fur- 
- nished house, particularly for a brief period, there is an implied covenant that, 
' at the time of the commencement of the term, it is in a state of fitness for 
^ habitation, and if it is not so, the tenant may rescind the contract at once. 
Smith V. Marrable, 11 Mee& & W. 5 (1843) ; Wilson v. Finch Hatton, 2 Ex. D. 
/ 336 (1877) ; Harrison v. Malet, 3 T. L. R. 58 (1886), where there were defects 
in drainage; Bird v. Greville, Cab. & El. 317 (1884), house not properly disin- 
fected after recent infectious sickness ; Charsley v. Jones, 53 J. P. 280 (1889). 
The rule is based upon the doctrine of the intention of the parties. Although 
the Massachusetts case of Ingalls v. Hobbs, supra, adopts the English rule, 
yet the weight of authority in this country would seem to be to the contrary. 
In Murray v. Albertson, 50 N. J. Law, 167, 13 Atl. 394, 7 Am. St Rep. 787 




2 'Independent of Covenaots ^ 



(Court of Appeals of New York, 1882. 133 N. Y. 287, 81 N. E. 94, 28 Am. 

St Bep. 636.) 

Appeal from superior court. New York city, general term. 

Action by Elizabeth J. I^avnes ayainst ^li2al;>^th AY Aldrirh. From 
a judgment of the general term, affirming a judgment for plaintiff, 
entered on a verdict directed by the trial judge, defendant appeals. 

Finch, J. Judgment was ordered against the defendant upon the 
trial of this action for rent accrued after the yvp^ratigti nf 1i#»r n^jgr. 
inal lease , upon the ^ou nd that by holding over fjfte^ such ei^pifa- 
t ion she became a tenant for another year upon th e terms of the ^jior 
written lease. The facts disclosed were that such lease ended by its 
terms on May 1, 1889; that it co ntained a provision that the prem- 
ises should be occupied as a private dwelTTng, and a covenant not to 
sublet without the writte n con sent of the lessor. Both stipulations 
were violated . The tenant, without permission, rented the premises 
to Mrs. Coventry, who occupied them as a boarding house, and re- 
ceived as one of her boarders a lady, who was a chronic invalid, and 
continuously ill. On the 4th of February, 1889, the lessor incjuired 
oj the lessee wh ether she^e^ired to renew her lease for another year, 
a^ id was informed th at^_she dicl not. The 1st day of May was a holi- 
day, and doubtless the tenant had until noon of the next day for a 
surrender of possession. But the pos session was^ retained by the ten- 
ant nnt\\ fhe afternft pn nf May A\\ wTien the keys were tenclere J, Tiut 
refused. The excuse given is that on the 2d day of May there was 
difficulty in engaging trucks, that the removal began on the 3d, but 
the sick boarder could not then be moved with safety, and was not 
moved until the 4th. This court held in Commissioners v. Clark, 
33 N. Y. 251, t hat the rule is too well settled to be_ disputed that, 
where a tenant holds over af ter the expiration of his term, the law 
will imply an agreement to hold for a yeai^ upqn the terms of the prior 
lease: that the option to so regard it is with the landlord, and not 
the tei 

jcasc; u iat uic uuiiuii lu su rcgciru it is wiui viic laiiuiuru, aiiu iiul ' A^ . 

with the tenant; and that theTattef'liolds over his ferm at hfs peril. *^^^ 

In Conway v. Starkweather, 1 Denib, il4, the tenant had notified 

(1887), the conrt reviews the English cases, and refuses to follow them. Fish- 
er ▼. LighthaU, 4 Mackey (16 D. G.) 82, 54 Am. Rep. 258 (1885), likewise holds 
that there is no implied covenant that on the leasing of a furnished house 
that the premisee are habitable, (compare, also, Green ▼. Redding, 02 Gal. 548, 
28 Pac. 699 (1891); Franklin v. Brown, 118 N. Y. 110, 28 N. B. 126. 6 L. R. A. 
770, 16 Am. St. Bep. 744 (1889) ; Edwards v. McLean, 122 N. Y. 802, 25 N. B. 


the landlord of his intention not to remain for another year, as was 
the fact in the present case, but nevertheless did hold over for a fort- 
night, and the fact of the notice was held to be immaterial, the court 
saying : " The act of the plaintiff in hplHiny nvf>j j ^ ^< j given the de- 

I j^m f endants a le^al right to treat him as tenan t, and it is not inhi s 
Vv.^"^ power to throw off t hat cJiaracter. however onerous it may be." 

The appellant does not deny the rule, but seeks to qualify it so as 
to mean that it is only where the tenant holds over voluntarily, and 
for his own convenience, that the landlord's right arises, and that it 
does not so arise when the tenant holds over involuntarily, not for his 
own convenience, but because he cannot help it. I am averse to any 
such qualification. It would introduce an uncertainty into a rule 
whose chief value lies in its certainty. The consequent confusion 
would be very great. Excuses would always be forthcoming, and 
their sufficiency be subject to the doubtful conclusions of a jury; and 
no lessor would ever know when he could safely promise possession 
to a new tenant. The cases cited by the appellant do not bear out 
his contention. In Smith v. Allt, 7 Daly, 492, the holding over was 
in part the act and assent of the landlord, and occasioned by pending 
negotiations, and could not have been said to be the sole act of the 
tenant. In Shanahan v. Shanahan, 55 N. Y. Super. Ct 344, it ap- 
peared that the 1st of May was Sunday; that the tenant began to 
move on the afternoon of the 2d ; that the removal continued during 
the 3d; and for that reason the tenant was held liable. The court 
did interject the remark that there was no unavoidable delay in mov- 
ing, but without seeking to change or modify the rule. In McCabe 
v. Evers, 9 N. Y. Supp. 541, decided in 1890, in the New York city 
court, it appeared that the tenant moved out on the 1st of May, but 
left behind him an old stove and some rubbish, and tendered the key 
on the 2d of May. The court held that the evidence of a holding 
over was inconclusive and ambiguous, and the question should have 
been submitted to the jury. In Manly v. Clemmens, 14 N. Y. Supp. 
366, decided by the same court, the term expired on February 2d 
at noon; the tenant began his removal in the morning, and worked 
till midnight. There was a verdict against the landlord, which the 
court refused to set aside. These cases, even if regarded in all re- 
spects as correctly decided, fall very far short of establishing the 
appellant's doctrine, or justifying a reversal in the present case. 
\ * There is no question here about the fact of a holding over, and no 
•^ 'OL^^qusstion^ therefore. JnTtTiat regard^ for the soluti on of a jury. The 
* ^ ^ tenant remained in possession voluntarily, for her own convenience 
and that of her sick boarder. If it was unsafe to remove the latter, 
the situation was wholly the fault of tlie tenant, who sets up as an 
excuse for one violation of the lessor's rights the consequences of 
her own earlier violation of the terms of the lease. No impossibility 
of removal was shown; merely difficulty and inconvenience, which 


should have been and might have been foreseen and provided against. 
If the rule in this case seems to involve a hardship, that is sometimes 
true of every general rule, however just and wise, but does not justify 
its abrogation. To sustain this defense would open the door to a 
destruction of the settled doctrine. ^nH tend to involve t he ri ghts of 
both lessor anH li^Rgee in uncertainty and confusio n. Tdo not mean 
to say that whether there has been a holding over at all piay not 
sometimes be so doubtful upon the facts as to require a submission 
to the jury. I mean to say that there is no such doubt in the present 
case. I reserve the question, also, whether there might not be an 
unavoidable delay in no manner the fault of the tenant, directly or 
indirectly, which would serve as a valid excuse. It is enough that 
here was a holding over not unavoidable, which might have been pro- 
vided against, and where the chief difficulty grew directly out of the 
tenant's own wrpngful act. 

It is claimed, however, that the further question whether the lessor 
exercised the permitted option or took possession in her own right 
should have been submitted to the jury. I think the facts admit of 
but one inference. The lessor did exercise her option, and that 
promptly and clearly. When the keys were te n dered t o her mothe r 
they were refused. In the afternoon of May 4th the lessor went 
to the house, to see what was occurring. She found it deserted, and 
the windows open. Her property needed protection. Under the lease 
she had a right to enter and relet it as the agent of the tenant. A 
policeman entered through the open window. Some keys were found 
on the mantel, and thereafter used, but evidently not' all, for others 
were restored much later. The premises were somewhat damaged, 
and the lessor had a little painting and some plumbing done, amount- 
ing only to ordinary and needed repairs. She tried to rent the house, 
but failed, and went to Europe during the summer, and occupied 
the house in the fall, under a stipulation which expressly reserved 
her existing rights. Upon these facts no inference was justified ex- 
cept that drawn by the court. There was a clear refusal to acc^ t 
t he surren der offered, a n d the repa irs were consistent with that posi- 
t ion, and w ith the right reser v ed in t he lea se. _We think the judg- 
ment was correct, and should be affirmed, with costs. All concur. 

DAVIS V. WILLIAMS. 'T^ \V,ix^l'\^^± !:± 

(Supreme Court of Alabama, 1901. 130 Ala. 530, 30 South. 488, 54 L. R. A. 

749, 89 Am. St Rep. 55.) ' 

Appeal from chancery court, Macon county; W. L. Parks, Chan- 

The bill was filed to compel the specific performance of a contr act 
which was made by R. T. Davis and Mary C. Davis with the GeorgTa 
& Alabama Construction Company, by which contract R. T. Davis 





and Mary C. Davis, his wife, agreed^ upon certain conditions, to 
convey to the Georgia & Alabama Construction Company on^-hal f 
interest in 40 acres of land in Macon county. The conditions of 
this contract, as stated in the opinion, were fulfilled, and the contrac t 
>yas assigned by the Geor^a & Alabama Construction Company t o 
the complainant s. After the execution of the contract R, T. Dav is 
HjfH^ anr^ the title to the lands vested in his wife, M ary C. Davis, 
and Hubert T. Davis and Fort Davis, his children, who survived him. 
Mary C. Davis purchased the interest of Fort Davis, and at the time 
of the filing of the present bill she and Hubert T. Davis owned th e 
lands as tenants in common. The other facts of the case necessary 
to an understanding of the decision on the present appeal are suffi- 
ciently stated in the opinion. On the submission of the cause on the 
pleadings and proof the chancellor rendered a decree granting the 
relief prayed for, and directed the defendants to execute and deliver 
to the complainants a deed to a one-half mterest in the lands in 
dispute . 

Tyson, J. The bill in this case was filed by complainants, as owner s 
of a certain contract by assignmen t, against the respondents, as suc - 
cessor s in interest and title to the land » agreed to be conveye d, and 
seeks a specific performance of that contract . The contract was exe- 
cuted by R. T. Davis and Mary C. Davis, his wife, in which they 
agreed to convey bv warranty deed a half inter es t in 40 acres of land , 
to be selected by the complainants' assignors, m a certain section 
owned by R. T. Davis. The consideration of this contract was tha t 
t he complainants' ij i gj^ ignnrR .were Jo build the Savannah, A mericus & 
Montgomery Railr oacJ, within on e-half mile of the reside nce of th e 
Davises. ^jLt( L_gje ct a depot within the same di stance fro m thei r 
residence, at any point along the line of the road most suitable to 
themselves. Tjie deed was to be e xecuted as_so6njas^ the ro ad w as 
built , the depot established, and a train made a trip to Montgomery. 
The land agreed to be conveyed upon compliance with the conditions 
of the contract, and selected, was a part of a tract of land owned by 
him, comprising about 800 acres. R. T. Davis died shortly after en- 
tering into the contract, and after the selection of the land was 
made by complainants' assignors under it. He left surviving him his 
wife and two sons. His wife, who is one of the respondents, was 
at the date of the filing of the bill the owner of a two-thirds undi- 
vided interest in the entire tract; and Hubert T. Davis, a son, the 
other respondent, was the owner of the remainder. The evid ence 
shows without dispute that the road was built, the depot established, 
a_train^ ran through to Montgomery, and the land selected dur ing t he 
year 1891. la other words^ compla inants' as signors had performed 
their, obligation under, the cojTtract, and were entitled to a cje ed f fnm 
( jie respon dents during the year 1891. O n April 2 0, 1896. the com - 


plainants by purchase became the owners of this contract, and bv vir - 
tue of that ownership were entitled to a deed from the respon dents. 

One of the defenses invoked hy ^he answer of the respond ents 
i s that complainant Williams for a period of abput two year s befo re 
>f thi^ bill, at the date of its filing , a nd for one ye ar sub- 
sequent thereto, tenanted and dwelt on a P^rt of the lands in con- 
troversv. It appears from the evidence that Williams ml 892 built a 
house for the respondents upon the land in controversy, which he 
occupied while "looking after the business" for them^ until D<»rpmhpr 
1^, from whirh last-nampH A^t€t he. naid rent for this house at the 
rate of five dollars per montjli for ot^e vear, and four dollars pe r 
mgnth for.ei^ht months, ceasing to pav rent \p August. 1898. The 
bill was filed on the 11th of February, 1897. It will be noted that 
when this bill was filed, and after the complainant Williams had be- 
come the o wner of the contract, and after he became entitled to a ^ 
deed to the lands from the respondents, he rented a part of the lands , V i^. . 
and became the tenant of one of the respondents. His occupancy of ^/ 

the house which is situated upon the lands in controversy, for looking 
after the business of the respondents, prior to December 2, 1896, when 
he commenced to pay rent therefor, did not create the r elatiQn_of 
landlord and tenan t. That relation was simplv that of employer an d 
employe or master and servant, and the occupancy of the house was 
a part me rely of the contract for service, an d operat ed as a portion 
of the consideration of that agreement. People v. Annis, 45 Barb. 
(N. Y.) 304; Wilber v. Sisson, 53 Barb. (N. Y.) 258; Haywood v. 
Miller, 3 Hill (N. Y.) 90; Kerrains v. People, 60 N. V. 221, 19 Am. 
Rep. 158; Doyle v. Gibbs, 6 Lans. (N. Y.) 180; Bowman v. Bradley, 
151 Pa. 351, 24 Atl. 1062, 17 L. R. A. 213; McQuade v. Emmons, 38 
N. J. Law, 397; School Dist. v. Batsche, 106 Mich. 330, 64 N. W. 
196, 29 L. R. A. 576 ; East Norway Lake Church v. Froislie, 37 Minn. 
447, 35 N. W. 260; White v. Bayley, 10 C. B. (N. S.) 227. 

The relation of landlord and tenant arose in December, 1896, which, 
as we have shown, was after Williams became entitled to a deed from 
the respondents to the land. We have t he question presented as to 
whether Williams, being the tenant of onT'oFlh'e fespon^'nts at the 
. .„\5z.^time of the filing of the bill, and being the owner of the contract at 
t he time hp entereij into thaf relation, can maintain the bill to require 
a specific performance of that contract. There is not an intimation 

that there was any understanding or agreement that his rental con- 
tract was subject to his right to have the, contract of purchase of 
which he was part owner enforced, or that his landlord ever at any 
time in any way recognized his rights under that contract, or obliga-, ^ 
tion under it to make a deed to him. It is a princip le universally M 
recognized and enforced bv courts of la w that a tenant is^estopped to /^ 
dispute the title of his land lord, unless his landlord's title has expired 
or been extinguished, either by operation of law or his own act, after 


the creation of the tenancy . It is only when there is a change in 
the condition of the landlord's title for the worse after the tenant 
enters into his contract, in the absence of fraud or mistake cf fact, 
that he is permitted to show the change in the condition of the title. 
Under no circumstances^ when there is no fraud or mistake of fact . 
will it be permifled to deny the title of the lan dl ord at the beginnin g 
of his term ] this doctrine has been enforced by this court from its 
earliest history. Randolph v. Carlton, 8 Ala. 606; Pope v. Harkins, 
16 Ala. 321; Rogers v. Boynton, 57 Ala. 501; Farris v. Houston, 
74 Ala. 162; Robinson v. Holt, 90 Ala. 115, 7 South. 441 ; Barlow v. 
.Dahm, 97 Ala. 415, 12 South. 293, 38 Am. St. Rep. 192; Pugh v. 
Davis, 103 Ala. 316, 18 South. 8, 49 Am. St.' Rep. 30. 

In 2 McAdam, Landl. & T. p. 1341 et seq., this doctrine is stated 
in this language: " For r^asQn«y of public policy a tenant is neve r 
allowed to dispute his land l ord's title a fter h aving accepted possessio n 
under hirg Thi<^ rule is element ary. The estoppel extends' equally 
to landlord and tenant, so that, while the tenant is estopped from deny - 
i ng the landlord's title, the landlord cannot allege that he had no titl e 
a^ t]}(\ tin^^ Qi ft; ^e demis e. Where a tenant enters into possession 
under a lease, he is estopped from denying the title of his landlord. 
The tenant must surrender the possession to the landlord before he 
can assail or question the title under which he entered. * ♦ * 
*He can no more show that the premises belonged to the state than 
he can that they belonged to himself. He must first restore the po s- 
sessio n which he obtained^frpm his landlord, and, then.^as plainti ff, 
he may avail Himself of a n y title whic h he h as been or may be abl e 
to acquir e? 'The foundation of the estoppel is the fact of the one 
obtaining possession and enjoying possession by the permission of the 
other. And so long as one has this enjoyment he is prevented by 
this rule of law from turning round and saying his landlord has no 
right or title to keep him in possession.' * * * No dispute as to 
the title will be tolerated until the parties are placed in their original 
position. * * * Nor can he be heard to deny the title of his 
landlord, nor can he rid himself of such relation, without a complete 
surrender of the possession of the land. To allow him to agree and 
profess to hold possession under one as landlord, and at the same time 
to hold covertly for himself, or for another's advantage, would be 
to encourage and uphold a gross fraud, which the law will never do." 
Continuing, the author says: *' He must first surrender up the prem - 
ifie55 to hi s landlord be fore assuming an attitude of hostility to the 
title 01^ claim of title o/_the Jatter." 

It may be urged that this proceeding is in equity, and that the 
suit involves no denial by Williams of his landlord's title. We ap- 
prehend that it is of no consequenc.e in what court this question of 
estoppel may arise. If it exists, there is no reason why it should 
not be enforced by courts of equity as well as by ccurts of law. 


Indeed, such a distinction has never been asserted or recognized. In 
the case of Barlow v. Dahm, 97 Ala. 414, 12 South. 293, 38 Am. St. 
Rep. 192, which was a bill for sale of land for partition by a tenant 
against his landlord, it was held that the tenant could not maintain 
the bill without first surrendering the possession. And in Davis v. 
Pou, 108 Ala. 443, 19 South. 362, which was a bfll by a tenant to 
enjoin a writ of possession and execution at law issued upon a judg- 
ment in unlawful detainer in favor of his landlord, it was held that 
there was no equity in the bill, for the reason that the tenant could 
not be permitted to show that his landlord's title had terminated be- 
fore the beginning of the tenancy. In Homan v. Moore, 4 Price, 5, 
it was held: "A lessee proceeded against by ejectment, and who has 
received notice from a claimant disputing his landlord's title not to 
pay him any more rent, and has been threatened with distress by his 
landlord if he does not, cannot sustain an injunction in equity to 
restrain either the ejectment or distress, for he is not permitted by 
such means to bring his landlord's title into dispute." In Smith v. 
Target, 2 Anstr. 529, it was held that a tenant, though threatened with 
suits at law on a title adverse to his landlord's, cannot make them 
interplead. Said the court: "It would be extremely mischievous if 
he were allowed, in his own right, gr that of others, to call in ques- 
tion the title of the person under whom he holds." To the same ef- 
fect is Johnson v. Atkinson, 3 Anstr. 798. In these cases the tenant 
entered upon his lease after the termination of his landlord's title. 
The exception, however, was recognized by the chancery courts of 
England, as exists in courts of law, that, where the landlord has by 
his own act given title to another subsequent to the lease, he may 
thereby entangle the tenant in embarrassment, which a bill of inter- 
pleader may be the most proper mode of quieting. Cowtan v. Wil- 
liams, 9 Ves. 107 ; Clarke v. Byne, 13 Ves. 386. 

Thisbrin ^s us to a consideratio n of the qu estion as to wjicthgr the 
assertion bv the complainant Williams of his right to have .his._£on- 
tra< ; t nf purchase specificallv enforced i nvolves a denial i)f . j}is. land- 
lord's title . At the threshold of the discussion of this question it is 
necessary to ascertain the relation of the complainants to the re- 
spondents with respect to the interest in the lands and in the contract 
of sale involved in this controversy. That it is a contract of sale, 
and establishes t he relation of vendor and vendee between the par- 
t ies, goes not adm it of disputatio n. Assummg this as true, *'in law 

le contract is wholly, in every particular, executory, and produces no 
effect upon the respective estates and titles of the parties. The ven- 
dor remains to all intents the owner of the land. He can convey it 
free from any legal claim or incumbrance. He can devise it. On 
his death intestate it descends to his heirs. The contract in no man - 
ner interferes with his legal right to and estate in the land, and he 
is simply subjected to the legal duty of performing thjg. i^jjitractj, or 


gay ing such ^^xnages as a jury should award. On the other hand, 
the vendee acquires no interest whatever in the land. His right is 
a mere thing in action, and his duty is a debt — ^an obligation — ^to pay 
the price; and on his death both this right and this duty pass to his 
personal representatives, and not to his heirs. In short, ^le pbtains a t 
law no real prop erty or interest in real pro perty. The relations be- 
tween the two parties are wholly personal. No change is made unt il 
hy fViA f>y<^<*iitinn and delivery of a deed of convevance the estate in 
the land passes to the vendee. Equity views all these relations from 
a very different standpoint. In some respects, for some purposes, the 
contract is executory in equity as well as at law; but, so far as the 
interest or estate in the land of the two parties is concerned, it is 
regarded as executed, and as operating to transfer the estate from 
the vendbr and to vest it in the vendee. This theory must of neces- 
sity make a great difference in the respective rights, duties, and rela- 
tions of the vendor and vendee. One of the grand principles of eq- 
uity — one of the great foundation stones upon which the whole su- 
perstructure of particular doctrines and rules is erected — is the prop- 
osition : Equity regards awd trea ts as done what in good conscienc e 
ought to be don e. This principle, so brief in its statement, is most 
broad in its application and fruitful in its results. From it, as the 
root, spring a 'large part of the rules which make up the body of 
equitable jurisprudence. Apply the principle to the present case. By 
the terms of the contract, the land ought to be conveyed to the vendee, 
and the purchase money ought to be transferred to the vendor. Eq- 
uity therefore regards these as done, — ^the vendee as having acquired 
the property in the land, and the vendor as having acquired the prop- 
erty in the price. The vendee is looked upon and treated as owner 
of the land. An equitable estate has vested in him commensurate 
with that provided for by the contract, whether in fee, for life, or 
for years. Although the vendor remains owner oj^the l egal estate, h e 
ho lds i t as a trustee_f or^thfi. xfindee, to whom all the beneficia l inte r- 
est has passed ." Pom. Cont. § 314. See, also, Ashurst v. Peck, 101 
Aiar499, 14 South. 541. 

The foregoing extract clearly defines and fixes the status of Wil- 
liams and one of the respondents after he became part owner of the 
contract, which status necessarily existed at the time of the filing of 
the bill, and continued up to the present time. It is only upon the 
theory of the existence of this status that he can have relief upon the 
bill, and, of necessity, the prosecution of the suit for the specific per- 
formance of the contract is an assertion by him that at the time of 
the filing of the bill he was the owner of the land. This assertion 
he cannot be permitted to make until he surrenders up the p remise s 
to his landlord, since it puts him in a position of repudiating or o f 
redding himself of the relation of tenant^ which he bnrp <-n nnf > nf 
the respondents "when the bill was filed, or of assuming an attitude 


of hostility to the titfft pr riaim nf titlft nf Vii's lanHIn^^ "A landlord 

can only be required to litigate title with the tenant upon the vantage 
ground of possession." Barlow v. Dahm, supra. Surely it will not 
be controverted that the bill involyes a litigation of title between 
Williams, the tenant, and Mrs. Davis, his landlord. For, as we have 
said, Williams asserts by the bill his ownership of the land, which 
is denied by the respondent Mrs. Davis. 

It is argued, on the_ authority of Bpgan v. Daughdrill, 51 Ala. 312, 
that this court can correct the decree of the lower court, and grant 
relief to complainants, if entitled to it, for the portion of the land 
not in the possession of Williams, at the date of the filing of the 
bill, as tenant. Assuming that complainants are entitled to that re- 
lief, without deciding it, the record furnishes no sufficient data upon 
which to predicate such a decree. It fails to disclose with any de- 
gree of accuracy the area of the parcel in the possession of Williams. 
To undertake to eliminate it out of the land, and ^o render a decree 
requiring the respondents to execute a deed for the balance^ would, at 
best, be but a conjecture as to the area or boundaries of the land 
decreed to be conveyed. The ownership of the contract being joint, 
and the enforcement of it Being sought jointly, the familiar doctrine 
that both complainants must be entitled to relief, or neither can havelV 
it, applies. Williams not being entitled to r eli ef, the bill mu^^ be di s- (Mm^ 
missed. Wilkins v. Judge, 14 Ala. 135; Moore v. Moore, 17 Ala. 
631 ; Tucker v. Holley, 20 Ala. 426; Plunkett v. Kelly, 22 Ala. 655; 
Plant v. Voegelin, 30 Ala. 160; Vaughn v. Lovejoy, 34 Ala. 437; 
James v. James, 55 Ala. 525 ; Larkin v. Mason, 71 Ala. 231 ; 3 Brick. 
Dig. 373, § 87. 
/" This dismissal will not preclude the rights of complainants to file 
I another bill, if they are so advised. Reversed and rendered. 
\^ Sharpe and Dowdell, JJ., dissent. 

III. Termination of Estates for Years • ^ O 


', ^ 


1. Destruction op Premises 

^iMx-( U^'/ 


(Supreme Court of Ohio, 1890. 47 Ohio St 896, 25 N. E. 425.) 

Error to district court, Hamilton county. 

DicKMAN, J. On the 7th day of July, A. D. 1879, James R Gay 
leased to John R. Davey an d A. B. Allen , the defendants in error, 
certain premises in the citv of C incmnati for the ternj jjf. three jearg 
from that dky, the lessees to have the privilege of a further term of 

• For discussion of principles, see Burdick, Beal Prop. | 82. 


two years, commencing with the 7th* day of July, 1882. The prem - 
is es, used for manufacturing purposes, are described ag gifi]fjfctff^ in the 
city of Cmcmnati . b einyr three rooms on the front of fce f^rst. sec - 
ond, and tl^i^d floors 9^ ]^^mcs P. Gay's main building frontinf fon 
the north side of New street, and the room in the third storv of th e 
addition to the main building; also a strip of ground lying on the 
west side of the main building, bekig 12 feet in width on the north 
side of New street, and running back the same width to the builUing 
described as the addition to the main building, the lessor to erect a 
one-storv brir> offire 12 feet hy 16 feet adjoining the gnnth^yf^t ror- 
ner of the building on New street, for occupancy \)y th^ |eggpf g As 
rent, the lessees were to pay during the term of three years the sum 
of $125 per month, payable monthly, commencing on the 7th day of 
August, 1879, and on the 7th day of each and every month there- 
after during such term. The entire building, including the apartment s 
l eased to Davev and Allen, was destroyed by fire on the llth day o f 
December. 1880. but was rebuilt by the lessor, and was ready for o c- 
cupancy in the earlv part of Tanuary^ 18817 

When the building was restored, the lessees declined to pay ren t 
from the time of rest ora tion, a nd the lessor comm enced suit m t he 
superior court of Cincinnati t o recover the rent from Tanuarv 7, 1881. 
to May 7y 1881. The lessees set up in defense that , by the terms and 
provisions of the lease under which they kad occupied the premises, 
it was stipulated that, if the occiipied premise s wer e destroyed or 
rendere d untenant able bv fire or una voidable acci dent, they we re not 
to be required to pav anv rent thereafter ; that the premises were to- 
tally destroyed on the llth day of December, 1880; that thev did no t 
i ^se, occupy, or enjoy the premises at any time thereafter ; that the 
premises were destroyed without any default or neglect on their part ; 
and that the lessees thereupon surrendered possession of the prem- 
ises to the lessor. The lessor, in r eply^ denied that the pryffljgfis in- 
cluded in the lease were totally destroy eTT)y^ fire, and p^^^g^^ ^hp*" 
t here was only a partia l destruction of the same, t he brick office no t 
bdng materially injured^ and co ntinu ing tenantable ; and further de- 
nied that the premises were ever surren3ered to the lessor by the 
lessees. T he lease contained th e_coven ant "that said l essee s will pa y 
''^^'d ^fin^*^, ^" rpann er afor esaidj^exc_ept_ said p r emises shall be de- 
stroyed or rendered un tenant able b y fire or unavoidable accident.^* 
Before the trial, the death of the plaintiff was suggested, and it was 
ordered that the action be revived in the name of Sarah E. Gay, the 
plaintiff in error, as executrix of the last will and testament of James 
P. Gay, deceased. On the trial, a jur y being waived, the cou rt, upo n 
the testim ony, fou nd i n fa vor of the plaintiffT and entered, ju ^grnen t. 
for the amount claimed, with interest and costs. The defendants 
thereupon filed their motion to set aside the judgment, and for a new 
trial, mainly on the ground that the finding of the court was against 


1 r I J >:i>^-^ 



the weight of the evidence, which motion the court overruled. The 
defendants excepted, and by bill of exceptions placed all the testi- 
mony on the record. The defendants, on petition in error in the 

HUtrjr^t rnurt a«SQi'fmi>H fnr ^rrnr that the jnHpnont rirnHprcd py tfie 

s uperior court was against ^^le weigl ]f ^f thi* ^viHpnrf;^ and tliat the 
superior court erred in overruling their motion for a new trial. The 
district court reversed the judgment of the superior court, and , , pro- ^^^ 
ceeding to render such judgment as it considered that court shoul d */^ 

havf* rqflHerpH ri* nfier^ <j ^ final jud^ent for the lessee s, John R 
Davey and A. B. Allen, and dismissed the action of Sarah E. Gale, 

By this proceeding, it is sought to reverse the judgment of reversal, 
as also the final judgment rendered by the district court. Material 
facts necessary to sustain a judgment were in issue between the par- 
ties. The main ground upon which the defendants predicated their 
motion to set aside the judgment, and for a new trial, was that the 
finding of the court was against the weight of the evidenco When 
the reviewing court reversed the judgment of the court below for 
error in overruling such motion, the only judgment which shou ld 
I have been rendered after reversal was to grant ^ new trial. a<i t?^9ve d 

^tl^ for in the tn'a^ gnurt. The case in the district court was not one for ^ 

a final judgment The lessees were not entitled to judgment on th e j^fj^j^. 
pleadings . There was no agreed statement of facts, and no finding ^^? 
of facts by the court to which the case had been submitted on the 
evidence; and it was a case in which the right existed to demand a 
jury. For aught appearing to the contrary, upon remanding the case 
for further proceedings, any imavoidable defect in the evidence, on 
the hearing before the court, might, in furtherance of justice, have 
been supplied in a second trial. We are of the^'opinion therefore tha t, 
i n revyrsin^ the judgment of the superior court, th e district court 
erred in rendering final judpnent for the l essees. Day ey_and Alien, 
instead of remanding the case for a new t rial. See Emery's Sons v. 
6ank, 25 Ohio St 360, 18 Am. Rep. 299; MilTer v. Sullivan, 26 Ohio 
. St 639 ; Stivers v. Borden, 20 Ohio St 232. 

In remanding the cause for further proceedings, there are legal 
principles that claim consideration. Where the tenant, who expressl y 
covenants to pay rent has not protected hims elf by a s aving cla useln 
t he lease, the proposition is generally true t hat he ^iir<£e bound to 
continue tne payment of rent after the de structTon of the tenement 
by fire or unavoidable a gcident^aad. will hav^ no relief against such 
expres s covenant.^ Having by his own contract created a duty or 
charge upon himself, he will be bound to make it good, notwithstand- 
ing any accident or inevitable necessity, because against such casualty 
he might have provided by his own contract, if he had thought proper 
to do so. Linn v. Ross, 10 Ohio, 412, 36 Am. Dec. 95. But under th e 
facts, as it is claimed they exist, the defendants in error insist that 


they are discharged from the payment of rent by the stipulation in th e 
Ipase that if ^^ premises occupied by t hem should ^^'^ ^fifi^^'^y^^^r^'" 
made untenantable by fire or unavoidable accident, they were not 
thfiSattSr. t o be requi r ed to pay rent. If the lease had contamed a 
covenant on the part of the lessor to rebuild the premises if destroyed, 
and he had rebuilt in accordance with his covenant, the stipulation 
would not discharge the lessees from liability to pay rent But the 
lessor was under no obligation to rebuild, and the rights of his ten- 
ants secured by stipulation in the lease, and accruing immediately upon 
the destruction of the premises by fire, were not to be kept in abeyance 
by the contingency of the lessor's concluding to rebuild. If, however, 
after the building was burned, the owner was requested and induced 
by the lessees to rebuild for the lessees' use and occupation, they could 
not justly avoid the payment of rent, after the building had been 
restored to its former condition. 

Furthermore, it is contended in behalf of the defendants in error 
that they arc relieved from the payment of rent under section 4113 
of the Revised Statutes. That section reads as follows : '* The lessee 
of any building which, without any fault or neglect on his part, is 
destroyed or so injured by the el emen ts, or other c ause, as to be unfi l 
f or occupancy, shall not be" l iable to p^^en t to the l essor or owner 
thereof, after such destruction' or 'TfijuryT unless otherwise expressly 
provided by written agreement or covenant ; ' a nd tfi e lessee sha l l there- 
upon j urrender^^ossessiqn^ of the premises so leased'' The obvious 
design of this statutory provision is to relieve from hardship the 
tenant who has inadvertently neglected to protect himself by express 
covenant in his lease against the necessity of paying rent after the 
leased premises have been destroyed by fire or other casualty. But. ^ 

t o secure the benefit of the statu te^^the tenant must surrender or yield '%. , 
up all thatjr^ mains of th^ premises unbraced in the lease witho ut an y k^ 
puf pQ«^e or intention of r e sumi ngL possession thereof. The legislature 
has absolved the tenant from an onerous obligation, b jit the burden js 
removed only upon his compliance with the statutory ^ohdition . The 
statute, in 5se the buildings are destroyed, does not clothe the land- 
lord with the power of terminating the lease, and if the tenant alon e 
i s^to have^e_option of sp doing^and may h<> H i gr h a rgpH f rf>m thi> 
obligation t6 pay r ent, he must give up the possession and controLof 
the premisS to film 'who Ts entitled to the reversion. If he would 
preserve the lease m full Force, and avail himself of its advantages, he 
must also bear any incidental hardship that may arise during its con- 
tinuance. The clause in the statute for surrendering possession of 
the premises would be without significance, if not construed as quali- 
fying the provision for a release of the tenant from the payment of 
rent. In Johnson v. Oppenheim, 55 N. Y. 280, the court of appeals, 
in construing chapter 345 of the New York Laws of 1860, which is 
substantially the same as the statute of Ohio, in pari materia, say: 


"The act provides that, upon the destruction or injury of leasehold 
buildings so that the same are unt^antable, the tenant shall not be 
liable or bound to pay rent, and that he may thereupon quit and sur- 
render the possession of the premises. The tenancy is not made abso- 
lutely to cease, except at the option of the tenant. H e is relieve d from ^* 
his obligation, if he chooses to avail himself of the pr ovisions oi(J 
the act, or he mav perform the covenants ot his lease and retain TPie^^^ , 
benefit o f it: but he cannot have the benefit of the law, a nd at" tHe ^ r^ 
s ame time repudiate its obligation s. If he elects absolution from its ^ 

obligations, the act, by necessary implication, imposes as a condition 
the surrender of the premises." Such is manifestly the correct inter- 

»ut it is contended the rule is well settled that, in the absence of 
covenant, when the subiect-matter of the ^<fpifi^ ^s destroved by 
firA nr nthf;]- (^asualty — as a house, where the land on which it rest :! 

iQ_^nt rpntpH, nr ap^ irtmentS in the house^ wheth^ ^r f^r piirp^«s<^<^ nf 
trade ^f ftthpryyigf L-the destruction of the bui)(^;^g tprminat^fi t^A 

relation of landlord and tenant, and there is nothing left to surrende r 
t o the owner or lesso r. While this may be a correct statement of the 
general principle, the contract of lease in the case at bar was entire, 
and embraced, not only the rooms in the destroyed building, but also 
\ t he one-story bricIT onice, and the strip ot grouhd^ying on the we st 
>\(jAs ide of the main building. If, therefore, the building was totally 
destroyed by fire, and a surrende r of the lea sed ro oms b ecame impos- 
si ble, it could not be so "sard"o'f the o ffice and strip of ground,_if 3ie /O 
l essees, after the fire^ continued ^o use apd occupv the same_ until /^^ /^ 
t he building was restored and ready for occupancy. As to those por- ^y 
tions of the demised premises that were not destroved. and remaine d ^^t) 

I t enantable. there was no apparent obstacle in the wav of a surrender ^ 

\iAi> ». a s contemplate d in t;he statute. 

The final judgment in favor of Davey and Allen should be reversed, 
and cause remanded. Judgment accordingly.^ 

Y It Is weU estabUshed by the decisions that, at common law, where a ten- 
ant of premises accidentally destroyed has expressly covenanted to pay rent, 
he is not relieved from his duty to pay in absence of an express covenant or 
agreement to that effect Cook v. Anderson, 85 Ala. 99, 4 South. 713 (1887). 
Compare, however, O'Byme v. Henley, 161 Ala. 620, 50 South. 83, 23 L. R. A. 
(N. S.) 496 (1909); Mayer v. Morehead, 106 Ga. 434, 32 S. E. 349X1898); Bowen 
V. CJlemens, 161 Mich. 493, 126 N. W. 639, 137 Am. St Rep. 521 (1910); Viterbo 
T. Friedlander, 120 U. S. 707, 7 Sup. Ct 962, 30 L. Ed. 776 (1887). mi£rg, 
llfiweyer^ there is ft.defitrucji ^ of th e entire subjgct-matter, as in case of a 
room or an apartment with ^ intel^st Ih lUe! land, many of the cases make 
an exception to the general rule governing the tenant^s liability. See McMil- 
Ifti V. g^lomon, 412 Mk. !!^5?5, 94 Am. Dec. 654 (1868) ;* AInsworth v. Ritt, 38 Cal^^ — * C ^ 
89 (1869); Humiston y. vyrheeler, 175 lU. 514, 51 N. E. 893 (1898); Harrington ^ 

▼. Watson, 11 Or. 143, 3 Pac. 178, 50 Am. Rep. 466 (1883). 

Busd.Cab JtEAL Pbop. — ^10 


(B) Tenancies at Will, from Yea/r to Year, and at Sufferance 

I. Tenancies at Will — ^Creation • 


(Supreme Court of Mizmesota, 1891. 47 Minn. 1, 49 N. W. 327.) 

Appeal from district court, Ramsey county ; Egan, Judge. 

MiTcH^i,!,, J. The plaintiflF leased to defendant a tenement for the 
term of 13 months from April 1, 1888, for an agreed rent of $540 per 
annum, payable in equal installments of $45, in advance, on the first 
day of each month, 'f he defendant entered and occupied the preifiises 
during the term, and after its expiration held over and continued in 
possession, and paid rent to the plaintiff, in accordance with the terms 
of the lease up to and including the month of November, 1889. Several 
days prior to October 30, 1889, the defendant served upon plaintiff 
written notice that he would vacate the premises on November 30th 
next ensuing. In pursuance of this notice he vacated them, and has 
not since that time occupied them or paid rent. This action is to re- 
cover rent from December 1, 1889, to May 1, 1890. 

It is not qti\sstioned but that at common law the defendant, by hold- 
ing over after the end of the term without any new agreement, and 
paying rent according to the terms of the prior tenancy, which was ac- 
cepted by the plaintiff, became a tenant from year to year, and that this 
tenancy could not be terminated by either party, except upon due no- 
tice, (at common law, six months,) terminating at the end of the first or 
any subsequent year, (May 1st) But defendant's contention is that 
tenancies from year to year have been abolished by the statutes of this 
state, and converted into tenancies at will, which may be terminated at 
any time by either party by giving the length of notice provided by 
Gen. St. 1878, c. 75, § 40, which, in this case, would be one month, the 
rent reserved being payable monthly. While tenancies from year to year 
are the creation of judicial decisions, based upon principles of policy 
and justice, out of what were anciently tenancies strictly at will, termi- 
nable at any time by either party without notice, yet such tenancies had 
become so well established and so fully recognized in the common law 
that it would naturally be supposed that, if it had been intended to con- 
vert them into mere tenancies at will, it would have been done by ex- 
press and clear language, and not left to mere inference or implication. 
We think we are safe in saying that, although our statutes bearing up- 
on the subject have always been the same as now, it has never been the 
understanding of the bar of the state that they had introduced any 
such radical change in the law as that now contended for. Evidently 

• For discussion of principles, see Burdlck, Real Prop. || 8S-86. 


this court, in considering the cases of Gardner v. Commissioners, 21 
Minn. 38, and Dayton v. Craik, 26 Minn. 134, 1 N. W. 813, assumed 
that tenancies from year to year still existed in this state. It was 
squarely so decided in Smith v. Bell, 44 Minn. 524, 47 N. W. 263, al- 
though the question was not very fully argued in that case, and we 
would not feel bound to follow it if fully convinced that it was wrong. 

Counsel for defendant does not claim that there is any express pro- 
vision of statute abolishing such tenancies, but he relies on certain pro- 
visions which he claims effect that result by implication. The first is 
Gen. St. c. 45, § 1, dividing estates in land into estates of inheritance, 
estates for life, estates for years, ^states at will and by sufferance ; the 
argument being thftt, as estates from year to year are not named, there- 
fore they are impliedly abolished. The next is Gen. St. c. 75, § 40, 
which provides that all estates at will may be determined by either par- 
ty by three months' notice in writing for that purpose given to the oth- 
er party, and, when the rent reserved is payable at periods of less than 
three months, the term of such notice shall be sufficient if it is equal to 
the interval between the times of payment. It is argued that by this 
the legislature intended to provide for the termination of all estates 
which did not terminate themselves without notice, and made provision 
for all the estates, which it recognized, which did not terminate them- 
selves, to-wit, estates at will. Reference is also made to Gen. St. c. 84, 
§ 11, governing stunmary proceedings for the recovery of possession by 
a landlord. It is said that this was evidently intended to give a land- 
lord a smnmary remedy whenever the relation of landlord exists, but, 
as the statute only refers to two classes of cases in which the remedy 
may be employed, when the tenant is not in arrears of rent, to-wit, 
when the tenant holds over after the termination of the time for which 
the premises were demised, and where a tenant at will holds over after 
the determination of any such estate by notice to quit, therefore, if ten- 
ancies from year to year still exist, the tenant in such cases could only 
be evicted by an action of ejectment. 

It seems to us that counsel has been led into error by failing to duly 
consider the state of the common law when the statutes were passed, 
and by asstuning that, when they speak of tenancies at will, they refer 
exclusively to tenancies strictly at will; that is, those which, but for 
the statute in reference to notices to quit, would have been terminable 
at any time )>y either party without notice. It was determined very an- 
ciently by the common law, upon principles of justice and policy, that 
estates at will were equally at the will of both parties, and neither of 
them was permitted to exercise his will in a wanton manner, and con- 
trary to equity and good faith, but that they could only be terminated 
by notice for a longer or shorter period, depending usually upon the 
nature of the original demise. At first there was no other rule but 
that the notice should be a reasonable one. Because of the uncertainty 
of this rule, the courts early adopted, as far as possible, some fixed 
period as being reasonable. In those tenancies which, from the nature 


of the original demise, they construed to be tenancies irom year to 
year, the courts adopted six months as a reasonable notice, holding that 
such tenancies could only be determined by a notice of at least six 
months, terminating at the expiration of the first or any succeeding 
year. And in those cases which did riot come within the class of ten- 
ancies from year to year, because by implication for some definite peri- 
od less than a year, the rule was generally adopted that the time of no- 
tice should be governed by the length of time specified as the interval 
between the times of payment of rent, and should be equal to one of 
these intervals, and must end at the expiration thereof. The result was 
that at common law estates at will, in the strict sense, became almost 
extinguished at a very early date, under the operation of judicial deci- 
sions. Indeed, it would have been difficult to conceive of an instance 
of such a tenancy, except where created by the express contract of the 
parties to that effect. But they still remained substantially tenancies 
at will, except that such will could not be determined by either party 
without due notice to quit. 

The enumeration or classification of estates adopted by our statutes 
is but declaratory of that found in all writers on the common law, even 
after the doctrine of tenancies from year to year had been fully estab- 
lished by the decisions of the courts. Estates in land, less than free- 
hold, have always been classified as of three sorts: (1) Estates for 
years ; (2) estates at will ; (3) estates by sufferance. 2 Bl. Comm. 139. 
This classification was first incorporated in statutory form in the old 
Revised Statutes of New York, and from them borrowed successively 
by Michigan and Wisconsin, and perhaps other states ; but in none of 
Aem was it ever held, or even suggested, that the statute aflfected or in 
any way changed the common law as to tenancies from year to year. 
Did the statutory enumeration necessarily exclude tenancies from year 
to year, there would be much force in defendant's argument. But, so 
far from this being the case, they may be included in either estates for 
years or estates at will, or both, as they possess many of the qualities 
of each. A tenancy from year to year, though indeterminate as to du- 
ration until notice given, has most of the qualities and incidents of a 
term for years, and, when notice has been given, the term is as much 
fixed for a definite period as any term for years. A tenant from year 
to year has a lease for a year certain, with a growing interest during 
every year thereafter, springing out of the original contract, and parcel 
of it. Such an estate is not determined by the death of either lessor or 
lessee ; it is assignable and demisable, and may be pleaded as a term. 
But, although it has many of the qualities of a term for years, yet it is, 
as already remarked, substantially a tenancy at will except that such 
will cannot be determined by either party without due notice to quit, 
terminating at the end of a year. 1 Woodf. Landl. & Ten. 219. For 
purposes of notice to quit, it is a general tenancy at will. 2 Tayl. 
Landl. & Ten. § 467, and cases cited. And for purposes of general 


classification it is treated as a species of tenancy at will, and as proper- 
ly so as are those tenancies which by implication are held to be for 
some period less than a year, as from quarter to quarter, or from month 
to month, where notice to quit is also necessary in order to terminate 
them ; the only difference being as to the length of the notice and the 
time it should terminate. 

Notwithstanding what was decided in Smith v. Bell, supra, we have 
come to the conclusion, upon fuller examination, that the provisions of 
chapter 75, § 40, in relation to notices to quit, were intended to apply 
to all estates which do not terminate themselves without notice, and 
that for the purposes of such notices a tenancy from year to year is a 
tenancy at will. In some of the cases cited by plaintiff it was held, as 
in Smith v. Bell, that similar statutes apply only to the notice required 
to terminate a tenancy at will, and have no application to a tenancy 
from year to year. In one of these cases it is said that the purpose of 
the statute was to give tenants at will the right to the notice therein 
specified before they could be dispossessed, whereas, before such enact- 
ment, they were not entitled to any notice whatever; in other words, 
that the statute was to give the tenant the right to notice in cases 
which, but for the statute, would have been tenancies strictly at will. 
It seems to us that, in placing this construction upon such statutes, the 
courts have entirely overlooked the fact that tenancies strictly at will 
had already practically ceased to exist, except where the parties had ex- 
pressly contracted that the tenancy might be terminated at any time 
without notice; and as in such cases the contract of the parties, and 
not the statute, would control, the result would be that such a con- 
struction would render the statute meaningless. 

We have therefore reached the conclusion that the description of es- 
tate commonly known as a "tenancy from year to year" is compre- 
hended in the term "estates at will," as used in chapter 75, § 40. But 
this section has reference only to the length of notice, and does not as- 
sume to otherwise change or affect the nature of the tenancy, or the 
existing rules of law as to when the notice should terminate. For ex- 
ample, where, by implication, the tenancy is from quarter to quarter or 
from month to month, the rent being payable quarterly or monthly, the 
notice must still terminate with the quarter or month ; and, where the 
tenancy is from year to year, the notice must terminate with a year, 
although the length of it may now be shorter than six months, as for- 
merly required at common law. Consequently, while the notice given 
by defendant in this case was sufficient as to length, yet it was wholly 
ineffectual, because not terminating at the end of a year. 

There is nothing in the point that there can be no such thing as a 
tenancy from year to year in this state because of the statute of frauds. 
Gen. St. c. 41, § 10. The courts have uniformly held that tenancies 
from year to year were not affected by such a statute. The cases from 
Massachusetts and Maine are not in point, because expressly placed 


upon their statutes providing that an estate or interest in land, created 
without an instrument in writing, "shall have the force and effect of 
an estate at will only." Judgment affirmed.* 


(Supreme Court of Georgia, 1892. 88 6a. 686, 15 S. E. 836, 20 L. R. A. 33.) 

Error from city court of Savannah ; W. D. Hardin, Judge. 

Summary proceedings by Joseph D. Weed against Lindsay & Mor- 
gan to obtain possession of certain land. Judgment for defendants. 
Plaintiff brings error. Reversed. 

The following is the official report : 

On October 15, 1890, Weed obtained a warrant to dispossess Lind- 
say & Morgan of certain real estate in Savannah, alleging in his affi- 
davit therefor that the property was rented to Lindsay & Morgan, who 
took possession in October, 1889, as tenants at will ; that on April 8, 
1890, he gave them notice that he desired the possession of his said 
property at the expiration of two months after the notice ; that by this 
notice, and the expiration of time, the tenancy was terminated and the 
lease expired ; and that afterwards they refused to deliver the posses- 
sion to him. The defendants, by their counter affidavit, averred that 
their lease or term of rent from plaintiff had not expired. The jury 
found for defendants, and plaintiff's motion for a new trial was over- 
ruled, to which he excepted. In addition to the general grounds of the 
motion that the verdict was contrary to law, evidence, etc., it was al- 
leged therein: The court erred in admitting parol evidence to es- 
tablish a verbal contract on the part of plaintiff to erect a building 
of specific character and dimensions, not set out in the written contract 
between the parties, without any allegation in the. pleadings that said 

B It is established by a great weight of authority that a tenant under a 
lease for ,a year or more may be treated as a tenant from year to year if he 
holds over his term without any new agreement with his landlord, Belding v. 
Texas Produce Co., 61 Ark. 377, 33 S. W. 421 (1895); Roberaon y. Simons, 109 
6a. 360, 34 S. E. e04 (1899); Streit v.' Fay, 230 111. 319, 82 N. B. 648, 120 Am. 
St. Rep. 304 (1907); Pyle v. Tel. Co., 85 Kan. 24, 116 Pac. 229 (1911); Kuhl- 
man v. Brewing Co., 87 Neb. 72, 126 N. W. 1083, 29 L..B. A. (N. S.) 174 (1910); 
Whalen v. Manley, 68 W. Va. 328, 69 S. E. 843 (1910). The landlord may, how- 
ever, at bis election, treat such a holding-over tenant as a trespasser. I^ng v. 
Grant, 163 Ala. 507, 50 South. 914, 136 Am. St Rep. 86 (1909); Hallett v. 
Bamett, 51 Colo. 434, 118 Pac. 972 (1911) ; Eppstein v. Kuhn, 225 111. 115, 80 
N. E. 80, 10 L. R. A. (N. S.) 117 (1906); Kennedy v. N. Y., 196 N. Y. 19, 89 N. 
E. 360, 25 L. R, A. (N. S.) 847 (1909) ; Providence County Savings Bank v. 
Hall, 16 R. I. 154, 13 Atl. 122 (1888). In some Jurisdictions, however, it Is 
held that a tenant who holds over after the expiration of his term, provid- 
ing such a holding is assented to by the landlord, becomes a tenant at' will. 
Hall V. Henninger, 145 Iowa, 230, 121 N. W. 6, 139 Am. St Rep. 412 (1909); 
Benfey v. Congdon, 40 Mich. 283 (1879) ; Leggett v. B)xpositlon Co., 157 Mo. 
App. 108, 137 S. W. 893 (1911). A tenant who holds over after his term with- 
out the consent of his landlord is, by way of distinction, a tenant by suffer- 
ance. Benton v. Williams, 202 Mass. 189, 88 N. E. 843 (1909). 


particulars were intended to be included in the contract, and were 
omitted by either fraud, accident, or mistake, plaintiff objecting to the 
introduction of this parol testimony on the grounds that it was irrele- 
vant; that it was not covered or suggested by any pleadings filed in 
the case ; that it was an attempt to add and to vary a written contract 
by parol ; that it set up an agreement concerning land which the stat- 
ute required to be in writing ; and that it presented issues involved in a 
suit between the parties pending in the superior court of Chatham 
county. (The case was tried in the city court of Savannah.) 

Also that the court erred in refusing to charge the following written 
requests by the plaintiff: "The written contract between the parties 
reads as follows : 'Savannah, Georgia, 4th June, 1889. I am to erect 
a four-story building sixty feet or more front, and Messrs. Lindsay & 
Morgan agree to pay me four thousand dollars per annum net, if the 
cost of the building at six per cent., with a valuation of forty thousand 
dollars for the lot, viz., lot number one, Eyled tything, Heathcote ward, 
does not exceed that amount. If it does, then Lindsay & Morgan are. 
to pay Joseph D. Weed six per cent, on the cost, including above valu- 
ation of lot. Lindsay & Morgan are to pay all taxes, keep the building 
in repair, and keep building insured for its cost. Upon these condi- 
tions Joseph D. Weed agrees to give them a lease for ten years from 
the date the building is ready for occupation. [Signed] Joseph D. 
Weed. [Signed] Lindsay & Morgan/ I charge you that the contract 
I have read was not a present demise or lease which granted to Lind- 
say & Morgan an immediate estate for years out of the estate of Jos- 
eph D. Weed, (Code, § 2278 ;) but was a contract to give them a future 
lease for ten years from the date when the building to be constructed 
was ready for occupation. If you find from the evidence that on June 
4, 1889, a contract in writing was made between the parties to this suit, 
by which the said Joseph D. Weed agreed, upon the terms and condi- 
tions therein stated, to give to the said Lindsay & Morgan a lease of 
the premises described for ten years from the date when the building 
was ready for occupation ; and further find that, before the said build- 
ing was completed and ready for occupation, the said Lindsay & Mor- 
gan, by an arrangement made with the contractor who was erecting the 
building, and with the consent of the said Joseph D. Weed, began to 
store their goods therein, and to occupy the same in part before its 
completion ; and further find that after the said building was complet- 
ed, in November thereafter, the said Joseph D. Weed tendered to the 
said Lindsay & Morgan, then in the occupation of said building, a 
written lease of the same for ten years^ and that said Lindsay & Mor- 
gan objected to the said lease, and refused to sign or execute the same ; 
and that no lease has ever been made or given to the said Lindsay & 
Morgan for said building, other than the assent of the said Joseph 
D. Weed to their occupation of said building before completion under 
an agreement to give them a ten-years lease when said building was 
ready for occupation; and that no rent has ever been paid by the 


said Lindsay & Morgan or received by the said Joseph D. Weed, — then 
I charge you that the occupation of said building by said Lindsay & 
Morgan was a tenancy at will, and that they became tenants at will 
to said Joseph D. Weed. I further charge you that, under the Code of 
Georgia, two months' notice is necessary from the landlord to termi- 
nate a tenancy at will. Code, § 229 L If you find that on the 8th day 
of April, 1890, the said Joseph D. Weed gave notice to the said Lind- 
say & Morgan that he desired to terminate said tenancy, and to quit 
the occupancy and possession of said property after the expiration of 
two months thereafter, to wit, on June 13, 1890, and that on said June 
13, 1890, demand was made for said premises by the said Joseph D. 
Weed, and was refused by said Lindsay & Morgan, then I charge you 
that said notice terminated said tenancy ; that the said Joseph D. Weed 
became thereafter entitled to the possession of his said property ; and 
that your verdict must be for the plaintiff." 

Also that the court erred in charging : "If Mr. Weed understood the 
contract in one particular way, and Messrs. Lindsay & Morgan under- 
stood it in another particular way ; if Mr. Weed knew the way Lind- 
say & Morgan understood it, and did not correct it, — ^then that would be 
the contract that would be binding ;" the said charge being obscure in 
not making it clear to the jury whose understanding would be binding, 
and there being no evidence to show that Mr. Weed understood the 
said contract in the particular way that Messrs. Lindsay & Morgan un- 
derstood it. "The contract in writing is an exceedingly meager one, 
and is therefore necessarily to be explained by oral testimony. The 
contract is this as it is written : 'Savannah, Ga., June 4, 1889. I,' — ^and 
you will notice that it is signed by Joseph D. Weed and by Lindsay & 
Morgan. That first word is an ambiguity, it being perfectly apparent 
on the face of said contract that T referred to said Joseph D. Weed, 
and there being no ambiguity as to the party intended thereby. It is 
for me to say to you what this written instrument means, and to say 
whether or not it is complete, and whether or not oral testimony should 
come in ; and having declared that this is an incomplete and unintelli- 
gible contract as it stands, without explanation ; that there is an open 
patent ambiguity in it which may be interpreted two or three or more 
diflferent ways ; and that there are, from the circumstances surround- 
ing it, other ambiguities, — I have allowed oral testimony to explain it 
This paper is not a lease, and yet they (meaning Lindsay & Morgan) 
may hold under it, and it may act as if it were a lease; it may be as 
binding as a lease; it may take the place of a lease under some cir- 
cumstances. The view which I hold of this contract is this : The par- 
ties entered into or upon these premises under an agreement for a 
lease. If the agreement had never been carried out to make a lease, if 
the parties had occupied the building, and the building was such as 
they had the right to expect, and if they paid up the rent, and Mr. 
Weed had accepted the rent, and a lease had never been made, then 
this paper would have stood in the place of a lease. They would have 


been tenants for the length of time mentioned in this paper, and they 
would have had this paper as by its terms to govern the holding which 
they had. If, however, they failed to pay the rent which was reserved 
to be paid in this paper, and failed to pay it for a reason which you 
find to be a good and valid reason ; if you find that the amount of four 
thousand dollars a year was not a proper amount for them to pay be- 
cause of the failure, on the part of Mr. Weed, to furnish them with 
such a building as they had under the circumstances the right to expect, 
— ^then you must also find that they had, and I so charge you, the right 
to refuse to pay the entire amount of the rent, and to leave it to the 
courts to determine, if the parties could not agree as to what amount of 
rent should be paid, without their becoming tenants at will and liable to 
ejectment. The law, gentlemen, seeks to be just. It tries to be just 
as fair as it can be, and there are oftentimes cases where the law is 
not just if it be strictly construed; therefore our laws have said, our 
Code has said, or the legislature, speaking through the Code, has said, 
that wherever there is a right there shall be a remedy to enforce it, 
and, if the legislature has provided no remedy, the court shall make a 
remedy for it. Therefore if I thought that under the strict meaning 
or interpretation of the laws these gentlemen were tenants at will, it 
would be my duty, if I believed that they had rights which that con- 
struction would take away from them, to devise a means by which 
their right should be protected. If they held the building and refused 
to pay the rent, being unjustified in so refusing, they are tenants at 
will, and you must by your verdict find for the plaintiff. If, on the 
other hand, they acted upon their right to occupy the building, or to 
not occupy it; if they were in the right in refusing to pay because the 
rent was not due, or because the amoutft of rent which was claimed 
was not due, and they withheld it because the building was necessary 
to them, and because it was not reasonably suited to their purposes, re- 
fused to pay the entire amount of rent demanded, — ^if you find these 
to be facts, then it will be your duty to find for the defendants. A ten- 
ant at will is one who enters into the possession of the lands or tene- 
ments of another lawfully, but for no definite term, and whose posses- 
sion is subject to the determination of the landlord at any time he sees 
fit to put an end to it by giving two months' notice to quit, which our 
statute requires," — the said charge presenting only a partial view to 
the jury, and failing to inform them of the reciprocal right of the ten- 
ant to terminate 'the tenancy at his will. "If you find from the testi- 
mony that Lindsay & Morgan had an agreement with Mr. Weed 
whereby they were to get a lease of ten years to the premises in ques- 
tion from the date of the completion of the building, and if you further, 
find from the evidence that Lindsay & Morgan have performed, or 
have proffered to perform, all their obligations under this agreement, 
and that they are still entitled to said ten years' lease of said premises, 
then they are not tenants at will, and your verdict should be for Lind- 
say & Morgan. If you find from the testimony that Mr. Weed agreed 


to erect for Lindsay & Morgan a certain kind of building, and that he 
did not comply with his contract, but erected one that was inferior to 
the building he contracted to furnish and less valuable, then Lindsay & 
Morgan would have the right to have the rent, which they agreed to 
pay, reduced by such an amount as would compensate them for the 
damages which they sustained by reason of Mr. Weed's violation of 
his contract, provided, of course, Lindsay & Morgan make it appear to 
your satisfaction that they have sustained such damages. If, there- 
fore, the testimony shows that Mr. Weed thus violated his contract, 
and if no lease was tendered to Lindsay & Morgan until after the build- 
ing was completed, then they were not under any obligation to sign a 
lease providing for the four thousand dollars' net rent, but were enti- 
tled to a lease at such a reduced rent as would compensate them, or 
measure the difference in the rental value between the building which 
Mr. Weed contracted to furnish and the building which they actually 
got. If you find from the testimony that a lease was tendered by Mr. 
Weed to Lindsay & Morgan after the completion of the building, and 
with the rental of four thousand dollars' net provided therein, and if 
you further find from the testimony that Lindsay & Morgan were not 
liable for this amount of rent, but were entitled to an abatement of it,, 
and if you further find from the testimony that Mr. Weed was unwill- 
ing to give a lease for any less rent and that Lindsay & Morgan right- 
fully and properly refused to sign the lease, then said refusal on their 
part did not forfeit their rights under their contract, and did not make 
them tenants at will. If you find from the testimony that Lindsay & 
Morgan have performed, or have been ready and willing and offering 
to perform, all their obligations under their contract with Mr. Weed,, 
and that they are entitled to a*lea3e of the premises for the term of ten 
years from the completion of the building, then it is not necessary for 
them to quit the possession of said premises until the courts can de- 
cree the specific performance of the contract ; but they have the right 
to remain in possession, and cannot be dispossessed as tenants at will."^ 

Also that the charge did not correctly set forth the legal relations 
existing between landlord and tenant, was calculated to mislead the 
jury, and was contrary to law. In his order overruling the motion 
the judge below stated that, as to the exceptions made to the charge, 
reference was made to the charge which was filed as a part of the rec- 
ord. * * *" 

Bleckley, C. J. The contract of June 4, 1889, signed by the par- 
ties, respectively, a copy of which is in the report, was not a present 
demise or lease which granted to Lindsay & Morgan an immediate es- 
tate for years, but was an agreement to give them a future lease for 
ten years from the time the building to be erected was "ready for occu- 
pation." It is plain from the nature of the agreement and the language 
of the instrument that the contract was executory on both sides. It 

10 Part of the statement of facts Is omitted. 


was not contemplated that Lindsay & Morgan should become tenants 
to Weed, or owners of any interest in the premises, or that they should 
be liable for the payment of the stipulated rent, if Weed did not erect 
the building and make it ready for occupation. Until that time should 
arrive they were to remain without any interest in the property What- 
ever. If the building, as they contend, has not yet been completed and 
made ready for occupation according to the agreement, the time ap- 
pointed for an interest to vest in them as lessees, and for their occupa- 
tion to commence, has not .yet arrived; and so they are without any 
legal ownership of an estate for years, or of a right to possession by 
virtue of such ownership. The instrument executed as evidence of the 
contract contains no words of present demise or any equivalent terms, 
nor does it fix with certainty either the amount of the annual rent to 
be paid, or appoint any time for the completion of the building and the 
consequent commencement of the 10 years' term. The amount of the 
rent was to, or might, depend in part upon the cost of the building, and 
when the building would be ready for occupation would necessarily de- 
pend on contingencies to be met and dealt with after the agreement was 
signed. It is manifest that the words, "Upon these conditions, Joseph 
D. Weed agrefes to give them a lease for ten years from the date the 
building is ready for occupation," ought to be construed, not as a stip- 
ulation for further assurance, but as an undertaking to create a lease 
not previously existing, and to pass by it an estate not before conveyed • 
nor attempted to be conveyed. It could not have been the intention of 
the parties either that Lindsay & Morgan should be owners of the con- 
templated terms of years, or any term in the premises, before the an- 
nual rent which they were to pay began to accrue, or that this rent was 
to begin to accrue before the building was ready for occupation. In 
distinguishing between a lease and a mere executory agreement for a 
lease, the intention of the parties, as manifested by the writing, is a con- 
trolling element. Lloyd, Bldg. Cont. § 88 ; 12 Amer. fe-Eng. Enc. Law, 
980; 1 Wood, Landl. & Ten. § 179; McAdam, Landl. & Ten. § 41 ; 1 
Tayl. Landl. & Ten. § 37 et seq. ; 6 Lawson, Rights, Rem. & Pr. § 
2801. For cases illustrating the distinction, see Sturgion v. Painter, 
Noy, 128 ; Jackson v. Ashburner, 5 Term R. 163 ; Hegan v. Johnson, 2 
Taunt. 148; Jackson v. Delacroix, 2 Wend. (N. Y.) 433; People v. 
Kelsey, 38 Barb. (N. Y.) 269; Id., 14 Abb. Prac. (N. Y.) 372; Mc- 
■Grath v. City of Boston, 103 Mass. 369 ; Adams v. Hagger, 4 Q. B 
Div. 480; Jackson v. Kisselbrack, 10 Johns. (N. Y.) 336, 6 Am. Dec. 
341 ; Kabley v. Gaslight Co., 102 Mass. 392. 

No lease creating a term of 10 years, and vesting the same in Lind- 
say & Morgan, having ever come into existence as contemplated by the 
agreement, what was the effect of admitting them into possession by 
virtue of the consent given by Weed in his letter to them of September 
27, 1889, in which he says : "I simply write to tell you, as Mr. Brown 
told me you wished to begin to occupy the building before it was en- 
tirely finished, that the rent will begin from the time you begin to oc- 


cupy it. I have no objection whatever to your moving into the building 
as soon as you find it can serve your convenience to do so." (Mr. 
Brown was the contractor employed by Weed to construct the build- . 
ing.) Was this permission a license to occupy for 10 years without the 
execution of any lease, or was it, as events turned out, (possession hav- 
ing been taken under it, and Lindsay & Morgan having afterwards 
refused to join in the execution of a lease,) the creation of a tenancy 
at will ? We think it was the latter, and, no rent having at any time 
been paid and accepted, this is in accordance with the current of au- 
thority. 1 Tayl. Landl. & Ten. § 60; 1 Washb. Real Prop. p. 376; 
Tied. Real Prop. § 216; 6 Lawson, Right, Rem, & Pr. § 2809; 12 
Amer. & Eng. Enc. Law, 670 ; Chapman v. Towner, 6 Mees. & W. 100 ; 
Anderson v. Railway Co., 3 El. & El. 614; Anderson v. Prindle, 23 
Wend. (N. Y.) 616 ; Dunne v. Trustees, 39 111. 578. In Hamerton y. 
Stead, 3 Barn. & C. 483, Littledale, J., said: "Where parties enter 
under a mere agreement for a future lease, they are tenants at will ; 
and, if rent is paid under the agreement, they become tenants ijfom 
year to year, determinable on the execution of the lease contracted 
for, that being the primary contract" Perhaps, as the law of remedy 
in the superior court now stands, the payment of rent would have 
raised, not merely a tenancy from year to year, but one for the whole 
term covered by the lease. Walsh v. Lonsdale, 21 Ch. Div. 9. 

It is plain that, consistently with the written agreement of the par- 
ties, Lindsay & Morgan would have no right to occupy and use the 
premises for 10 years unless they were willing to pay therefor the stip- 
ulated rent, nor unless they were willing to occupy as lessees, and not 
merely as tenants at will. In this litigation they seek, as they did in 
some of the preliminary steps which led to it, to take the position, and 
have all the rights of lessees on terms different from any which Weed 
has ever assented to ; that is, they want to hold at a less annual rent 
than they have agre^ to pay. They make this claim because, as they 
contend. Weed has not erected and made ready for occupation such a 
building with respect to plan and finish as was contemplated. If this 
contention be well founded in fact, the result will be, not that they 
could occupy for 10 years on terms different from those agreed upon, 
but that they could, if they did not choose to waive their objection and 
unite in the lease and pay the stipulated rent, exercise their option be- 
tween vacating the premises, and compelling, by a proper equitable ac- 
tion, a specific performance on the part of Weed of his undertaking. 
Weed's violation of his contract would also furnish a cause of action in 
their favor for any damages resulting from his failure to comply. 
Perhaps if they had, under protest, paid rent according to the contract, 
they might have done so without surrendering any substantial right, 
legal or equitable. Lamare v. Dixon, L. R. 6 H. L. 514. When this 
proceeding was commenced, they had not pursued any course open to 
them, but had endeavored to pursue one not open ; they had declined 
to join in the lease; had not paid rent at the stipulated rate; had en«> 


tcred no suit for specific performance ; and had refused to vacate the 
premises. Having brought themselves into the position of mere ten- 
ants at will, section 2291 of the Code applies to them. The two-months 
notice having been given, they were subject to eviction as tenants hold- 
ing over. Code, §§ 4077-4081. 

The pleadings in the case were simply the affidavit and counter affi- 
davit provided for by the sections of tfie Code last cited. The pending 
application in the superior court to enjoin the prosecution of this pro- 
ceeding was not operative, because no injunction, temporary or perma- 
nent, had been ordered, nor any restraining order granted. What we 
have ruled embraces all that is fundamental in the case, and effectually 
controls the final result of this proceeding in the city court. 

The court erred in not granting a new triaL Judgment reversed 


(Court of Appeals of Kew York, Second Division, 1890. 120 N. Y. 87, 28 N. B. 

980, 8 L. R. A. 221, 17 Am. St Rep. 607.) 

Appeal from superior court of Buffalo, general term. 

Bradley, J. The action was brought to recover the proceeds of the 
sale made by the defendant of the plaintiff's goods. The defendant 
admits his liability to account to the plaintiff for the proceeds of such 
sale, and alleges several matters by way of counter-claim, which will 
be referred to so far as is essentiaJ to the determination of the ques- 
tions presented for consideration on this review. The trial court 
found that on March 13, 1882, by an agreement of lease in writing 
under seal made by Catharine Dickman and defendant, she leased to 
him a dwelling-house for the term of five years from May 1, 1882, at 
the annual rent of $450 for the first year, and $500 for each subse- 
quent year, payable in equal monthly installments in advance, which 
the defendant undertook to pay; that the defendant took such lease 
at the verbal instance and request of the plaintiff, and upon the un- 
written understanding and agreement that they should jointly use and 
occupy the dwelling-house during the term mentioned in the lease, 
and tiiat the plaintiff should pay to the defendant half the rent; 
that the defendant and the plaintiff went into the possession of the 
house in May, 1882, and jointly occupied it until in November fol- 
lowing, when the plaintiff quit the house, and has not since then oc- 
cupied any portion of it; that the defendant has paid the monthly 
installments of rent as they fell due, and that the plaintiff has paid 
nothing to the defendant on account of the rent. The court allowed 
to the defendant, against the plaintiff, a sum equal to one-half the 
rent for the period of the joint occupancy, — six and a half months. 
And upon the exception to the conclusion of the court that the plain- 
tiff was entitled to recover the amount for which judgment was di- 
rected, arises the question whether the defendant was entitled to the 


allowance of a greater amount against the plaintiff than that given 
by the court on account of the rent. 

The contention of the defendant's counsel is : (1) That the plaintiff 
became liable to pay the defendant, one^half the rent which the latter 
undertook by the lease to pay as the installments should become due ; 
(2) that, if not so, the plaintiff became a yearly tenant, and was li- 
able to the defendant for one-half the amount of the rent for one 
year. The plaintiff, not being a party to the lease, assumed no legal 
obligation to pay rent for the term, as a lease for more than one year, 
not in writing, was void. 2 Rev. St 135, §§ 6, 8. The agreement 
between the parties, and under which the plaintiff entered into joint 
occupancy with the defendant, being void, gave to the plaintiff no 
right, and imposed upon the defendant no obligation, to permit him 
to go into or remain in possession of any portion of the house, and 
unless he became a yearly tenant his liability was for use and occupa- 
tion for the time only which he occupied. Thomas v. Nelson, 69 N. 
Y. 118. The mere fact that a person goes into possession under a 
lease, void because for a longer term than one year, does not create a 
yearly tenancy. If he remains in possession with the consent of the 
landlord for more than one year, under circumstances permitting the 
inference of his tenancy from year to year, the latter could treat him 
as such, and the tenant could not relieve himself from liability for 
rent up to the end of the .current year ; and the terms of the lease, 
void as to duration of term, would control in respect to the rent. 
Coudert v. Cohn, 118 N. Y. 309, 23 N. E. 298, 7 L. R. A. 69, 16 Am. 
St Rep. 761. The parol agreement for five years was not eflfectual 
to create a tenancy for. one year. Nor did the mere fact that the 
plaintiff went into possession have that effect. He remained in occu- 
pation a part of one year only, and the creation of a tenancy for a 
year was dependent upon something further. While it is not requir- 
ed that a new contract be made in express terms, there must be some- 
thing from which it may be inferred, — something which tends to show 
that it is within the intention of the parties. The payment and receipt 
of an installment or aliquot part of the annual rent is evidence of such 
understanding, and goes in support of a yearly tenancy, and, without 
explanation to the contrary, it is controlling evidence for that purpose. 
Cox V. Bent, 5 Bing. 185; Bishop v. Howard, 2 Barn. & C, 100; 
Brajrthwayte v. Hitchcock, 10 Mees. & W. 494; Mann v. Lovejoy, 
Ryan & M. 355 ; Thomas v. Packer, 1 Hurl. & N. 672 ; Doe v. Crago, 
6 C. B. 90. 

While there may appear to have been some confusion in the cases 
in this state, upon the subject, this doctrine has been more recently 
recognized. Reeder v. Sayre, 70 N. Y. 184, 26 Am. Rep. 567; Laugh- 
ran V. Smith, 75 N. Y. 209. In the cases last cited the tenants had 
been in possession more than a year when the question arose, but, 
having gone into occupancy under an invalid lease, their yearly ten- 
ancy was held dependent upon a new contract, which might be implied 


from the psyment and acceptance of rent, and, when once created, 
could be terminated by neither party, without the consent of the 
other, only at the end of a year. The contention, therefore, that by 
force of the original agreement between the parties, aided by the fact 
that the plaintiif went into the possession with the consent of the de- 
fendant, is not alone sufficient to support an inference of the new con- 
tract requisite to create a yearly tenancy. The plaintiff paid no rent, 
nor while he was in possession was any request of or promise by him 
made to pay any. He simply went in under the original void agree- 
ment, and left within the year. There was no evidence to require 
the conclusion of the trial court that the plaintiff had assumed any re- 
lation to the premises which charged him with liability, other than for 
use and occupation, during the time he remained in j)OSsession. 

The defendant's counsel, to support his proposition that the entry by 
the plaintiff with the consent of the defendant made him a yearly ten- 
ant, cites Craske v. Publishing Co., 17 Hun, 319, where it was remarked 
that a parol lease for a longer term than one year "operated so as to 
create a tenancy from year to year." If that was intended by the 
learned justice as a suggestion that such a void lease operated as a 
demise for one year, it is not in harmony with the view of the court 
in Laughran v. Smith, supra. That remark in the Craske Case was 
not essential to the determination there made, as rent was in fact paid 
for a portion of the term; nor can it be assumed that it was in- 
tended to have the import sought to be given to it. It must be assum- 
ed, upon authority and reason, that a parol lease for more than one 
year is ineffectual to vest any term whatever in the lessee named, and 
that when he goes into possession under it, with the consent of the 
lessor, without any further agreement, he is a tenant at will merely, 
subject to liability, to pay at the rate of the stipulated rent as for use 
and occupation. Barlow v. Wainwright, 22 Vt. 88, 52 Am. Dec. 79. 
This may be converted into a yearly tenancy by a new contract, which 
may be implied from circumstances, when they permit it. While the 
mere entry with consent will not alone justify it, a promise to pay, 
and a purpose manifested to accept, a portion of the annual rent pro- 
vided for by the agreement may, as evidence, go in support of such a 
new contract. There was no such evidence in this case. The promise 
of the plaintiff to pay one-half the rent was made preliminarily to his 
entry, and was part of and not distinguishable from the parol agree- 
ment with the defendant ta occupy for five years, and pay one-half 
the rent for that term. There does not seem to have been any evi- 
dence to require the conclusion that any other than such void agree- 
ment was made between the parties, or that the plaintiff became other 
than a mere tenant at will of the defendant. 1 Woodf. Landl. & Ten. 
(1st Amer. Ed. from 13th Eng. Ed.) 221. 

The other cases cited by the defendant's counsel do not support the 
proposition asserted by him. There is no opportunity, upon the facts 
found, or upon any, the finding of which the evidence requires, to 


hold that the defendant took and held the lease as trustee for the 
plaintiff as to a portion of the demised premises, or that a relation 
was assumed by the plaintiff to the lease, between the lessor and the 
defendant, which legally charged him with liability to the latter for 
moneys paid by him pursuant to it. The parol agreement between 
them was void and ineffectual for any such purpose. 
The judgment should be affirmed. All concur. 

II. Tenancies from Year to Year " 

1. Creation 

See Hunter v. Frost, ante, p. 146, and Talamo v. Spitzmiller, ante, 
p. 157. 

2. Termination 

See Hunter v. Frost, ante, p. 146. 

ni. Tenancies at Sufferance ^* 


(Supreme Judicial Court, New Hampshire, 1856. '84 N. H. 218.) 

This is an action on the case, brought July 2, 1853. In the declara- 
tion it was alleged in substance that the defendant Fabyan, having 
been a tenant of a certain hotel in Carroll for a term of five years, 
which expired on the 20th of March, 1852, the defendants wrongfully 
continued to occupy the same after the said lease expired ; and so neg- 
ligently and carelessly conducted and managed certain fires by them 
set and kept in said hotel, that on the 29th of April, 1853, the same 
was burned down and consumed. The defendants pleaded severally 
the general issue — ^not guilty. 

To show title to the house described in the declaration, the plaintiff 
showed that the land on which it stood, together with a part of the 
house, were in possession of E. A. Crawford on December 12, 1837, 
and for many years before, and that on that day said Crawford con- 
veyed the same to Nathaniel Abbot, who, on June 24, 1842, conveyed 
the same to Daniel Burnham. Said Bumham, on the 20th of August, 

11 For discussion of principles, see Bnrdick, Real Prop. §{ 88-90. 
IS For discussion of principles, see Burdick, Real Prop. H 91-04. 


1844, deeded the same hotel and land to the plaintiff. The plaintiff, 
on January 28, 1847, executed a lease of said hotel to the defendant 
Fabyan, for the term of five years from March 20, 1847, who held 
the same under said lease uiftil he accepted a lease from one Dyer, as 
hereinafter mentioned. On the 19th of March, 1852, an agent of the 
plaintiff, duly authorized, called upon said Fabyan, at Conway, where 
he resided, and on the 20th of March called upon said Fabyan's serv- 
ant, who had charge of said hotel, at said hotel, and on the 22d of 
March again called on said Fabyan, at Conway, and on each occasion 
demanded that possession of said hotel should be surrendered to the 
plaintiff, which was refused — ^said Fabyan saying that he had taken 
a lease from said Dyer. And it appeared that on March 19, 1852, 
and from that time until after said hotel was burned, said Fabyan 
held possession of the same by lease from said Dyer, who had also 
agreed to indemnify him against any suit brought against him by said 
Russell for rents, and from all costs, trouble and expense of any 
kind which might happen to him on account of his taking said lease. 
On April 29, 1853, said hotel, then occupied as such, took fire from 
some one of the stoves or fire-places used therein for cooking, or for 
warming the building, or from sparks from the same, and was entirely 
consumed. * * * *« 

Bzhhf J. Fabyan entered into possession of the premises in ques- 
tion under a written lease, to continue for five years from March 20, 
1847. He remained in possession until April 29, 1853, when the build- 
ings were burned down, more than a year after the lease expired. 
During the interval between the 20th of March, 1852, and April 29, 
1853, he was either a tenant at sufferance, a tenant at will, or a dis- 
seizor. The general principle is that a tenant who, without any agree- 
ment, holds over after his term has expired, is a tenant at sufferance. 
2 Bla. Com. 150; 4 Kent, Com. 116; Livingston v. Tanner, fl[2 Barb. 
(N. Y.) 483. No act of the tenant alone can change this relation ; but 
if the lessor, or owner of the estate, by the acceptance of rent, or by 
any dther act indicates his assent to the continuance of the tenancy, 
the tenant becomes a tenant at will, upon the same terms, so far as 
they arc applicable, of his 'previous lease. Conway v. Starkweather, 1 
Denio (N. Y.) 113. 

In this case there is no evidence to justify an inference of assent 
by the lessor to any continuance of the tenancy, but, on the contrary, 
very direct and conclusive evidence, in the demand of possession, to the 
contrary ; while the reply made to that demand by Fabyan negatives 
any consent on his part to remain tenant of the plaintiff. There was, 
then, no tenancy in fact between these parties at the time of the 
fire, and the defendant was consequently either a disseizor or a tenant 
at sufferance. 

It Part of tlie statement of facts is omlttedL 
Buhd.Ga8.Real Prop. — ^11 



When the demand of possession was made upon Fabyan, upon the 
22d of March, 1852, the demand was refused, Fabyan saying he had 
taken a lease of the property from Dyer. The previous demands 
seem to have been premature, and before the expiration of the lease, 
but they were refused upon the same ground as the last, and that 
refusal might constitute a waiver of any objection to the time of their 
being made. 

Such a denial of the right of the lessor, though not a forfeiture of 
a lease for years, is sufficient to put an end to a tenancy at will, or at 
sufferance, if the lessor elects so to regard it; and he may, if he so 
choose, bring his action against the tenant as a disseizor, without entry 
or notice, and may maintain against him any action of tort, as if he 
had originally entered by wrong. De Lancey v. Ga Nun, 12 Barb. 
(N. Y.) 120. 

But as this result depends on the lessor's election, and nothing ap- 
pears in the present case to indicate such election, the tenant must be 
regarded as a tenant at sufferance. 

To ascertain the liability of a tenant at sufferance for the loss of 
buildings by fire, it becomes material to inquire, what is the nature of 
this kind of tenancy ; and we have examined the books accessible to us, 
to trace the particulars in which it differs from the case of a party 
who originally enters by wrong. 

All the books agree that he retains the possession as a wrongdoer, 
just as a disseizor acquires and retains his possession by wrong. Den 
V. Adams, 12 N. J. Law, 99; ? Bla. Com. ISO; 4 Kent, Com. 116. By 
the assent of the parties to the continuance of the possession thus 
wrongfully obtained or retained, the wrong is purged, and the occu- 
pant becomes a tenant at will or otherwise to the owner. 10 Vin. Ab. 
416, Estate, D, C, 2. 

If no such assent appears, the tenant is entitled to no notice to quit. 
Livingston v. Tanner, 12 Barb. (N. Y.) 483; Jackson v. McLeod, 12 
Johns. (N. Y.) 182; 1 Cru. Dig. tit. 9, § 10. 

The owner may make his entry at once upon the premises, or he may 
commence an action of ejectment or real action. Livingston v. Tan- 
ner, 12 Barb. (N. Y.) 483 ; Den v. Adams, 12 N. J. Law, 99. And it 
makes no difference that the lessee, after his term has expired, has 
taken a new lease for years of a stranger rendering rent, which has 
been paid ; for he still remains tenant at sufferance as to the first les- 
sor, as was held in Preston v. Love, Noy, 120; 10 Vin. Ab. 416. 

We have been able to discover but one point of difference between 
the case of the disseizor and the tenant at sufferance, which is that 
the owner cannot maintain an action of trespass against his tenant by 
sufferance, until he has entered upon the premises; 4 Kent, Com. 116; 
a point to which we shall have occasion further to advert. 

Upon this view the liability of the defendant Fabyan, to answer for 
the loss by fire, which is the subject of this suit, is regulated, not by 
the rule applicable to tenants under contract, or holding by right. 


but by that which governs the case of the disseizor and unqualified 

By Stat. 6 Anne, c. 31, made perpetual 10 Anne, c. 14, (1708, 1712,) 
no action or process whatever shall be had, maintained ot prosecuted 
against any person in whose house or chamber any fire shall accidental- 
ly begin. Co. Litt. 67, n. 37-7; 3 Bla, Com. 228, n.; 1 Com. Dig. 209, 
Action for Negligence, A, 6. It is not necessary to consider whether 
this statute has been adopted here, though it is strongly recommended 
by its intrinsic equity, because at all events a different rule applies in 
this 9ase. 

The mere disseizor or trespasser, who enters without right upon the 
land of another, is responsible for any damage which results from 
any of his wrongful acts. Such a disseizor is liable for any damages 
occasioned by him, whether willful or negligent. He had no right 
to build any fire upon the premises, and if misfortune resulted from 
it he must bear the loss. ' 

For this purpose the defendant Fabyan stands in the position of a 

II. Assuming that Fabyan is liable for the loss of these buildings, 
the question arises, whether he is liable in this form of action; and, 
as we have remarked, he is not liable in trespass. Chancellor Kent, 
(4 Com. 116,) says: "A tenant at sufferance is one that comes into 
possession of land by lawful title, but holdeth over by wrong after 
the determination of his interest. He has only a naked possession, and 
no estate which he can transfer, or transmit, or which is capable of 
enlargement by release, for he stands in no privity to his landlord, 
nor is he entitled to notice to quit; and, independent of the statute, 
he is not liable to pay any rent. He holds by the laches of the land- 
lord, who may enter and put an end to the tenancy when he pleases. 
But before entry he cannot maintain an action of trespass c^ainst 
the tenant by sufferance." 1 Cru. Dig. tit. 9, c. 2 ; Rising v. Stannard, 
17 Mass. 282; Keay v. Goodwin, 16 Mass. 1, 4; 2 Bla. Com. 150; Co. 
Litt. 57, b ; Livingston v. Tanner, 12 Barb. (N. Y.) 483 ; Trevillian v. 
Andrew, 5 Mod. 384. • 

If, then, Fabyan is answerable at all, he must be liable to the action 
of trespass on the case. There is no evidence of any entry, and the 
demand of possession, whatever its other effects may be, is not an 
entry, nor do we find it made equivalent to an entry. 

The case of West v. Trende, Cro. Car. 187, s. c. Jones 124, 224, 
is a decision that case lies in such a case. 

"Action upon the case. Whereas he was and yet is possessed of 
a lease for divers years adtunc et adhuc ventur, of a house, and being 
so possessed demised it to the defendant for six months, and after the 
six months expired, the defendant being permitted by the plaintiff to 
occupy the said house for two months longer, he, the defendant, during 
that time pulled down the windows, etc. Stone moved in arrest of 


judgment that this action lies not, for it was the plaintiff's folly to per- 
mit the defendant to continue in possession, and to be a tenant at suf- 
ferance, and not to take course for his security ; and if he should have 
an action, it should be an action of trespass, as Littleton, § 71. If ten- 
ant at will hath destroyed the house demised, or shop demised, an 
action of trespass lies, and not an action upon the case. But all the 
court conceived that an action of trespass or an action upon the case 
may well be brought at the plaintiff's election, and properly in this 
case it ought to be an action upon the case, to recover as much as he 
may be damnified, because he is subject to an action of wast^ and 
therefore it is reason that he should have his remedy by action upon 
the case. Whereupon rule was given that judgment should be entered 
for the plaintiff." 

III. It seems clear that if Fabyan is to be regarded as a wrong- 
doer in retaining the possession of the plaintiff's property after his 
lease had expired, all who aided, assisted, encouraged or employed him 
to retain this possession, must be regarded as equally tort-feasors, and 
equally responsible for any damage resulting from his wrongful acts. 
No more direct act could be done to encourage a tenant in keeping 
possession, than that of leasing to him the property, unless it was that 
of giving him a bond of indemnity, such as is stated in this case. In 
wrongs of this class all are principals, and the defendant, Dyer, must 
be held equally responsible with Fabyan; and it seems clear that as 
Dyer could justify in an action of trespass under the authority of 
Fabyan, so as, like him, not to be liable in that action, he must be 
liable with him in an action upon the case. 

Whether the allegations of the declarations are suitable to chaise 
either of the defendants, we have not considered, as the court have not 
been furnished with a copy. 

IV. The case of Russell v. Fabyan, 27 N. H. 529, is not to be re- 
garded as a decision of the question raised in this case, in relation to 
the sale of a supposed right of redemption as belonging to Burnham, 
after the first levy made upon the property. It was there held, upon 
the facts appealing in that case, that independent of the question of 
fraud in Burnham's deed to Russell, all Bumham's right of redeeming 
the levy, which might be made upon the attachment subsisting at the 
time of the deed, and of course good against it, passed to Russell. 
Upon this point there can be no question, and none is suggested. The 
question then arose, whether, if Russell's deed was proved to be fraud- 
ulent as to the creditors of Burnham, the right of redemption did not 
pass to Dyer by the sale on his second execution, so as to invalidate 
the tender made by Russell. This question might have been met and 
decided, but the case did not require it. It was held that whether 
Russell's title was good or bad, Fabyan, as his tenant, could not dis- 
pute it. He could be discharged from his liability to pay his rent, 
which was the subject of that action, only by an eviction by the lessor, 


or by someone who had a paramount title to his ; a mere outstanding 
title not put in exercise is not a defence. The defendant relied on an 
eviction on the 14th of June, 1848, as his defence. The sale of the 
right of redemption was made on the 31st of July following, and after 
that date there was no eviction, so that the attempt there was merely 
to show an outstanding but dormant title, which it proved would be 
no defence. And the court took the ground that Fabyan stood in no 
position to raise a question as to the validity of Russell's title, except 
so far as the opposing title was the occasion of some disturbance of 
his estate. So far as the principles stated in that case are concerned, 
they appear to us sound and unanswerable. Whether, if the case had 
taken a different form, the result would have been in any degree dif- 
ferent, it is not necessary to enquire. 

By our statute, every debtor whose land or any interest in land is 
sold or set off on execution, has a right to redeem by paying the ap- 
praised value, or sale price, with interest, within one year. Rev. Stat, 
c. 195, § 13; Id. c. 196, § 5; (Comp. Stat. 501, 502.) This right to re- 
deem is also subject to be levied upon and sold, as often as a creditor 
supposes he can realize any part of his debt by a sale, until some one 
of the levies or sales becomes absolute. But these sales have each in- 
separably connected with them the right of redertiption. If the debtor 
has parted with his title before the levies are made while the property 
is under an attachment, that right of redemption is vested in his 
grantee, who, being the party interested, (Rev. Stat. c. 196, § 14,) may 
redeem any sale or levy, if he plpases; the effect of his payment or 
tender for this purpose being of course dependent upon the state of 
facts existing at the time. 

So, if there is no attachment upon the property at the time of the 
debtor's conveyance, but his creditors levy upon the property^ upon 
the ground that his conveyance was not made in good faith, and upon 
an adequate consideration, and so is fraudulent and void as to them, 
the effect is the same. Any creditor may levy his execution upon the 
right of redemption of any prior levy or sale, the deed of the debtor 
being without legal operation to place either the property itself or any 
interest in it out of the reach of his process. And the right of redemp- 
tion, so long as it retains any value in the judgment of any creditor, 
remains liable to his levy ; but when the creditors have exhausted their 
legal remedies, the right of redemption, necessarily incident to every 
levy on real estate, still remains, and it is the right not of the debtor, 
but of his grantee, who may exercise it at his pleasure. 

This we conceive was the position of the present case. The first 
levy by Dyer being founded on his attachment, took precedence of 
Russell's deed ; but Russell had still the right to redeem as grantee of 
Bumham, whether his deed was valid as to creditors or not. When 
the right of redeeming the first levy was sold, on the ground that the 
deed to Russell was fraudulent and invalid, a right of redemption still 
remained to Russell, and he had a right, as a party interested in the 



land, to pay or tender the amount of the first levy to Dyer, and so to 
discharge it. By that payment or tender it was effectually discharged, 
whatever might be the rights or duties of Dyer, or Russell, or any one 
else, growing out of the sale of the right of redemption upon Dyer's 
second execution, which, being founded upon no attachment was prima 
facie a nullity as to Russell, and was dependent for its effect upon 
the evidence that might be offered, showing Russell's deed void as to 

The present case stands free from any question growing out of the 
relation of landlord and tenant, as that relation is not alleged, and the 
lease of Russell had expired, and Dyer had never stood in that rela- 
tion. The evidence offered that Burnham's deed to Russell was fraud- 
ulent as to his creditors, is not open to any objection of that kind, 
which was held decisive in 27 N. H. If the facts warrant that de- 
fence, the evidence is competent; and if it should be shown that the 
deed to Russell was void as to creditors, and Dyer was one of that 
class, his second levy was good, if properly made, and the title to these 
premises passed to him, subject to his prior and any subsequent levy, 
and to Russell's right of redemption. 

As the offer of the defendant to prove Burnham's deed to Russell 
to be fraudulent and void as to creditors, and as to the defendant. 
Dyer, as one of them, was refused, there must be a new trial. 

IV. Licenses — Revocation of ** 


(Supreme Court of Indiana, 1890. 127 Ind. 66, 25 N. B. 1035). 

Appeal from circuit court, Warren county ; Frank E. Everett, Spe- 
cial Judge. 

Mitchell,- J. The nature of the action as disclosed by the plead- 
ings is not very well defined. It^ may be rejjarded as a s uit to re- 
cover damages cau sed by interrupting the flow of an arti ficial stream 
throug h, or di vertmg it fro m, a tile drain Jthrpugh which^w ate:^ was 
supplied to the plaintiff's animals on her farm. The merits of the 
case maynBe'determined upon the following facts returned to the 
court in a special verdict: In 1884, the plaintiff, Mrs. Spencer, and 
the appellant, William Ferguson, were adjoining land-owner <^ i j^ W-*^^" 

ren^ rnnnf^ .t.he^'r^f^£g2^b g*"g .sep arated hy a jpublic highwav running 

east and west, on the division line. Their farms occupied such a re- 
lation as that surface and spring water collected on, and issuing from, 
the defendant's land was discharged over and through a depression, 
with more or less defined banks, through a similar depression over 

i« For discussion of principles, see Burdick, Real Prop. || 97, 08. 


and upon the plaintiff's land. In the year above mentioned the par- 
ties mutually agreed to construct a covered tile drain, of specified 
dimensions, to be laid at a given depth, each to construct the distance 
required on his or her own land. In pursuance of this agreement, 
the plaintiff, commencing at the highway separating her farm from 
that of the defendant, constructed a drain of the dimensions agreed 
upon, of the length of 40 rods; at a cost of over $60. The defend- 
ant at the same time constructed a similar drain on his land, con- 
necting it with that built by the plaintiff at one end, and with an 
existing tile drain on his land at the other, thereby making a contin- 
uous drain over the lands of both, through which water flowed con- 
stantly. The drain thus constructed was beneficial to the plaintiff's 
farm, enhancing its value by affording her more perfect drainage than 
before, and by furnishing a constant supply of living water for stock 
on her farm, she having utilized the water by constructing a con- 
venient watering place. I n 1887, the defend ant refused to continue 
the arrangement , and dug up s ome of the tO rng onhis own land, so 
a s^ to disrupt the jrajn^^jad! Himinigli the supply Q^ water, to the 
damage of the plaintiff. ^..^ 

The q^uestion is^,.w.hether or not^ after money had been expended ( j 
i n constructing the drain, in reliance upon the agr eement, either of \^ ' ; 

the parties, without the cons ent of the other, could terminate the ^ "^^^ '/ ' 
a rrangement, witho ut bec oming liable for any damage which might 
r esult. The effect of the agreement, when acted upon by the par- 
ties, was to create mutual or cross licenses in favor of each in the 
land of the other. Each was ^jyen a Hgei ^se from t^} fi other to piak^ 
use of the o ther's land for the purpose of conducting water over it, ^ 
for a purpose supposed to be b eneficial to his Qwn land.. A ^'license " ;/ ; 
IS defin e d^ fee an auth ority given to d o_some act^qr a series, of acts, *' -^/"^^ 
on the land of another without _pjp§gfi5siii£. an estate therein. Cook 
V. Stearns, 11 KTa'ssr'SSS; 13 Amer. & Eng. Enc. Law, 539. By 
means of the arrangement entered into, the plaintiff obtained a license 
to connect the covered tile drain which she constructed with a similar 
drain constructed by the defendant, thereby affording her the means 
of drawing or conducting water from springs and other sources on 
the defendant's land, for the benefit of her farm. This is found to 
have been a valuable privilege, to obtain which the plaintiff expended 
money* in reliance upon a mutual agreement entered into with the 
defendant. It is everywhere settled that a parol license to use the 
l and of another is rev ocable at the pleasure of the licensor unle§s. 
t he licen se, has been given up on a valuable jrqnsideration, or money 
has been expended on the faith th^t^it was to be^perpetual orjrqn- 
jnuous . Where a license has been executed by an expenditure of 
money, or has been given upon a consideration paid, it is either ir- 
revocable altogether, or cannot be revoked without remuneration, the 
reason being that to permit a revocation without placing the other 



party in statu quo would be fraudulent and luiconsclonable. Nowlin 
V. Whipple, 120 Ind. 596, 22 N. E. 669, 6 L. R. A. 159; Robinson 
V. ThrailkiU, 110 Ind. 117, 10 N. E. 647; Snowden v. Wilas, 19 Ind. 
10, 81 Am. Dec. 370; Clark v. Glidden, 60 Vt. 702, 15 Ad. 358. 
Where a license is coupled with an interest, or the license e has don e 
/ ^ ^ a cts in pursu ance of the license which create ah equity in his favor , 
^<V "jt cannot be fevoTcei ' Iron Co. v. Wright, 32 N. J. Eq. 248. 

The present case is closely analogous to Clark v. Glidden, supra, 
where it was held that an executed license to lay pipes to conduct 
water from one farm to another, for the benefit of the owner of 
the latter, was irrevocable, and the licensor was enjoined, upon terms, 
from interfering with the water-pipes laid in pursuance of the license. 
The present case is not distinguishable in principle. It may be con- 
ceded that the adjudications upon the subject of the right to revoke 
parol licenses are not uniform, and that they cannot be successfully 
classified or arranged into harmonious groups; but it is the settled 
l ^w of this state, as it is of many others, that, where a license In- 
volving the expenditurfe of money has been so far executed that its 
withdrawal woul d operate as a iraud^upon^the person who expended 
money in _re hance upon it,jio revocation can take place withou t jnaking 
compensation to the person^njured by the withdrawal. Simons v. 
Morehouse, 88 Ind. 391, and cases cited; Rogers v. Cox, 96 Ind. 
157, 49 Am. Rep. 152. Thus, in Rerick v. Kern, 14 Serg. & R. (Pa.) 
267, 16 Am. Dec. 497, and note, a leading case on the subject, it is 
h eld tha t^ an^ executed licensej^ the execution of which i nvolved the 
expe nditure o f money or labor, is regarded" m equiFy ais'^a n execulgd 
agre emen t for a valuable consideration, and that it is therefo re irr ev- 
ocabie, although given merely by parol, and relating to the use am f 
occupation of real estate. This doctrine is so thoroughly settled by 
the decisions of this court that we do not deem it profitable to elab- 
orate the subject further. See S Lawson, Rights & Rem. § 2675; 
Woodbury v. Parshley, 7 N. H. 237, 26 Am. Dec. 739. The rule is, 
of course, different where nothing but a mere naked license is in- 
volved. Parish V. Kaspare, 109 Ind. 586, 10 N. E. 109. It may be 
conceded that a different rule prevails in the state of New York, as 
well as in some other states. Cronkhite v. Cronkhite, 94 N. Y. 323 ; 
Johnson v. Skillman, 29 Minn. 95, 12 N. W. 149, 43 Am. Rep. 192. 

Some other questions of minor importance, which do not affect 
the merits of the case, are suggested. It is sufficient to say we have 
examined these questions, and find no error which would justify a 
reversal of the judgment. Judgment affirmed, with cost. 


— • ♦ v 


.^■u^'^'- r 


I. Joint Tenancies* 

1. Dbpinition — How Crbatbd 



(iSapreme Court of Kansas, 1803. 61 Kan. 153, 82 Pac. 91Q>. 

Error from district court, Sedgwick county; C. Reed, Judge. 

Action of ejectment^ by Lewis Simons against Hester McLain. 
There was judgment ifor defendant, and plaintiff brings error. Re- 
versed. ^ 

The facts on which are based the claims of Lewis Simons, the 
plaintiff, and Hester McLain, the defendant, are as follows: 

On the 17th day of May, 1872, and for more than one year prior 
thereto, Charle s H. Hunter w^s the owner in f ee 5simple of the N. E. 
}i of the N. E. J4 of section 28, township 27 S., of range 1 E. of 
the sixth P. M., in Sedgwick county. On the 17th day of May^ 1872,. 
while still seised in fee simple o f sai4 lanHs^ Hunter^ ^ RingTp> man,, 
executed and delivered to Lewis Simons and E. G. Tewksbury. his' 
warranty_deed, dated jhat_ day, for th e above-d escribed lands. The 
following is a copy of said deed, omitting the certificate of acknowl- 
edgment, which was in due form : 

"This deed, made this seventeenth day of May, in the year of our 
Lord one thousand eight hundred and seventy two, between Charles 
H. Hunter, (a single man,) of Wichita, county of Sedgwick, and state 
of Kansas, of the first part, and Lewis Simons and E. G. Tewks- 
bury, of Hillsborough, and state of New Hampshire, of the second 
part, witnesseth. That the said party of the first part, for and in 
the consideration of the sum of $1,200, to him in hand paid by the 
said parties of the second part, the receipt whereof is hereby acknowl- 
edged, does by these presents grant, bargain, sell, remise, release, 
alien, convey, and confirm unto the said party of the second part, and ' 
to their heirs and assigns, forever, all of the following described 
tract, piece, and parcel of land, lying and situate in the county of 
Sedgwick and state of Kansas, to wit, the northeast one quarter of * 
the northeast one quarter of section No. 28, in township No. 27 south, 
of range 1 east, containing 40 acres, more or less. [Stamp $1.50.] 
Together with all and singular the hereditaments and appurtenance* 
thereunto belonging or in any wise appertaining. To have and to hold 
the same unto the said parties of the second part, their heirs and as- 

I For discussion of principles, see Burdick, Real Prop, i lOL 


signs, forever. And the said Charles H. Hunter, for himself and 
his heirs, does hereby covenant and agree to and with the said parties 
of the second part, their heirs and assigns, that he will warrant and 
forever defend the same lands and appurtenances, and every part 
and parcel thereof, unto the said parties of the second part, their 
heirs and assigns, against the said party of the first part and his 
heirs, and against all and every person or persons whomsoever law- 
fully claiming or to claim the same. In testimony whereof the said 
party of the first part has hereunto set his hand the day and year first 
above written. Executed and delivered in the presence of C. A. Phil- 
lip. Charles H. Hunter. [Seal.]" 

The deed was filed for record and recorded in the office of the 
register of deeds of Sedgwick county in this state. 

On the 22d day of Mar c h, 1877^ E .. G. Tewksbury die d withou t 
having alienated the land, or any part thereof, during his lifetime . 
On the _2StlL of March^ 1877, letters testament ary w ith t he will an - 
nexed*.w^re..ia&Ufid-ta^bmit R, Tewksjbur:y a s exec utri x of the la st 
will and testament of E:^G. TewksUury^ deceasfidiLby the probate court 
of Hillsborough county, N. H., a court having jurisdiction of the es- 
tate of E. G. Tewksbury, deceased. On the 21st day of February, 
1882, Submit R. Tewksbury filed in the office of the probate court 
of Sedgwick county a properly authenticated copy of her appoint- 
ment as executrix of said estate by the probate court of Hillsborough 
county, N. H. She also filed her petition in the probate cour t of 
Sedgwick county, prayiiig'tbr an order to selT real "estate to pay debt s 
pT_ E. G. Tewksbury, deceased. All the proper steps necessary for 
the execution of a deed in proper form by an executrix with the 
will annexed were observed, and Submit R. Tewksbury, on May 8, 
1882, as executrix of the estate and last will and testament of E. G. 
Tewksbury, deceased, execute d a deed for the undivided o ne half o f 
said, la nds to He nry Schweiter. On the 12th d ay o f June, 1882 , 
Lewis Simons and Mary Simons, his wife, executed and de livered t o 
Henry Schw _eit£r,lbeix .warranty deed for an undivided o ne half of 
sjid £r5PliS^s. The deed made by Lewis Simons was executed and 
delivered after the death of E. G. Tewksbury. Lewis Simons has 
made no other conveyance of said land. All the interest that Henry 
Sc hwe iter acguire4 jn the land described in the petition bx vi rtue o f 
said d eeds has passed by sundry mesne conveyances from Jlen ry 
Schweite r to_JIe_ster^M cLain^ w ho claims to own^not o nly the und i- 
vide d half of th e land as described in tTie petition, hii^ pis o the othe r 
undivided pne. halX aJl pf which is included in.the^tract con veyed by 
Charles H. Hunter to Lewis Simons and E. G. Tewk sbury . The 
plaintiff claims to own the* undivided one halt of the premises as 
set forth in the petition, and not conveyed by him, 

Lewis .Simons,. the plaintiff, commenced his action in the ordinary 
form of ejectment^ Hester McLain, the defendant, a nswered by 


s etting out in full the facts on which he r title was_ b ased The plain- 
tiff demurred to this answer, as not allying iacts sufficient to consti- 
tute a defense. The court overruled the demurrer. The plaintiff 
el ected to stan d upon the demurrer . j«hsieU2PP. Jtbe court ren dere d 
j iidgm ent for J^fijififfiadaJlti The plaintiflf excepted, and brings the 
case here for review. 

HoRTON, C. J., (after stating the facts.) One question only is pre - 
sented by the rec ord, and that is whether, on the 22!ci day ot Margh, 
1877, the date of the death of E. G. Tew ksbury, estates by joint ten- 
ancy existed in Klansas. By the common law, if an estate was con- 
veyed to two or more persons without indicating how the same was 
to be held, it was understood to be in joint tenancy. ^ jnigt ten- 
ancy is defined to be "when several p erso ns h a ve a ny^ subject, qf J^rop" 

erty jointly b e tween them in equal shares by purchase." "Each has 
the whole and every part with the benefit of survivorship, unless the 
tenancy be severed." ^ In the quaint language of the law they hold, 
each per my* et per tout"^ the effect of which, technically considered, 
is that, for purposes of tenure and survivorship, each is the holder 
of the whole. The |p;rand incid^tof joint tena ncy is survivorship , 
by which the entire tenancy on the oecease of a nv joint tenani 
mains to the suryiypr§j_and at length t o the l^st s urvivor . 1 Washb. 
Real Prop. (SthEdT) §§ 406, 408; Black, Law Diet. 651; And. Law 
Diet. 1018. By the policy of the American l aw, "joint tenancy^ i/.rst 
a qii^i^rt .Qf-^ yersion. is rarely a matte^ of prefer ence.'' Freem. Co- 
ten. (2d Ed.) § 35. In Connecticut, the judiciary, at an early day, 
entirely ignored what they styled "the odious and unjust doctrine 
of survivorship." Phelps v. Jepson, 1 Root, 48, 1 Ain. Dec. 33; 
Whittlesey v. Fuller, 11 Conn. 340. In Ohio the supreme court held 
that joint tenancy did not exist on account of the statute in that state 
of partition and distribution. Sergeant v. Steinberger, 2 Ohio, 305, 
15 Am. Dec. 553; Penn v. Cox, 16 Ohio, 30; Wilson v. Fleming, 
13 Ohio, 68. But in most of the states the rule of the common law 
concerning estates in joint tenancy continued until abolished by stat- 
ute. 1 Washb. Real Prop. (5th Ed.) 677, 678, notes, with states and 
statutes referred to. 
In this state the legislature, on March 10, 1891, passed an act "to 

aboli«iH surviv grfJiip in jnin ^ l^nanry, SesS. LawS 1891, C. 203, p. 

349. A majority of this court in Baker v. Stewart, 40 Kan. 442, 19 
Pac. 904, 2 L. R. A. 434, 10 Am. St. Rep. 213, and^Shinn v. Shinn, 
42 Kan. 1, 21 Pac. 813, 4 L. R. A. 224, recognized "estates in entirety" 
where the deed is made to the husband and wife, and ruled that in 
such a case, the survivor of the two, at the death of the other, was 
entitled to the entire estate. This, of course, was a full adoption of 
the rule of "estates in entirety" as recognized by the common law. 
The writer of this dissented in that case. But, f ollowing the law thu s 
declared by the majority of the court , and Tri" view of the recognition 



o f joint tenancy by the statutes of thejteje. and tlia^ ^' l^ ] yrvivnr«|[ ]jp 
i n joint tenancy" was not expressly ab olished by statute until 1$9 1 , 
l ong after the execution of th e_de£d,i?f the. 17th of Ma y. 1872. an d 
long after the death of E. G. Tewksbury on the"^ 22d qf^ Ma rch. 1877 . 
we" must hold that est ates by joint tenancy existed in Kansas prior t o 
March 10,. 1891. 

I'he reasons are much stronger for recognizing estates by joint ten- 
ancy, as existing in Kansas prior to March 10, 1891, than that "es- 
tates in entirety" existed, in view of the statutes and decisions of this 
state, recognizing the separate existence of the wife from the hus- 
band. "The jus accrescehdi is as much an incident of estates in joint 
tenancy as of estates in entirety/' 2 Cooley, Bl. Conun. 181, and 
note 2; 1 Washb. Real Prop. 406; Dowling v. Salliotte, 83 Mich. 
131, 41 N. W. 225. Paragraph 7281, c. 119, Gen. St. 1889, reads: 
"The common law, as modified by constitutional and statutory law, 
judicial decisions, and the condition and wants of the people, shall 
remain in force in aid of the General Statutes of this state ; but the 
rule of the common law that statutes in derogation thereof shall be 
strictly construed shall not be applicable to any general statute of 
this state, but all such statutes shall be liberally construed, to promote 
their object." See, also, the act in relation to landlords and tenants, 
concerning joint tenants, (paragraphs 3630, 3631, Gen. St. 1889.) 
Then, again, the legislature, in passing the act of March 1 0, 1891 , 
abolishing joint tenancj,_ impliedly Admitted the previous ex istence _o f 
such estates. That act closes as follows: "But nothing in this act 
3hall be taken to affect any trust estate." Sess. Laws 1891, c. 203. 

The judgment of the district court will be reversed, and cause re- 
manded for further proceedings in accordance with the views herein 
expressed. All the justices concurring. . ^ ^v ^ 

2. Survivorship '/ 



(Supreme Court of Indiana; 1895. 144 Ind. 1, 41 N. E. 68, 55 Am. St Rep. 162). 

Appeal from circuit court, Allen county; C. M. Dawson, Special 

Action by Mary M, Young and another against John H. Wilken and 
another to recover possession of and to quiet title to land. Fr om a 
judgment for plaintiffs, defendants appeal. Affimied in part, and re - 

Jordan, J. Action by appellees in the lower court, yherein they 
s ought to recover_the possessionjof certain Hi>grri1y>d ri>;^1 ggt ^te frg m 
the appellant^ Jphn HTTWilken, and to quiet their title thereto against 


both of the appellants . A trial resulted in a judgment in favor of 
appellees, from which appellants prosecute this appeal, and assign nu- 
merous errors, whereby they assail certain rulings and decisions of the 
trial court, and the fihal judgment and decree thereof. At the re- 
quest of the parties, the court found the facts specially, and stated 
its conclusions of law thereon. As this finding is support ed in its ma - 
t erial points by the evidence, and as the pri ncipal questions.. involved 
i n this appeal are fully presented by said fi ndin g and conclusions of 
l aw thereon, we deem it only necessary to co nsider the alleged errors 
a rising out of thfiaExoncIasioos* * * * *~ 

The next points arising out of the special finding and conclusions 
of law relative thereto, a nd which are presen ted for our cons ideratio n, 
are as to the j;>ower Q f Satr^yel (^^or d on to mort gage a nd devise., bis 
moie ty in th ^ lands involved in th is action. This will necessitate an 
examination, at least, of some of the features impressed by law upon 
these particular estates of joint tenancy, when they are once created. 
Tenants of this kind are s aid t o hold in dividually and jointly, having 
one and IHe^ same i nterest^a^cruing[Jhrough one and tne' "same convey- 
ance, comme ncing at the sa me time, and TieI3 "by" one and the same 
possess ion. 'Upon the death of one" joint "^tenant," there being lao 
severancFln the estate, his entire interest is cast upon the survivor 
or survivors, to the exclusion of the inheritance of the same by his 
heirs. The interest of the survivor in the realty is consequently in- 
creased by the extinguishment of the interest of the tenant deceased. 
It is se ttled in law that ad joint tenan t mav alienate or convey to a 

stran^rerjhi.q p^rt nr interest inTTip' realty, pnd^fhprphy defeat the right 

oTTHe" survivor. Tied. Real. Prop. § 238; 1 Washb. Real Prop. 682, 
cTS^T '4 Kent, Comm. 460; 1 Prest. Est. 136; Bevins v. Cline, 21 
Ind. 40; 6 Am. & Eng. Enc. Law, 892; 11 Am. & Eng. Enc. Law, 
1092 ; Duncan v. Forrer, 6 Bin. (Pa.) 193. 

In the ancient language of the law, joint tenants were said to hold 
per my et per tout, or, in plain words, "by the moi ety o r half and by 
all" ; t hg true interpretatio n of thi s phr ase \ ieiiig^ that these "tenants 
were seised of the entire rea lty for the purpose of tenure and surviv- 
orship, while for the^urpose of immediate aliCttaitiQU each had onljr a 
Ear ticuiar jpart or interest. Prest. Est. supra ; 4 Kent, Comm. supra. 
Partition at' common Taw could not be enforced by joint tenants, but 
under our statute^pa rtitjaajpl^these estates may be enforced. Rev. 
St. 1881, § 1186 (KevrSt. 1894", § 1200)". 'The interest of each tenant 
is subjec t to *if^lf "P^ n execution . Thornburg y, Wiggins, supra [135 
Ind. l/'g,T4'N. E. 999] ; Freem. Ex'ns,! 125. 

Haying these rights and p owers at least o ver his interest in.tiie land 
s o held, there ca n be no sufficient jeason u rg ed why t]jQ power of Jth^ 
j oint tenant to mortgage THe' same should be denied- Any interest in 
real estate which a person may sell and convey he may also inort- 

* Part of the opinion is omitted. 


^ [e. Jones, Mortg. § 136. We are therefore of the opinion that 
g jf^pt ff^no^\ ma y mort^ag^e his interest in the joint estate in lik e 
ma^npr a§ thoufrh hp. w<>rp a tenant in co mmon, and to the extent o f 
t"he piort gage hen the ri p fht of the survivor will be destroyed or su s- 
pended, an d the equity pf redemption^ ^at the death jji .thfi-Jfinapt, 
A\ ^ll be all that will fall to jh i. surv ivmg compani on. This right of the 
tenant to mortgage is supported by the following authorities : York v. 
Stone, 1 Salk. 158; Simpson's Lessee v. Ammons, 1 Bin. (Pa.) 175, 2 
Am. Dec. 425. 

I t is se ttl ed b y numer ous authorities that the devise under the will 
of Samuel Cprdo^ of his interest in the lands in question toappel- 
lant John H. Wilken, was inoperative and void, and the latte r acqu ir- 
ed no title there by. The reason for this rule Is apparent? \Jnless the re ^ / 
i s a severance during the lifetime of the devising tenant, at his deat h 'li^-^.. 
the rightof the suryiyorshipj mmediatelv acc rues ; and^ as the devi se ^*/^ 
ca nnot t ak e eff ect until after the^ death of the testator^ th e tenant is 
t Eereby drsaualifie3^ for devising his moiety in lands so "Held: or^in 
Other words, as this paramount right of the survivor or survivors in- 
stantly prevails upon the death of the testator, there remains no es- 
tate of inheritance upon which the will can operate. Swift v. Roberts, 
3 Burrows, 1488; Duncan v. Forrer, supra; 4 Kent, Comm. supra. 
A joint tenant, being disqualified to exercise this power at common 
law, is also disqualified by our statute of wills. Section 2726, Rev. 
St 1894 (section 2556, Rev, St. 1881), provides that persons may de- 
vise any interest descendible to their heirs which they may have in 
any lands, tenements, etc. 

As we hav e seen th at th e interes t of a joint^ tenant do es not de - 
s cend, it ^pll^ws. therefo re^ that under this statute he h as no rig ht of 
power ^Q d^Y'<^^ ^tlfiJr^"^*^ 1^ _F^^^ From the conclusions which we 
have reached herein, it is apparent that the court erred in holdinjg , in 

that,, the mortgage executed to appeUajjl: Hennaa Wilken ty S amu el 
CXnrAnn^ jc vn\(\ The court did uot en* in stating its third and fourth 
conclusions of law. As, under the special finding of facts, the ulti- 
mate judgment against' John H. Wilken is right; therefore the inter- 
vening errors complained of by him must be deemed and held to be 

The judgment as against Herman Wilken is reversed, and the cause 
remanded, with instructions to the lower court to grant him a new 
trial, and leave to reform the issues if requested. The judgment as to 
John H. Wilken is affirmed. All concur. 


II. Estates in Entirety' 


(Supreme Court of Indiana, 1883. 135 IncL 178, 34 N. fa. 909, 22 L. R. A. 42. 

41 Am. St Rep. 422). 

Appeal from circuit court, Randolph county; Leander Monks, 

Action by Daniel S. Wiggins and wife against William H. Thorn- 
burg and others to enjoin a sale under execution. Demurrers to the 
complaint were overruled, and defendants appeal. Reversed. 

Dailey, J. This was an action instituted in the court below, in 
two paragraphs, in the first of which appellees allege, in substance, 
that on and before December 15, 1884, one Lemuel Wiggins was the 
owner of a certain tract of real estate, therein described, containing 
80 acres ; that on said day said Lemuel and his wife, Mary, executed 
and delivered to the appellees a warranty deed, conveying to them the 
fee simple of said real estate ; that at the time of said conveyance the 
appellees were, ever since have been, and now are, husband and wife ; 
that said deed conveyed to the appellees the title to said real estate, 
which they took and accepted, ever since have held, and now hold 
by entireties, and not otherwise ; that appellees hold their title to said 
real estate by said deed of Lemuel Wiggins, and not otherwise ; that 
on the 24th day of April, 1877, Isaac R. Howard and Isaac N. Gaston, 
who were defendants below, recovered a judgment in the Randolph 
circuit court for the sum of $403.70 and costs against one John T. 
Burroughs and the appellee Daniel S. Wiggins as partners doing busi- 
ness imder the firm name of Burroughs & Wiggins; that on May 12, 
1886, said Howard and Gaston caused an execution to be issued on 
said judgment, and placed in the hands of the appellant Thornburg, as 
sheriff of said cotmty, and directed him to levy the same on said real 
estate, and that said sheriff did, on the 25th day of May, 1886, levy 
said execution on said real estate, or on the one-half interest in value 
thereof taken as the property of said appellee Daniel S. Wiggins, to 
satisfy said writ; that pursuant to the levy thereof said sheriff pro- 
ceeded, by the direction of said Howard and Gaston, to advertise said 
real estate for sale under said execution and levy to make said debt, 
and did on the 8th day of June advertise the same for sale on the 
3d day of July, 1886, and will on said day sell the same unless re- 
strained and enjoined from so doing by the court; that said Daniel 
S. Wiggins has no interest in said premises subject to sale thereon; 
that the appellees hold the title thereto as tenants by entireties^ and 
not otherwise; that the sale of said tract on said execution would 

s For discnssion of principles, see Burdlck, Real Prop. | 103. 


cast a cloud on the appellees' title, etc. The second paragraph is the 
same as the first in substantial averments, except that in this para- 
graph the appellees set out as a part thereof a copy of the deed under 
which they claim title to said real estate as such tenants by entireties. 
The granting clause of the deed is as follows : "This indenture wit- 
nesseth that Lemuel Wiggins and Mary Wiggins, his wife, of Ran- 
dolph county, in the state of Indiana, convey and warrant to Daniel 
S. Wiggins and Laura Belle Wiggins, his wife, in joint tenancy," etc. 

Appellants separately and severally demurred to each paragraph of 
the complaint, and their demurrers were overruled by the court, to 
which the appellants excepted, and, refusing to answer the complaint, 
judgment was rendered in favor of appellees on said demurrers. Ap- 
pellants appeal, assigning as errors the overruling of said demurrers, 
and urge that the appellees under the deed took as joint tenants, and 
hence that the husband's interest is subject to levy and sale upon 

A joint tenancy is an estate held by two or more persons jointly, so 
that during the lives of all they are equally entitled to the enjoyment 
of the land, or its equivalent, in rents and profits ; but upon the death 
of one his share vests in the survivor or survivors until there be but 
one survivor, when the estate becomes one in severalty in him, and 
descends to his heirs upon his death. It must always arise by pur- 
chase, and cannot be created by descent. Such estates may be created 
in fee, for life, or years, or even in remainder. But the estate held 
by each tenant must be alike. Joint tenancy may be destroyed by 
anything which destroys the unity of title. Our law aims to pre- 
vent their creation, and they cannot arise except by the instrument 
providing for such tenancy. Griffin v. Ljmch, 16 Ind. 398- 9 Amer. 
& Eng. Enc. Law, 850, says : "Husband and wife are, at common law, 
one person, so that when realty vests in them both equally, * * * 
they take as one person; they take but one estate, as a corporation 
would take. In the case of realty, they are seised, not per my et per 
tout, as joint tenants are, but simply per tout ; both are seised of the 
whole, and, each being seised of the entirety, they are called 'tenants 
by the entirety,* and the estate is an estate by entireties. * * * 
Estates by entireties may be created by will, by instrument of gift 
or purchase, and even by inheritance. Each tenant is seised of the 
whole; the estate is inseverable, cannot be partitioned; neither hus- 
band nor wife can alone affect the inheritance; the survivor takes 
the whole." This tenancy has been spoken of as "that peculiar estate 
which arises upon the conveyance of lands to two persons who are 
at the time husband and wife, commonly called 'estates by entirety.' '* 

As to the general features of estates by entireties there is little room 
for controversy, and there is none between counsel. Our statute re- 
enacts the common law. Arnold v. Arnold, 30 Ind. 305; Davis v. 
Clark, 26 Ind. 424, 89 Am. Dec, 474. Strictly speaking, estates by 


entireties are not joint tenancies, (Chandler v. Cheney, 37 Ind. 391 ; 
Hulett V. Inlow, 57 Ind. 412, 26 Am. Rep. 64) the husband and wife 
being seised, not of moieties, but both seised of the entirety per tout, 
and not per my, (Jones v. Chandler, 40 Ind^ 589 ; Davis v. Clark, supra ; 
Arnold v. Arnold, supra.) It has been said by this court in some of 
the earlier decisions that no particular words are necessary. A con- 
veyance which would make two persons joint tenants will make a 
husband and wife tenants of the entirety. It is not even necessary 
that they be described as such, or their marital relation referred to. 
Morrison v. Seybold, 92 Ind. 302; Hadlock v. Gray, 104 Ind. 596, 
4 N. E. 167; Dodge v. Kinzy, 101 Ind. 102; Hulett v. Inlow, 57 Ind. 
414, 26 Am. Rep. 64; Chandler v. Cheney, 37 Ind. 395. But the 
court has said that the general rule may be defeated by the expression 
of conditions, limitations, and stipulations in the conveyance which 
clearly indicate the creation of a different estate. Hadlock v. Gray, 
supra; Edwards v. Beall, 75 Ind. 401. 

Having its origin in the fiction or common-law unity of husband and 
wife, the courts of some states have held that married women's acts 
extending tKeir rights destroyed estates by entirety, but this court 
holds otherwise, (Carver v. Smith, 90 Ind. 226, 46 Am. Rep. 210) 
and the greater weight of authority is in its favor. Our decisions 
hold that neither alone can alienate such estate. Jones v. Chandler, 
supra; Morrison v. Seybold, supra. There can be no partition. 
Chandler v. Cheney, 37 Ind. 391. A mortgage executed by the hus- 
band alone is void, (Jones v. Chandler, 40 Ind. 588) and the same is 
true of a mortgage executed by both to secure a debt of the husband, 
(Dodge v. Kinzy, 101 Ind. 105) and the wife cannot validate it by 
agreement with the purchaser to indemnify in case of loss arising on 
account of it, (State v. Kennett, 114 Ind. 160, 16 N. E. 173.) A judg- 
ment against one of them is no lien upon it. Ditching Co. v. Beck, 
99 Ind. 250; McConnell v. Martin, 52 Ind. 434; Orthwein v. Thomas, 
(111.) 13 N. E. 564. Upon the death of one, the survivor takes the 
whole in fee. Arnold v. Arnold, supra. The deceased leaves no es- 
tate to pay debts, (Simpson v. Pearson, 31 Ind. 1, 99 Am. Dec. 577) 
and during their joint lives there can be no sale of any part on exe- 
cution against either, (Carver v. Smith, supra ; Dodge v. Kinzy, 101 
Ind. 105 ; Hulett v. Inlow, 57 Ind. 412, 26 Am. Rep. 64 ; Chandler 
V. Cheney, supra; Davis v. Clark, supra; McConnell v. Martin, su- 
pra ; Cox's Adm'r v. Wood, 20 Ind. 54.) The statutes extending the 
rights of married women have no effect whatever upon estates by 
entirety. Carver v. Smith, 90 Ind. 223, 46 Am. Rep. 210. Such estate 
is in no sense either the husband's or the wife's separate property. 
The husband may make a valid conveyance of his interest to his wife, 
because it is with her consent. Enyeart v. Kepler, 118 Ind. 34, 20 
N. E. 539, 10 Am. St. Rep. 94. 
Bubd.Cas.Real Pbop. — ^12 


The rule that husband and wife take by entireties was enacted in 
this territory in 1807, nine years before Indiana was vested with 
statehood, and has been repeated in each succeeding revision of our 
statutes. It has thus been the law of real property with us for 86 
years. Section 2922, Rev. St. 1881, provides that "all conveyances 
and devises of lands, or of any interest therein, made to two or more 
persons, except as provided in the next following section, shall be con- 
strued to create estates in common, and not in joipt tenancy, unless 
it be expressed therein that the grantees or devisees shall hold the 
same in joint tenancy and to the survivor of them, or it shall mani- 
festly appear from the tenor of the instrument that it was intended 
to create an estate in joint tenancy." Section 2923 provides that the 
preceding section shall not apply to conveyances made to husband 
and wife. Under a statute of the state of Michigan, similar in all 
its essential qualities to our own, the court held that, "where lands 
are conveyed in fee to husband and wife, they do not take as ten- 
ants in common," (Fisher v. Provin, 25 Mich. 347 ;) they take by en- 
tireties. Whatever would defeat the title of one, would defeat the 
title of the other. Manwaring v. Powell, 40 Mich. 371. They hold 
neither as tenants in common nor as ordinary joint tenants. The sur- 
vivor takes the whole. During the lives of both, neither has an ab- 
solute inheritable interest; neither can be said to own an undivided 
half. Insurance Co. v. Resh, 40 Mich. 241 ; Allen v. Allen, 47 Mich. 
74, ION. W. 113. 

While the rule of entireties was prcidicated upon a fiction, the leg- 
islative intent in this state has always been to preserve this estate, 
and has continued the peculiar statute for this purpose. Estates by 
entireties have been preserved as between husband and wife, although 
joint tenancies between unmarried persons have been abolished, so 
as to provide a mode by which a safe and suitable provision could 
be made for married women. Carver v. Smith, 90 Ind. 227, 46 Am. 
Rep. 210. "Where a rule of property has existed for seventy years, 
and is sustained by a strong and uniform line of decisions, there is but 
little room for the court to exercise its judgment on the reasons on 
which the rule is founded. Such a rule of property will be overruled 
only for the most cogent reasons, and upon the strongest convictions 
of its incorrectness. * * * It is evident that the legislature of 
1881 did not intend to repeal the statutes establishing tenancies by en- 
tireties. They simply intended to enlarge in some particulars the 
power of the wife, which existed already under the Acts of 1852 and 
the years following. ♦ ♦ ♦ it did not abolish estates by entireties 
as between husband and wife, but provided that when a joint deed 
was made to husband and wife they should hold by entireties, and not 
as joint tenants or tenants in common." Carver v. Smith, supra. 
In Chandler v. Cheney, 37 Ind., on page 396, the court says : "It was 
a well-settled rule at common law that the same form of words which. 


if the grantees were unmarried, would have constituted them joint 
tenants, will, they being husband and wife, make them tenants by 
entirety. The rule has been changed by our statute above quoted/' 

The whole trend of authorities, however, is in the direction of pre- 
serving such tenancies, where the grantees sustain the relation of hus- 
band and wife, unless from the language employed in the deed it is 
manifest that a different purpose was intended. Where a contrary 
intention is clearly expressed in the deed, a different rule obtains. "A 
husband and wife may take real estate as joint tenants or tenants in 
common, if the instrument creating the title use apt words for the 
purpose." 1 Prest. Est. 132; 3 Bl Comm., Sharswood's note; 4 Kent, 
Comm., side p. 363 ; 1 Bish. Mar. Wom. § 616 et seq. ; Freem. Coten. 
§ 72 j Fladung v. Rose, 58 Md. 13-24. "And in case of devise and 
conveyances to husband and wife togeflier, though it has been said 
that they can take only as tenants by entireties, the prevailing rule 
is that, if the instrument expressly so provides, they may take as joint 
tenants or tenants in common." Stew. Husb. & Wife, §§ 307-310; 
Tied. Real Prop. § 244. "And as by common law it was competent 
to make husband and wife tenants in common by proper words in 
the deed or devise," etc., (Hoffman v. Stigers, 28 Iowa, 310; Brown 
v. Brown, 133 Ind. 476, 32 N. E. 1128, 33 N. E. 615) "so it seems 
that husband and wife may by express words be made tenants in com- 
mon by gift to them during coverture," (McDermott v. French, 15 N. 
J. Eq. 80.) 

In Hadlock v. Gray, 104 Ind. 599, 4 N. E. 167, a conveyance had 
been made to Isaac Cannon and Mary Cannon, who were husband 
and wife, during their natural lives, and the court say : "The language 
employed in the deed plainly declares that Isaac Cannon and Mary 
Cannon are not to take as tenants by entirety. The result would 
follow from the provision destroying the survivorship, for this is the 
grand and essential characteristic of such a tenancy. * * * The: 
whole force of the language employed is opposed to the theory that 
the deed creates an estate in fee in tiie husband and wife." The court 
further say : "It is true that where real property is conveyed to hus- 
band and wife jointly, and there are no limiting words in the deed, 
they will take the estate as tenants in entirety. * * * But, while 
the general rule is as we have stated it, there may be conditions, limi- 
tations, and stipulations in the deed conveying the property which will 
defeat the operation of the rule. The denial of this proposition in- 
volves the affirmation of the proposition that a grantor is powerless 
to limit or define the estate which he grants, and this would conflict 
with the fundamental principle that a grantor may for himself deter- 
mine what estate he will grant. To deny this right would be to deny 
to parties the right to make their own contracts. It seems quite clear 
upon principle that a grantor and his grantees may limit and define 
the estate granted by the one and accepted by the other, although the 


/grantees be husband and wife.*' The court then adopts the language 
of Washburn (1 Washb. Real Prop. 674) and Tiedeman, supra. In Ed- 
wards V. Beall, supra, the court hold that when lands are granted 
husband and wife as tenants in common they will hold by moieties, as 
other distinct and individual persons would do. 

If, as contended by appellees, the rule prevail that the same words 
which, if the grantees were unmarried, would have constituted them 
joint tenants, will, they being husband and wife, make them tenants 
by entireties, then it would result as a logical conclusion that husband 
and wife cannot be joint tenants, because by this rule, words, how- 
ever apt or appropriate to create a joint tenancy, would, in a con- 
veyance to husband and wife, result in an estate by entireties; joint 
tenancy would be superseded or put in abeyance by the estate created 
by law, — tenancy by entirety. The result of such reasoning would 
be to destroy the contractual power of the parties where this relation- 
ship between the grantees is shown to exist. Any other process of 
reasoning would carry the rule too far, and we must hold it modified 
to the extent here indicated. Husband and wife, notwithstanding ten- 
ancies by entirety exist as they did under the common law, may take 
and hold lands for life, in joint tenancy or in common, if appropriate 
language be expressed in 'the deed or will creating it; and we know 
of no more apt term to create a joint tenancy in the grantees in this 
estate than the expression "convey and warrant to 'Daniel S. Wig- 
gins and Laura Belle Wiggins in joint tenancy." These words ap- 
pear in the granting clause of the deed conveying the land in ques- 
tion, and the estate accepted and held by the grantees is thereby lim- 
ited, and they hold not by entireties, but in joint tenancy. A joint ten- 
ant's interest in property is subject to execution. Freem. Ex'ns, 125. 

Judgment reversed, with instructions to the circuit court to sustain 
the demurrer to each paragraph of the complaint^ 

« In accord with the preceding case, the weight of authority Is to the ef- 
fect that. If a grant to husband and wife shows an Intention to create a joint 
tenancy or a tenancy in common, such Intention will preTall. Donegan t. Don- 
ovan, 103 Ala. 488, 15 South. 823, 49 Am. St Rep. 53 (1893) ; Swan v. Walden, 
156 Cal. 195, 103 Pac. 931, 134 Am. St Rep. 118, 20 Ann. Gas. 194 (1909); 
Fladung v. Rose, 68 Md. 13 (1882); HUes v. Fisher, 144 N. Y. 306, 39 N. E. 
337, 30 L. R. A. 305, 43 Am. St Rep. 762 (1895) ; Isley v. SeUars, 153 N. C. 
374, 69 S. E. 279 (1910). Some cases, however, hold that, regardless of the 
terms used in the instnunent, they will take an estate ^n entirety. Wilson 
y. Frost, 186 Mo. 311, 86 8. W. 376, 106 Am. St Rep. 619, 2 Ann. Caa. 667 
(190Q; Young*! Estate, 166 Pa. 646, 31 AtL 873 (189Q. 


-V. ^- •' . ' 



tA-^o^L^- ^t^p*^'-'"^X/L..:~-V 

III. Tenancies in Common* /\ - / 


(Supreme Court <^ Indiana, 188a 116 Ind. 236, 19 N. B. 103). 

Appeal from circuit court, Madison cotmty; D. Moss, Judge. 

Mitchell, J. (^Qipplftintjby Esther J. Carver against Joseph Fcn- 
nimore, in which the plaintiff alleged th«|t the defendant was indebted 
to her in a specified sum for the one-third of the profit, use, and oc- 
cupation of a certain lot or tract of land in the town of Alexandria, 
in Madison county. Issues were made which were tried to a jury, 
who returned a verdict for the defendant. The questions for decision 
will be understood by the following statement of facts: 

In 1857, Ira K. Carver, the plaintiff's hus band, was the owner o f 
Spheres of land adjoining the town of Alexandria, l yhirl^ h<^ conveyed 
by a deed of general warranty to hi? brother, William Carver . The 
plaintiff's name was signed to the deed without her knowl edge or 
consent , an d she remaine d in jgnorance of the conveyance until after ' 

the death of tier husband, which occurred in April, 1875. She then 
learned of the conveyance, and that her signature appeared on the 
deed, whereupon, on the 26th day of February, 1876, she ins tituted 
a suit in the Ma di son circuit court aga ijis^ William Carver ^ and about 
20 others, who claimed different parcels of the land as grantees under 
him, to set aside the deed, for possession, and to ha ve th e tide Jo 
t he land quieted in he r. This suit was pending in the circuit court 
until April. 1879, when the plaintiff_recoyered a judgment and decree 
against all th e defenda nts In that suit, establis hing and quiet ing her 
title and rigHt to the immediate posse ssionofthe^ undivided one-third 
of all the lands so conveyed , and for $125 damages against William 
Carver! An appeal was taken to this court, where the judgment was 
afterwards affirmed on the 16th day of October, 1884. Carver v. 
Carver, 97 Ind. 497. Wijli am Per ry owned the lot for the use and 
occupation of which the plam titt seeks to recover In the T>resent ac- 
tion , at the time the suit above mentioned was commenced, an d he wa s 
duly summon ed as a party th ereto. Pending_the^uiti Perry conveyed 
by warranty deed Jo^Mrs^^Fadley, who made valuable improvements 
on the lot, and who, subsequently, in April, 1880, whjle_ the appeal was 
pendin g in this court, conveyed to the appellee, Fennimore. At the 
time the suit Jor possession was commenced the lot was unimproved, ' 
and the value of the use was merely nominal. Y/\ i' ' : 

The que stion now is whether or not Fennimore is liable for the " , / 
use and oc cupation of thejand ; and, if he is, whether or not the rental 

■ For dlacusflion of principles, see Burdick, Real Prop, i 104. 




val^e is to b e estimated according to the condition of the land prio r 
a nd without reference to the improvements placed thereo n by h is 
fifrantor, pen ding the jguiL or whetnerbe must account for t he valu e 
of the use of the land with the improvement s. On behalf of the ap- 
pellant, i t is contended that the only defense, the appellee was legal ly 
entitled to make was as to the rental value o f the prope r ty as it w as 
when he had possession of i t; that the judgment and decree in the 
former case determined all questions as to the value of the improve- 
ments upon the real estate. It may be conceded that the f ormer judg - 
ment and decree sett led conclusively aU questions concer ning the own - 
ership of Jhe l and an d of the title to the improvements which had b e- 
come a part of the f r eehold^ whether such improvements exist ed 
tbereon when the action was commenced, or were made pending the 
litigatjon. This concession, ho wever, do es not dispose ^f nor mat e- 

^^^^^ nally affect the ques tions for d ecision in the present cas e. The ef- 
fect of the decree in the lormer suit was to declare and conclusively 
establish the fact that the appellant was the owner of an undivided 
one-third of the property in dispute, and that she wa s e ntitled t o 
occ upy J he legal relation of tenant in common with those wh o claime d 
titiejtq^the lot under the deed of her deceased husband. That ques- 
tion is no longer open to debate ; but the rights and obfigations of the 
co-tenants, as such, in respect to the improvement or enjoyment of 
the common estate, have not been adjudicated. 

The relation of tenant in common arises "where two or more per- 

sons are entitled to land m such a manner that they have an undi- 

. vided possession, but several freeholds, i. e., no one of them is entitled 

^\ to th e exclusi v e poss ession of any particular part of . the l and, eac h 
being entitled to ^occupy the whole in common with the othe^rj , or to re - 
ceive his share o f the rents andjrofits.^^ Rap. & L. Law Diet. "Ten- 
ancy in Common." That one tenant may exclude the other from, or 
deny his title to, the common estate does not destroy the legal relation 
or the respective rights and remedies of co-tenants, if they be in fact 
owners in common; noj- does a decree establishing and q uieting th e 
title of th e excluded tenant necessarily determine the rights of the 
partiesa s regard s an equitable accounting in an appropriate p roceeding 
in res pect t o use "and occupation, nor in respect, of improvements 
made^n good faith by the occupying tenant. Carver v. Coffman, 109 

iHaf."S47, ion:"e.'567. • 

The d ecree conclusively establishes the fact of common owner- 
^^?P ^^l^^ property, b ut Jt, do es not necess^ily settle the equities be- 
tween the parties growing out of the occupancy or Improvement ot'TB e 
common estate. Nothwithstancfing the statute, (section 288, Tiev. St. 
1881,) which declares in effect that a tenant in common may maintain 
an action against his co-tenant for receiving more than his share or just 
proportion, the settled rule is that a co-tenant can only be co mpelled 
' , to account in case he has actually received rents from a third person, 




or when he has enj 

upon a nd held ex c lusi ve possession, o f th e 
whole estate in hostility to. and to the exclu sion .pf^ .his QQ-tenant. 

Humphries v. Davis, 100 Ind. 369, and cases cited ; Carver v. Coff- 
man, supra, and cases cited ; Osborn v. Osborn, 62 Tex. 495 ; Edsall 
V. Merrill, 37 N. J. Eq. 114; Early v. Friend, 16 Grat. (Va.) 21, 78 
Am. Dec. 649, and note; Kean v. Connelly, 25 Minn. 222, 33 Am. 
Rep. 458. 

It appears that the appellee and two grantors occupied the who le 
estate, aenied the rig ht of the appellant, and con tested her claim to an 
i nterest in the common propert y. She is therefore entitled, wi thin 
the rule above declared, to an accoun t ing for her just £rQportion pf^ the 
use and occupat i on of t he lot uTTcontroversy. Freem. Co-tenancy, 
§§ 275, 276. The instructions of the court relevant to the features of 
the case above considered were substantially in consonance with the 
foregoing conclusions. In refusin g ; an instruction as k ed bv the appe l- 
l ant, and in the admission of evidence, the court proc e eded upo n the 
theory that the liability of the defendant was to oe determined upon 


t he bails of the rental value of the property in the condition it was 
prior to the jna k ing of the i mprovem ents thereon by the occupying^ 
gTaimants. This, the appellant contends, was an erroneoiis theory. 
The action by one co-tenant against another for an account for rents 
is a liberal and equitable action, and equitable defenses may be made ; 
and in such a case, if the excluded tenant receives actual compensation 
for the damages sustained, he has no just ground of complaint. Un- 
less, therefore, some peculiar circumstances are shown, the owner of an ' 
undivided interest in land, who occupies the w hole estate in good faith, 
under claim and color of title to the whole, and has made permanent 
and valuable improvements under the mistaken belief that he is the 
owner of the whole estate, is accountable only for the fair rental value 
of th e Droper ty in the condition m which it was when it went into his 
possession . The exclud ed owner^"or"ten ant is not, under ordinary 
circumstances, entitled to the enhanced rental value resulting from the 
improvements made with the capital of the bona fide occupant, or by 
his grantor from whom he purchased. Morrison v. Robinson, 31 Pa. 
456; PicE^ringV. Pickering, eSU'.TJ^. 468, 3 Atl. 744. 

This rule is in analogy to that prescribed by the statute governing 
the rights and liabilities of occupying claimants, and has, besides, the 
support of reason and authority. White v. Stuart, 76 Va, 546-567 ; 
Early v. Friend, supra. The defendant and his grantor who jnade 
the improvements went into possession of the whole lot under a duly 
acknowledged and recorded deed, to which the plaintiff's name, as 
well as that of her* husband, appe ared to have been signed. Jt turned 
out that tfie plaintiff's s ign ature iHerefo^was without authority^, aod 
the persons in poss essio n were the owners of only an undivided two- 
tnirds of the property, after th e dea th of the husband. It could hardly 
fiaveTecn expected that they would surrender the whole lot upon 



the institution of the suit by the plaintiff, notwithstanding the deed 
from Ira K. Carver and wife, which appeared to have been made in 
1857; nor were they bound to leave the property lying idle, unpro - 
ductive, and unimproved, and take the .chanceof paying a n enh anced 
value for the improvements which resulted from their o^^P. e nterprise . 
Ford V. Knapp, 102 N. Y. 135, 6 N. E. 283, 55 Am. Rep. 782. This 
results in no injustice to the plaiotiff^JKhilc^tP adopt the m easure of 
damages contended fo r would be in ec^ui table ^and injuriou s^to the de - 
fendant. " "" ~^ 

While a tenant in common who disseizes his co-tenant and makes 
improvements on the common estate may not be entitled to compen- 
sation for improvements so made, he is nevertheless entitled to have 
them considered when called to account in an equitable action for 
rents and profits. There are no circumstances disclosed in the pres- 
ent case which equitably entitle the appellant to the rental value of 
the land with the improvements. What the rights of the parties may 
be in respect to the improvements in any other proceeding than the 
present is not here considered or determined. 

These considerations lead to an affirmance of the judgment Judg- 
ment affirmed, with costs. 

IV. Partition « 


y L 

See Canfield v. Ford, ante, p. 5. / / 


V. Community Property ' 


(Supreme Court of New Mexico, 1897. 9 N. M. 205, 50 Pac. 337). 

Appeal from district court, Bernalillo county ; before Justice N. C. 

Bill by Bessie Bamett against Joseph Bamett. From a decree in 
favor of plaintiff, defendant appeals. Reversed. 

This is a suit brought by Bessie Bamett against Joseph Bamett for 
a partition or division, o f all r eal and personal property standing in 
the name of or owned Wagpellant, and alleged to be community prop- 
erty,"' and' acquire J "durmg the marriage relation formerly existing 
between the said parties. The^saidjigpellant procured a divorce from 
appellee on the 5th day of November, 1894, and this suit was brought 

• For discussion of principles, see Bnrdick, Real Prop. 1 108. 
f For discussion of piinclples, see Burdick, Real Prop, i 100. 



on the 13th day of January, 1896. Said bill of complaint all^^slhat 
a ppellant and app ellee were jmarrieJ on or about the 10th day of 
August, 1891 ; that, at the time they were married^ the appellant pos- 
s essed and 9Yrned n o pro perty by^ inheritance, jdonation^. or legacy dur- 
i ng the existence of the mamifjsre copununlty, but that they d id acquire 
a large amount_of £ropertyju.l)Oth real and £ersonal, by their joint and 
separate e^orts and labors, as set forth and described in the bill of 
complaint, and alleges that all said property is acquest and community 
property, aii d that appellee is entit led to one-half inter^^st in and to the 
sanie. Appellant filed a demurrer to the said bill, which was over- 
ruieS, and thereafter appellant filed an answer, and referred to and 
made the pleadings in the divorce suit a part thereof, jmd denied that 
the appellee was entitled to any interest in either the real or personal 
g^roperty." * * * 

Smith, C. J. (after stating the facts).* It will not be contended 
that the appellee became vested with any separate interest under the 
common law in the property of the appellant acquired during their 
coverture, and it is not less assured that there is no provision made 
for her during his life as to such property by any statute of the ter- 
ritory. Chapter 90 of the Acts of 1889 is "An act to amend the laws 
relative to the estates of deceased persons," aniT directs that "one half ^^. 
of the acquest property which remains after the payment of the com- 
mon debt shall ^ set apart to the surviving husband or wife absolute- 
ly/* It is maniTest that this distribution is derived from the Spanish 
law, and it may be that the limitation as to the time of the operation 
was suggested by the same code. It is consequential, therefore, that, 
if any laws have obtained here disposing (during th6 life of husband 
and wife) of the property accumulated by them during the continuance 
of their marriage relation, they are those of Spain and Mexico, as they 
existed, concerning descents, distributions, wills, and testaments, 
when this territory became a part of the United States. 

In 1846 the following announcements were promulgated by Kear- 
ney in his Code : Kearney's Code, p. 82, § 1 (September 22, 1846) : 
" All la ws heretof ore in force in this territory, which are not repuer- 
nant to or inco n sistent w ith the^onstitution of the United States, and 
the l aws thereof ^ or jgie statutejaws in force for the time being, shall 
be the rule^of action and decision m "this territory." Kearney's Code, 
Pamph. p. 35, § 1 (September "22, "1846) : "The laws heretofore in 
force concerning descents, distributions, wills and testaments, as con- 
tained in the treatises on these subjects written by Pedro Murillo 
De Lorde (Velarde), shall remain in force so far as they are in con- 
formity with the constitution of the United States and the state laws 
in force for the time being." 

The following, as to the foregoing, was duly enacted and incorpo- 

• Part of the statement of facts ii omitted. 

• Part of the opinion is omitted. 


rated in the Compiled Laws of 1865 (Act July 14, 1851, Pamph. p. 
176, § 6) : "That all laws that have previously been in force in this 
territory that are not repugnant to, or inconsistent with the con- 
stitution of the United States, the organic law of this territory, or any 
act passed at the present session of the legislative assembly, shall be 
and continue in force, excepting in Kearney's Code the law con- 
cerning registers of land." Section 1, as above, of the Conjpiled Laws 
of 1865, is repeated in the Compiled Laws of 1884, as section 1365, as 
below : "Sec. 1365. The laws heretofore in force concerning descents, 
distributions, wills and testaments, as contained in the treatises on 
these subjects written by Pedro Murillo De Lorde (Velarde), shall re- 
main in force so far as they are in conformity with the constitution 
of the United States and the state laws in force for the time being." 

This sequence of proceeding, and the absence of other legislation on 
the subject until 1887, establish that the civil law as to descents, dis- 
tributions, wills, and testaments obtained here in 1846, and prevailed 
continuously unmodified to the time of the passage of the "Act regu- 
lating descents and the apportionment of estates," approved February 
24, 1887, and in force from its passage. This statut e exp res ^lv rq - 
pealed all laws in force contravening its provisions, but it does no t 
positively or by implication affect during the lives oiE husb and an d 
a^d_wi.f e . the acquesF property"/ or direct its disposition unti l the dea th 
of either . An act that became a law February 26, 1889, supersedes the 
statute of 1887, above cited, but is likewise silent as to acques t prop- 
7 erty as Ipng^ a s the memb.£ra^ of the mafrtal jartnership are .bot hanve . 

; '/^s^ though divo rced. In 1891, section 1365 of the Compiled Laws of 
^^ l»»4 was repealed as follows: "Be it enacted by the legislative as- 
sembly of the territory of New Mexico: Section 1. That section 1365 
of the Compiled Laws of the Territory of New Mexico of 1884, re- 
lating to administrations, be and the same is hereby repealed." 

Notwithstanding the inaptness of the phraseology of the above act, 
we will presume that its object was to repeal section 1365, and will 
consider it as though such effect were indisputable. If the laws con- 
cerning descents, distributions, wills, and testaments contained in the 
treatises on these subjects written by Pedro Murillo Velarde are not 
now in force, to the extent that they are not positively supplanted, the 
conclusion that there is not extant in the territory any provision as to 
the rights of husband and wife, while both are alive, to acquest prop- 
erty, is irresistible. The common law recognizes no interest i n thje 
wife during cov erture because of separatum. "Our statutes are equally 
deficient as to such status, and inevitably the defendant in error is re- 
manded to the civil law for protection, if she is worthy of it. 

We. will no w inquire whether th e civil law as to a cquest property 
during the lives of the parties who have contractedjnarriage, a nd been 
divorced, h^ been abolished in New Mexico. It is a recognized tenet 
of international law that, in the annexation of new territory, its juris- 

-4 . 


prudence as to rights — not political in character— of its people are ac- 
quired with it, and remain in force until substituted by action of the 
new sovereignty. Says Chief Justice Marshall, in Insurance Co. v. 
Canter, 1 Pet. 544, 7 L. Ed. 242: "It has been already stated that 
all the laws which were in force in Florida while a province of Spain, 
those excepted which were political in their character, which concern- 
ed the relations between the people and their sovereign, remained in 
force, until altered by the government .of the United States. Con- 
gress recognizes this principle, by using the words 'laws of the terri- 
tory now in force therein.' No law s could then have been in force 
but those enacted by the Spanish government .'* The same illustrious 
-expounder, in U. S. v. Percheman, 7 Pet. 82, 8 L. Ed. 604, declares 
that "the people change their allegiance ; their relation to their ancient 
sovereign is dissolved; but their relations to each other, and their 
rights of property, remain undisturbed." In Mitchel v. U. S., 9 Pet. 
'729, 9 L. Ed. 283, Mr. Justice Baldwin, delivering the opinion, an- 
nounced '' that, by the law of nations, the inhabit ants, citizens, or sub - * 
j ects of a conquered or ce ded country, territo ry, or province retain 
all jhe rights of property which hav e not been taken ?rom themTy 
the^ rders of the conquerery or the laws oFtlie soverejgn who acquires 
it by cession, and remai n un der their f ormer laws until they shall be 
c hanged/ 

Mr. Justice Field, in Railway Co. v. McGlinn, 114 U. S. 546, 5 Suji. 
Ct. 1006, 29 L. Ed. 270, elaborates as follows : "It is a general rule of 
public law, recognized and acted upon by the United States, that, 
whenever political jurisdiction and legislative power over any terri- 
tory ase transferred from one nation or sovereign to another, the mu- 
nicipal laws of the country — ^that is, laws which are intended for the 
protection of private rights — continue in force until abrogated or 
changed by the new government or sovereign. Bx thejcessjoUj, public 
property passes frcMn one governmen t to the other, but private 2rop- 
crty remains as before, and with it those municipal laws which are 
de signed to secure its peac eful use and enjoyment. As a matter of 
course, all laws, ordinances, and regulaSons in conflict with the political 
character, institutions, and constitution of the new government are 
at once displaced. Thus, upon a cession of political jurisdiction and 
legislative power (and the latter is involved in the former) to the 
United States, the laws of the country in support of an established 
religion, or abridging the freedom of the press, or authorizing cruel 
and unusual punishments, and the like, would at once cease to be of 
obligatory force without any declaration to that effect; and the laws 
of the country on other subjects would necessarily be superseded by 
existing laws of the new government upon the same matters. But 
with respect to other laws affecting the possession, use, and transfer 
of property, and designed to secure good order and peace in the com- 
munity, and prc^note its health and prosperity which are strictly of a 

/. » 


municipal character, the rule is general that a change of government 
leaves them in force until, by direct action of the new government, 
they are altered or repealed." 

That,no statute of this territo ry— either that adopting the commo n 
law as the rule of practice and'<Iecision, or that relative to the es- 
t ates o f deceased persons, or any other enactment — asce rtains th e 
right s o f husband and wife after legitimate separation, a nd durin g 
thejix fis of both, to the property of which they became poss essed du r- 
i ng coverture, has been shown : that a casus omissus has th us eve nt- 
i\ated willT)e recognized ; th at anj jJiange of t he Spani sh law as t o 
th e ac quest progerty under the foregoing status has bee n made ca n- 
not be seriously pretended; and that the foregoing authorities decisive- 
1]^ establish that, in such contingency, the law upon the subject i n^ti(>n at the date of the cession of the territory must prevai l, shou ld 
be unhesitatingly admitted. "Under the Spanish and Mexican law, 
property acquired by the husband and wife during the marriage, and 
whilst living together, whether by onerous or lucrative title, and that 
acquired by either of them by onerous title, belonged to the com- 
munity; whilst property acquired by either by lucrative title solely 
constituted the separate property of the party making the acquisition. 
The fruits, profits, and increase of the separate property also belonged 
to the community. By 'onerous title* was meant that which wa s ere - 
ated by valuable consideration, as the payment of money, the r enditio n 
of services, and the like, or by the performance of conditions orj^ay- 
ment of charges to which the property was subject. 'Lucrative tjtle^ 
was created by donation, devise, or descent.^' Piatt, Prop. Rights 
Mar. Wom. § 7. **The wife, under the Mexican law, was clothed with 
the revocable and feigned dominion and possession of one-half of the 
property acquired by her and her husband during the coverture. Dur- 
ing this period the husband is the head of the community, and the law 
invests him with discretionary power in all matters pertaining to its 
business or property. In fact, its business is conducted and its prop- 
erty acquired in his name, and his authority in the administration of 
its affairs is exclusive and absolute. The wife has no voice in the 
management of these affairs, nor has she any vested or tangible in- 
terest in the community property. ^The title to such property vests in 
the husba nd, and for jll practical purposes he is~regarded by th e 
law as the sole owner. It is true, the wife is a member of the com- 
munity, and is entitled to an equal share of the acquests and gains, but 
not so long as the community exists ; her interest is a mere expectancy, 
like .that which an heir possesses in the estate of an ancestor, a nd pp s- 
sesses none of the attributes of an estate,^ either at law or equi 
fd. §38." 

It cannot be that the wife, being subordinate during coverture, be- 
comes an equal, with equal rights as a feme sole to the property. 
Powerless during marriage, she must be devested absolut ely by <U - 





orce^i^rit-terinination of the marital nghts_in_relatipn to the comruuoi- 
^ propert j y . It appears in "Practico 4de Testamento," published by 
PedroMurillo De Velarde, as follows: "Sec. 12. Of the Surviving 
Consort. To the surviving consort the laws have conceded a certain 
right in the property of his consort, and at the same time have im- 
posed upon him certain obligations, which it has seemed convenient 
to collect and explain in this section. First. The surviving consort 
has a right to the half of the ganancial (1) property acquired during 
matrimony. This right is based on the community or legal partner- 
ship existing between those married, as the civil effect of the marriage. 
It does not hold in case of divorce, because the consort who eave cause 
t herefor lo ses the right to the jganancial property; nor in case.jof 
apostasy of either^f them ; and although, by ancient law, it was lost 
through the crime of treason, the penalty of confiscation, which fol- 
lowed from it, and was the cause of that loss, being abolished by our 
constitutional law, the right subsists. The widow who lives unchastely 
also loses it, in favor of the heirs of her husband." 

Says Ballinger in his treatise on Community Property: "Upon the 
dissolution of the community by death or legal separation, the ganan- 
das are to be divided equally." Says the same author : "The wife for- 
feits her matrimonial gains when she has been guilty of adultery or 
abandoned her husband without his consent." Says Schmidt in his 
publication of the law of Spain and Mexico, in article 68 : "The wife 
loses her matrimonial gains in the following cases: (1) When she 
has been guilty of adultery ; (2)^ when she has abandoned her husband 
without his consent; (3) when she has joined some religious sect, 
and then married or committed adultery." Says Hall in his work on 
Mexican Law (section 3081), in specifying those incapable of acquir- 
ing because of crime : "(4) The wife condemned as an adultress in the 
life of her husband, if the question shall be of the succession of the 
legitimate children had by the marriage in which she committed the 

It is apparent that the civil law is emphatic in its condemnation of 
the crime of adultery by the wife; that it is condign in the severity 
of its punishment for such an offense; and that the defendant in er- 
ror must be one of the victims of its policy. That there has been no 
modification in the Spanish code of the requirement of fidelity by the 
woman in the marital relation, nor any abatement of the penalty im- 
posed upon her for her dissoluteness, must be commended ; but that it 
should be less exacting of the husband, and less proscriptive of him for 
his unchastity, seems a reproach that cannot be too vigorously denounc- 
ed. That men, the lawmakers, should impose upon the other sex penal- 
ties for their misdeeds greater than those they attach to themselves for 
similar misconduct, is a gross prostitution of power, and a flagrant per- 
petration of a wrong that is a shame to them, and most pernicious in its 
demoralizing effects upon society. They who arrogate to themselves su- - 


periority, and assume to manufacture public sentiment, should not only 
refrain from invidious discrimination against women for the violation 
of their marital obligations, but should so exalt the standard of moral- 
ity by scrupulous propriety and abstinence from impurity as husbands 
that they could, by example, demand fidelity from their wives. If men 
were constrained to purity in fealty to those to whom they have 
pledged themselves, the latter, in appreciative devotion, would be un- 
yielding to temptation, and the relation of matrimony no longer a 
partnership increasing in frequency of dissolution. 

We realize that we might have forborne the foregoing investiga- 
tion, as we do not doubt that the plaintiff in error is impregnable in 
his defense of res adjudicata, but we have deemed it due to counsel 
to consider with care their respective contentions. It is wisdom that 
forbids the multiplication of litigation on the same subject, and spares 
suitors needless vexation in the determination of their rights. The 
parties to this con troversv. having been separated by final decree of 
a^ourt of c omp etent jurisdiction^ are estopped from further harassi ng 
each other as consorts in any other tribunal The marital status hav- 
ing ceased absolutely, no rights which accrued in or by virtue of such 
relation, and were not asserted in the proceedings for dissolution, can 
be subsequently maintained. An ab solute div orce, or a di vorce a vin - 
t-y\e\ matrinr^Qn"*, ^ from the bon ds of marria ge, absolutely dissolv es 
all marr iage tieSj^ and destroys the relation of husband andwife. After 
the date of the decree the man has no wife, the woman no liusband. 
The woman is a feme sole. A decree which dissolves the marriage ab- 
solutely, and destroys the marriage status, puts an end to all rights 
dependent upon coverture. After such a decree, t he court has no ju- 
risdiction OTCr^hc^artieSj and the suit is no Iwiger pendiiig. When 
the court has entered the final dfecree, ft Tias no further jurisdiction 
over the subject-matter, and cannot reassume it * * * 


/^-^ - /fi-v 




I. Estates upon Condition^ 


(Supreme Court of Wyoming, 1904. 18 Wyo. 37, 77 Pac. 134, 67 L. R. A. 571, 

110 Am. St Rep. 963.) 

Error to District Court, Crook County ; Richard H. Scott, Judge. 
Action by S. Henrietta Carlilc-Kent again st A be Frank and Grace 
E. McKenzie . T here was a ju dgment for plaintiff and defendants 
brought error. Since the submission of the cause, defendant in error 
died, and Claude Stratford-Handcock. jxecutor , and Mabel Stratford- 
Handcock, executrix and devisee, of her estate, were substituted. Re- 
versed. * 

PoTTBR, J.* S. Henrietta Carl ile-Kent sued the plaintiffs in error, 
Abe ^ank and Grace £. M cKenzie, f or th e specifi c performance of 
aiTalleged contract tor the conveyance of certain landg^ situated m 
Crook county. tx\^^r9^ \n\7\\y Frank, the grant or of Mrs. McKenzie, 
and damages for taking and withholding possession of the premises. 
The allegations of the firsf cause of action are substantially that on 
April 4, 1901. Frank was the owner of t he lands^ a nd on t hat date 
e ntered into a written a greem ent w ith plaintiff, which is set out in 
haec verba ; that thereaf tefTand on the' same day, plaintiff went into 
possession of the premises under the terms of the agreement, and re- 
mained in'possessibn until July 26, 1901, when Mrs. McKenzie forcibly 
?T!fL wrOPgf "lly ^vj^^^^d fy^j ; that on September 20, 1901, plaintiff ten- 
1 dered the purchaseprice to defendant Frank, and demanded a deed, 
'^ij^i whicfiw as refusedl^that plaintiff has duly performed all the condi- 
tions of the agreement on her part to be performed, and brings the 
purchas e price into court, and offers it to defendant Frank, upon his 
e xecuting^ a rid deUvering a conveyance according to the contract; and 
that on April 17, 1901, Frank wro n gfully sold an d conv eyed the pr^pi- 
ises to the d efenr^Q"<- jM'^Kfini^^'^, who had full knowledge of the agree- 
ment between the plaintiff and Frank. The second cause of action 
is b ased up on t he alleged w rongful eviction of plaintiff and the with- 
holding of possession, and charges tEat the same occurred under the 
direction of the defendant Frank, and there are certain averments of 
special damages. 
The agreeme_nt set out in the j)etition, and which was introduced 

in evidence, is in form a lease for the period of six months from April 

- -— — — -....... . , ..,»-.^ 

1 For discussion of principles, see Burdick, Real Prop. U 111-114. 
> Part of the opinion is omitted. 


1st, conta ining a clause giving the lessee, the j)lajptiff belo w^ the rig ht 
to pu rchase the premises at any time within said six months upon the 
payment of $5,000, with interest at the rate of 8 per cent, per annum. 
The alleg ed right to specific performance is based on that clause. The 
plaintiff, as lessee, covenanted to pay as rental the taxes on the prem- 
ises for the current year, 1901, to have the fences and buildings in 
good repair, and not to pasture upon a certain portion of the land, 
designated as "the bottom pasture," to exceed ten head of saddle and 
work horses and two milch cows. It was agreed that she should have 
full use of "back pasture" for her own stock, and that she should not 
have the right to turn stock upon the hay meadows, nor be allowed to 
pasture upon certain specified "ranches." It was also agreed that, in 
t ^e event she should not purchase tiit lilfixnisfiSLWithiA tbfi^ time gran t- 
edT one-half oftTie hay crppjand one-third of the other crops raise d 
oil th^Jand^shpuld belong to the lessor^ Frajik- The lease then con- 
cludes with the following provision : "It is farther a^Cfid..thaLJtt}C 
parly of the second part [the Ie$see]._shaU deposit with the party of th e 
first j>art the sum of five hundred dollars for the faithful pei|onnance 
of this_ lease and the payment of the taxes as aforesaid." The paper 
is signed by both parties. 

The ansA^rer not only denied the allegations of the petition as to 
the eviction of plaintiff, but averred that the latter had volunta rily de - 
livered possession to the defendant McKenzie. There was some con- 
,y flict of evidence on that issue, and the trial court determ ined it i n 
' favor of the plaintiff, expressly finding that on July 26, 1901, Mrs. 
^ ( < McKenzie, with the consent and connivance of the defendant Frank, 
took possession of the premises against plaintiff's consent, and con* 
tinued to withhold possession, and that plaintiff never voluntarily sur- 
rendered it. The point of conflict in the testimony was as to whether 
Qll^jiot _the plaintm Tiad voluntarily surrendered possession. Upon 
that question the finding of the trial court will be accepted, and, so 
'k far as material, the fact will fee considered as established tha t Mr s. 

V l^ t.-fMcKenzi§ took possession of the premises against plaintiff's consent . 
It is not denied that she continued in possession. In the view we are 
constrained to take of the case under the issues and proof : Frank's 
alleged connection with the act of Mrs. McKenzie in taking possession 
may not become material ; but we deem it proper to say that the evi- 
dence totally failed to connect him with that act in any way, unless 
the fact that he had previously conveyed the land ought to be given 
that effect, which is at least doubtful. There is not the slightest evi- 
dence, outside the mere fact of his conveyance, that Frank either con- 
sented to or aided in the act of taking possession, or that he even knew 
of it until after it had occurred. 

The remaining material averments of the answer are in substance 
and effect that the privilege given to the plaintiff to purchase the 
premises was without consideration, t hat th ere was lack of mutualit y 
in the contract for the sale, and that the lease never became oper ative . 


for the reason that plaintiff (the lessee) failed to make the deposit 
required by the contract fpr fier faithful per formajice of the lease and 
th e payment of the taxes, which i t is alleged w as_a conditi on precede nt . 
to thejLC(juirement of any right bx the j)laintiff under the'le^e. The 
reply met these averments, first, by a general denial ; second, by alleg- 
ing that the defendant Frank never demanded that the $500 mentioned 
in the agreement be deposited with him; and, third, that said Frank 
never demanded of the plaintiff that she comply with any or all the 
terms of the agreement, and never notified plaintiff that she had violat- 
ed any of such terms. The case was tried to the court on all the issues, 
and there was a separate statement of the conclusions ot fact and 
law. * * * 

Now, in the case at bar, the optional agreement does not recite a 
consideration; but it is contained in a written contract signed by the 
parties, and it is maintained on the part of defendants in error that 
the contract being a lease of the premises constituted a sufficient con- 
sideration for the agreement to convey, and it seems to be relied on 
as the sole consideration. On the other hand, it is contended that 
the contract never took effect or became operative as a lease, or for 
any other purpose, for the reason that the plaintiff neglected to per- 
form a condition precedent to its operation, viz., the agreement to 
deposit $500 as security for her faithful performance of the lease and 
the payment of the taxes. Hence it is insisted that the paper did not 
amount lo.^.. lease, andjcouW not^ thereipre^ b^^ regarded as a proper 
Conside ration for the optional agreement, and that the lessor, Frank, 
r evoked the agr eement by the sale and conveyance of the ||remises to 
his codefendan t. Mrs. McKenzie^ which fact was brought to the knowl- 
eSge of the plaintiff shortly thereafter, and before any acceptance on ) 
her part of the privilege of purchase. It becomes important, therefore, y^ 
t o consi der the ch^racterof Jhc._agreement to make the deposit, and C U-^ '/ 
wh ether the failure to d o so rendered the lease ineffective. 'There is 
no dispute upon the facts as to the deposit. It was neither made nor 
offered at any time; but, on the contrary, the plaintiff stated, ^fter 
her eviction, and when her attention was called to her neglect to com- 
ply with her agreement to secure her performance of the terms of the 
lease by making a deposit of $500, that she repudiated that part of the 

Conditions precedent are to be strictly complied with. Such a con- 
<Htion i^jone^ that m ust happen or be performed before the estate de- 
pen Hent upo n it can arise or be enlarged, while a condition subsequent 
• defeat s the" estate irTcase Tt" "do es no t Tiappen'*'or S not performed. In 
determining whether a particular provision amounts to a condition or 
\ not, t h^ ru}^ is that the inten ti on of the grantor governs. Such inten- 

^'^^^tion is to be gathered from the whole msFrumenfand the existing facts. 
The authorities lay down the principle that whether ^ conditi on is pre - 
c edent or subsequent depends upon the intent of the parties, as collected 
Bubd.Cas.Real Prop. — 13 


from the whole contract, whatever the order in which they arc found, 
or the manner in which they are expressed, although certain words 
are customary when a condition rather than a covenant is intended. 
But it seems that the same words m^y ^^ ^ipploved to create either a 
covenant or a con ^itioq . The words employed in the beginning of the 
instrument are words of present demise. It reads : "This article of 
agreement, made and entered into this 4th day of April, 1901, by and 
between Abe Frank, party of the first part, and S. Henrietta Carlile- 
Kent, party of the second part, witnesseth: That the party of the 
first part has this day leased to the party of the. second part the follow- 
ing described lands [description] for a term of six months from April 
1, 1901, and the party of the second part agrees to pay as rental of said 
premises the taxes on the same for the current year 1901." Then 
follows the clause gfiving the privilege of purchase, and following that 
are the other agreements as to the use of the premises, and the instru- 
ment then concludes with the agreement for the deposit that is quoted 
in an earlier part of this opinion. 

The deposit was required for a spec ified purpose, viz., to secure th e 
faithfu l performance by plaintiff, the le^see^ of the lease, a nd the pa^ 
ment of the tjtx es. She had agreed to keep the fences and buildings in 
repair, to refrain from pasturing stock upon certain designated lands, 
and to limit her use of the premises in other respects; and the only 
rental was to be the taxes for the year, and a certain portion of the 
crops, should she not exercise the option of purchase. Now, we know . 
aj the parties doub tless also knew, that the taxes would not becom e 
due .or.. payable until a very^ snort time before the expirati on of th e 
lease. The statutes require the tax fist to go into the hands of the col- 
lector by the third Monday of September, and the taxes would not 
become delinquent until the last day of December. Indeed, the amount 
of the taxes could not have been ascertained until September. Here, 
then, is to be perceived a substantial reason for the requirement of se- 
cu ri^ m aavance. A reason is also to be found in the nature of the 
covenants oT tEe plaintiff respecting the use to be made of certain 
^ parts of the premises, as well as to the keeping of the improvements 
in repair. 

This would all in dicate that the agreement for the secu rity was in - 
r^ Tf tended as a condit ibn, rather tEaja "a covenant. Moreover, as a 

covenant, it would Have added nothing substantially^ to the contract. 
The damages that might be recovered upon its breach could not have 
exceeded the damages sustained by a breach of the covenants which it 
was intended to secure; and those damages would be as capable of 
recovery by assigning and proving a breach of the principal covenants. 
The very nature of the provision would seem to stamp it as a condi- 
tion precedent. There would be little necessity for requiring security 
by a deposit of money after the time for performance of the lease had 
expired, and the lessee had enjoyed on her part all its benefits. As no 
time for malfin£: jhe deposit was stated, doubtless a reasona ble time 



would be mt^lJH, anr^^ |^^H |i|^ Ifssfft ^f" out of pQS&CuSsion> a tender 
of the security and demand fo r possession jarithin a. reasonable, time 
might no doubtJi aye_entitled her^tp^po^sessipn^ under. Jth^ leasj^. But 
no such question arises here. It was clearly proven, and so found by 
th^ court, that she was in possession at and prior to the making of 
the contract. There is nothing in the evidence to show that Franlc 
did any act toward placing her in possession ; nor is the title or right 
under which she had been in possession disclosed, except, perhaps, it 
may be inferred from a circumstance to which we shall have occasion 
to refer. 

There is no question of waiver of the condi tion w hich we are per- 
mitteg to consider. The pleadings set out a full compliance with all 
conditions, and the judgment of the court was based upon a finding 
that they had been substantially complied with. The reply, i n deed , 
a lleges that Frank did not demand th e deposit ; but he was not re- 
quired t o do s o. There is no showing, however, as to that averment. 
The evidence is silent as to whether or not such a demand was made. 
But, when the plaintiff was charged with failing to furnish the security, 
she responded by saying that she repudiated that agreement. It is not 
disclosed, moreover, that Frank did anything toward recognizing the 
possession of the plaintiff, after the making of the contract, or that 
he did any act in relation to the property, except to sell and convey 
it to Mrs. McKenzie on April 17th ; and after that the record is silent 
concerning him until his refusal of the tender of the purchase price 
September 20th, except that he appears to have been present at an 
interview between the plaintiff and Mrs. McKenzie, and their attor- 
neys, after plaintiff had been evicted from the premises. But we think 
the question of waiver is not the case now before us. The trial court 
made no finding in that respect, and such an issue is not presented by 
the pleadings. 

The above facts have been adverted to for_tfie purpose of^ showing 
t hat nothing appears, ev en ty the subsequent conduct of Frank, to in- 
dicate an intention to tre at tBe agreement for security as anything 
other ^tlian>.a cond ition precedent^to'^ny nght ofthe plaintiff to the 
premisesjander theTease. ^milar provisions have, so far as we have 
Been alBfe to discover, been held to amount to conditions precedent. 

In the English case of John v. Jenkins, 1 C. & M. (Exch.) 227, the 
lease there before .the court contained words of present demise : "He, 
the said Esau Jenkins, lets this farm to David Jones," etc. But the 
following clause was contained in it: "David Jones is to give two 
sureties to answer for the rent." The court said that the provision as 
to sureties was v ery important, and showed that the instrument was 
ne ver intended to opera te as a lease at all events, but to operate as 
an agreement only, and t hat it was not Jo. so. ppejate, except security 
s hould be given for the re nt by two sureties on the part of £laintiff ; 
and, as no sureties were given, the instrument was for that reason, 
as well as others unnecessary to mention, held to be without effect. 


and the plaintiff's possession was held to have been under the terms 
of a previous tenancy. In that case the plaintiff was in possession as 
tenant under a former agreement when the one in controversy was en- 
tered into. 

In McGaunten v. Wilbur, 1 Cow. (N. Y.) 257, a house was hired 
on October 31st for six months from the 1st day of November fol- 
lowing, for which the hirer agreed to pay $150, $50 to be paid in ad- 
vance, and the residue to be secured by a bill of sale of his furniture 
in the nature of a mortgage. At the time of the hiring the hirer men- 
tioned that he would not want possession for a fortnight. On the 3d 
of November the owner of the house, not having received the advance 
payment or security, rented it to another tenant. A few days later the 
first party tendered the $50 and bill of sale, and demanded possession. 
It was held that as the tenancy under the agreement was to commence 
November 1st and the advance payment had not been made on that 
day, nor the security given, the owner had the right to consider the 
contract at an end, and let his house to any other person. To the 
same effect are the following cases : Andis v. Personett, 108 Ind. 
202, 9 N. E. 101 ; Hard v. Brown, 18 Vt. 87. See, also, Cassity v. 
Robinson, 8 B. Mon. (Ky.) 279 ; Stainton's Adm'r v. Brown, 6 Dana 
(Ky.) 248; Burlington & M. R. R. Co. v. Boestler, 15 Iowa, 555. 

I t^is impossible, ther efore, to construe the provision in que stion as 
) anjthingjJther than a condition precedent, and hence,_until performed , 

>y the instrument was only an agreement for a leasej but, not.hayinj[ been 
/ ^/"y performed, the lease did not become effective or binding upon the 
' owner of the premises, and cannot be regarded as constituting a con - 
sidera tion for the optional agreement to convey. There is nothing m 
the fact of plamfiiTs possession to change the situation. She was in 
possession at and before the signing of the contract, and there is no 
proof that Frank delivered possession to her. It is not perceived, 
therefore, upon what ground such possession can be regarded as im- 
parting vitality to the lease. In the absence of any other showing, 
she would be but a mere tenant by sufferance. Rev. St. 1899, § 2772. 
The taking and keeping possession by the plaintiff, without more, was 
clearly not a part performance of the contract on her part. Possession 
is what she contracted to receive, not to give, and there is no oppor- 
tunity or foundation in this case upon the record for the application 
of the principle that, when a party has voluntarily .accepted the bene- 
fits of part performance, he may be precluded from insisting upon the 
performance of the residue as a condition precedent to his liability 
to pay for what he has received. 

No doubt, has the lessor put the lessee in possession, that act might 
have indicated an intention not to treat the agreement for security 
as a condition precedent ; and possibly the same intention might have 
been gathered from affirmative acts of the lessor in recognition of 
the possession and an existing tenancy under the contract. But there 
is no evidence of such acts on Frank's part The evidence does dis- 


dose a notice served upon the plaintiff in the early part of July by 
Mrs. McKenzie, which seems to recognize in a way that plaintiff was 
holding under the lease, but asserted that she had not complied with 
its terms, and that the g^ver of the notice reserved the right to declare 
the lease forfeited. But Mrs. McKenzie was not a party to the con- 
tract, and we do not understand that she could, by recognizing the 
lease at that time and in that manner, render it effective, so as to make 
the obligation to convey binding upon Frank, her vendor. There is 
nothing to show that the latter advised or consented to the notice, or 
knew of it, and hence it can hardly be deemed persuasive of an in* 
tention on his part, or of the parties to the contract, to consider the 
contract as a present demise, and the provision as to security as a mere 
covenant. \ , J 

We are constrai ne d, the re fore, to hold that the fin ding of substan - /y 
tial compliance with the terms of the contract is not sustained by the ^/^ 
evidence, * * * / ^v<^< t ' ^ 


(Supreme Oourt of Errors of Gonnectlctit, 1863. 81 Ck>nn. 468.) 

Sanford, J. In_ our_ opinion the conveya nce f rom Tomlinson to 
Bennett a nd others was of aTee^s imple estate uponj:ondition express- 
ed^ in the deed . The instrument is a common deed of bargain and sale 
to the grantees, their heirs, and assigns forever, for certain uses speci- 
fied in the deed, which contains the following clause: "The conditions 
of the within deed_are.jUQh that whenever the within named premises 
shall be conv erted to anv oth er use than those named within, and the 
wit hin grantees shall knowingly persist in t he u se thereof for any pur- 
pose whatever except such as are described in said within deed, the 
s aid grante esJForf eit the righia£r.ein conveyed to the within described 
p remises, upo n the£rantorj>ayini:.jQ,th<? ..sajd Hatch and Bennett and . 
other stockholders the appraised valu^ of such buildings as may be 

thetfioa standing" 

Blackstone says, estates upon condition "are such whose existence ^ 
depends upon the happen ing _or not happening of some uncertain event v • 
whereby ib he "est ate may be originally created or enlarged, or finally de- ' -A-^^. 
feated.^' 2 BL^Comm. i51. Littleton says, ^t is called an estate upon 
condition because that the estate of the feoffee is defeasible if the con- 
dition be not performed." Co. Litt. § 325. "A conditio n is c reated by 
in serting t he jyery word 'condition* or *on condition' in the agreement." 
1 Bouv. Inst. 285. Conditions are precedent or subsequent "Preced- 
ent are such as must happen or be performed before the estate can 
vest or be enlarged. Subsequent are such by the failure or non-per- 
formance of which an estate already vested may be defeated." 2 Bl. 
Comm. 154. In the case of a condition "the estate or thing is given ab- 
solutely without limitation, but the title is subject to be divested by the 


happening or not happening of an uncertain event. Where, on the con « 

trary, th e thing or estate i s granted or given until an eve nt shall hav e 

. arrived, ana no tj[eneraIIy wSh a liabilily to ^e"^ef eated'ty the happe n- 

\) yiVi i nfi^ of the even t, die estate is said to Wgive ri of gra nte d sub lect to a 

' ' '^ li mitation/ ' 2 i3ouv7lnst.'^7rr2 Bl.Comm. 15^. 

.n the case before us the estate vested in the grantees upon the deliv- 
ery of the deed, to have and to hold to them, their heirs and assigns, 
not until they should convert the property to other uses than those 
specified in the deed, nor so long as they should continue to use it for 
the purposes specified, but forever.; with a proviso or condition ex- 
pressed in the deed, that if they should conveVt the property to other 
uses they should forfeit their estate. The words employed are most 
appropriate and apt to make an express condition in deed. They are 
"t he conditions of the within deed are such/ ' etc. And in Portington's 

Slase, 10 Coke, 41a, it is said that '^ ^ypresR words of condition shall not 
e taken fo r ;t h'mifafign " ft has indeed been held that they may be so 
taken where the estate is limited over to a third person upon the breach 
or non-performance of the condition (Fry's Case, 1 Inst. 202) but there 
is no such limitation over in the case before us. So when it is said that 
"whenever the within named premises shall be converted to any other 
use," etc., "the grantees forfeit the right herein conveyed," it is clearly 
indicated that the estate thus forfeited by the misappropriation is to be 
cut off before the time originally contemplated for its termination by 
the parties. 

But it is sai d that by the terms of the instrument th e forfeiture de « 
pends not merely upon the misappropriation of the property^ by the gra n- 
tee s, but also upoi ithe grantor's payment of the appraised v alue of th e 
building. Suppose it is so, how can that affect the question whether 
this is a condition indeed or a limitation? No matter how many 
events the forfeiture depends upon, nor how many individuals must act 
in producing them, when all those events concur and co-exist the for- 
feiture is effected as completely as if it depended upon the occurrence 
of a single event, and the action or omission of a single individual. 
B ut the paymen t for th^building wasnot an event upon which the for - 
feiturejdegended. It wasmerely a duty imposed upon the grantor by 
the contract in addition to that which the law imposed, to enable him 
to take advantage of the breach of condition and enforce the forfei- 
ture. His legal obligation to enter for breach of the condition was in 
no wise affected by it. The estate conveyed by the deed was not an 
easement, or any other right or interest in the property less than a fee 
simple. The fact that the instrument was signed by both of the parties 
to it is of no importance. They were neither more nor less bound by 
the stipulations and conditions contained therein by reason of such 
signature. T he instrument contains n o contract on the part of the 
eyantof to pay for the buildmg! The provision upon that subject oper- 
ates as a qualification of the grantor's right to enforce the forfeiture 
and regain his property, but operates in no other way. But for that 


provision the estate granted could have been put an end to, and revest- 
ed in the grantor, by an entry only; under that provision an entry 
could be made available only by payment for the building also. 

We think it clear t hat the^at^^jpi the grantees was an estate ^pn !] 
condition i^ deed, an4 t hat" it was an esta te up on con dition sufeseguenj ; MCtT 
and hence, notwithstanding a breach of the condition by reason of 
which the estate might have been defeated, it must continue to exist 
in the grantees, with all its original qualities and incidents, until the 
grantor or his heirs by an entry (or its equivalent, a continual claim), 
have manifested in the way required by law, their determination to 
take advantage of the breach of condition, to avail themselves of their 
legal rights, and to reclaim the estate thus forfeited. 

The law upon this point is thus laid down by Professor Washburn, 
in the first volume of his treatise on Real Property (page 450), with 
accuracy and precision. "A condition^ however, defeats the estate to 
which it^is annexed only at the election of him wHo has a right to en- 
force i t. Notwithstandi ng its breach, th e estate^ a. freehold, can only 
bfi defeated by an entry made, and un til that is done it. loses none of its 
o riginal q ualities or i ncidents ." See, also. Id. 452; 2 Bl. Comm. 155; 
2rCruise,T5^. T2. 

But there is in this b ill no alleg ation that_an entry for condition bro- 
ken was ev er made. No right to maintain this suit is disclosed, no title 
to the property is set 'up, nothing is claimed but a right of entry for 
condition broken. And for thjsjreason^ if^ for no oth er, th e bill is in- 
sufficie nt, and the decree must be pr onounced erj^peous. 

The allegation in relation to an aban3onment of the property is im- 
material. It is not averred that the grantees had abandoned the prop- 
'erty, but only that they had abandoned it ''so far as the uses named in 
said deed are concerned ;" that is, that they had ceased to use the prop- 
erty for the purposes for which the grant was made, not that they had 
ceased to use it altogether. What effect an absolute and entire aban- 
donment of the property by the grantees would have had upon the legal 
or equitable rights of this petitioner, we are not now called upqn to de- 

Secondly. A right of entry for con dition broken is not assignable .at 
c ommo n law, and we have no statute which makes it so. 2 Cruise, Dig. 
47TCruise, Dig. 113'; 1 Spence, Eq.' Jur.~153;" 1 Swift, Dig. 93. The 
grantor or his heirs only can enter for breach of such condition. 1 
Washb. Real Prop. 451 ; 2 Cruise, Dig. 44. The petitioner therefore 
could have obtained no right or title to make an entry for breach of the 
c ondition, and without suc h entry the estate of the grantees could not 
b^termia ^d, and no suif aFlaw orin equity could be maintaine'3 
againslihfi^ccupant oi th e prope'rtyT" . > — 

'Thirdly. If there was a breacTi"bf the condition and a forfeiture of 
the grantees' estate in consequence, and if a right of entry could be and 
was in fact assigned to the petitioner, still the' petitioner could not ob- 
tain the relief for which he seeks in a court of equity, because that 



court never lends its aid to enforce a forfeiture. 4 Kent, Comm. 130; 
2 Story, Eq. Jur. § 1319; Livingston v. Tompkins, 4 Johns. Ch. (N. Y.) 
415, 8 Am. Dec. 598. 

Lastly. If the right, title or interest^^ whatever it was, of the gran tor 
or his heirs was assignable, and "was assigned to and veste d in the pet i- 
t ioner ^ as he clairiis, He^haTd no occasion tifcome into a court of equity 
for relief . WTHo not see \vhy he might not have entered for breach 
of the conditions, requested the respdiident to unite with him in pro- 
curing an appraisal of the building, if he refused, procured such ap- 
praisal without the respondent's co-operation, tendered the amount of 
the appraisal, and brought his action of ejectment. The petitioner' s 
legal right, if he had it^ t o put an e nd to the grantees', estate and obtain 
possession of the prop erty, we think could have been de feated bv the 
r espond ent's ref usal t o co-operate in the appraisal or accept the tend er. 
See 1 Switt, Lng, 295 ; JPowell, Cont. 417. We know oiE no power in a 
court of equity to compel the respondent to join the petitioner in pro- 
curing an appraisal nor to make one, in such a case as this ; and we see 
no occasion for the exercise of such a power if it exists. We think 
the petitioner has an adequate remedy for the enforcement and protec- 
tion of all his rights at law. 

There is manifest error in this record. In this opinion the other 
judges concurred, except Button, J., who, having tried the case in 
the court below, did not sit. ^ ' . /, '^ 


(Supreme Judicial Court of Massachusetts, 1827. 6 Pick. 528.) 

Writ of entrv . The parties stated the following case: 
Lemuel Drak e died seised in fee of the demanded premises and of 
several other parcels of land in Stoughton, in 1806. In his will which 
was approved and allowed on the 5th of November in that year, the 
demanded premises were disposed of as follows : " I give to the town 
of Stoughton my lot of land in said town, which I bought of Ephraim 
Wales, ^the land in controversy,) containing about eight acres; also 
about twenty five acres of woodland in said town, which I have bar- 
gained for of Elijah Belcher; agd i n fa ilure of receiving a deed o f 
said Be lcher for jaid land, I gfive to said town three hundred dollars. 
Both of the above pieces of land (or money instead of the last piece) I 
give to said town for the purpose of building a schoolhouse for the 
use of a free grammar school (or other school), as said town may di- 

.^ rect. Provided said schoolhouse is built by said town within one hun- 

/ - — - «' — > 

' . dred rods of the place where the meeting-house now stands." The tes- 
tator gives a small legacy to a nephew and another to a niece, to be 
paid when they should respectively arrive at the age of eighteen years ; 
but if either of them Should die before that time; then the legacy 
should go to the use of the school. He also gives to the precinct in 


Stoughton certain lots of land, part for a parsonage and part for the 
use of the ministry, but "if the meetinghouse is rem oved fro m th e lot 
it now stands on, and no o ther built in it's stead/' then he gives these 
lots "to the use of the free s chool above mentioned." He appoints his 
wife executrix, and besides some specific devises to her, the will con- 
tains the following provision : " All the remainder of tny estate, of 
what name or nature soever, or wherever the same may be found, I 
give and beg ueath to my. beloved wifej;_Abigail Drake^ her heirs and 
assigns forever." 

The demandants are part of the heirs at law of Abigail Drake, but 
not of Lemuel Drake. 

On the 5th of May, 1806, tfee town of Stoughton voted to "accept 
the donatio n of Le mugLPrake, and to make provision for performing 
the conditions on their part, agreeable to the will of said deceased, as 
soon as the circumstances of the town will permit." 

Abigail Drake died in 1806 intestate; and administration de bonis 
non with the will of Lemuel Drake annexed, was committed to Samuel 
Talbot, who on the 14th of March, 1817, delivered possess ion of the 
demanded p remises to the_tgwn of Stou ghton and accounted for the 
rent up to that time, and the town has occupied the premises ever since. 
But the town had not built any schoo lhouse within one hundred rods 
of the mee tinghouse before the commencement of this action. 

The records of the town prior to the date of the writ, and reports of 
committees referred to in such records, were made part of the case.. 
They showed that the subject^fjhe donation had been frequently ^be- 
fore the tqwn^ but It 3rd not ajgpear^frgin them that the town had be- 
gun to pe rform the conditions of the devise. In 1818 the town voted 
"to take $116 and one year's interest of the same (it being the rent of a 
meadow and the interest of a donation given to the town by Mr. 
Lemuel Drake, etc.) for the use of schooling the present year, and 
relinquish so much of the school money that is granted by the town the 
present year for schooling." 

If on these facts and others ap^aring in the records and reports 
abo ve me ntjoned^_the town of StougHtbn had forfeited the land de- 
m anded, and if the dem andants were entitled to reclaim it, the tenants 
were to bedef auTted ; otherwise the demandants were to become non- - y 

suit. ' 

PuTMAN, J. The first question which the case presents for decision ) 
is^ whether the devise was upon a condition precedent or subsequent. /< ,^^ y 
We are all clearly of opinion that it was upon a condition subsequent, ^ 
and. that t he est ate vested immediately in virtue of the devise. The fee •** -r 
dufnot rest in abeyance until the schoolhouse should be built, but was 
to be forfeited if it should not be built in a reasonable time. 

The ne xt inquiry is, whether the devisees have forfeited the estate by 
reason of their not having, built the schoolhouse, according to the £pn- 
dition of the devise. Where no particular time is mentioned for the 
penormance oili condition subsequent, the law requires that it should 

■ \ 


be done in a reasonable time . It is otherwise o f conditions precedent , 
which are for the advantage oTTEe party performing the first act. 
They may be perform e d at the will of the party and at such time as h e 
pleases. Plowd. 16. But in the case at bar benefit was conferred pres- 
ently by the devise of the estate. And the party entitled to have the 
estate upon a forfeiture is not to be bound by the mere will and pleasure 
of the devisees as to the time or manner of performing the condition, 
for that would in effect destroy the condition. They might never per- 
form it. The devisees are therefore to perform in a r easonable, viz. a 
convenient time — " accordin g^ tQ th^ "nature of the thing to be done ." 
Com. Dig. Condition, G, 5. A devise upon condition to pay debts ; the 
debts must be paid in convenient time. 

The devisees, by accepting this devise and ent ering into the land , 
undertook to build the schoolhausfi in a convenient ti me withm one 
^^.^^ hundred XQ ds_oi tixcplace where the meetingh ouse then stood . It is 
said in Co. Lit. 208 b, that if one make a feoffment in fee, upon condi- 
tion that the feoffee shall enfeoff a stranger, and no time limited, the 
feoffee shall not have during his life to make the feoffment, for then 
he should take the profits in the mean time to his own use, which the 
stranger ought to have, and therefore he ought to make the feoffment 
as soon as conveniently he may ; and so it is of t he condit ion of an ob - 
lig ation. 

The intent of the testator was, that the schoolhouse shoul d be bu ilt 
at th e place whicTi he' designated ; not that the devisees should have 
the land without the charge. TlieJ)uilding of the house is a local ac t, 
which the devisees should have performj^d, for the-accomplis hment o f 
the b enev olent design of the testajtpr^ in a qpnyenient time. Upon the 
same reason" as is said in Bothy's Case, 6 Co. 31, that where the act is 
local, and the obligor may perform it for the benefit of the obligee in 
his absence, there the obligor ought to do it in a convenient time. The 
house might be built by the devisees without the concurrence of any 
other party, so the case is not like that which is put, of a local act to be 
done with the concurrence of an obligor and obligee ; in which case the 
obligor hath his lifetime to perform, unless hastened by request. ItJ s 
clear to our mindSj,that the devisees were not ?i.t. liberty to po stpone the 
guildi ng a t their own pleasurCj. but that they^have. J.orf eited the l and, if 
they have permitted an unreasonable time to pass without pe rformin g 
the' condition. 

Of that the court must determine from the facts which are found. 
The will was proved in 1805. In 1806 the inhabitants voted jtpjccspt 
the estate and perform the condition — twenty years before the action 
was brought — and no schoolhouse has been built. The inhabitants of 
the town, during this long period, often met and passed votes contra- 
dictory and trifiing, and still continuing to take the rents and profits of 
the land. They have omitted to do in that long period of time, what 
might have been done in a month as well as in a century. It seems to 


US that they have not conf onued to the manifest intention of the testa- 
tor. They have forfe ite d the e state. 

We are next to consider who are entitled to the estate upon its for- 
feiture. Etoes it b elong to the heirs at law of the testat or, or to the 
plaintiff s, who represent the residua ry devisee, t o whom the testator 
devised al l the remainder of his estate of wEat name or natujcscevcr, 
or wherever the same mightD e'Tou nd ? 

In the cons tructinp nf wiH<;, t^^ ^t-st and ^reat nj^j^^t is tp givp> effert 

t o the int p-nt ^f thp tf<^|atftr. if it ran be done without violating any 
rules of law. And it is a rule^ that the heir at law is nqt to be di sin- 
herited^ unless such ? pPf,p»-«^ rlearly t(> fr^ f\lt ItitpntJn^ (^i tfag (Jev^soy. 

If the devise of land should be void because the devisee is incapable of 
taking, and the devisor should give all his real estate not before dispos- 
ed of, the land would be included in the residuary clause. It is said in 
Perkins, § 564, that in the case of a devise, the remainder shall not be 
avoided by the entry of the heir for the condition broken, because the 
will of the devisor shall be observed in as much as it may be. 

So in Benet v. French, cited in Sherewood and Nonne's Case, 1 Leon. 
251, where a man seised of lands devised a parcel called Gages to the 
erecting of a school, and all his other lands to French in fee, the devise 
of Gages was held void, because no person was named ; and it was fur- 
ther holden, that it passed by the general words to French. I suppose 
the'court construed it to mean other lands not before deznsed, because 
the Gages were not before devised, by reason of there being no devisee 
named who should take the land, and so passed to the residuary dev- 
isee. Upon the same principle, if the devisee die before the making 
of the will, the devise is void, and the land shall pass by the residuary 
clause. Doe v. Sheffield, 13 East, 526, where the testator devised land 
to the sisters of J. H. as tenants in common. There had been three 
sisters of J. H., but two died before the testator. He then gave all his 
messuages, lands, etc., not therein before disposed of, to Scott. And 
the court held, touching the point we are now considering, that if the 
surviving sister had not taken the whole, but only a third, the residuary 
devisee would have taken the two thirds, because the testator made no 
disposition of the two thirds, as thfe devisees of the two thirds died 
before the making of the will. It would not be considered as a valid 
devise, for the want of a devisee in existence at the time of making the 
will ; and no better than if the devise had been of a particular estate 
to a monk ; which would be void, and the remainder-man would take 
immediately, as the monk was not capable of taking at all. Perk. §§ 
566, 567. 

But where there was a devisee in existence, capable of taking the 
land, at the time when the will was made, but who should die before 
the will should be consummated by the death of the devisor, it would 
be considered as a lapsed devise. And in such case, inasmuch as the 
-devisor had disposed of his whole interest in the land, if he had died 
immediately after making the will, the estate wouW have vested in the 


V > 
'v. > 




devisee. The law supposes that the devisor did not contemplate or in- 
tend that the residuary clause or devise of all his land not before dis- 
V posed of, should embrace land contained in the lapsed devise. The re- 

siduary clause touching real estate is to include all the interest of the 
devisor which he had not disposed of when the will was made, and 
the heir is not to be defeated on account of the contingency of the 
dsath of the devisee after the making of the will; which the devisor 
cijuld not foresee. 

It is true that in regard to personal property, the law allows the resid- 
uary legatee to take whatever shall eventually turn out not to be dis- 
posed of, whether it arise from accident or design. And the counsel 
V' for the plaintiffs have argued, that there is no good reason for the dis- 

tinction, and that lapsed devises of real estate should go to the residu- 
ary devisee, as well as lapsed legacies of personal. There is however a 
vl marked difference in the effect of a will upon personal, and upon real 

vl property. The personal estate which is acquired after the will passes 

'^^ by the will, but real property acquired after the will does not pass, and 

is not affected by any disposition in a will made bef ote its acquisition. 
The testator can devise only such real estate as he has at the time of 
^ making the will. The law upon this subject, viz. that the heir, and not 

>^ the residuary legatee or devisee, shall have the advantage of lapsed de- 

vises, is now settled, and has Seen so held for more than half a century. 
Doe V. Underdown, Willes, 293, and the cases cited, particularly Wright 
v. Hall, cited in Willes, 299. In which last case Lord King says, "The 
^' testator makes his will as if he were to die that moment, and it cannot 

7^ be presumed that he intended to devise a contingency which afterwards 

happened, (viz. the death of the devisee after the will and before the 
devisor,) and which he could not forsee." 

So in Gravenor v. Hallum, Ambl. 645, the Lord Chancellor Cambden 
considers the law to be settled. So Lord Chancellor Hardwicke, in 
Durour v. Motteux, 1 Ves. Sen. 321. See also Cambridge v. Rous, 8 
Ves. Jun. 25. 

We are disposed to think this point settled, and upon as good reason 
certainly as the rule applicable to lapsed personal .lega.cies. 
. * i But the devise under consideration cannot be viewed as ^aps ed. A 
l apsed de vise is where the devisee dies after the making of the will and 
before the testator. But^here'thcTJevisees remain as a corp oration ag - 
grej; ate, a nd the esta te vested in them as a conditional |ee^ simple . Jt 
was not Jheref ore technically a lapsed devise. We are now to consider 
the effect of it. 

The third rule laid down by Chief Justice Willes in Doe v. Under- 
down, and which has been recognized in a late case of Doe v. Scott, 
3 M. & S. 300, i s. th at, whgn a testator has given away all h is estat e 
and interest in certain lands, so that If he were to die im mediatel y 
nothing' remains undisposed of, he cannot intend to give any thing in 
these lands to his residuary devisee. That would be properly the case 


/ \ 


of a lap sed devise of real estate, and the heir, and nojk the residuary 
d evis^ f , sh^^ \\u^rp^ thp Kpnf^flt ni it. The converse of that proposition, 
viz. that i f the testator has n ot gi ven away all his interest in the land, A 
so that if he were to die immediately something would remain undis- f J 
posed -OL-Jt is t o be pr esumed thaj^ he intended to g^ve the remainder Jj ^ 
in such lands. to.the residuary devisee, was the rule adopted in the case ^\^f 
oF"D oe V. Sc ott; an J tTia^^fOle^we think must be applied to the^case at f 


^nT5oe V. Scott the testator devised all his lands to J. M. and his heirs 
forever, provided that he or his heirs do within six months after the 
decease of the devisor assure certain premises to R. M. and his chil- 
dren, viz. to R. M. for life, and his children in fee ; and he gave all the 
rest of his lands wheresoever, etc., to John and James Scott. J. M. and 
R. M. died after the making of the will and before the testator, bache- 
lors. And the case was determined in fav our^ of the ScQtts the resid u- 
ary devisees, on tfie^roun3,"tfiat tFere was no devise of the^ fee atso- 
l utely ; for that if J. M. did not assure to R. M. for life remainder in 
Tee to his children, there would be an interest in the devisor undisposed 
of by that devise, which would pass by the residuary clause. Lord 
Ellenborough, in delivering* the opinion, states with approbation the 
rule laid down by Chief Justice Willes in Doe v. Underdown, that the 
intent of the testator is to be taken as things stood at the time wfeen the 
w]ll was made and thatthe devise must mean the rest and residue un- 
bequeathed at the time o f makin g ^ the will. 

Now we think the principle of that decision is exceedingly applicable 
to the case at bar. In this case, as in that, the devise was of a condi- 
ti onal and not of an absolute^.fee. There was a contingent interest 
which the devisor might have disposed of if he had pleased, to take 
effect upon the forfeiture of the estate ; and he has in the residuary 
clause used words which are broad enough to pass the contingent in- 
terest. It is clear that the testator did not dispose of his whole interest 
to the inhabitant s. T he in habitants might not choose to perform the 
<; 9ndition, an d so might forfeit their interest. The testator might have 
limited over that contingent interest specially. If he had done so, there 
can be no doubt but that it would have been a good limitation of his 
remaining interest. He ma de no limitation oyer. But nevertheless 
t he devise did not lapse. The inhabitants became seised of thefee 
simple conditional, andthe contingent interest not otherwise disposed of 
was disposed of by the residuary clause. 

We have been greatly assisted in this investigation by the able and 
learned arguments of the counsel. The re sult of the wh ole i s^ that 
t he devise to the inhabitan ts of Stoughton was upon a condition subse- 
quent, and the estate ves ted accordingly ;' that they have forfeited^ the 
estate by neglecting to comply with the condition ; that jhe^testator had 
an interest und isposed of, depending upon the contingency of the per- 
formance or non-performance of the condition, which passes to the , 



residuary devisee ; and that the plaintiffs claiming und er her are enti- 
t led to recov er. 

ifte aelcridants must therefore be defaulted-* 

11. Void Conditions* \ . C-tC^ 
See Mann v. Jackson, post, p. 206. €< ' * / , 

III. Termination of Cohditional Estates* 

See Warner v. Bennett, ante, p. 197. ^ j/ 

IV. Who may Enforce Forfeitures* 

See Warner v. Bennett, ante, p. 197. ^ ^'' l^<^^ C--^ . 

V. Estates upon Limitation^ G 


(Supreme Judicial Court of Maine, 1802. 84 Me. 400, 24 Atl. 886, 16 L. B. A. 

707, 30 Am. St Bep. 358.) 

Report from supreme judicial court, Penobscot county. 

Bill in equity by William £. Mann and another against Helen S. 
Jackson to obtain a construction of the will of William Mann^ _d €- 

WhiTEhousE, J. This IS a bill in equity brought for the purpose 
of obtaining a judicial construction of the following will : 

"(1) I will that the money which may come from the policy of in- 

• This case of Hayden v. Stoughton is cited by the court in Proprietors of 
Church in Brattle Square v. Grant, post, p. 212, and it is there said tliat this 
case "did not raise any question as to the remoteness of the gift over, be- 
cause it there vested, according to the construction given to the wlU, within 
twenty years from tiie death of the testator and therefore within the pre- 
scribed period." 

« For discussion of principles, see Burdick, Real Prop. { 112. 

• For discussion of principles, see Burdick, Real Prop. { 113. 

• For discussion of principles, see Burdick, Real Prop. { 114. 
7 For discussion of principles, see Burdick, Real Prop. { 115. 



surance which I hold on my own life be appropriated to the payment 
and discharge of any and all mortgages then existing on my home^ 
stead house and lot on Cedar street, in said Bangor, so that said home- 
stead may be free from all incumbrances, and any balance to be applied 
to pay any taxes then due or unpaid, on said homestead, and any bal- 
ance to go with my other estate. 

"(2) My said homestead house and lot a fores aid, J gi ve a nd devis e 
to my unmarried daughter. Helen S. Man n, for an d during her natural 
li le. unless she shall be married^ in which case her li fe estate s hall 
cease. So long as she shall live and remain unmarried she is to have 
the exclusive right of occupation, use, and enjo)rment of said home- 
stead, but subject to the duty of keeping it in good repair at her ex- 
pense, and paying all taxes and keeping the property well insured. If 
all parties interested see fit to sell the property, they may do so, in 
which case said Helen is to receive the net income from the proceeds 
of sale, the same to be well invested for that purpose; and, if the 
buildings are burned in whole or part, the insurance money shall be 
applied to repair or rebuild, unless all agree to a different appropria- 
tion of the money, viz., all parties interested. 

"(3) All other estate, real and personal, of all kinds, which I may 
own or possess a;t death,, including the remainder of my homestead 
house and lot aforesaid, my farm on the 'Odlin Road,' so called, and 
all other property, I give in equal shares to my three children, William 
£. Mann, Mrs. Augusta S. Harden, and Helen S. Mann, to have and 
to hold the same to them, and their heirs and assigns, forever." 

After the death of the testator, Helen S. Mann married, and isthe 
defendant in th is iuit. . ^ 

The language of the second item of the will is specially brought in 
question. The plaintiff say s that the defendant's "life estate" in the 
homestea d wa s terminated by.her^snarriage, while the defendant con- 
tend s jEat the clause limiting her exclusive title by her marriage is 
vpid^ as being a condition in re straint of marriage^ and that she. is en- 
fifipH tn {ij^ finiA ]}f^^ gp^gg;|na>m^ ol the homcstcad during her natu- 

It IS undoubtedly an established ru le of la^ J^at, even with respect 
to Revises of real estate , a s ubsfigugnt condition which is intended to 
operate iHTgeneral andjingualifiedj"estraint of marriage, or the naty- 
ral effect of which Is to cre ate undue restraint upon marriage and pio- 
m^e celibacy^ m ust be h eld ijlegjii^nd void, as contrary to the prin- 
ciples of sound public_poiicy. Tt appears from the early English cases 
that this doctrine was borrowed by the English ecclesiastical courts 
from the Roman civil law, which declared absolutely void all condi- 
tions in wills restraining marriage, whether precedent or subsequent, 
whether there was any gift over or not But^thgi cpurts of equit y 
f ound themselve s greately embarrassed_ between their a nxiety on th e 
one hand to foUow the eccfesiastjcar courts. "an3 ffieir jlesite^oiTtRe 
other to give more heed to the plain intention and wish of thelestator 



as manifested by the whole will. Thereupon the process of distinguish- 
mg commencea for the purpose of preventing obvious hardships aris- 
ing from the application of that technical rule to particular cases. As- 
aresult there has been ine^rafted upon the doctrine a multitude of 
c urious refinements an d subtle distmctions respectmg real a nd persona l 
e state, conditions an d limitations, conditions precedent and condition s 
subsequent, gifts with and without valid limitations over^ and the at) * 
plication of the rule to widows and other persons. Indeed, it may be 
said of the decisions upon this subject with even more propriety than 
was observed by Lord Mansfield in regard to another branch of law, 
that "the more we read, unless we are very careful to distinguish, 
the more we shall be confounded." 

The whole subject as to what conditions in restraint of marriage ^ 
shall be regarded as valid and what as void would seem to be involved 
in great uncertainty and confusion both in England and in this coun- 
try. There is clearly discernible, however, through all the decisions 
of later times, an anxiety on the part of the judges to limit as much 
as possible the rule adopted from the civil law. "The true rule upo n 
the.„sub[ect.Js," says Mr. Redfield, "that one who lias an i nterest in 
tiie fuhire marriage and settlement of a person in life may annex any 
r easonabl e condition to the bequest of jgroperty to such p erson^ a l* 
though i t may operatg_tq delay or restrict the formation of the mar - 
ried relation, and so be in some respect in. .restraint of m_arriag e. 
* ' *^ Where there are hundreds of conflicting cases upon a point, 
and no general principle running through them by which they car 
be arranged or classified, what better can be done than to abandon 
them all, and fall back upon the reason and good sense of the ques- 
tion, as the courts have of late attempted to do?" 2 Redf. Wills, 
*290, § 20, and note. See, also, Id. 297, and 2 Jarm. Wills, 569. Be- 
yond the general proposition first stated, the cases seem finally to re- 
solve themselves for the most part into the mere judgment of the 
court upon the circumstances of each particular case. 2 Redf. Wills, 
*297, § 31 ; 2 Pom. Eq. Jur. 933 ; Coppage v. Alexander's Heirs, 2 B. 
Mon. (Ky.) 313, and note to same, 38 Am. Dec. 153. 

But the rule was so far modified and relaxed that conditions an- 
nexedto_ devises and legacies restraining widows from marryi ng have 
almo st u nTjormiy been pronounced valid. 2 Pom. Eq. Jur. supra. 
From the numerous decisions upon the subject in the United States, 
the conclu sion is fairly to be drawn that such conditions will be up- 
held in the case of widows, whether there is a g^ft over pr not. ' 2 
Jarm. Wills, p. 564," "note 29; f Redf. Wills, 296; Schouler, Wills, 
603. See, also, recent cases of Knight v. Mahoney, 152 Mass. 523, • 
25 N. E. 971, 9 L. R. A. 573, and Nash v. Simpson, 78 Me. 142, 3 
Atl. 53. 

In 2 Redf. Wills, 296, the author says : "We apprehend there is no 
substantial reason, either in law or morals, why a man should be 


allowed to annex%an unreasonable condition in restraint of marriage, 
one merely in terrorem, in case of a wife, more than of a child or any 
other person, in regard to whose settlement in life he may fairly be 
allowed to take an interest; but the cases certainly, many of them, 
maintain such distinction." 

It is unnecessary, however, to enter upon an elaborate discussion of 
the subject. The existence of the rule as recognized in Randall v. 
Marble, 69 Me. 310, 31 Am. Rep. 281, is not here questioned. In 
that case the rule was applied to a "crude and ill-defined" proviso in 
a deed of real estate. We have no occasion to question the sound- 
ness of that decision. It was the judgment of the court upon a par- 
ticular set of words in that deed. It is not an authority to control 
the judgment of the court respecting the construction of an entirely 
different set of words in a testamentary gift of real estate. 

There is a r ecognize d distinction between conditions in restraint 
^^ jgjynage_an'ne^xe 3^b^ tes tament ary d ispositions, and restraints on 
marria ge contain ed in_the very terms of the limitation of the estate 
gi ven. ' 

[n Heath v. Lewis, 3 De Gex, M. & G. 954, (1853,) a testator made 
a gift of i30 a year to an unmarried woman duryig the term of her 
natural life, "if she shall so long remain unmarried." Lord Justice 
Knight Bruce said : "It must be agreed on all hands that it is, by the 
English law, competent for a man to give to a single woman an an- 
nuity until she shall die or be married, whichever of these two events 
shall first happen. All men agree that, if such a legatee shall marry, 
the annuity would thereupon cease. 'During the term of her natural 
liitj if she so lon g rema in UJlOiariied/ is the technical and proper lan- 
guage of limitation, as distinguished from a condition." 

Lord Justice Turner said : "It may either be a gift for life defeated 
by a condition, or it may be a gift to her so long as she remains un- 
married, that is, for life, if she be so long unmarried; and the ques- 
tion is therefore purely one of intention, in which of the two senses 
the words were used." 

Jones V. Jones, 1 Q. B. Div. 279, (1876,) is an important authority. 
It related to a devise of real estate, the testator's language being as 
follows: "Provided said Mary remains in her present state of sin- 
gle woman; otherwise, if she binds herself in wedlock she is liable 
to lose her share of the said property immediately, and her share 
to be possessed by the other parties mentioned." Blackburn, J., said : 
"A number of cases have been referred to, from which it appears 
that the courts of equity have adopted from the ecclesiastical or civil 
law, it is unnecessary to say ^to what extent, the rule that conditions in 
general restraint of marriage are invalid. The attempt to escape f roin 
the consequences of this rule led to decisions in which a great many 
nice distinctions were established as to whether the bequest amo*inted 
Bubd.Cas.Real Prop. — 14 




to a condition or only a limitation. If this point had been as to a be- 
quest of personal estate, it would have been necessary to look at these 
decisions. But this is a devise of land which is governed by the rules 
of the common law, and it is admitted that there is no case which ex- 
tends the rule as to conditions or limitations to devises of land. There 
is, I admit, strong authority that, when the object of the will is to re- 
strain marriage and promote celibacy, the courts will hold such a 
condition to be contrary to public policy, and void. But here there 
appears to be no intention to promote celibacy. No^L her e. I thipk . 
w hen one see s th e sc ope o f the tes tator's dispos itions^ it com^fj tp <^j,<; ! 
*1J2^Y^ ^^^^ ^n t hree w o men e nough to live upon, and if one of them 
d ies I briny in Temima and MJairy. But if Mary (I giippft<^^, as i^\}e 
youngest she was most liksJy . tQ change her sta^e) h a ppens to marry , 
her husband must^maintain her, and her .§h^CLShaJLl 23^.LJSLJhSLlSSt-* 
Now, if he had said this in express words, could it have been con- 
tended that his provision was contrary to public policy? I think not. 
Itja^dmitted that the limitation to Mary^ until she marries is per - 
fectly gpod^ but it is said that here, because.. thQ, dispos ition is in th e 
form oTa condition, It is bad*l' 

Lush, J., said: "We^ ought to take the worHs in snr^] ^ ffcpsfi gs to 
carnr out the object of tHe testator, unless it is ill egal; and, as I 
read the words," the testator only meant to provide for her while she 
was unmarned. There is nothing in these words whicn compels us 
to think It was the testator's object that this niece should never marry 
at all ; he probably supposed that she would be maintaine d by he r 
husbandTand did not mean to provide for husband and wife?^ See, 
also, iiotz's Estate, 38 Pa. 422, 80 Am. Dec. 490; Cornen'v."'Lovett's 
Ex'rs, 35 Pa. 100; Graydon v. Graydon, 23 N. J. Eq. 230; Courter v. 
Stagg, 27 N. J. Eq. 305. 

It is the enlightened policy of courts of equity, when not restrained 
by compulsory rules, to seek to discover the intention of the testator 
from the whole instrument, rather than from any particular form of 

In the case before us, the testator makes careful provision in the 
first item of the will for the appropriation of so much of the pro- 
ceeds of his life insurance as might be necessary to discharge all mort- 
gages on the homestead. In the second item he devises the homestead 
to his unmarried daughter "for and during her natural life, unless 
she shall be married, in which case her life estate shall cease. So 
long as she shall live and remain unmarried she is to have the exclu- 
sive right of occupation, use, and enjoyment of said homestead." In 
case all parties interested agree to a sale of the property, this daughter 
is to receive the net income of the proceeds, "the same to be well in- 
vested for that purpose;" and, in the event of the destruction of the 
buildings by fire, the insurance money shall be applied in rebuilding 


them. In the third item he gives the residue, including the remainder 
of his homestead, to his three children in equal shares. 

Here, then, is the case of a parent who has a recognized right, and 
was under a moral obligation, to interest himself in the settlement of 
his daughter. To the or di nary mind^jantrammfiled.hy the. "m^dis^" 
v alism of the law/' ther e is. nothing in the will indicating aoy. other 
thou ght or feelin g ; than an affe ction ate regard f or t he welfare and 
happmess of a beloved daughter, and an anxious desire _tQ. provide 
forner a pe rmanent "ana jsamrQrtable.homc. The modern court, free 
from the incubus of arbitrary legal dogma3, must fail to discover in 
the language of this will any suggestion of a purpose on the part of 
the father to impose a condition in terrorem in restraint of his daugh- 
ter's marriage. I t disclose s no other disposition than a praiseworthy 
d esire to secure to the daughter t ^e^co ntmueH jocc upation^ a enjoy- 
ment of the old homestea djunt iLby reason of herjiarliage, she sKould 
cease to nee d, it; then she was to share equally with her sister and 
b rother in th e entire estate. It is manifest from the whole tenor of 
the will thatHnothrrig was more remote from the real purpose of the 
testator than the idea of discouraging the marriage of this daughter. 
T he intention was not to promote c elibacy, but si mply to furnish sup-i 
port until other means should be provided. Because of the i nadvert 4 
e nt use by th e scrivener of the w ord unless/' this court is not, com- ^ ^^ 
pelledto impose upon this instrument an intention which it is mani- t -'• 
fest from the context the testator never had. There is no such in- 
flexible rule ; the rights oi the parties are not to be determined by an 
application of such a Procrustean method. The provision is in no 
respect contra bonos mores. It is not violative of any principle of 
sound policy ; and, if it is here necessary and proper to recognize and • 
maintain the distinction between a limitation and a condition subse- 
quent, the language of this will should be held to constitute a valid 
limitation, and not an illegal condition. 

The defendant's exclusive right to the possession and enjoyment of 
the entire homestead ceas e d upo n her marriage. Decree accordingly. 

Peters, C, J., and Virgin, LiiB^Y, Emery," and Foster, JJ., con- 




VI. Estates upon Conditional Limitation* 



(Supreme Judicial Ck)urt of Massachusetts, 1855. 3 Gray, 142, 63 Am. Dec 725.) 

Bi.ll ja_fiQuity by the Proprietors of the Church in Brattle Square, 
praying for Jeave to sell the parsonage Jhquse in Court Street, held 
by thenTlinder the^ following devise in.the.wjll of jH^ydiaJH^cock: 
.'1 g^ve and bequeath unto Messrs. Timothy Newell, Isaac Smith and 
Ebenezer Storer, present deacons of the Church of Christ in Brattle 
Street in Boston, whereof the Rev. Mr. Samuel Cooper is minister, 
and to their successors in that office, all that brick dwelling-house 
and land situated in Queen Street, lately improved by my honored 
father, Daniel Henchman, Esquire, as his mansion house, tojioldjthe 
same, at and„immediately upon the decease of my mother, unto said 
Timothy Newell, Isaac Smith and Ebenezer Storer, and to the deacons 
of the said church for the time being, forever, upon this expre ss 
V condition and limitation, that is to say, that the minister or ^Idest 
minister of said church shall constantly reside and dwell in said house, 
during such time as he is minister of said church ; and in case the 
same is not improved for this use only, I then declaje^this bequest 
to be void and of no force, and order thafsaicTFouse and land then 
revert to my estate, and I give the same to my nephew, John Han- 
cock, Esquire, and to his heirs forever." The said John Hancock was 
also made residuary devisee. The will was dated October 30th, 1765, 
and proved in the probate court in the 21st of November, 1777. 

The bill alleged that from the decease of Mrs. Hancock the minis- 
ter or eldest minister of said church had constantly dwelt and re- 
sided in said house, during such time as he was minister of said 
church, and the house and land had been improved for that use onlj; 
that the sum assessed for taxes upon said estate had been and was 
continually increasing, and the estate required, and would from time 
to time require, the expenditure of large sums of money to keep it 
in repair ; that a sale of the estate was necessary to the beneficjal^ ac- 
cbmplishment of the intent of the devise; that the present deacons 
of the church, who now hold the legal estate in the premises, were 
unwilling to join in making sale thereof without the sanction and de- 
cree of this court, because John Hancock and others, heirs at law^f 
the John Hancock named in the will, pretended that the estate was 
devised upon the limitation and condition that the minister or eldest 
minister of said church should constantly dwell and reside in said 

• For discussion of principles, see Burdick, Real Prop. S 110. 


house_during such tiin£L.a§ he should be minister of said church, and 
that in case the same should not be improved for that use only, the 
testatrix ordered that the said house and land should revert to her 
estate, and gave and devised the same to the said John Hancock 
and to his heirs forever, and so, if the said house and land should be 
sold, the same would be forfeited and would revert to the heirs of 
the said John Hancock; but the plaintiffs charged the contrary thereof 
to be the truths and that the -devise was not upon any such condition 
or limitation, and that the supposed devise over to said Hancock was 
altogether^vpid land of no effect; and that, if any forfeiture of said 
estate could or should at any time be worked, the legal title would not 
vest in the heirs of said John Hancock, but in certain other persons, 
heirs at law of the testatrix; and that if the estate, should, in the 
opinion of this court, be deemed to have been devised and to be still 
holden by said deacons upon anjjr such limitation or condition, a sale 
of the estate had become necessary and expedient to effect the ob- 
jects oi the trust, as contemplated by the testatrix. 
^The deacons and minister of the church, John Hancock and others, 
heirs of John Hancock named in the will, and the heirs at law of 
the testatrix, were made parties to the bill. The bill prayed for a 
discovery, for a decree for a sale of the estate and an investment 
and application of the proceeds in such manner as should best ef- 
fect the objects of the trust, and for further relief. 

John Hancock and William H. Spear, two of the heirs at law of 
John Hancock named in the will, filed answers, in which they alleged 
that the condition and limitation of the devise under which the plain- 
tiffs held was valid ; two other heirs of said John Hancock demurred 
on the gfround that they were improperly made parties ; and all the 
other defendants suffered the bill to be taken for confessed. 

BiGKLOW, J. The interesting and important qdestions involved in 
the present case are now for the first time brought to our considera- 
tion. In a suit in equity between the same parties which was pend- 
ing several years ago in this court, we were not called upon to give 
any construction to the clause in the will of Lydia Hancock, under 
which the deacons of the church in Brattle Square and their succes- 
sors hold the estate now in controversy. The object of that suit was 
widely different from that of the present. The plaintiffs then as- 
sumed, by implicatioif, that they were bound by the ''condition and 
limitation" annexed to the devise, and the validity of the gift over on 
breach of the condition was not called in question by them. The 
single purpose then sought to be accomplished was to obtain authority 
to sell the estate, solely on the ground that, from various causes, the 
occupation and use of the premises for a private dwelling, and espe- 
cially for a parsonage, in the manner prescribed in the will, had be- 
come onerous and impracticable ; and the prayer of the bill was that, 
if a sale was authorized, the proceeds might be invested in other real 


estate, to be held on the same trusts and upon the like condition and 
limitation as are set out and prescribed in the will of the testatrix, 
relative to the estate therein devised to the deacons and their suc- 
cessors. It is quite obvious that, on a bill thus framed, no question 
could arise concerning the respective titles of the parties to the suit, 
under the devise. They were not put in issue by the pleadings, and 
no decision was in fact made in regard to them. That suit was deter- 
mined solely upon the ground that the* case made by the plaintiffs 
was not such as to warrant the court in making a decree for a sale of 
the premises upon the reasons and for the causes alleged in that bill, 
and above stated. 

The case is now brought before us upon allegations and denials 
which directly involve the construction of the devise, and render it 
necessary to determine the respective rights of the devisees and heirs 
at law to the estate in controversy. In order to decide the questions 
thus raised, it is material to ascertain, in the outset, the legal nature 
and quality of the estate which is created by the terms of the devise 
to Timothy Newell and others, deacons of the church in Brattle Street. 
If the^ift had been solely to the deacons of the church jn _Brattle 
Street and their successors forever, without any condition an nexe d 
thereto concerning its use and occupation, it would, without_doubt, 
have vested in them the absolute legal estate in fee. By the provincial 
statute of 28 G. 2, which was in force at the time of the death of the 
testatrix, the deacons of all Protestant churches were made bodies cor- 
porate, with power to take in succession all grants and donations, 
both of real and personal estate. Anc. Chart. 605. The words of 
the devise were apt and sufficient to create a fee in the deacons and 
their successors, and they were legally competent to take and hold 
such an estate. It therefore becomes necessary to consider the, nature 
and effect of the condition annexed to the gift; how far it qualifies 
the fee devised to the deacons and their successors; and what was 
the interest or estate devised over John Hancock and his heirs for- 
ever, upon a failure to comply with and perform the condition. It will 
aid in the solution of these questions, if we are able in the first place 
to determine, with clearness and accuracy, within what class or divi- 
sion of conditional and contingent estates the devise in question falls, 
y Strictly speakinjg, and using words in their precise leg al im port^ the 
devise in question does not create simply an estate on condition. 
By the common lawj a condition annexed to real estate could J)ej;e- 
served only to the grantor or devisor, and his heirs. Upon a breach 
of the condition, the estate of the grantee or devisee was not ipso 
facto terminated, but the law permitted it to continue beyond the 
time when the contingency upon which it was given or granted hap- 
pened, and until an entry or claim was made by the grantor or his 
heirs, or the heirs of the devisor, who alone had the right to talce 
advantage of a breach. 2 Bl. Com. 156; 4 Kent, Com. (6th Ed.) T22, 


127. Heng<i atQse the distmction between a condition and a condi- / ^ 
tional limitation. A condition, followed by a limitation over to a /'^c^* 
third person in. case the condition be not fulfilled, or there be a breach 
of it, is termed a conditional limitation. A condition determines an 
estate after breach, upon entry or claim by the grantor or his heirs, '< .. . 
or the heirs of the devisor. Y A limitation marks the period which »- 
determines the estate, without any act on the part of him who has the 
next expectant interest. Upon the happening of the prescribed con- 
tingency, the estate first limited comes at once to an end, and the sub- 
sequent estate arises. If it were otherwise, it would be in the power 
of the heir to defeat the limitation over, by neglecting or refusing to 
enter for breach of the condition. /This distinction was originally in- 
troduced in the case of wUls, to get rid of the embarrassment arising 
from the rule of the ancient common law, that an estate could not 
be limited to a stranger, upon an event which went to abridge or 
destroy an estate previously limited. A conditional limitatioti is there- 
fore of a mixed nature, partaking both of a condition and of a limi- 
tation ; of a condition, because it defeats the estate previously lim- 
ited ; anJ of a limitation^ because, upon the happening of the contin- 
gency, the estate passes to the person having the next expectant in- 
terest, without entry of claim. .» 

' There is a further distinction in the nature of estates on condi- 
tion, and those created by conditional limitation, which it may be 
material to notice. Where an estate in fee is created on condition, "t^ 

the entire interest dogs, not jjass out oi Lh^-grantor by the same instru- 
ment or conveyance. All that remains, after the gift or grant takes 
effect, continues in the grantor, and goes to his heirs. This is the 
right of entry, as we have already seen^ which, from the nature of the 
grants is reserved to the grantor and his heirs only, and which gives 
them the right to enter as of their old estate, upon the breach of the '■"' ' 
condition. This possibility, of reverter, as it is termed, arises in the 
grantor or devisor immediately on the creation of the conditional 
estate. It is otherwise where the estate in fee is limited over to a 
third person in case of a breach of the condition. Then the entire 
estate, by the same instrument, passes out of the grantor or devisor. 
The first estate vests immediately, but the expectant interest does not 
take effect until the happening of the contingency upon which it was 
limited to arise. But both owe their existence to the same grant or 
gift; they are created uno flatu; and being an ultimate disposition 
of the entire fee, as well after as before the breach of the condition, 
there^is nothing left in the grantor or devisor or his heirs. The right 
or possibility of reverter, which, on the creation of an estate in fee 
on condition merely, would remain in him, is given over by the limi- 
tation which is to take eff$;ct on the breach of the condition. 

One material difference therefore, between an estate in fee on con- 
dition and on a conditional limitation, is briefly this; that the former 


leaves in the grantor a vested right, which, by its very nature, is re- 
served to him, as a present existing interest, transmissible to his heirs ; 
while the latter passes the whole interest of the grantor at once, ajnd 
creates an estate to arise and vest in a third person, upon a contin- 
gency, at a future and uncertain period of time. A grant of a fee 
on condition only creates an estate of a base or determinable nature 
in the grantee, leaving the right or possibility of reverter vested in 
the grantor. Such an interest pr right in the grantor, as it does not 
arise and take effect upon a future uncertain or remote contingency, 
is not liable to the objection of violating the rule against perpetuities, 
in the same degree with other conditional and contingent interests 
in real estate of an executory character. The possibility of reverter, 
being a vested interest in real property, is capable at all times of 
being releJised to the person holding the estate on condition or his 
grantee, and, if so released, vests an absolute and indefeasible title 
thereto. The grant or devise of a fee on condition does not therefore 
fetter and tie up estates, so as to prevent their alienation, and thus 
contravene the policy of the law which aims to secure the free and 
unembarrassed disposition of real property. It is otherwise with gifts 
PF j5r?^?ts of estates in fee, with limitations over upon a condition or 
event of an uncertain or indeterminate nature. The limitation over 
being executory, and depending on a condition, or an event which 
may never happen^ passes no vested interest or estate. It is impos- 
sible to ascertain in whom the ultimate right to the estate may vest, 
or whether it will ever vest at all, and therefore no conveyance or 
mode of alienation can pass an absolute title, because it is wholly 
uncertain in whom the estate will vest on the happening of the event 
or breach of the condition upon which the ulterior gift is to take 

Bearing in mind these distinctions, it is obvious that the devise in 
question was not the gift of an estate on a condition merely, but it 
also created a limitation over, on the happening of the prescribed con- 
tingency, to a third person and his heirs forever. It was therefore 
a conditional limitation, under which general head or division may be 
comprehended every limitation which is to vest an interest in a third 
person, on condition, or upon an event which may or may not happen. 
Such limitations include certain estates in remainder, as well as gifts 
and grants, which, when made by will, are termed executory devises, 
and when contained in conveyances to uses, assume the name of spring- 
ing or shifting uses. 1 Preston on Estates, §§ 40, 41, 93; 4 Kent, 
Com. (6th Ed.) 128, note; 2 Fearne, Cont. Rem. (10th Ed.) 50; 1 
Pow. Dev. 192, and note 4; 1 Shep. Touch. 126. 

That the devise in question does not create a contingent remainder 
in John Hancock and his heirs is very clear, upon familiar and well 
established principles. There is, in the first place, no particular estate 
upon the natural determination of which the limitation over is to take 


effect. The essence of a remainder is, that it is to arise immediately 
on the termination of the particular estate by lapse of time or other 
determinate event, and not in abridgment of it. Thus a devise to A. 
for twenty years, remainder to B. in fee, is the most simple illustration 
of a particular estate and a remainder. The limitation over does not 
arise and take effect until the expiration of the period of twenty years, 
when the particular estate comes to an end by its own limitation. So 
a gift to A. until C. returns from Rome, and then to B. in fee, consti- 
tutes a valid remainder, because the particular estate, not being a fee, 
is made to determine upon a fixed and definite event, upon the hap- 
pening of which it comes to its natural termination. But if a gift 
be to A. and his heirj till C. returns from Rome, then to B. in f ee^. 
the limitation over is not good as a remainder, because the precedent 
estate, being an estate in fee, is abridged and brought to an abrupt 
termination by the gift over on the prescribed contingency. One of 
the tests, therefore, by which to distinguish between estates in remain- 
der and other contingent and conditional interests in real property, 
is, that where the event, which gives birth to the ulterior limitation, 
determines and breaks off the preceding estate before its natural ter- 
mination, or operates to abridge it, the limitation over does not create 
a remainder, because it does not wait for the regular expiration of 
the preceding estate. 1 Jarman on Wills, 780; 4 Kent, Com. 197. 
Besides, wherever the gift is of a fee, there cannot be a remainder, 
although the fee may be a qualified or determinable one. The fee 
is the whole estate. When once granted, there is nothing left in the 
donor but a possibility or right of reverter, which does not constitute 
an actual estate. 4 Kent, Com. 10, note ; Martin v. Strachan, 5 T. R. 
107, note; 1 Jarman on Wills, 792. All the estate vests in the first 
grantee, notwithstanding the qualification annexed to it. If, there- 
fore, the prior gift or grant be of a fee, there can be neither particu- 
lar estate nor remainder; there is no particular estate, which is an 
estate less than a fee; and no remainder, because, the fee being ex- 
hausted by the prior gift, there is nothing left of it to constitute a 
remainder. Until the happening of the contingency, or a breach of the 
condition by which the precedent estate is determined, it retains all 
the characteristics and qualities of an estate in fee. Although de- 
feasible, it is still an estate in fee. The prior estate may continue 
forever, it being an estate of inheritance, and liable only to determine 
on an event which may never happen. For this reason, the rule of 
the common law was established, that a remainder could not be lim- 
ited after a fee. In the present case, the devise was, as we have 
already stated, a gift to the deacons and their successors forever ; and 
they being by statute a quasi corporation, empowered to take and hold 
grants in fee, it vested in them, ex vi termini, an estate in fee, quali- 
fied and determinable by a failure to comply with the prescribed con- 


, dition. The limitation oyer, theref pre, to John Hancock an d hi< 

.* *\ ; . could not take effect as a remainder. 

It necessarily results from these views of the nature and quality of 
conditional and contingent estates, as applicable to the devise in ques- 
tion, that the limitation of the estate over to John Hancock and his 
heirs, after the devise in fee to the deacons and their successors, is a 
conditional limitation, and must take effect, if at all, as an executory 
devise. The original purpose of executory devises was to carry into 
effect the will of the testator, and give effect to limitations over, which 
could not operate as contingent remainders, by the rules of the com- 
mon law. Indeed, the general and comprehensive definition of an 
executory devise is a limitation by will of a future estate or interest 
in land, which cannot, consistently with the rules of law, take effect 
as a remainder. Every devise to a person in derogation of, or sjab- 

, > . , " sitution for, a preceding estate in fee simple, is an exec utory cjeyi se. 
4 Kent, Com. 264; 1 Jarman on Wills, 778; Lewis on Perp. 72; 
6 Cruise, Dig. tit. 38, c. 17, §§ 1, 2; Purefoy v. Rogers, 2 Saund. 388a, 
and note. Thus a limitation to A. and his heirs, and if he die un- 
der the age of twenty one years, then to B. and his heirs, is an execu- 
tory devise, because it is a limitation of an estate over after an estate 
in fee. This, by the rules of the ancient common law, would have 
been void, for the reason that they did not permit any limitation over 
after the grant of a previous fee. Whenever, therefore, a devisor 
disposes of the whole fee in an estate to one person, but qualifies this 
disposition, by giving the estate over, upon breach of a condition^ or 
happening of a contingency, to some other person, this cre ates an 
executory devise^. 4 Kent, Com. 268; 6 Cruise, Dig. tit. 38, c. l7, § 2 ; 
Bac. Ab. Devise, I; 1 Fearne, Cont. Rem. 399. 

In the case at bar, the devise is to the deacons and their successors 
in this officer forever. By itself, this gave to them an absolute estate 
in fee simple; but the gift in fee was qualified and abridged by the 
condition annexed, and by the limitation over to John Hancock and 
his heirs. From the rules and principles which we have been con- 
sidering, it would seem to be very clear that the devise in question 
did not create an estate on condition, because the entire fee passed jDUt 
' *' ./ of the devisor by the will; no right of entry for breach of the con- 
dition was reserved, either directly or by implication, to herself or 
her heirs, but upon the prescribed contingency it was devised over to 
a third person in fee. It did not create an estate in remainder, be- 
cause there was no particular estate which was first to be determined 
by its own limitation before the gift over took effect, and because, the 
prior gift being of the entire fee, there was no remainder, inasmuch 
as the prior estate might continue forever. It did create an executory 
devise, because it was a limitation by will of a fee after a fee, which* 
by the rules of law, could not take effect as a remainder. 

This being the nature of the devise to John Hancock and his heirs. 



it remains to be considered whether there is anything, in the nature 
of the gift over, which^ riders it invalid, and if so, the effect of its 
invalidity upon the prior estate devised to the deacons and their suc- 
cessors. tJpon the first branch of this inquiry, the only question 
raised is, whether .the gift dver is not made to take effect upon a con- 
tingency which is too remote, as violating the well established and sal- 
utary rule against perpetuities. Executory devises in their nature tend 
to perpetuities, because they render the estate inalienable during the 
period allowed for the contingency to happen, though all mankind 
should join in the conveyance. They cannot be aliened or barred by 
any mode of conveyance, whether by fine, recovery or otherwise. 4 
Kent, Com. 266 ; 2 Saund. 388 a, note. Hence the necessity of fixing ;;, 
some period beyond.s^hicb Slicb, limitations should not be allowed. It 
has therefore long been the settled rule in England, and adopted as 
part of the common law of this commonwealth, that all limitations, by 
way of executor;j[ devise^. which may not take effect within the term 
of a life or lives in being at the death of the testator, and twenty , 
one years afterwards, as a term in gross, or, in case of a child en \ 
ventre sa mere, Jwenty one years and nine months, are void as too ^iiK 
r^inotej^nd tending to create perpetuities. 4 Kent, Com. 267; 1 Jar- 
jnan on Wills, 221; 4 Cruise, Dig. tit. 32, c. 24, § 18; Nightingale v. 
Burrell, 15 Pick. 111. See, also, Cadell v. Palmer, 1 CI. & Fin. 372, 
421, 423, which contains a very full and elaborate history and discus- 
sion of the cases on this subject. In the application of this rule, in 
order to test the legality of a limitation, it is not sufficient that it be 
capable of taking effect within the prescribed period; it must be so 
framed as ex necessitate to take effect, if at all, within that time. If, 
therefore, a limitation is made to depend upon an event which may 
happen immediately after the death of the testator, but which may not 
occur until after the lapse of the prescribed period, the limitation is 
void. The object of the rule is to prevent any limitation which may 
restrain the alienation of property beyond the precise period within 
which it must by law take effect. If the event upon which the limi- 
tation "over is to take effect may, by possibility, not occiir within the 
allowed period, the executory devise is too remote, and can not take 
effect. Nightingale v. Burrell, 15 Pick. Ill; 4 Kent Com. 283; 6 
Cruise, Dig. tit. 38, c. 17, § 23. These rules are stated with great pre- ) 
cision in 2 Atkinson on Conveyancing (2d Ed.) 264. / 

The devise over to the heirs of John Hancock is therefore void, as Z)^ ^ ; 
being too remote. The event upon which the prior estate was to de- 
termine, and the gift over take effect, might or might not occur within 
a life or lives in being at the death of the testatrix, and twenty one 
years thereafter. The minister of the church in Brattle Square, it is 
true, might have ceased constantly to reside and dwell in the house, 
and it might have been improved for other purposes, within a year 
after the decease of the testatrix; but it is also true that it may be 


occupied as a parsonage, in the manner prescribed in the will, as it has 
hitherto been during the past seventy-five years for five hundred or 
a thousand years to come. The limitation over is not made to take 
effect on an event which necessarily must happen at any fixed period 
of time, or even at all. It is not dependent on any act or omission of 
the devisees, over which they might exercise a control. It is strictly 
a collateral limitation, to arise at a near or remote period, uncertain 
and indeterminate, and contingent upon the will of a person who may 
at any time happen to be clothed with the office of eldest minister of 
the church in Brattle Square. It is difficult to imagine an event more 
indefinite as to the time at which it may happen, or more uncertain 
as to the cause to which it is to owe its birth. 

The more common cases of limitations by executory devise, which 
are held void, as contravening the rule against perpetuities, are when 
property is given over upon an indefinite failure of issue, or to a 
class of persons answering a particular description or specifically 
named ; as to the children of A who shall attain the age of twenty-five, 
or to a person possessing a certain qualification, with which he will not 
be necessarily clothed within the prescribed period. So gifts to take 
effect upon tihe extinction of a dignity, by failure of the lives of per- 
sons to whom it is descendable (Bacon v. Proctor, Turn. & Russ. 31 ; 
Mackworth v. Hinxman, 2 Keen, 658), or depending on the contin- 
gency of no heir male or other heir of a particular person attaining 
twenty one, no person being named as answering that description (Ker 
V. Lord Dungannon, 1 Dm. & War. 509), are held invalid, as being 
too remote. So, too, in a case more analogous to the present, where 
the testator devised lands to trustees, and directed the yearly rents, 
to a certain amount then fixed and named in the will, to be appropriated 
for certain charitable purposes; and provided that, in the event of 
there being a new letting, by which an increase of rents was obtained, 
the surplus arising from such increase should go to the use and behoof 
of the person or persons belonging to certain families, who, for the 
time being, should be lord or lords, lady or ladies, of the manor of 
Downpatrick ; and in case the said families did not protect the chari- 
ties established by the will, or if the said families should become ex- 
tinct, then the said surplus rents were to be appropriated to said char- 
ities, in addition to the former provisions for the charity ; it was held 
that the gift over of the surplus rents to the trustees for the charity 
was too remote, as the contingency upon which it was to take effect 
was not restricted to the proper limits. Commissioners of Charitable 
Donations v. Baroness De Clifford, 1 Dru. & War. 245, 253. 

In this case Lord Chancellor Sugden says : "This is a clear equita- 
ble devise of a fee qualified or limited ; a fee in the surplus rents for 
this family, so long as they shall be lords and ladies of the manor 
of Downpatrick, 'in case,' (and I must here read the words 'in case' 
as if they were 'whilst,' or 'so long as,') certain persons protect the 


almshouse, etc. ; and thus the limitation would assume the same char- 
acter as that which is so familiar to us all, viz., while such a tree shall 
stand, or the happening of any other indiiferent event. Such being 
my opinion with respect to the estate devised to these families, I must 
hold the gift over void. The law admits of no gift over, dependent 
on such an estate; a limitation after it is void, and cannot be sup- 
ported ; otherwise, it would take eifect after the time allowed by law." 

It is difficult to distinguish that case from the one at bar. The con- 
tingency of the families neglecting to protect the charities established 
by the will, in that case, was no more remote than that of the failure 
or omission of the minister of the church for the time being to reside 
and dwell in the house, as is prescribed by the will in the present 
case. Either event might take place within the prescribed period, but 
it might not until a long time afterwards. It can make no difference 
in the application of the case cited, that it was the gift of an equitable 
fee simple, because the limits prescribed to the creation of future es- 
tates and interests are 'the same at law and in equity. Lewis on Perp. 
169 ; 4 Cruise, Dig. tit 32, c. 24, § 1 ; Duke of Norfolk v. Howard, 
1 Vem. 164. 

But it is quite unnecessary to $eek out analogies to sustain this 
point, as we have a direct and decisive authority in the case of Welsh 
V. Foster, 12 Mass. 97. It was there held, that a limitation, in sub- 
stance the same as that annexed to the devise in the present case, being 
made_to take .effect when the estate should cease to be used for a 
particular purpose, was void, for the reason that it contravened the 
rule against perpetuities. That was the case of a grant by deed, with 
a proviso that the estate was not to vest "until the millpond [on the 
premises] should cease to be employed for the purpose of carrying 
any two mill-wheels ;" and it was adjudged that the rule was £he same 
as to springing and shifting uses created by deed, as that uniformly 
applied to executory devises in order to prevent the creation of inalien- 
able estates. The limitation was therefore held invalid, as depending 
on a contingency too remote. 

The true test, by which to ascertain whether a limitation over is 
void for remoteness, is very simple. It does not depend on the char- 
acter or nature of the contingency or event upon which it is to take 
effect. These may be varied to any extent. But it turns on the single 
question whether the prescribed contingency or event may not arise 
until after the, time allowed by law, within which the gift over must 
takeeffect. Applying this test to the present case, it needs no argu- 
ment or illustration to show that the devise over to John Hancock and 
his heirs is upon a contingency which might not occur within any pre- 
scribed period, and is therefore void, as being too remote. 

The remaining inquiry is as to the effect of the invalidity of the 
devise over, on account of its remotenesi, upon the preceding gift in 
fee to the deacons and their successors forever. Upon this point 


we understand the rule to be, that if a limitation over is void by reason 
of its remotene ss, it places all prior gifts in the same situati on as i f 
the devise over had been wholly onutted. Therefore a gift of the fee 
or the entire interest, subject to an executory lijnitation which is too 
remote, takes effect as if it had been originally limited free from any 
devesting gift. The general principle applicable to such cases is, that 
when^j subsequent condition or limitation is void by reason oTlts 
being impossible, repugnant or contrary to law, the estate becomes 
vested, in the first taker, discharged of the condition or limi tatio n 
over, according to the terms in which it was granted or devised; if 
for life, then it takes effect as a life estate; if in fee, then. as a fee 
simple absolute. 1 Jarman on Wills, 200, 783 ; Lewis on Perp. 657 ; 
2 Bl. Com. 156; 4 Kent, Com. 130; Co. Lit. 206 a, 206 b, 223 a. 

The reason on which this rule is said to rest is, that when a party 
has granted or devised an estate, he shall not be allowed to fetter or 
defeat it, by annexing thereto impossible, illegal or repugnant condi- 
tions or limitations. Thus it has been often held, that when land is 
devised to A. in fee, and upon the failure of issue of A., then to B. 
in fee, and the first estate is so limited, that it cannot take effect as 
an estate tail in A., the limitation over to B. is void, as being too remote, 
because given upon an indefinite failure of issue, and the estate vests 
absolutely in fee in A.f discharged of the limitation over. ScTit^ was 
early held, that where a testator devised all his real and personal 
estate to his wife for life, and after her death to his son and his heirs 
forever, and in case of the death of the son without any heir, then 
over to the plaintiff in fee, the devise over to the plaintiff was void, 
and the son took an absolute estate in fee. Tilbury v. Barbut, 3 Atk. 
617; Tyte v. Willis, cas. temp. Talb. 1; 1 Feame, Cont. Rem. 445. 
So, too, if a devise be made to A. and his heirs forever, and for want 
of such heirs then to a stranger in fee, the devise over to the stranger 
would be void for remoteness, and A. would take a fee simple absolute. 
Nottingham v. Jennings, 1 P. W. 25; 1 Pow. Dev. 178, 179; 2 Saund. 
388 a, b; 1 Feame, Cont. Rem. 467; Attorney General v. Gill, 2 
P. W. 369 ; Busby v. Salter, 2 Preston's Abstracts, 164 ; Kampf v. 
Jones, 2 Jeen, 756; Ring v. Hardwick, 2 Beav. 352; Miller v. Ma- 
comb, 26 Wend. (N. Y.) 229; Ferris v. Gibson, 4 Edw. Ch. (N. Y.) 
707; Tator v. Tator, 4 Barb. (N. Y.) 431; Conklin v. Conklin, 3 
Sandf. Ch. (N. Y.) 64. 

Such indeed is the necessary result which follows from the man- 
ner in which executory devises came into being and were engrafted 
on the stock of the common law. Originally, as has been already 
stated, no estate could be limited over after a limitation in fee simple, 
and in such case the estate became absolute in the first taker. This 
rule was afterwards^relaxed in cases of devises, for the purpose of 
effectuating the intent of testators, so far as to render such gifts valid 
by way of executory devise, when confined within the limits prescribed 



t o piar d_a&ainst 2^rpetuili£§. If a testator violated the rule by a 
limitation over which was too remote, the result was the same as if at 
common law he had attempted to create a remainder after an estate 
in fee. The remainder would have been void, and the fee simple ab- 
solute would have vested in the first taker. 6 Cruise Dig. tit. 38, c. 12, 
§ 20; Co. Lit. 18 a, 271 b. } 

The rule is, therefore, that no estate can be devised to take effect ' 
in remainder after an estate in fee simple; but a devise, to vest in ^ a 
derogation of an estate in fee previously devised, may under proper ' ''^ 
limits be good by way of exqcutory devise. If, after a limitation in 
fee by will, a disposition is made of an estate to commence on the 
determination of the estate in fee, the law, except in the case of a 
devise over to take effect within the prescribed period, presumes the 
estate first granted will never end, and therefore regards the subse- 
quent disposition as vain and useless. Shep. Touch. (Preston's Ed.) 
417. It makes no difference in the application of this rule, that the 
condition on which the limitation over is made to depend is not mala 
in se. It is sufficient that it is against public policy. Thus in a re- 
cent case where estates were limited to A. for ninety-nine years, if 
he should so long live, remainder to the heirs male of his body, with" 
a proviso that if A. did not during his lifetime acquire a certain dig- 
nity in the peerage, the gift to his heirs male should be void, and 
the estate should go over to certain other persons, it was held that 
this conditional limitation was made to depend upon a condition which 
was against public policy and therefore void, and that the estate 
vested in the eldest son of A. as heir male, discharged of the gift over. 
Egerton v. Earl Brownlow, 4 H. L. Cas. 1. / 

So in the case at bar^ the limitation over being upon an event which . '. 
is too remote, and_ for that reason contrary to the policy of the la\y, ^^ 
cannot take effect. The estate therefore in the deacons and their sue- 
cessors remains uns^ffected by the gift over the John Hancock and his 
heirs. The doctrine on this point is briefly and clearly stated in the 
Touchstone : "No condition or limitation, be it by act executed, lim- 
itation of a use, or by devise or last will, that doth contain in it mat- 
ter repugnant, or matter that is against law, is good. And there- 
fore, in all such cases, if the condition be subsequent, the estate is 
absolute and the condition void; "and the same law is for the most 
part of limitations, if they be repugnant, or against law, as is of condi- 
tions" in like cases. Shep. Touch. 129, 133. See also 4 H. L. Cas. 160. 

It is undoubtedly true that this construction of the devise defeats 
the manifest purpose of the testatrix, which was, on a failure to use 
and occupy the premises as a parsonage in the manner described in 
the will, to give the estate to John Hancock and his heirs. But no 
p rincipl e is better settled than that the intent of a testator, however 
clear, musTTail of effect, if it cannot be carried into effect without 
a violation ol the rules of law. 1 Pow. Dev. 388, 389. 


It IS to be borne in mind, however, in this connection, that the claim 
set up by the heirs at law of the testatrix to the premises in controvert 
sy is in direct contravention of the clear intent of the will, by which 
they are studiously excluded from any share or interest whatever in 
this estate. All that she did not specifically devise is given by residu- 
ary clause to John Hancock. Her heirs therefore can claim only by vir- 
tue of an arbitrary rule of law; and it certainly more accords with 
the general intent of the testatrix, that the absolute title in this es- 
tate should, by reason of the invalidity of the gift over, be vested in 
the deacons and their successors, who were manifestly the chief ob- 
jects of her bounty in this devise, than in her heirs at law, whom she 
so carefully disinherited. The court will not construe a conditional 
limitation as a mere condition, and thus defeat the estate first UinitQd, 
in a mode not contemplated by the testatrix. 

Nor can the estate in question pass by the residuary clause. The 
testatrix having specifically devised the entire estate to the first taker, 
and upon the happening of the contingency over, to another person, 
could not have intended to include it in the gift of the residue. She 
had given away all her estate and interest in the property, and noth- 
ing remained to pass by the residuary clause. 2 Pow. Dev. 102-104; 
Hay den v. Stoughton, 5 Pick. 538. It is not like a case of a gift on 
a valid condition, where the right or possibility of reverter remains in 
the donor or devisor, which would pass under a residuary clause, or 
in case of intestacy, to the heirs of the donor; but it is the case of 
a devise in fee on a conditional limitation over, which is void in law. 
There is therefore no possibility or right of reverter left in the de- 
visor, which can pass to heirs or residuary devisees, and the limita- 
tioij over being illegal and void, the estate remains in the first takers, 
discharged of the devesting gift. 

Nor does it make any difference in the application of this well set- 
tled rule of law to the present case, that the testatrix in terms de- 
clares that the gift to the deacons and their successors shall be void, 
if the prescribed condition be not fulfilled. The legal eflFect of all 
conditonal limitations is to make void and terminate the previous es- 
tate upon the happening of the designated contingency, and to vest 
the title in those to whom the estate is limited over by the terms of 
the gift or grant. ' The clause in the will, therefore, which declares the 
gift void in the event of a breach of the condition, and directs that the 
premises shall revert to her estate, does not change the nature of 
the estate, nor add any force or effect to the condition which it would 
not have had at law, if no such clause had been inserted in the will. 
It is simply a conditional limitation. The condition, being accom- 
panied by a limitation over which is void in law, fails of effect, and 
the estate becomes absolute in the first takers. It could not revert to 
her estate, because there was no reversion left, the whole estate being 
limited over by the same devise. Such reversion could only exist in 


case of a simple condition, as we have already seen; and no such 
reverter can take place where the condition is accompanied by a limi- 
tation over. 

Besides, and this perhaps is the more 'satisfactory view of a devise 
of this nature, the condition operates only as a limitation, the rule be- 
ing that when an estate is given over upon breach of a condition, and 
the same is devised by express words of condition, yet it will be intended 
as a limitation only. In all cases where a clause in a will operates as 
a condition to a prior estate, and a limitation over of a new estate, 
the condition takes effect only as a collateral determination of the 
prior estate, and not strictly as a condition. Therefore a limitation 
on a condition or contingency is not a condition ; a dause creating con- 
tingent remainders or executory gifts by devise is properly a limi- 
tation, and though it be in such terms as to defeat another estate by 
way of shifting use or executory devise, still it is strictly speaking a 
limitation. 2 Cruise Dig. tit. 16, c. 2, § 30; Shep. Touch. 117, 126; 
1 Vent. 202; Carter, 171. 

The case of Austin v. Cambridgeport Parish, 21 Pick. 215, cited 
and relied upon by the defendant Hancock, is widely different from 
the case at bar. That was a grant by tleed of an estate, defeasible on 
a condition subsequent which was legal and valid. The possibility of 
reverter was in the grantor and his heirs or devisees ; the residue of 
the estate was vested in his grantee, the parish. The two interests 
united made up the entire fee simple estate, and were vested in per- 
sons ascertainable and capable of conveying the entire estate. There 
was nothing, therefore, in that case which resembled a perpetuity, or 
restrained the alienation of real property. The conditional estate in 
the parish, and the possibility of reverter in the devisees of the gran- 
tor, were vested estates, and interests capable of conveyance, and con- 
stituting together an entire title or estate in fee simple. This is very 
different from an executory devise, where only the conditional estate 
is vested, and the persons to whom the limitation over is made are un- 
certain and incapable of being ascertained until the prescribed con- 
tingency happens, however, remote that event may be. No convey- 
ance of such an estate, by whomsoever made, could vest a good title, 
because it can never be made certain, until after a breach of the con- 
dition, in whom the estate is to vest. Besides, in that case there was 
nothing illegal or contrary to the policy of the law, in the creation of 
the estate by the original grantor. 

The case of Hayden v. Stoughton, 5 Pick. 528, to which reference 
has also been made, did not raise any question as to the remoteness 
of the gift over, because it there vested, according to the construction 
given to the will, within twenty years from the death of the testator, 
and, therefore, within the prescribed period. In the case of Brigham 
V. Shattuck, 10 Pick. 306, the court expressly avoid any decision on 

BnBD.CAs.REAi. Pbop. — ^16 



the validity of the devise over, and decide the case upon the groimd 
that the demandant had no title to the premises in controversy. 

The result, therefore, to which we have arrived on the whole case 
is, that the gift over to John Hancock is an executory devise, void 

>,Otx for remoteness; and that the estate, upon breach of the prescribed 
condition, would not pass to John Hancock and his heirs, by virtue of 

» ? I' the residuary clause, nor would it vest in the heirs at law of the tes- 
/ ' tatrix. But being an estate in fee in the deacons and their successors, 

, ^^ ^' and the gift over being void, as contrary to the policy of the law, by 
reason of violating the rule against perpetuities, the title became abso- 
lute, as a vested remainder in fee, after the decease of the mother of 
the testatrix, in the deacons and their successors, and they hold it in 
fee simple, free from the devesting limitation. X 

A decree may therefore be entered for the sale of the estate, as 
prayed for in the bill, and for a reinvestment of the proceeds for the 
objects and purposes intended to be effected by the trusts declared in 
the will respecting the property in question. 

VII. Modified Fees » 
1. Base or Determinable Fees 


(Supreme Conrjt of New Hampshire, 1909. 75^ N. H. 220, 72 Ati. 1085, 22 L. 

R. A. [N. S.] 1062, 139 Am. St Rep. 680.) 

Exceptions from Superior Court, Belknap County. 

Proceedings by the City of Laconia to condemn land for the en- 
largement of the public library park and lot. There was a judgment 
awarding compensation, and Stephen K. Lyford brings exceptions. 

Appeal, from the assessment of damages by the city council of 
Laconia for land taken under the power of eminent domain for the 
enlargement of the public library, park, and lot. The land in question 
is located at the comer of Main and Church streets, and at tiie time 
of the taking was occupied by the Congregational Church Society with 
a house of public worship. The appellant was awarded $1 damages. 
His appeal was heard by the county commissioners, who awarded him 
the same sum. He thereupon claimed a trial by jury. At the clo^ 
of his evidence, the court (Wallace, C. J.) ruled, subject to exception, 
that he could recover no more than nominal damages and ordered 
judgment for him for $1. 

For discussion of principles, see Burdick, Real Prop. { 117. 


The appellant claimed title to the premises as the grandson and 
only heir of Stephen C. Lyford, who in 1837 gave the Congregational 
Society a deed of the land in question. In consideration of $100, the 
deed purports to convey to the Society, their successors and assigns 
forever, a certain parcel of land, giving the boundaries. Immedi- 
ately after the description of the land are the following clauses : **Said 
Society to hold said premises as long as they occupy the same with a 
house of public worship and no longer, and when they cease to so oc- 
cupy said premises, then the same shall revert to me and my heirs. 
To have and to hold the said granted premises, with all the privileges 
and appurtenances to the same belonging, to said society and their 
assigns, to them and their only proper use and benefit forever." The 
deed concludes with the ordinary covenants of the warranty form. The 
Society at once took possession under their deed and occupied with a 
house of public worship until after the land was taken by the city. 
Damages were awarded by the city council to the society, and no ap- 
peal was taken. * * * ^* 

Parsons, C. J. * * * ** It is not necessary to decisively deter- 
mine the effect of Stephen's deed. On either view taken by counsel, 
the result is the same. The defendants interpret the deed as giving to 
the society an estate upon condition subsequent that they should oc- 
cupy the land with their house of public worship ; their title being lia- 
ble to be defeated by breach of the condition and entry by the grantor 
or his heir. The plaintiff contends that the deed crestted in the society 
"what is technically known as a base, qualified, or determinable fee," 
which determined when the society ceased to occupy the land with a 
house of public worship. He concedes that if the society held the land 
upon condition subsequent, the further compliance with the condition 
being prevented by act of the law, the society would hold the land 
discharged of the condition, and that he has no interest for which dam- 
ages could be awarded. Scovill v. McMahon, 62 Conn. 378, 26 Atl. 
479, 21 L. R. A. 58, 36 Am. St. Rep. 350. This case upon which the 
concession is based does not, however, require it. In that case there 
was a conveyance of land upon the express condition that it should 
be used for a burial ground and for no other purpose. Subsequently 
the Legislature forbade its f ui:ther use for such purpose, and further 
provided that upon petition of the city the court might order the re- 
moval of the bodies and monuments from the cemetery, and that upon 
payment to the owners of the sums decreed as the value of their in- 
terests the same should become a public park. In answer to the claim 
of the grantor's heirs, it was held : That if the plaintiffs* property had 
been taken by the state, it was taken by the act forbidding the use 
of the ground as a burial place, which destroyed the condition of 
the deed and rendered the grantees* title absolute ; that the destruction 

10 Part of the statement of facts Is omitted. 
%i Part of the opinion is omitted. 


of the plaintiffs' possibility of reverter in the exercise of the police 
power was not a taking for public use; and that they were not en- 
titled to share in the damages for the subsequent taking of the land 
for public use because their right had already been extinguished. The 
case is not in point. 

The terms, "qualified," "base," and "determinable" have been used 
"promiscuously" as descriptive of the estate claimed to have been cre- 
ated by this deed, though "determinable" is perhaps most accurate. 
Such a fee is an estate limited to a person and his heirs, with a qual- 
ification annexed to it by which it is provided that it must determine 
whenever that qualification is at an end. Weed v. Woods, 71 N. H. 
581, 584, 585, 53 Atl. 1024; 2 Bl. Com. *109; 4 Kent, *9) 1 Cru. 
Dig. *73; Gray, Perp. § 32. A text-writer of authority takes the 
position that since the statute quia emptores there can be no possibility 
of reverter remaining in a grantor other than the sovereign upon a 
grant of a fee, and hence an attempt to create a determinable fee b^ 
private g^ant results in a fee simple absolute, unless the grant can be 
sustained as a gift or conveyance for charitable purposes with a pos- 
' sible resulting trust to the grantor and his heirs upon the accomplish- 
ment of the purpose, as has been suggested might be the proper con- 
struction of the deed in this case. Gray, Perp. §§ 31 (3), 41a. 

The logic of the argument may be unanswerable (17 Harv. Law Rep. 
297, 299), and it may be demonstrated that in England, at least, the 
possibility of such limited fee so created is a matter resting upon the 
authority of text-writers, instead of upon decisions of the courts. 
Collier v. Walters, L. R. 17 Eq. 252 ; Collier v. McBean, 34 Beav. 
426; Poole v. Needham, Yelv. 149; and cases cited in Gray, Perp. 
§ 33. But it is clear, and in fact is conceded, that the courts of this 
country have at least understood determinable fees to be possible 
estates, and the possibility of reverter dependent thereon a valid in- 
terest. First Univ. Society v. Boland, 155 Mass. 1'71, 174, 175, 29 N. 
E. 524, 15 L. R. A. 231 ; Gray, Perp. § 40 (2a). In this state, in addi- 
tion to Weed v. Woods, supra, the existence of such interests are re- 
ferred to by Judge Ladd in Reed v. Hatch, 55 N. H. 327, 338,' and by 
Bell, C. J., in Worster v. Company, 41 N. H. 16, 22. In Wood v. 
County, 32 N. H. 421, it would appear from the statement of facts 
that a possibility of reverter upon a determinable fee had been upheld 
in an earlier decision in the case which was never reported. From 
memoranda in 18 Notes Supreme Cour(^ 407, 456, it is clear there was 
no consideration of the question raised by Gray. 

Since, if the contention of Prof. Gray is sound, it would dispose of 
the position upon which the plaintiff has rested his case the question 
is presented, and, in the absence of any discussion in the reports, 
might properly be now examined ; but it has not been thought neces- 
sary to undertake the discussion, for, conceding the validity of the 
interest claimed for the plaintiff, such interest is not of a character to 



entitle him to damages. The proprietor of a determinable fee, so 
long as the estate in fee remains, till the contingency upon which the 
estate is limited occurs, has all the rights and privileges over it that he 
would have if tenant in fee simple. After such a grant no right of 
seisin or posseission remains in the grantor. All the estate is in the 
grantee notwithstanding the qualification. The only practical distinc- 
tion between a right of entry for breach of a condition subsequent 
and a possibility of reverter upon a determinable fee is that in the 
former the estate in fee does not terminate until entry by the per- 
son having the right, while in the latter the estate reverts at once 
upon the occurrence of the event by which it is limited. Walsing- 
ham's Case, Plow. 557; Jamaica Pond Corp. v. Chandler, 9 Allen 
(Mass.) 159, 168, 169; First Univ. Society v. Boland, 155 Mass. 171, 
174, 29 N. E. 524, 15 L. R. A. 231 ; State v. Brown, 27 N. J. Law, 
13; 2 HI. Com. *109, note; Cru. Dig. tit. 1, § 80; 4 Kent, *10; 1 
Wash. R. P. (6th Ed.) §§ 164, 165; Gray, Perp. §§ 31 (3), 32. 

Whether the plaintiff's right is a possibility of reverter upon a de- 
terminable fee, or a right of entry for breach of a condition subse- 
quent, he had when the land was taken no right to the land and no 
possession of it. "Wherever the gift is of a fee, there cannot be a 
remainder, although the fee may be a qualified or determinable one. 
The fee is the whole estate. When once granted, there is' nothing 
left in the donor but a possibility or right of reverter, which does not 
constitute an actual estate. * *' * AH the estate rests in the first 
grantee, notwithstanding the qualification annexed to it." Brattle 
Sq. Church v. Grant, 3 Gray (Mass.) 142, 150, 63 Am. Dec. '725. 
Whether the event upon which the plaintiff might come into ownership 
of the land would ever happ^en was mere speculation. There was no 
method by which the value of the interest could be assessed which 
would rise above the dignity of a guess. The plaintiff did not own the 
land taken. He was not an owner in fee, in reversion, or in remainder. 
He had no subsisting title in the land, but only a possibility that it 
might revert to him by the happening of the event upon which the es- 
tate of the society was determinable. "He is not, within the mean- 
ing of the act under which these proceedings are instituted, a person 
or corporation whose land is taken by the respondent. His possibility 
of interest is too remote and contingent to be the subject of an esti- 
mate of damages by a jury." Chandler v. Corporation, 125 Mass. 544, 

The case quoted from is the only decision found apparently exactly 
in point. Somewhat analogous, however, are the decisions in this 
state that a mortgagee not in possession is not entitled to notice or an 
assessment of damages (Parish v. Gilmanton, 11 N. H. 293; Rigney 
V. Lovejoy, 13 N. H. 247, 251 ; Gurnsey v. Edwards, 26 N. H. 224, 
230; Orr v. Hadley, 36 N. H. 575, 579), which proceed upon the 
ground that until the mortgagee has entered under his mortgage the 



mortgagor is the owner of the land. It is also held that damages are 
not assessable for an inchoate right of dower when land is taken by 
eminent domain, because such inchoate right is not an estate in the 
land. Flynn v. Flynn, 171 Mass. 312, 50 N. E. 650, 42 L. R. A. 98, 68 
Am. St. Rep. 427; Venable v. Railway, 112 Mo. 103, 20 S. W. 493, 
18 L. R. A. 68. Another reason given is that such an interest is too 
uncertain to admit of compensation. Mills, Em. Dom. (2d Ed.) § 71. 

Reliance has been placed upon the conclusions of the referee in Re 
. Brick Presbyterian Church, 4 Bradf . Sur. (N. Y.) 503 ; and his divi- 
sion of the damages awarded for land taken for a street between 
the vault owners in the churchyard and the church has been suggested 
as proper to be followed as between the plaintiff and the society. But 
there is no similarity in law or fact between the two cases. As be- 
tween the vault owners and the church, each owned a fee simple. 
The fee was determinable, if at all, only as between the church and 
their grantor. The vault owners owned a perpetual right, as against 
the church, below the surface of the ground where the burial vaults 
were situated. The church owned the fee above the surface of the 
ground. Each party owned a portion of the "aggregation of qualified 
privileges" which constitutes property in land. Thompson v. Com- 
pany, 54 N. H. 545, 551. Each had a right to the possession, to the 
extent of his ownership. If the title of the vault owners was a base 
fee — ^, proposition at least open to doubt — so was that of the church. 
In re Brick Presbyterian Church, 3 Edw. Ch. (N. Y.) 155, 169. The 
division of the damages between the two owners of a similar fee was 
merely the estimation of the value of the qualified privileges belonging 
to each. The assessment was not an appraisal of the value of a de- 
terminable fee and a possibility of reverter, because there was no 
such division of interest between the parties interested. The case is 

In this state, upon a taking for public use under the statutes upon 
which this proceeding is founded, all that is taken is the right to use 
for the public purpose. The owner retains the right to use the prem- 
ises for any purpose not inconsistent with the. public right. Bigelow 
V. Whitcomb, 72 N. H. 473, 57 Atl. 680, 65 L. R. A. 676; Bailey v. 
Sweeney, 64 N. H. 296, 9 Atl. 543 ; Winchester v. Capron, 63 N. H. 
605, 4 Atl. 795, 56 Am. Rep. 554; Blake v. Rich, 34 N. H. 282; Baker 
V. Shephard, 24 N. H. 208, 218. If the Legislature has power to au- 
thorize the taking of the fee, as has been held elsewhere, the con- 
struction of the statute as to highways and railroads in the cases 
cited is conclusive such power has not been exercised. The damages 
are assessed upon the basis of a perpetual easement. Peirce v. Som- 
ersworth, 10 N. H. 369. In case of the public use for a park or library 
lot, the practical difference while the use lasts between taking an ease- 
ment and a fee may be infinitesimal ; but, since the fee is not taken, a 
discontinuance of the public use vests the whole estate in the original 


owner. Cheshire Turnpike v. Stevens, 10 N. H. 133, 137; Hampton 
V. Coffin, 4 N. H. 517, 518, 519. That it was understood that the na- 
ture of the title acquired by the taking of land for a park was the 
same as in case of highways is shown by the statutory provisions for 
the discontinuance of a public cemetery, park, or common, and the 
assessment of damages to any person specially injured thereby in the 
same manner th^t special damages are assessed in case of the dis- 
continuance of a highway. Pub. St. 1901, c. 51, §§ 3, 7; Page v. Sym- 
onds, 63 N. H. 17, 21, 56 Am. Rep. 481. 

The state has taken the use of the land. As the society owned the 
use, the taking must have been from the society, and not from the 
plaintiflF, who had no right to the use. Whether the plaintiff's possi- 
bility of reverter dependent upon a cessation of the public use, should 
the estate then come to him, is more or less valuable than his similar 
right upon the cessation of the religious use of the society, is plainly 
a possibility upon a possibility — a matter too indefinite and vague 
for pecuniary estimation. Whether upon a cessation of the public 
use the right to use would revert to the society, or the estate (assuming 
the validity of its determinable character) would at once vest in the 
plaintiff, is a question upon which discussion would be useless. If the 
fee of the society has not been taken, the title must revert to them, 
and the plaintiff's interest, whatever it is, remains absolutely unim- 
paired. If the title to the society is gone, then upon expiration of the 
public use the estate would at once revert to the plaintiff, and it is 
impossible to say whether he has been damnified or benefited by the 
taking from the society. Whatever interest the plaintiff may have, 
or whatever its correct technical definition, he has no interest which 
entitles him to appeal, and he cannot complain ol the judgment allow- 
ing him $1. 

Exceptions overruled. All concur. 


(Supreme Court of North Carolina, 1892. 110 N. C. 292, 14 S. E. 791.) 

Appeal from superior court. Orange county; Robert W. Winston, 

Action by W. L. Hall, as administrator of Lambert W. Hall, deceas- 
ed, and others, against Emma Turner, as administratrix of Evans 
Turner, deceased, and others. Judgment for defendants. Plaintiffs 
appeal. Reversed. 

The other facts fully appear in the following statement by Shep- 
herd, J.: 

The plaintiffs, the administrator, widow, and heirs at law of Lambert 
W. Hall^ allege that the said Lambert W. Hall and Evans Turner, on 
the 13th of March, 1873, entered into the following agreement, to-wit : 


"Articles of agreement made and entered into this the 13th day of 
March, 1873, between L. W. Hall of the county of Orange, and state 
of North Carolina, of the one part, and Evans Turner, of the county 
and state aforesaid, of the other part, witnesseth, that the said L. W. 
Hall agrees and consents for the said Evans Turner to back water, if 
necessary, up into his field, on condition that said Evans Turner will 
allow the said L. W. Hall as much woodland along the line fence on 
the south side of the river. Said Turner is allowed to raise a dam 8 or 
9 feet high. This agreement to remain good so long as the said Turner 
keeps up a mill at the Wagoner place ; afterwards to be null and void. 
Witness our hands and seals the day and date above written. [Signed] 
L.W.Hall. [Seal.] Evans Turner. [Seal.] Witness: H. Y. Har- 
ris." The complaint further alleges that, at the time of the execution 
of said agreement, about 4 or 5 acres of woodland of said Turner were 
taken possession of by said Hall, and that he used the same until his 
death, in 1888; that said Turner, after the adoption of the stock law, 
in 1885, hauled off all the fences on said 4 or 5 acres, and that the same 
were mortgaged in 1882 to one Gray ; that the dam raised by Turner 
is, from the bottom of the mud-sill to the top of the sheeting, 10 feet 3 
inches, and from the mud-sill to bottom of the river about 2 feet, and 
the land of the plaintiff which is flooded and damaged by said mill- 
pond is about 12 acres, on most of which dower has been assigned to the 
plaintiff Fanrfie J. Hall ; that the same would be very productive if not 
damaged by the said flooding ; that plaintiffs have not continued in the 
possession of the 4 or 5 acres south of the river since the death of 
Evans Turner. 

They demand judgment — (1) that "the license granted in said agree- 
ment" terminated at the death of said Turner, in 1889, and is void for 
uncertainty and indefiniteness, and is no longer operative and binding 
on the plaintiffs ; (2) that, if it be considered as running with the land, 
the quantity of land damaged be ascertained, and the same quantity 
set apart to the plaintiffs south of the river, if said dam shall not ex- 
ceed the height allowed in said agreement; (3) that, if said dam be 
found to be more than nine feet high, then they ask that the damages 
be inquired into, and for judgment for the same ; (4) that, if plaintiffs 
are compelled to take the land south of the river in lieu of that flooded 
and damaged, the defendants be required to free the same from all 
mortgages and incumbrances existing thereon; (5) that the lands of 
plaintiffs be freed from said agreement, and the defendants keep the 
land on the south side of the river ; (6) "that the dam be pulled down, 
and plaintiffs be paid all damages done them during the life of said 
Turner by reason of his violations of said agreement, and since that 
time by reason of said dam ;" (7) that all damages up to the time of 
the trial be assessed ; (8) for further and other relief, and for costs. 

The defendants in their answer, admit the execution of said agree- 
ment, and that the land on the south of the river, mentioned in the 
complaint, was taken possession of by Hall, but they allege that the 


quantity is underestimated, and that the same is equal to that covered 
by water in consequence of said dam. They deny the removal of the 
fences. They admit the execution of the mortgage. They deny the 
raising of the dam to the height alleged by plaintiffs. They deny any 
damage as alleged, and av^r that, if there be any, it existed and was 
provided for at the time of the execution of the said agreement, by the 
taking possession of the four acres. They deny that the plaintiff has 
discontinued the use of said land since the death of Evans Turner. 
They deny any violation of said agreement by said Turner or them- 
selves, and they claim that said agreement operates as a covenant run- 
ning with the land. 

The following issues were, without objection, submitted to the jury : 
"(1) Has the dam been raised above nine feet ? Answer. No. (2) If 
so, what yearly damages have the plaintiffs sustained on account of 
same? (3) What quantity of land is covered by water ponded back by 
the dam, and damaged thereby? (4) What quantity of land is em- 
braced in the tract agreed to be conveyed by Evans Turner to plain- 
tiffs' intestate? A. Four acres, (by consent.)" * * * ^* 

The following judgment was rendered: "This cause having been 
heard, and the jury for its verdict having said that the dam has not 
been raised above nine feet, and the court being of the opinion that the 
other issues submitted are not material, whether the agreement be- 
tween the intestates of the plaintiffs and defendants respecting the erec- 
tion of the dam is a license revocable at the death of Turner, or is void 
for uncertainty, and the court being further of opinion that if said 
agreement is a covenant perpetual running with and binding the land, 
then the equitable aid of the court cannot be invoked to ascertain and 
set apart to the plaintiffs the same quantity of land as is covered by wa- 
ter, for that there is neither allegation in the complaint nor proof that 
the defendants have ever declined or refused, or do now decline, to per- 
mit the plaintiffs to have, use, occupy, and enjoy the said quantity of 
land in as full and ample a manner as the said covenant or agreement 
authorizes, the court doth therefore adjudge that the plaintiffs take 
nothing by their writ, and that defendants go hence without day, and 
recover their costs." From this judgment the plaintiffs appealed. 

Shkphkrd, J., (after stating the facts.) After a careful consid- 
eration of the charge of his honor in reference to the height of the dam, 
we are of the opinion that, in view of the testimony, there was no er- 
ror, and that the exception of the plaintiffs in this particular must be 

The other points presented in the record are not so clear, and we ap- 
proach their consideration with no little doubt and solicitude. The 
plaintiffs insist that the right of the defendants to maintain the dam 
and overflow the plaintiffs' land determined at the death of the de- 
fendants' ancestor, Evans Turner; but, if they are mistaken in this,. 

u Part of tbe statement of facts is omitted. 


they pray that the defendants, the heirs of said Turner, be required 
to *'allow" the plaintiffs the use of so much land on the south of the 
river as will equal in acreage the quantity now overflowed and damaged 
by reason of the maintenance of the said dam. The agreement between 
the said Hall and Turner is of a very peculiar character, and so vague 
and uncertain in part that but for the fact of its having been executed 
by one of the parties, who has erected permanent improvements, we 
would be somewhat inclined to place it under that class of contracts 
mentioned by Lord Brougham in Keppell v. Bailey, 2 Mylne & K. 517, 
as being "so clearly inconvenient to the science of the law" as to re- 
ceive no encouragement at the hand of the courts. Although the agree- 
ment contains no words of covenant, we think that in consideration of 
the circumstances an equitable construction warrants us in holding that 
it was the intention of Hall to confer upon Turner an easement "to 
back water, if necessary, up into his field." Such an easement is "an 
incorporeal hereditament ; a right not, indeed, to the land itself, but to 
a privilege on and upon the land. * * * It is a freehold interest," 
and within the statute of frauds. Bridges v. Purcell, 1 Dev. & B. 492. 
It is true that in McCracken v. McCracken, 88 N. C. 272, it is said 
that such an interest must not only be evidenced by writing, but that it 
can "only be made effectual by deed ;" but by the use of this language 
the learned justice who delivered the opinion was evidently referring 
to the subject in its legal aspects, as it is well settled that an agreement, 
upon a valuable consideration, to confer an easement, will be effectuated 
in equity, provided it be in writing ; and this without reference to the 
presence of a seal. Railroad v. Battle, 66 N. C. 546 ; Richmond & D. 
R. Co. V. Durham & N. Ry. Co., 104 N. C. 658, 10 S. E. 659. So, too, a 
covenant, though not technically "running with the land," may never- 
theless be sometimes binding in equity, to the extent of fastening a 
servitude upon real property. Pom. Eq. Jur. 689 ; Duke of Bedford v. 
Trustees, 2 Mylne & K. 552. 

Such is the character of the agreement before us ; but the important 
question presented is, how long is this easement or servitude to con- 
tinue? An interest like this, being within the statute of frauds, is 
created in the same manner as an interest in the land itself ; and hence 
it would seem that, if there be a grant of an easement, there must be 
words of inheritance, if it is intended that the estate shall endure be- 
yond the life of the grantee. So, on the other hand, if there be a 
contract to confer an easement, it will ordinarily be governed by the 
same principles as are usually applied to contracts for the sale of real 
estate. Thus, if one contract to sell land to another, and there be no 
words of restriction, it is implied that an estate in fee is intended, and 
specific performance will accordingly be decreed. Likewise, if one 
agree to confer an easement, and from the nature of the contract, and 
its subject-matter, there is nothing to show that it is to be restricted to 
the life'of either party, there is an implication that the grant is to be 
co-extensive with the uses apparently contemplated by the parties. 


In our case it is contended that there are words of restriction, to- 
wit : "This agreement to remain good so long as the said Turner keeps 
up a mill at the Wagoner place." In opposition to this view the de- 
fendants rely upon the case of Merriman v. Russell, 2 Jones, Eq. 470. 
In that case the "articles of agreement" contained no words of inherit- 
ance, but simply the following language, viz. : "Bargained and sold so 
much of my land lying on Hooper's creek, in the county and state 
aforesaid, as will conveniently carry the water to a saw-mill, so as to 
be to his [W. R. Gash's] profit and advantage." The court speaks of 
this writing as a grant ; and Pearson, C. J., in delivering the opinion, 
said : "There are no words of limitation, and by the rule of the com- 
mon law, in reference to a grant of land, only an estate for the life of 
the grantee would pass. Here the rule of construction comes in again. 
As the professed purpose is to convey water to a mill, of course it was 
the intention that the supply of water should be kept up as long as the 
party wished to operate the mill. Few would be at the expense of 
erecting a mill if the supply of water depended upon the uncertainty of 
life. We think there was a base or qualified fee granted in this ease- 
ment, and that Gash, his heirs and assigns, are entitled to it so long as 
they continue to operate the mill." However just may be the criticism 
upon the resort to construction in the above case, and thereby supply- 
ing words of inheritance, if indeed the instrument was considered sim- 
ply in its legal character, as a grant, it is very clear that the objection 
cannot be urged in the present instance, where the agreement is entire- 
ly executory in its nature. At all events the Case of Merriman, supra, 
lends us valuable aid in solving the question now before us. In that 
case the easement was in so much of the land "as will conveniently 
carry the water to a saw-mill so as to be to his [W. R. Gash's] profit 
and advantage." 

Why should not these words be considered as equally restrictive as 
those used in the present contract, viz., "this agreement to remain good 
so long as the said Turner keeps up a mill at the Wagoner place ?" In 
one case the easement is to be to "his [the grantee's] advantage;" in 
the other, so long as "Turner keeps up a mill," etc. It would seem that 
the privilege granted was as personal in one case as in the other ; but, 
admitting that there is a shade of difference between them, yet this 
must surely disappear when the contract is viewed in the light of the 
reasoning of the opinion in the case above mentioned^ "Few [says 
the court] would be at the expense of erecting a mill if the supply de- 
pended upon the uncertainty of life ;" and so, too, we may remark in 
this case that few would erect a mill-dam and other improvements if its 
enjoyment was to be contingent upon the duration of the life of one 
of the parties. In consideration of the foregoing reasons, and in the 
absence of plain restrictive language, we conclude that it was not the 
intention of the parties that Turner was to have a mere personal right 
to fiood the land of Hall, but that the easement or servitude descended 


with the land to the heirs of Turner, who have, in equity, a base, quali- 
fied, or determinable fee therein. 

But here we are confronted with the case of School Committee v. 
Kesler, 67 N. C. 443, in which Pearson, C. J., speaks of a base or qual- 
ified fee as an "obsolete estate, which has never been in force or in 
use in this state." It is impossible to reconcile the conflicting utter- 
ances of that distinguished jurist upon this subject. Whenever a fee is 
so qualified as to be made to determine or liable to be defeated upon 
the happening of some contingent event or act the fee is said to be base, 
qualified, or determinable. Tied. Real Prop. 44. This definition, in a 
general sense, comprehends a fee upon condition, a fee upon limita- 
tion, and a fee conditional at common law. Some authors apply the 
term "base fee" solely to limitations of the last-named class, (Tied. 
Real Prop, supra ;) and these having been converted into estates tail by 
the statute de donis, and these latter, by our statute, into fee-simple, it 
would of course follow that if the term "base fee" is exclusively ap- 
plicable to a fee conditional, as it was technically known at common 
law, it no longer exists in this state. Blackstone's classification is dif- 
ferent, (2 Bl. Comm. 110,) and there is some confusion in the ancient 
authorities upon the subject. Practically, however, in modern times, 
the terms "base," "qualified," or "determinable" fees are applied to ei- 
ther of the estates above mentioned. Mr. Washburn (1 Washb. Real 
Prop. 77^ thinks that the term "determinable fee" is "more generic 
in its meaning, embracing all fees which are liable to be determined 
by some act or event expressed on their limitation to circumscribe their 
continuance, or inferred by law as bounding their extent." See, also, 1 
Prest. Est. 466 ; Seymor's Case, 10 Coke, 97. 

The term "qualified fee" is thought to be preferable by Mr. Minor. 
2 Inst. 86. By whatever name it may be called, it is plain that except 
in the case of technical fees, conditional at common law, the limitations 
we have mentioned may still be made, when not opposed to public poli- 
cy. It will be observed that in Kesler's Case the decision was made to 
turn chiefly on the ground of public policy, and because apt words of 
limitation were not employed. In that very decision the existence of a 
base or qualified fee is recognized in the Case of the Cherokee Tribe of 
Indians. 87 N. C. 229. But, however broad may be the language quot- 
ed, we have no idea that it was the purpose of the chief justice to say 
that the limitation expressly defined by him as a base or qualified .fee 
in Merriman's Case could not be made in North Carolina. Such limi- 
tations are not infrequent in this and other states, (2 Washb. Real Prop. 
4 ;) and we are not prepared to adopt a "view which leads to such a 
revolution in the law of limitations of real property. We are therefore 
of the opinion that Turner and his heirs took, in equity, an easement to 
overflow the land of Hall, determinable when they ceased to keep up 
the said mill. 

In this respect it is a limitation. But it is to be observed that this 
base, qualified, or determinable fee (we prefer the term "qualified") is 


liable to be defeated by the failure of Turner "to allow the said L. W. 
Hall as much woodland along the line fence on the south side of the 
river." In this particular the estate in the easement is an estate upon 
condition, and the condition is, in effect, that Hall is to be allowed to 
use as much land on the south side >as is equal to the land which is 
flooded by the maintenance of the dam at the height of nine feet. This 
includes, not only the land actually flooded, but all that is damaged 
and rendered unfit for cultivation by sobbing. Cagle v. Parker, 97 N. 
C. 271, 2 S. E. 76. It seems that, soon after the execution of the agree- 
ment. Hall was put in possession of about four acres, and continued to 
occupy it until the death of Turner. 

It is insisted that the plaintiffs are restricted to this particular num- 
ber of acres. This may be so in some cases ; as, for instance, where a 
right of way is granted, if it be once located it cannot be changed. It 
may also be true of contracts generally of this character, but we do not 
think that this particular contract is susceptible of such a construction. 
No provision is made for the ascertainment of the land, nor is there 
anything to show that the parties intended to fix upon any certain quan- 
tity as a final consideration of the easement. Had they so intended/ 
they would doubtless have provided for it in the agreement. The 
words are strict words of condition, and, as applied to this case, they 
constitute a condition subsequent. It was evidently the purpose of the 
parties that Hall should use as much of Turner's land as would equal 
the quantity flooded by the dam, and that this agreement was to be 
carried out in good faith, and in view of the exigencies of the future. 
If the four acres taken possession of by Hall were to be in full satisfac- 
tion for the easement, the contract should have so stipulated. The 
agreement means that so long as Turner, his heirs or assigns, keep up 
the mill, they are entitled to the easement, provided they permit Hall 
and his heirs or assigns to enjoy an equal quantity of land on the south 
side of the river. If they refuse to perform this condition, the plain- 
tiffs are entitled to a decree declaring that the easement is at an end. 

As we have indicated, we think that Hall was not restricted to the 
four acres, and in this view the thifd issue, involving an inquiry as to 
the quantity of land flooded, should have been submitted to the jury. 
If it should be found that more than the four acres is flooded and sob- 
bed, and thus rendered unfit for cultivation, by the maintenance of the 
dam at the height of nine feet, the defendants must "allow" the plain- 
tiffs the use of an equal quantity of land. It was this uncertain and 
variable feature of the agreement that seemed at the outset so novel to 
us, and it is because of this that the plaintiffs pray that the agreement 
be declared void. As, however, the contract has been executed by the 
defendants by the erection of permanent improvements, and as it does 
not contemplate a conveyance of any land, but simply a right to occupy 
it, we think that it would be inequitable to make such a decree until it 
is apparent that the defendants are either unwilling, or by their conduct 
have put it out of their power, to perform the condition. 


The fact that the land of Turner has been mortgaged does not, of it- 
self, work a forfeiture ; for this does not happen until there has been 
an actual disturbance of the possession of the plaintiffs. As to the four 
acres, the mortgagee is affected with constructive notice of the claim 
of the plaintiffs, and takes subject to their right to use the same. If 
the plaintiffs should be allowed the use of an additional quantity of 
land, and the mortgagee has had no actual notice, then he would take 
such additional land free from any claim of the plaintiffs ; and, if by 
reason of such mortgage the plaintiffs are ousted, there would then be 
clearly a breach of the condition, and the easement of the defendants, 
at the election of the plaintiffs, would be forfeited. 

If, upon another trial, it be found that more than four acres are 
flooded and sobbed, then the defendants should submit to the appoint- 
ment of commissioners to lay off and set apart sufficient land of the 
defendants for the use of the plaintiffs as will meet the requirements of 
the contract as interpreted by us. It is said that there is no allegation 
that the defendants have declined to allow the plaintiffs the relief we 
have indicated. This is a mistake, as the plaintiffs expressly allege 
that more than four acres have been flooded, and they pray that if 
the agreement is not declared void "the quantity of land damaged be 
ascertained, and the same quantity set apart to the plaintiffs south of 
the river, if said dam shall not exceed the height allowed in the 
agreement." The answer, in effect, denies that the plaintiffs are enti- 
tled to any larger quantity than the said four acres. 

In view of the peculiarity of the case, we are not surprised at the 
ruling of his honor ; but, after much consideration, we arc of the opin- 
ion that for the reasons given there should be a new trial. 




I. The Statute of Uses ^ 

(Sapreme Court of Illinois, 1880. 94 111. 400.) 

Appeal from circuit court, Montgomery county; Charles S. Zane, 

Ejectment by George T. Cox and others , the heirs at law of Mi- 
chael Walsh, deceased, aga inst Th o mas C. Kirkland. trustee of th e 
estate of said decease d. There was judgment for plaintiffs, and de- 
f endant appeals. Keversed. 

Michael Walsh died on the 23d day of September, 1867, Jgayisg 
a will containing the following provisions : 

*As to my worldly estate, all the real, singular, personal and mixed, 
of which I shall die seised and possessed* or to which I may be enti- 
tled after my decease, after the payment of all just debts, demands 
and funeral charges, I hereby grant, devise, convey and confirm unto 
Horatio M. Vandeveer of Taylorville, Christian county, Illinois, and 
Charles T. Hodges, of Walshville, Montgomery county, Illinois, and 
Andrew Sproule, of Saint Louis, Missouri, reposing in each of said 
persons full trust and confidence: in trust, ho>y ever, fo r the f ollow - 

"First I desire and direct my said trustees to assume and take en- 
tire control of my said estate during the term or terms and under the 
conditions hereinafter expressed, to collect all outstanding dues, rents, 
profits and interests of whatever character, derived therefrom, and 
to govern and control all such interests as may accrue and arise to 
said estate, from time to time, and to make such disposal of said 
estate as shall in their judgment benefit and increase the value of said 
estate ; and especially do I design and direct Charles T. Hodges, one 
of my said trustees, to sell all the real estate belonging to me and 
situated in the town of Pana, Christian county, Illinois, in the town 
of Stanton, Macoupin cotmty, Illinois, and in the towns of Litchfield, 
Hillsboro and Walshville, Montgomery county, Illinois. * * ♦ 

"gecond. I^desire an d direct that said trustees sliall-pay*.QLjcailssLLo 
be paid, out of said estate, to my beloved daughter and only child, 
Mary Lucy Wals h, such installments of money as in the judgment of 
my said trustees shall be deemed proper and sufficient to meet her cur- 
r ent expenses, and p rovide her an ample and comfortable support. 

**Third. W hen m y said daughter, Mary Lucy Walsh, shall arrive at 

i For discussion of principles, see Burdick, Real Prop, f § 120, 121. 


the full age of thir ty-five years, and is then unmarried, I desir e and 
direct that my said estate shall be transferred to her by my said trus - 
tees, and ever thereafter said estate shall vest in her and be under 
her a bsolute control. 

"Fourth. It is, however, provided that if my said daughter should, 
on or before her thirty-fifth birthday, beco me marr i ed to a person 
who shall be deemed and considered by_ my said trustees as a perso n 
worthy and compet ent, and in"^vIiom confidence can be r eposed, thes 
said trustees shall, as soon as they become satisfied Uia.t such person is 
so MTorthy, placethe whole of said estate under the control of my sa id 
daughter, and ever thereafter said estate shall be ves ted in her name , 
and under her aBsoIute confrof forever. 

"Fifth. In case said daughter shall be, at her thirty-fifth birthday, 
married to a person whom said trustees shall consider and deem in- 
competent and unworthy, and not a suita b le pe rson who should hav e 
any care or control of said estate as husband, then sai d estate shal l 
con tinue and remain vest ed in said trustees in trust : and I desire and 
direct said trustees to continue to make payments to said daughter, 
in such amounts and at such times as in their judgment they may 
think proper, and the circumstanc es and station of said dau ghter may 
deman d: and in case of the death of such Tiusband, said estate sha ll 
vest absolutely "in and be under the control of said da ughter, pr o- 
v^sd-Sbe^hall bfiLOi-the age of thir^-fivej^ears. * * * " 

"Seventh. In case my said daughter shall die_ without isiSltfi it is my 
wish and will, and I hope it may meet with her approbation, that the 
whole of my said estate shall be disposed of as follows, viz." Then 
follow certain specified legacies to individuals, amounting, in the ag- 
gregate, to $2,600, after which is the following : "The balance of my 
said estate, upon the happening of such contingency, viz., the death 
of my daughter without issue, I wish divided equally between the 
'House of the Good Shepherd,' situated in the city of St. Louis, State 
of Missouri, 'Saint Joseph Male Orphan Asylum,' Washington City, 
District of Columbia, and 'Saint Ann's Infant Asylum,' of Washington 
City, District of Columbia." 

The Mary L. Walsh mentioned in the will was the only child and 
heir at law of Michael Walsh, and she died July 18, 1875, l eaving 
plaintiJFs as her heirs at law and next of kin. Defendant is a dmini s- 
trator de bonis non o? the Charles T, Hodges mentioned in the will, 
and who alone qualified as trustee. Tjie contingent beneficiarie s, fo r 
whom defendant claimed to hold possession, are duly organiz ed cq r- 
poratioiis carrying on the objects for which they were in corporated . 

ScHo"iFiELD,~J." " "Ift fffis'Form of action, since fhe naked legal title 
must control, we think it sufficient to show that title is not in appellees, 
aiid the judgment below cannot, therefore, be sustained. 

The rule is, undoubedly, as claimed by appellees' counsel, that trus- 
tees must be presumed to take an estate only commensurate with the 


charges or duties imposed on them; but this, however, is subject to 
the qualification that such presumption shall be consistent with the 
intention of the party creating the trust, as manifested by the word's 
employed in the instrument by which it is created. Shelley v. Edlin, 
4 Adol. & El. 582-^589, 31 E. C. L. 143; Cadogan v. Ewart, 7 Adol. 
& El. 636, 666; Davies v. Davies, 1 Adol. & El. (N. S.) 430, 41 E. 
C. L. 611. 

Under the statute of uses, which is in force here, where an estate 
i s conveyed to one person for jhe use pf_pr upon a trust forjin- 
other, and n othing more is sa id^ t h ^ statute immediately transfers, the 
le gal estate^to the use, and jio trust is created, although express \Yprds 
of trust ar e used. Perry, Trusts, § 298. And so we have ekpressly 
held. Witham v. Brooner, 63 111. 344; Lynch v. Swayne, 83 111. 336. 

But this, it will be observed, has Reference only to passive trusts, or 
what are sometimes termed simple or dry trusts; and in such cases 
the legal estate never vests in the feoffee for a moment, ibut is in- 
stantaneously transferred to the cestui que use as soon as the use is 
declared. 2 Bl. Comm. (Sharswood's Ed.) 331, 332; and Witham v. 
Brooner, supra. 

It is said in Perry on Trusts (section 300): "Although it is prob- 
able that it was the intent of the statute (i. e., of uses) to convert all 
uses or trusts into legal estates, yet the convenience to the subject 
of being able to keep the legal title to an estate in one person, while the 
beneficial interest sho nlH be \n ano ther, was too great to be given up 
altogelhe r, an d coyrts pf _^eg[uity were astute in finding reasons to with- 
draw a co nveya nce from the operation of the statute. Three princi- 
pal reasons or rules of construction were laid down whereby convey- 
ances were excepted from such operation: First, where a use was 
limited upon a use; second, where a copyhold or leasehold estate, or 
personal property was limited to uses; third, where such powers or 
duties were imposed with the estate upon a donee to uses that it was 
necessary that he should continue to hold the legal title in order to 
perform his duty or execute the power. In all of these three instances 
courts, both of law and equity, held that the statute did not execute 
the use, but that such use remained as it was before the statute, a mere 
equitable interest to be administered in a court of equity." And again, 
in section 305, it is said : "The third rule of construction is less tech- 
nical, and relates to special or active trusts, which were never within 
the purview of the statute. Therefore, if any agency, duty or power 
be imposed on the trustee, as, by a limitation to a trustee and his heirs 
to pay the rents, or to convey the estate, or if any control is to be 
exercised or duty performed by the trustee in applying the rents to a 
person's maintenance, or in making repairs, or to preserve contingent 
remainders, or to raise a sum of money, or to dispose of the estate by 
sale, in all these and in other and like cases, the operation of the stat- 
Bubd.Ca8.Real Pbop. — ^16 


ute is excluded, and the trusts or uses remain mere equitable estates. 
So, if the trustee is to exercise any discretion in the management of 
the estate, in the investment of the proceeds or the principal, or in the 
application of the income, or if the purpose of the trust is to protect 
the estate for a given time, or until the death of some one, or until 
division. * * * " <^nd again, in regard to enlarging and extend- 
ing estates given to trustees, the same author, in section 315, says: ' ^ 
"So, if land is devised to trustees without the word heirs, and a trust *^ 
is declared which can not be fully executed but by the trustees taking ^ 
an inheritance, the court will enlarge or extend their 'estate into a 
fee simple to enable them to carry out the intention of the donors. 
Thus, if land is c on veye d to trustees without the w ord heirs, in trus t 
to sell^ th ey m ust_ have the T ee, oth erwise t hev c ould not ^e^l . The 
construction would be the same IT the trust was to sell the whole or 
a part, for no purchasers would be safe unless they could have the 
fee, and ^ trust to convey or to lease at discretion would be subject 
to the same rule. A fortiori, if an estate is limited to trustees and 
their heirs, in trust to sell or mortgage or to lease at discretion, or 
if they are to convey the property in fee, or to divide it equally among 
certain persons, for to do any or all of these acts requires a legal fee. " 
See, also, to the same effect. Hill, Trustees (4th Am. Ed.) 376; Rees 
V. Williams, 2 Mees. & W. 749. 
In those cases where the legal fee is not_vested in t he trustee, it 

will, of c nursp , in the alj^.^enre of a device prevailin g to the r^ptr^yv . 

vest in the heir atiaw. And there are also cases in which, it having 
been the duty of the trustee to convey to the heir at law, it will be 
presumed, after the lapse of considerable time, that such conveyance 
has been made. Hill, Trustees (4th Am. Ed.) 401 ; Perry, Trusts, §• 
350 ; Gibson v. Rees, SO 111. 383 ; Pollock v. Maison, 41 111. 516. But it 
is not claimed, nor could it be, that there is any foundation for such 
presumption in the facts found in this record. 

In Harris v. Cornell, 80 111. 67, it was said, referring to Hardin v. 
Osborne, §ept. Term, 1875, that it had been held the purposes of 
a trust having been accomplished, the owner of the trust became, by 
operation of law, reinvested with the legal title and could sue in eject- 
ment. This was unadvisedly said. A rehearing was granted in Har- 
din v. Osborne, and the opinion therein referred to was withdrawn. 
In McNab v. Young, 81 111. 11, language of like import as that used in 
Harris v. Cornell, supra, was used upon the authority of the same 
case, although it is therein erroneously referred to as being reported 
in 60 111., at page 93. The case there reported, of that name, does 
not discuss that or any kindred question. 

The true doctrine in regard to active trusts, and that adhered to by 
this court, is expressed in Vallette v. Bennett, 69 111., at page 636, 
that where the legal title is vested in the trustee, nothing short of a 
reconveyance can place the legal title back m the grantor or his heirs. 


s ubject, of course, to the qualificat ion that^ u nder ce rtain circum- 
stances, such, reconveyance will be presumed without direct _proof 
of the fact. 

e language of Walsh's wil l is : "As to my worldly estate, all^the 
real, personal^an d m ixed^ of wHic h T sFalf die seized and pQS^eg^jd, 
* * * I hereby grant, d evise^ conv ey and c onfirm unto" j[namijig 
t he trust ee s), "in trust/' etc!, He then directs his said trustees to as- 
sume and take entire control of his estate ; to collect all outstanding 
dues, rents, profits and interests of whatever character, derived there- 
from, and to govern and control all such interests as may accrue and 
arise to said estate from time to time; to mak e such disposal jof 
said estate^s sh all in their judgment benefaran d increase J^e yalue^of 
saU„C§tatei. that said trustees "shall pav^ or cause to be^aidj.qut 
of said estate," to his da ughter. Mary LucY^ "such .installments__pf 
money arTrTtfie |u(lgh 1ent of said trustees jhall be deemed proper and 
sufficient to meet her cuSeirt expenses, and provide her an ample^nd 
comfortabI$"^su6bort'f^that said trustees should transfer his estate to 
his said daughter upon her reaching the age of 35 years, she being 
then unmarried, but if then married, they are directed to transfer the 
estate to her only upon the contingency that they should deem her 
husband a person in whom confidence might be placed ; but if the trus- 
tees should deem the husband an incompetent and unfit person to have 
the care and control of the estate, they are directed to continue to 
make payments to his daughter, "in such amounts and at such times 
as in their judgment they may think proper," and that the circum- 
stances and station of his daughter may demand ; that in the event of 
the death of his daughter without issue, certain specific legacies, 
amounting to some $2,600 in the aggregate, are given, and the balance 
of his estate is to be divided equally between the House of the Good 
Shepherd, Saint Joseph's Male Orphan Asylum, and Saint Ann's 
Infant Asylum; and he then exemptsJiiX trustees from liability for all 
l osses occurring wTtTiout their Tau Tt. 

This very clea rly ^ave the entire control and management of the 
e state to the trustees until Mary Lucy should arrive at the age of 35 
years — ^being unmarr ied; and she having died before she reached 
that age, the control and management of the estate continued to de- 
volve upon them. The language employed so plainly conveys this idea 
that it can admit of no controversy. 

The power "to make such disposal of the estate as shall," in the 
judgment of the trustees, "benefit and increase the value of said es- 
tate," — as also the duty of paying Mary Lucy "such installments of 
money as in the judgment of said trustees shall be proper and suffi- 
cient to meet her current expenses and provide an ample and com- 
fortable support," — necessarily imply the power to sell the^lands^ and 
convert them into money or i nterest Feanng[]s^viViU£s ; for this might 
well, in the judgment of the trustees, benefit and increase the estate, 


and be essential to make pa3mient of the sums directed to be paid to 
Mary Lucy. The power implied to sell, is to sell the whole title >-^ 
^ and to this is essential the power to convey that title, requiring, as 

T^Ai^'i a condition precedent, a fee-simple estate in the t rustees. 

^^ The property is devised to the trustees to sell and convey, if they 
deem it advisable, or to hold and control until it is to be transferred as 
directed ; and in the contingency that has arisen, it was intended that 
it should be the duty of the trustees to make the equal division of the 
property between the corporations designated and convey it accord- 
ingly; for the g^nt to these corporations is in severalty, and not % 
as tenants in common, and their title must necessarily rest on the con- 
veyance of the trustees. 

Whether the corporations can hold or not is not now material. The 
words of the devise show the intention of the testator that the trus- 
tees should take a fee, whether he was mistaken in the law as respects 
the objects of his intended bounty or not. The o nly difference would 
be^ if th e corporations cannot take, the trustees, instead of holdin g 
the legal title in trust for them^, hold it jp trust for th^ heirs at law . 
Hiil, Trustees (4th Am." £d.) 208, 209."" k 

The legal ^ittej thgiij being i n tfie trustees, the heir s at law cou ld »^' "-' 
^/«i^ not mai ntain ejectment. Perry, Trusts, §§ 17, 328, S20; Hill, Trus- /' 

'teSl4tK Am." Ed.) 422, 423, *274; Id. 482, *317; Id. 672, *428; Id. 
784, *503 ; Bull. & T. Trusts & Trustees, p. 811. 

The judgment of the circuit court is reversed. Judgment reversed.* 

II. Creation of Express Trusts * 


^\ fJ-^^' M*^" \l 1. InGenerai, 

^A---'' In re SMITH'S ESTATE.* 

(Supreme Court of Pennsylvania, 1891. 144 Pa. 428, 22 AtL 916, 27 Am. St 

Rep. 641.) 

Appeal from orphans' court, Philadelphia county; Hanna, Judge. 

Acco unting of the Pennsylvania Company for Insurance on Lives 
an<i Grantihe: Annuities, a s ex ecutor of the estate of Thomas Smith, 
deceased. Henry S. Parmalee, as guardian oj Thoma s Smith Kelly , 
claimed and was awarded certain bonds left by testator^ pn the ground 

2 That trusts are uses which survived the statute of uses, see Fuller v. Miss- 
roon, ante, p. 31. 

s For discussion of principles, see Burdlck, Real Prop. % 132. 

* Although this case deals with the creation of a trust of personal property, 
it is here presented, in part, for its tdear statements of certain principles ap- 
pUcable to trusts In generaL 


th at testatcTf held them in trust for said ward. The executor appeals. • 

Clark, J.* The appellant is the Pennsylvania Company for Insur- 
ance on Lives and Granting Annuities, trustee under the wil l of 
Thnmajs Smith , deceased; t he appellee, Henry S. Parm al ee/guardia n 
o f Thomas Smith Ke lly , a mmor. The proceeding was the adjudi- 
cation of an account, filed by the trustee binder the will of Thomas 
Smith, of the principal an d income of $13,000 of Pensacola & Atlantic 
Railroad Company's coupon b onds, w hich the said trustees claime d 
were part of the estat e of decedent, and passed to themjmder his will. 
TThe guardian of Thomas Smith Kelly, a minoVrappeared belbre'tKe 
auditing judge, a nd claimed that the bonds had been he ld by th e tes- 
tator in trust forsaid minor, and shou ld b e awar ded to the latter's 
guardiaii. The auditing judge and the judges of the orphans' court 
sustained the guardian's claim, and awarded him the fund. 

The ow ner of personal property, in ..order to make a voluntary 
disposition of it," may, by ajroper transfer of the title, make a gift 
of it d irecf to "the HoneCj^ or he may impress upon it a trust for the 
benefit of the donee. It is well settled, however, that whether a gift 
or a trust Ts Intended, if the transaction still remains imperfect and i 
executory, equity will not aid in its enforcement. Th e express ion of (/ 
a mere intention to create a trust, therefore, without more, is insuffi- ^;?2^c^^ 
cienj- Like a promise to give, it will not be enforced in equity. Dip- 
pie^ Corles, 11 Hare, 183; Helfenstein's Estate, 77 Pa. 328, 18 Am. 
Rep. 449. Alm ost all trusts are i n a certain sense executory. Ordi- 
narily, a trust cannot be executed except by conveyance. T here is, 
i n most cases, something to be done. But this is not the sense in which 
a trust is said to~ be executory. An exe cutory trust^properly so called, 
isi][ne in which^ the limita tions are imperfectly declared^ and the_donox.'s 
intention is expressed in such general terms that something not fully de- 
claredjs required to be done. in order to complete and perfect the trust, , 1 
and to gi ve it effect . When the li mitations of a trust are fully and per- / ^ y 
fectly declared, the^trusf is regarded as an executed "trust. Egerton ^ 

V. Brownlow, 4 H. L. Cas. 210; Cushing v. Blake, 30 N. J. Eq. 689; 
Pom. Eq. Jur. § 1001. Nor in such case, if it appear that the inten- 
tion of rfie donor was to adopt either one of these methods of disposi- 
tion, will a court resort to the other for the purpose of carrying it 
into effect. W hat i s cl early inte nded as a voluntary asgignment^or^ a 
gift, but ij_ imperfect as such, cannof be treated as a declaration of 
trust. TTthis were not so, an expression of present gift would in all 
cases amount to a declaration of trust, and any imperfect gift might 
be made effectual simply by converting it into a trust. There is no 
pri nciple, of equity whi ch will perfect an imperfect gift, and a court 
of equity will not impute a trust where a trust was notjn contempla- 

« Part of the opinion is omitted. 


.tion. Milroy v. Lord, 4 De Gex, F. & J. 264-274 ; Flanders v. Blandy, 
"TTOhio St. 108, 12 N. E. 321. 

Upon the same ground it has been held that a paper of a testa- 
mentary character, but invalid for want of proper execution, cannot 
be enlarged or convetted into a declaration of trust. Warriner v. 
Rogers, L. R. 16 Eq. 340. In Richards v. Delbridge, L. R. 18 Eq. 
11-13, it was held, overruling Morgan v. Malleson, L. R. 10 Eq. 475, 
and Richardson v. Richardson, L. R. 3 Eq. 686, that to create a 
trust there must be the expression of an intention not to create a 
present gift, but to become a trustee. See, also, Milroy v. Lord, supra ; 
Brett, Lead. Cas. 58; Long's Appeal, 86 Pa. 196. Although the 
cases may not be altogether consistent, the rule is now, we think, well 
settled in accordance with the doctrine declared in Richards v. Del- 
bridge, supra, that, if the transaction is intended to be effected bv 
gift, the court will not give 7t effect bv co nstruing it as a trust. It is 
well settled that nothing can take effect as an assignment or gift which 
does not manifest an intention to relinquish the right of dominion on 
one hand and to create it on the other. If the donor has perfected 
his gift as he intended, and has placed the subject beyond his power 
or dominion, the want of consideration is immaterial; the donee's 
right will be enforced. A gift ca n only be effectual^fte r the intention 
to_make_it has been accompanied by delivery of posse ssion or som e 
equivalen t act. If it is not, the transaction is not a gift, but a con- 
tract merely. If a trust is intended, it will be equally effectual whether 
the donor transfer the title to the trustee or declare that he himself 
holds the property for the purposes of the trust. "U is well settled 
that the owner^of personal property may impress upon it a valid pres - 
ent trust, ei t her by a declaration' that he holds the property in trus t, 
or by a trans fe rjofjhe legal title lQ.A.thiriL£arty upo n certain specified 
V^ \/^ trusts \_ m other words, he may constitute either himself or anothe r 
person Jrustee. If he makes himself trustee, no transfer of the sub- 
ject-maTter of the trust is necessary; but if he selects a t hird party , 
the subject o f the . tO^st must be transferred to him jn s uch mode a s 
will be effectual to pass the legal title" Bisp. Eq. 78; Perry, Trusts, 
§§'96^98; Hill, frustees, 117 et seq.; Dickerson's Appeal, 115 Pa. 
210, 8 Atl. 64, 2 Am. St. Rep. 547. 

In Richards v. Delbridge, L. R. 18 Eq. 11-13, Sir George Jessel 
said : "A man may transfer his property without valuable considera- 
tion in one of two ways : He may either do such acts as amount in 
law to a conveyance or assignment of the property, and thus completely 
divest himself of the legal ownership, in which case the person who 
by those acts acquires the property takes it beneficially or on trust, 
, as the case may be ; or the legal owner of the property may, by on e 
or Other of_the modes recognized as amounting to a valid declaratio n 
of trust, constitute himself a trusfee, an3, without _an actu al transfe r 
of the title, may so deal 'with the property as to deprive hi mself of 


its beneficial ownership, and declare that he will hold it from that 
time forward in trust for the other person/' Heartley v. Nicholson, 
JU. a. ly Kq. ^33, IS to the same eSect. jf th^, dQ"or make^ a third 
party a trustee^ he must tr ansfer to h im the subject of the trust in 
s uch mode as will be effectual to pa ss the title. The transaction, as 
in the case of a gift, to be effectual, must be accompanied by delivery 
of the subject of the trust, or by some act so strongly indicative of 
the donor's intention as to be tantamount to such a delivery; but 
where the donor makes hi mself the trustee, no transfer of the subject^ 
matter is necessary . Ex parte Pye, 18 Ves. 140, Donaldson v. Donaid- 
son, Kay, 711, and Crawford's Appeal, 61 Pa. 52, 100 Am. Dec. 609, 
are illustrations of trusts in this form. In such cases no assignment /) 
of the legal title is required, for the nature an d effect of the tTansac- j/ ^ 
tion is that the legal title r emain s in the donor Tor the benefit of the ^^ -v 
donee. It is conceded that, as the bonds of the Pensacola & Atlantic 

Rail road Company — the bonds _in ^ uestfon — -were not delivered j£> 
Thomas Smith Kelly by Thomas^mTth^ the transaction cannot be sus- 


tained as a gif t. It is_cleax2iatji_gift was not in contemplati on, a nd 
the o nly q uestion for our determinatiorTls whether or not a complete 
and valid trust was created, for a trust would seem to have been 

contemplated, . 

There is no certain form required in the creation of a trust. In 
th e cas e of personal property, or choses in action, trusts may be proved 
byparoTr If the declaration be in writing, it is not essential, as a gen- 
eral rule, that it should be in any particular form. It may be couched . 
in any language whi ch is sufficiently expressive of the intention_tp /I 
create a trust . '*Three thi ngs, i t has been said^^jnust concur to raise ^ i.,^ 
a trustt— sufficient words to create^a definite subject, and a certain or '^"^ -^ 
ascertained object ; and to these requisites may be added another, 
VIZ., that the terms of the tru st sh ould_be_ sufficiently declared." Bisp. 
Eq. 65, citing Cruwys v.'^Cblman, 9 Ves. 323; Knight v. Boughton, 
11 Clark & F. 513. The intention must be a complete one, and this 
requisite is especially applicable to trusts created by voluntary dispo- 
sitions. "A mere inchoate and executory design is not enough, and, 
unless there is some distinct equity, — as fraud, for example, — it 
cannot be enforced." Bisp. Eq. 65. The intention must be plainly 
manifest, and not derived from loose and equivocal expressions of 
parties, made at different times, and upon different occasions; but 
any words whi ch indicate with sufficient certainty a purpose t o create 
a trust will be effective in so doing. It is not necessary that the terms 
"trust" and "trustee" should be used. The donor need not say in 
so many words, "I declare myself a trustee," but he must do some- 
thing which is equivalent to it, and use expressions which have that 
meaning, for, however anxious the court may be to carry out a man's 
intention, it is not at liberty to construe words otherwise than ac- 
cording to their proper meaning. Richards v. Delbridge, supra. 


In Heartley v. Nicholson, supra, Vice-Chancellor Bacon says: "It 
is not necessary that the declaration of a trust should' be in terms ex- 
plicit, but what I take the l aw to require is that the donor should 
have evinced bv his act s, which admit 61 "no ot her interpretation, that 
he himself had ceased toXe, and "that some otiier pers on had fiecom e, 
t lie beneficial o wner of the subject of the gift or transfer, and that 
such legal right of it^ if any, a s he re tained, was held in trust fo r 
the do nee." '*The one thing necessary," says the sam6 learned judge 
in Warriner v. Rogers, supra, "to give validity to a declaration of 
trust, — the indispensabl e thing. — I take to b e that the d onor or gran - 
tor, or w hatever he may be calledTsnould Kave^ absbl utely parted wit h 
thatJuitfiCfiSL-Whigh. had been his up to the ti me nf the, declaration : 
sh ould ha ve efjFectual ly changed his righ t in that r e spect, and put the 
property . put qf his . power, jit ^least jn^ the waj^ ot interest. '^ The 
acts or words relied upon must be unequivocal, plainly implymg that 
the person holds the property as trustee. Martin v. Funk, 75 N. Y. 
134, 31 Am. Rep. 446. Therefore, in Young v. Young, 80 N. Y. 
422, 36 Am. Rep. 634, where the donor signed a paper certifying 
simply that certain bonds belonged to his sons, but did not declare 
in any words of plain import that he held them in trust for them, 
the declaration was held to be insufficient. In Helf enstein's Estate, 77 
Pa. 328, 18 Am. Rep. 449, Mr. Justice Sharswood says": "There is 
no prescribed form for the declaration of a trust. Whatever evinces 
the. intention of the party that the^ property, of which he is the lega l 
owner, shall beneficially be another's, is sufficient" * * "* 

2. Extent op Trustee's Estat* 

See Kirkland v. Cox, ante, p. 239. 

3. Parties 

(Supreme Ctourt of Florida, 1897. 39 Fla. 603, 23 South. 18, 89 I<. B. A. 705.) 

Appeal from circuit court, Gadsden county; William D. Barnes, 

Bill by Louis ^. Fraleigb and others against R. C. Stearns and 
another for the cancellation of a certain deed, and the appointment of 
a trustee. From adecree apppmting a trustee^ and declaring that the 
deed only conveyed the interest of one Mary A. Fraleigh, defendant, 
Stearns appeals. Modified. 



On June 4, 1890, appellees filed their bill in equity in the circuit 
court of Gadsden county, making appellant and one Mary A. Fra- 
leigh defendants thereto. An amended bill was filed by appellees 
April 16, 1891, whe reby it w as alleged that on January 18, 1864 , 
E^man uel^ M. Fraleighj^ defendant, Mary A.. Fraleigh, ex- 
ec uted a trust deed of.conyeya.tiC5 to on^^Sacauel i,. Lqyc* a certified 
copy of which was m ade a part of the bill. The deed referred to 
purported to be maHe for and in consid eration of the g reat .loYg. ^nd 
affectionjvhichjhe jjTantot^^ his, wif e,_ Mary A, . Fralfiigh* 

and his children, Lrillie C, Cornelia M., and Clara W. Fraleigh, as 
well as m consideration of the sum of_$10.lQ lhe_jjantor j^id; and 
it conveyed to Samuel B. Love, his heirs and assigns, certain real and 
personal property in Gadsden county, therein described. The deed 
contained the following provisions: "To haye_and to hold the afore- P 
granted prope rty to the said S. B. Love^his heirs and assigns, in trust, / 
nevertheless7 f or th e sol ^ usjp o f the_said Mary A., Fraleigh^\yife .^f ' 
the said E. M. Fraleigh, .f or^and. duriilg..her naturaljdf e, and after her .L 
death to such children as shejnayjiayejiviagjat_the time of her death, ' ' 
share an d share alijce, with power to the s aid Samuel B. Love to ^^^ 
sell any porti on of said trust est ate, an d to reinvest the proceeds in ^ ^ 
such^ other prp£erty^^iibj.ecLicL the^ahoxfe-dfiscdbed trust, as he shall '/t 

deem most for the inteiest-of .said, t rust estate^ with power to the 
said_3Iary A^_Fr aleigh to appoint and choose, by her writing under 
her seal, a nother^ trustee. instead of the sgjd Samuel B,.LQve» wlien- 
ever the said Samuel B. Love shall jffiish to resign said trust, or shall 
die leaving the same unfulfilled^ said trustee so appointed taking said 
trusteeship subject to^e trust herein limited.". 

It was further shown by the amended bill that on May 23, 1866, 
SamuelB. Love executed under seal, and in the presence of two sub- 
scribing witnesses, an instrument in writing whereby, after reciting 
that said Love was holding in trust certain lands, etc., for Mary A. 
Fraleigh and her children, more fully set forth and described in the 
trust deed above described, he did thereby^ resign and relinquish said 
trusteeship, as by the provisions of said trust deed he claimed the 
right and authority to do; and on the safne day Mary A.. Fraleigh 
execut ed under seal, and in the presence of two subscribing witnesses, 
^^ iQstnimentJn writing, whereby, after reciting the trust deed before 
referred to, and its"provision empowering her to appoint or choose 
another trustee whenever the said Love wished to resign, and that 
said Love had resigned the trusteeship, leaving same unfulfilled, she ) 
did, by virtue of the authority vested in her by said trust deed, con- / • N 
stitute and appoint E. M^ Fraleigh trustee in lieu of said Love. Each 
of these instruments was proven by a subscribing witness, and record- 
ed in the clerk's office of Gadsden county on August 23, 1866. 

It was further alleged by said amended bill t hat ap pellant was in 
possession of certain lands described in the trust deed, claiming title 

v>- f 



to.5amfiJbLvirtue of. a deed from one Samuel Hambljn, who received 
deeds to said lands from Mary A. and E . M. F ralei^h (the latter pre- 
tending to execute sa id deeds as trustee), dated January 20, 1874; 
that the property embraced in said deed had "run down," and was 
"going to waste," and that appellees had received no benefits, rents, or 
profits therefrom since the date of said deed to Hamblin; that ap> 
pellant and Samuel Hamblin combined and confederated with E. M. 
Fralei^h an d other j)ersons to destroy the force and effect of the 
lUlsLdcfi^, and to dej ^ive appellees of all benefits th at mipht arise from 
the prop er c ontrol and managem ent of the property , m order that ap- 
pellant rnigfit obtain title thereto and possession thereof, and that the 
title pas sed to the said Samuel Hamblin for little or no consideration : 
that the proceeds of the sale were not reinvested as r equired by th e 
trust-deed, and that appellant knew that fact; that th e appointment o f 
^manuel M.Fraleigh as trustee was nt}aiithnrizpd^ nijl^ and yoid i the 
said Mary A. Fraleigh being under coverture, the wife of said E. M. 
Fraieigh, at the time of making such appointment ; that the deeds ma de 
b j virtue of said appointment, by E. M. Fraleigh, pretended trustee , 
and the said Mary A. Fraleigh, to Samuel Hambh nTand the one from 
Hamblin to appellant, passed no title, and were null and void. 

it was^^Iurther alleged that "Samuel B. Love and E. M. Fraleigh 
were dead ; that appellees Louis A., Albert E., Lillie P., Alliene, and 
Emily were the only surviving children of Mary A. Fraleigh, and were 
all over 21 years of age, except Alliene and Emily, who were about 20 
years of age. The consideration expressed in the deeds from Fra- 
leigh and wife to Hamblin was $700. 

Tii£^ill_£rayed that jthe appointment j).f E. M. Fraleig h to be tru s- 
tee, the deedaJo_ Samuel HamHm, a nd th e deed to appellant be de - 

^.l?JSSU^^^?!/ ^^^ ^"^ ^^^^ ' ^^^ appellant be required to produce the 
deeds in court for cancellation; that a trustee be appointed^ vice Saq i- 
uel B. Love, deceased, — ^and for general relief. 

The separate answer of appellant to the amended bill of complaint 
filed May 19, 1891, admitted the execution of the trust deed by E. M. 
Fraleigh ; the appointment of E. M. Fraleigh to be trustee by Mary 
A. Fraleigh ; the resignation of S. B. Love as trustee ; that appellant 
was in possession of certain land described in the trust deed, and 
claimed same under a deed from Samuel Hamblin, who acquired title 
to same by deeds from Mary A. Fraleigh and Emanuel M. Fraleigh, 
as trustee, — and denied that the property had run down or was going 
to waste, that the lands passed to Hamblin for little or no considera- 
tion, that the p£Oceeds of sale w^re not reinvested as req uired by 
t he tr ust deed, and that appellant knew that fact. 

Appellantlby Tiis answer also denied all charges of combination and 
confederacy made against him in the bill, and alleged that he pur- 
chased the lands mentioned in the bill from Samuel Hamblin i n March , 

t j: 


18 78, in good faith , and without notice fif. any eguiues. clainiedLhy 
appellees, payi ng therefor the sum of $1,5(XX 

The case was set down for hearing on amended bill and answer of 
appellant, and on November 4, 1893, ^decree was rendered where- 
by it was decreed that the apgointment of E. M. Fraleigh to be trus- 
tee^by Mary A. Fraleigh^ his wife^ was illegal^ nullj and utterly void; 
that" t he deeds from E. M. Ff^ ^pigh , a,s trustee^ and his wife, Mary <^ 
A. Fraleigh tn S;^^ue4 fff^mhlin^ passed whatever right, title, or in- V^ 
terest Mary A. Fraleigh might have had in the property attempted to ^ 
be thereby conveyed, but did not pass any right, title, or interest of the O^ 

children of Mary A. Fraleigh, and as to such children the deeds were 
absolutely null, void, and of no effect whatever; that the deed from 
Hamblin to appellant passed no title whatever to any lands embraced 
in the original trust deed, except the interest or estate which Mary A. 
Fraleigh had therein, and which she might have conveyed to Samuel 
Hamblin in the deeds to him before mentioned, and that for any 
other purpose, or to any other extent, the said deed from Hamblin to 
appellant was utterly null, void, and of no effect; that D. McMillan 
be^ and he was thereby , appointed trustefi^tOjakfi charge of, recover, 
and manage the lands described in the trust deed from Fraleigh to 
Love, so far as the mterest and estate of tj] e childr en jof Mary. A. 
Fraleigh e xtended^ subject t o the ^ame trust and ppwers as mentioned 
i n the original trust deed .inrespect to said children. 

From this decree Stearns entered his appeal on March 24, 1894, to 
our June term, 1894, claiming in his petition of appeal that the court 
erred in decreeing (1) that the appointment of E. M. Fraleigh as 
trustee, by his wife, was illegal and void; (2) that the deeds from 
Fraleigh, trustee, and his wife, to Samuel Hamblin, did not pass to 
Hamblin any right or interest of Mary A. Fraleigh's children, but that 
as to them the deeds wer'e absolutely null and void ; (3) that the deed 
from Hamblin to appellant passed only the interest of Mary A. Fra- 
leigh in the lands conveyed, and to any further extent was null and 
void ; (4) the appointment of D. McMillan to be trustee. 

Carter, J. (after stating the facts). The appellant having failed 
to argue the fourth error assigned in the petition of appeal, we treat f 
it as abandoned. The pri ncipal question involyed by the other as- ^j}.* / 
sj^ments is whether the appointment of E. M. Fraleigh to be trustee, ^, 
by his wife, under t he power of appointment gjven her by. the terms , '•* 
of the trust deed, was a valid act. If s o^ and the deeds to Hamblin 
passed title, the appellant, being a purchaser for value from hirn, 
without notice of any equities claimed by appellees, wouy_ohtaiiL^a 
good title . Saunders v. Richard, 35 Fra.'287 16 South. 679. The hear- 
ing in the court below was upon bill and answer, and it will be ob- 
served that the answer denied that the sale to Hamblin was for little 
or no consideration, that the proceeds of the sale had not been re- 
invested, and all charges of fraud and conspiracy on' the part of ap- 


pellant to obtain title to the property. The deeds to Hamblin express- 
ed a consideration of $700, and, in the absence of actual notice, the 
appellant could only be charged with constructive notice to the extent 
of that furnished by the recoml of the trust deed, and of those to Ham- 

It is insisted by appellees that the appointment of E. M. Fraleigh 
to be trustee was void, because — First, the trustee. Love, could not, 
after having accepted the trust, resign or renounce it ; second, a mar- 
ried woman cannot appoint her husband trustee of a trust created by 
him for the benefit of herself and children ; third, the execution of 
the instrument of appointment was not joined in by Mrs. Fraleigh's 
husband, nor did she acknowledge its execution separate and apart 
from her husband. 

1. The general rule, that a trustee cannot, after having accepted a 
trusty resign or renounce it at his pleasure, contended for by appellees, 
in unquestionably correct; but it is equally true that, wherejjie in- 

) strumen t creating the trust empowers a trustee to resign af ter ac - 

jr ceptance, a r esi^ation in the manner pointed out by su ch instrume nt 

' 7 will be valid/' 1 Perry, Trusts, § 274; '2 Lewm',T^usts,'**646 ; fiff. 
& Bui. Trusts, p. 536. It is not denied that the trust deed authorized 
Mr. Love to resign, nor that his resignation was in strict accordance 
with the authority; but the appellees ask us to construe the written 
resignation as a refusal to accept the trust, and it is insisted that Mrs. 
Fraleigh had no authority to appoint another trustee in case of Mr. 
Love's refusal to accept the trust, but only in the event of his resig- 
nation. The instrument expressly recites the fact that Mr. Love was 
holding property in trust, and it referred to the trust deed for a de- 
scription of the property so held, and to its provisions authorizing him 
to resign. If he was holding the property in trust, as declared by this 
instrument, he had accepted the trusteeship, and th e instrum en t wa s 
what it purported to be, — a resignation of the trust, and not a jref usal 
toT accept it. 

2. It is argued by appellees that the appointment of E. M. Fra- 
leigh as trustee of a trust created by him for his wife and children 
would defeat the object of the trust, and his acceptance would amount 
to a revocation thereof ; and we are referred to the case of Robinson 
V. Dart's Ex'rs, Dud. Eq. (S. C.) 128, 31 Am. Dec. 569, and to the 
cases of Richards v. Chambers, 10 Ves. -580, Magwood v. Johnson, 1 
Hill, Eq. (S. C.) 228, and Ewing v. Smith, 3 Desaus. (S. C.) 417, 5 
Am. Dec. 557, cited therein, as sustaining this proposition. The last 
two cases have no reference to the question under consideration. The 
case of Richards v. Chambers, 10 Ves. 580, as quoted in the first- 
named case, would go far towards sustaining the contention of ap- 
pellees, but a reference to the official report of the case shows that it 
sustains the contrary view. There, the property, by a marriage set- 
tlement, was secured to the sole and separate use of the wife for life. 


and, if she survived her husband, to her absolutely; but, if she died 
before her husband, it was to go to such persons as she by will or 
deed might appoint, and in default of appointment, to her executors 
or administrators. The husband and wife by petition applied to have 
a part of the trust property then in court transferred to them ; the 
wife having executed an appointment in favor of the husband, and 
expressed a desire, upon an examination de bene esse, that the peti- 
tion be granted. The court said : "The wife, having a separate estate 
for life, might, according to the doctrine of many cases, part with that 
life interest. She might also execute an appointment in favor of her 
husband, or of any person, which appointment, in the event of her 
death in his life, would be a valid and effectual disposition of the 
property. But the question is whether the contingent interest which 
the wife, while sui juris, has secured to herself in the event of her sur- 
viving her husband, can, through the interposition of this court, be 
given up by her while in a state of coverture." 

The question in that case was as to a contingent interest, over which 
the wife had no power of appointment by contract; and the propo- 
sition was distinctly recognized that she could exercise a power of 
appointment, even in favor of her husband. In Robinson v. Dart's 
Ex'rs, Dud. Eq. (S. C.) 128, application was made to a court of equity 
to appoint a husband trustee for his wife. The court declined to ap- 
point him, or to direct that the wife's separate property be turned 
over to him ; holding, not that he was incompetent or disqualified, but 
that he was an improper person to whom to commit the trusteeship 
The reasons advanced by the court were that, if appointed, he would 
be constantly tempted to use the authority and influence of a husband 
to assume the disposal of the property to his own uses, and induce his 
wife's acquiescence, and that a court of equity should not place a 
wife in such a situation that she might be compelled to go into equity 
to call her husband to account for breaches of his duty as trustee. 
To the same effect, see Boykin v. Ciples, 2 Hill, Eq. (S. C.) 200, 29 
Am. Dec. 67 ; Ex parte Hunter, Rice, Eq. (S. C.) 293 ; Dean v. Lan- 
ford, 9 Rich. Eq. (S. C.) 423. In none of the cases referred to by 
appellees was any question involved as to whether, under a power to 
appoint new trustees, a married woman could appoint her husband; 
nor was it held that a husband was incompetent or disqualified to be 
a trustee for his wife. There is a very clear and obvious distinction 
between the mcompetency and the unfitness of a person for the position 
of trustee, and be tween the pqw^r of an individual to select a trustee^ 
and the duty of a court m appointing one. Forster v. Abraham, L. R. 

The general rule is that any person may be appointed a trustee 
who is. jcapable of confidence, of holding real and personal property, ^ y 
and of ex ecuting the trust. 3 Kerr, Real Prop. § 1728; 1 Perry, 
Trusts,'"§ 39; Tiff. &*BuL Trusts, 325. It is not denied that the hus- 



band in this case was capable of everything required by the genera l 
defini tion, and th at the was in' fact a competent trustee for his c hil- 
dren under the same deed. Then why not for his wife? In equity he 
has been frequently held to be a trustee for his wife, and prior to 
any recent statutes regulating married women's property, in all cases 
where real estate was conveyed direct to the wife during coverture, 
for her sole and separate use, exclusive of her husband, he was jn 
equity deemed a trustee for the.wife^.and as such held the leyal title. 
2 Story, Eq. Jur. § 1380; 1 Bish. Mar. Wom. § 800; Porter v. Bank 
of Rutland, 19 Vt 410; Bennet v. Davis, 2 P. Wms. 316; Conway 
V. Hale, 4 Hayw. (Tenn.) 1, 9 Am. Dec. 748; Walker v. Walker's Ex r, 
9 Wall. 743, 19 L. Ed. 814. And where an estate was given t o, or en - 
gaged to be held by, a husband, for the use of his w ife, the husband 
was thereby constituted a trustee for the separate use of the wife. 
Darley v. Darley, 3 Atk. 398 ; McLean v. Longlands, 5 Ves. ^1 ; Rich 
V. Cockell, 9 Ves. 369; Walter v. Hodge, 2 Swanst. 92; 2 Story, Eq. 
Jur. § 1372. 

While_a court of equitj^ perhaps* would, ncycr haye^ a ppointed Mr . 
Fraleigh to be trustee of the trust created by hftn for hi s wife and 
children^ and would probably have removed him from the_position, 
• up on pro per application^ after he was appointed^ yet there is no abso - 

(:l^, lute rule. of law rendering him incompetent to act in that capacity, if 
aCppointed fey jauthority of the instrument creating the trus t, or in any 
other l^al manner. 1 Perry, Trusts, § 59; 1 Lewin, Trusts, *41. 
Neither did the appointment of Mr. Fraleigh, and his acceptance there- 
of, revoke the trust deed. On the contrary, his acceptance bound him 
to execute the trust according to its terms ; and he was invested with 
the same power, and subject to the same responsibilities, as other trus- 
tees, and the wife was entitled to the same protection in equity as any 
other cestui que trust. 1 Bish. Mar. Wom. § 801 ; Walker v. Walker, 
9 Wall. 743, 19 L. Ed. 814; 2 Story, Eq. Jur. § 1380; Tweedy v. Ur- 
quhart, 30 Ga. 446. In this latter case, by an antenuptial settlement 
between Ephraim Tweedy and Isabella Hadley, made in contemplation 
of marriage, certain personal property was conveyed to a trustee for 
the sole use of Isabella, "separate from and wholly free from the con- 
trol of her intended husband, or any future husband," with a provi- 
sion authorizing Isabella to appoint any other person trustee in the 
place of the one named in the deed, should he die or resign. The 
trustee having resigned, Isabella, then the wife of Tweedy, appointed 
her husband trustee, in accordance with the power contained in the 
deed. The court held that there was nothing in the relation o f hus- 
band and wife, nor in the clause of the settlement in quotation above , 
depriving the wife of the right to appoint her husband trustee, _under 
the power reserved in the settlement, and that his appoint ment wa s 





gri:ation of expkess trusts 265 

3. At common law a marri ed woman could^ without, the concurrence ^ 
qf^j[er liusbandj _^execute ja_ ppwer^ whether the. power was given tO'^ 
her while sole or married. 4 Kent, Comm. *324 ; Gridley v. Wynant, 
23 How. 500, 16 L. Ed. 411; Gridley v. Westbrook, 23 How. 503, 

16 L. Ed. 412; Armstrong v. Kerns, 61 Md. 364; Thompson v. Perry, 
2 Hill, Eq. (S. C.) 204, 29 Am. Dec. 68 ; Barnes v. Irwin, 2 Dall. 199, ^ 
\ L. Ed. ,348. And she could, in such cases, execute the_power in^ 
favor of her husb"^d. Wood v. Wood, L.' R. 10 Eq. Cas. 220; Tay-^-^- A 
lor vrEatman792 N,C. 601 ; 3 Kerr, Real Prop. §§ 1857, 1859; Rich- 
ards V. Chambers, 10 Ves. 580. As the appointment of a trustee in 
this case was the exercise of a mere power, and at common law a 
married woman could exercise such power without the assent of her 
husband, it on ly remains to be seen whether this rule of the common 
law, h ad been changed bxany statute ofJhis_§tate at the time of the 
execut ion of the power in question in this case. We are very clearly 
of the opinion that it had not. The statutes in force at that time v^V 
regu irin g^ the Joind er oif^the husband,_ and a separatg. acknowledgment 
ofthe wife, were applicable only to transfers and. conveyances of the 
wife^s property. Act Feb. 4, 1835, § 1 ; Act March 6, 1845,. § 4. The 
designation of a person to act as trustee, and hold the legal title to 
property of which she was a beneficiary, was not a transfer by her 
of the trust property, or any interest therein. Her appointment con- 
ferred no title upon her husband in the trust property. His title, pow- 
ers, and duties were derived from, and determined by, the original 
trust deed, not from her appointment. Her power to appoint pos- 
sessed none of the elements of an estate. Norfleet v. Hawkins, 93 
N. C 392; 4 Kent, Comm. 337; Patterson v. Lawrence, 83 Ga. 703, 
10 S. E. 355, 7 L. R. A. 143; Schley v. McCeney, 36 Md. 266; 3 
Kerr, Real Prop. §§ 1850, 1851 ; Cranstone v. Crane, 97 Mass. 459, 
93 Am. Dec. 106. 

4. It is also insisted that the substituted trustee acquired no title 
t o the prope rty which he could convey without a deed from the re- 
tirm^ trustee. The trust deed authorized the named trustee to resign. 
He did resign, and thereupon ceased to be trustee. Mrs. Fraleigh was 
authorized to choose and appoint another. She. did so^ and thereupon 
E. M. Fral eigh, b y the express language of the trust deed, took the 
trusteeship, subject to the trust in the deed limited.. Even if the trust 
property was not, by the language of the trust deed, effectually trans- 
ferred to the new trustee upon his appointment, without a formal con- 
veyance from Mr. Love, yet by his appointment Mr. Fraleigh became 
the rightful trustee, and as such could unquestionably have maintained 
a ction s against M r. Love for conveyances and possession of the. trust 
property. Noble v. Meymott, 14 Beav. 471 ; 2 Lewin, Trusts, *650. 
If the language of the trust deed was insufficient to vest title to the 
trust property in_ Mr. Fraleigh, but was sufficient to constitute him a 
trustee iipon Mrs, Fraleigh's appointment, then the legal title' remained 


in Mr. Love, as anaked^ru^t; and u pon th e execution of the powe r 
of sale con tained in the trust deed by the new trustee, th e title pa.3s ed 
to the purchaseF'(at least, so far as the cestuis que trustent were con- 
cerned), by force of the terms of the trust deed granti ng power to 
sell, and by the deed of the new trustee executed under that power. 
Bank v. Eldridge, rT5'5rass.'4Z4. 

The decree of the circuit court, except the paragraph appointing D. 
McMillan as trustee, is reversed, with directions to dismiss the bill 
and amended bill, as against the appellant.. In other respects the de- 
cree is affirmed. i- /^ ^. ^ , . . ^ /.' . 


(Supreme Court of Minnesota, 1903. 88 Minn. 318, 92 N. W. 1122.) 

Appeal from district court, Steele county; Thomas S. Buckham, 

Action by city of Owatonna against Carl J. H. Rosebrock and ot h- 
^s. From a judgment for defendants, plaintiff appeals. Reversed. 

Lewis, J. On January 3, 1899, Herman Heinrich Ros ebroc k, a 
resident of Owatonna, died, leaving a will, the pertinent pa;t of which 
reads as follows : "I give and bequeath the sum of five thousand dol-^ 
l.ars ($SjOOO) to Carl J, IL Rosebrock (my son) and to Nicholas J. 
Schaf er, in t rust for the following purposes, to wit : It is my desire and 
purpose to aid in the maintaining of a kindergarten in the city of Owa- 
tonna, Minnesota, and that the said sum of five thousand dollars ($5,- 
000) sh^U xoji.§titute an endowment in perpetuity for i^liat purp"^*' 
Said sum is therefore given to said persons in trust to invest, reinvest, 
and loan the same from time to time in such manner as my said trus- 
tees or their successors may deem best, with full power to change an y 
investment thus made, and to pay over tfie income, less the expense of 
administering the trust, to be used as to them shall seem most expedient 
for the conducting of a kindergarten in the city of Owatonna, Minne- 
sota : provided, that whenever the city of Owatonna aforesaid, or any 
officer or officers thereof, shall be legally authorized to. receive and_ad- 
minister such' a trust as hereby created (in perpetuity), that the trust 
hereby created shall be transferred to said city of Owatonna, or the 
proper officer or officers thereof, who shall be charged with thejnan- 
agement of said trust in the same manner as the said trustees hereby 
appointed by me ; and said trustees shall, upon turning over the funds 
with which they are charged, be relieved from further responsibility 
with relation to said trust." 

The will was duly allowed and probated, and the son, Carl J. H. 
Rosebrock, duly qudified as executor. The estate was administered) 
and the sum of $8^629.20 in excess of the amount require d to p^ y all 
bequ fists temained in the hands of the executor, and the probate court 
made the following decree: *'To Carl J. H. Rosebrock and Nicholas J. 


Schafer, in trust, the sum of five thousand ($5,000) dollars, said sum 
to constitute an endowment in perpetuity to aid in maintaining a kin- 
dergarten in the city of Owatonna, Minnesota, and said sum to be con- 
trolled and managed according to the provisions of item 8 of said last 
will and testament, reference being made thereto." The money re- 
mained in the hands of the executor, and nothing was done towards 
carrying out the terms of the trust. On July 16, 1901, the common 
council of _the_city of Owatonna passed a resolution accepting the trust 
for the purpose for which it was made, and appointed the mayor, city 
r ecorder, and city treasurer, and their successors in office, to receive 
and receipt for the bequest* which, when received, should be paid into 
the city treasury; and that such officers and their successors should in- 
vest and loan the money and use the income derived therefrom as in 
the will provided, all of which should be done under the direction of , 
the city council, the proceeds thereof to be known as the "Rosebrpck / 
Kinderg arten Fund." Thereafter_the officers referred to demanded j,^<^ 
of ^he. trustees payment of the money, together with interest and profits ^ 

accrued thereo n, and, the same having been refused, this action was 
brougTit to i^ecover the ai^ount. 

The trial court found the facts as above outlined, but held as a con- 
elusion of law t hat pla intiff was not the beneficiary of the trust created 
by the will, and not entitled to the fund in controversy. The respond- 
ents seek to sustain the conclusion of the court upon the following -, 
grounds: (1) That the provision in the will which provides for the 
transfer of the trust to the city of .Owatonna at such time as it shall ^\u ^- 
h^ve acquired authority to administer it is not mandatory, but directory 
only. (2) That the city of Owatonna is not authorized by law to receive 
and administer such a trust, the beneficiary being uncertain. (3) Y^at 
the cause was tried and submitted to the trial court by appellant upon 
the^heory that the city was entitled to recover simply upon the ground 
that_it was theT)eneficiary, and that it should not be permitted in this 
court to change its position, and recover upon the theory that it is in 
fact the trustee. 

1. There is no reasonable ground for a division of opinion upon the 
first point mentioned. It is clearly expressed that the individual trus- 
tees were to be considered temporary only, and should surrender their \ 
trust to the city of Owatonna as soon as that city should be legally au- 
thorized to receive and administer it. Subdivision 6, § 4284, Gen. St. 
1894, was in existence at the time of the execution of the will, but the 
purposes for which cities were authorized to receive bequests in trust 
did not include the one specified in the will, and. an amendment to that 
eff ect was evidently anticipated by the testator. Subsequent to the pro- 
bating of the will, chapter 95, Laws 1901, was enacted, which amended 
subdivision 6 by adding the words : "Or for the purpose of establish- 
ingand mjiintajning a kindergarten, or other sdhool or institution oi 
learning." By this^amendment the city of Owatonna became legally 
"^ BuHd.Cas.Real Pbop. — 17 


authorized to receive and administer the trust, and it was the intention 
of the testator that upon the happening of that event the individual 
primary trustees should surrender the fund. The testator undoubtedly 
preferred that the control of the fund and the expenditure of the in- 
coqie for the purpose mentioned should be in the city government rath- 
er than private persons. He may have contemplated that some con- 
troversy would grow out of the administration of the trust, — ^that its 
legality might be questioned, — and therefore preferred that the money 
should be in the hands of city authorities, where public policy and pub- 
lic spirit would tend to insure its safety and proper application to the 
destined purpose. Whatever may have been the reasons of the testa - 
tor^ it is only necess^fyTiT inquire if or_the purpose of disc overing^ his 
actol intention, and there is no doubt of the purpose in this case . 

mbdivisio n 6^ as amended, confers 13£on. citie s and villages th e 
a utho rity to Receive such benefits and devises, and to invest the sam e, 
for^thfi_p.urppse of establishing or maintaining' a kinderg arten ; and 
t he d istrict court of the state is clothed with the power to' enf^lCitSSi 
iDiatS*. The city is not the beneficiary ; it is the trustee, a nd as suc h 
compelledjo expand the income as directed by the will. In Shanahan 
vTKelly (filed January 9, 1903) 88 Minn. 202, 92 N. W. 948, the law 
upon the subject of trusts was reviewed, and it was held that all trusts, 
including charitable trusts in personal property, are abolished, except 
as provided in chapter 43, Gen. St. 1894; and that all trusts, with the 
possible exception of those authorized by subdivision 6 of section 11, 
in order to be valid, must be definite and certain as to the beneficiary, 
—citing Lane v. Eaton, 69 Minn. 141, 71 N. W. 1031, 38 L. R. A. 669, 
65 Am. St. Rep. 559. But the beneficiary is not uncertain because the 
testator did not cause the fund to be applied to some particular kinder- 
garten, or because at that time no kindergarten had been established 
within the city. It is the intent of the statute that a city may receive 
such a fund in trust, but that the manner of its application rests in the 
discretion of the city authorities. If the income is applied to the ob- 
ject expressed, it is immaterial whether the city acts independently or 
in conjunction with private persons in establishing or maintaining the 
school. And it is unreasonable to assume that the testator intended to 
limit the application of the fund merely to the aiding or assisting in 
maintaining a kindergarten, or that he contemplated that the fund 
could not be used at all unless there was at the time in fact a kinder- 
garten of some kind already established. The purpose >yas to secure 
teaching by the kindergarten method, and the income of the f und to be 
applied so far as it would go, independently^ if sufiidcn L or. if no t, 
then in connection with other funds. 

As"we understand the position of respondent, he does not attack 
the validity of this trust, but assumes that under the provisions of the 
will he himself was the party authorized to administer it. But if the city 
could not be compelled to administer the trust because of an uncertain 
and indefinite beneficiary, then, for the same reasons, respondent him- 


self could not be compelle d to admini§terJit« It is unnecessary at this 
time to decide who would be the proper party to compel the application 
of the income for the purpose specified should the city show a disposi- 
tion to misapply or squander the fund. There will be time enough to 
decide that question when it is definitely before us. The proviso attach- 
ed to section 2484 in reference to perpetuities has no application to be- 
quests of this character to a municipality, they being expressly author- 

3. It would seem from the statements made in respondent's brief, 
and from certain language found in the memorandum, that the trial 
court assumed this action was brought upon the theory that the city 
was in fact the beneficiary, and not the trustee. It does not appear 
clearly from the record that any change of positions was taken by coun- 
sel for appellant during the progress of the trial, or that those now 
pressed before this court were not presented, or abandoned, at the trial 
below. The facts are fully stated in the complaint, and the relief de- 
manded must be granted if the statute and the will bear the interpreta- 
tion we have given them. If the appellant citj^ is in fact the trustee, 
andjias been authorized bv the..statute to receiyfi^apd. administfir.. the 
tr ust fun d^ and respondent,has.such^fufldJuilia,R^^ the 

only thing to^ap in or c^er to transfer the trusteeship from the one to the 
other is to transfer the.f und.itself . No finding of the court was neces- 
sary to'd^ecIafe'THe city the trustee, for the law has made it such, and, 
although the prayer for relief is limited to a demand for an accounting 
and paying over of the amount of money in the hands of respondent, 
such accounting and paying over is all that in fact remains to be done. 

Judgment reversed, and cause remanded, with directions to the trial 
court to amend its conclusions of law so as to direct judgment to the 
effect that respondent turn over the trust fund to the city of Owatonna, 
to be held by it in trust for the purpose stated in the will. 

^ <■ 


(Supreme €k>urt of Illinois, 18d9. 181 lU. 248, 54 N. B. 918.) 

Error to circuit court, Logan county;' C. Epler, Judge. 

Bill by John T. and Frances Lawrence against Jay Lawrence and 
others to cancel a trust deed and expunge it from record. There was 
a decree in favor of complainants, and defendants bring error. Re- 

On the 12th day of August, 1868, the defendants in error, who 
are husband and wife, as parties of the first part and grantors, and 
one Eliza A. Lawrence, as party of the second part and grantee, ex- 
ecuted a certain trust deed and acknowledged the same in compliance 
with the statute then in force with reference to the valid execution 
of instruments for the conveyance of real estate. By said deed said 


defendants in error conveyed certain lands in Logan county to the 
said Eliza A. Lawrence, as trustee, to "hold the legal estate or title 
in the said premises to the sole and separate use and benefit of Frances 
Lawrence, wife of the said John T. Lawrence, for and during the nat- 
ural life of the said Frances Lawrence, with full and absolute right 
to the said Frances Lawrence, during her lifetime, to enjoy the use, 
rents, issues, and profits thereof, and upon her decease to hold the 
same to the sole and separate use and benefit of the said John T. 
L?twrence for and during his natural life, with full power to the said 
John T. Lawrence, during his lifetime, to enjoy the rents, issues, and 
profits thereof, provided he shall survive his said wife, but, if he shall 
not survive his said wife, then in trust upon the decease of the said 
Frances Lawrence to reconvey said premises, by a good and sufficient 
conveyance, to the legal heirs of him, the said John T. Lawrence." 
The deed also contained the following provision : "And it is further 
provided that in case of the decease of the said party of the second 
part, or her legal incapacity, before the full execution, discharge, and 
performance of, all and singular, the trusts in and by this deed cre- 
ated and declared, then the trust herein created shall be executed, dis- 
charged, or perfornied by the court of chancery having jurisdiction 
within and for the county of Logan; and upon the happening of 
either of the contingencies last aforesaid the estate granted and con- 
veyed in and by this deed shall vest in such court, subject td, all and 
singular, the trusts and confidences in this deed created and declared, 
and said court shall exercise the same powers, and perform, all and 
singular, the trusts that may remain unexecuted, and perform with 
the same legal eflfect as the said party of the second part might or 
could were he capable of performing the same in such manner as 
said court may order and decree." 

On the 15th day of August, 1896, the defendants in error exhibited 
their bill in chancery in the circuit court of Logan county, praying 
for a decree declaring the said deed to be null and void, and can- 
celing the same and expunging it from the record. The bill alleged the 
said Eliza A. Lawrence had departed this life ; that the complainants 
were in the possession of the said premises when the said deed was 
executed, and have ever since remained in possession thereof; that 
the defendants to the bill (plaintiffs in error) are the children of 
the said defendants in error. The further allegations of the bill are 
as follows: "Orators further represent that said trust deed is void 
because — First, the same was made without consideration for the exe- 
cution thereof ; second, because the said deed contained no provisioii 
by which the same might be canceled at the election of the grantors; 
third, that at the time said deed was executed they did not know that 
said deed did not contain a provision whereby the said deed might be 
canceled; fourth, that neither of orators comprehended the legal ef- 
fect of said deed at the time of the execution thereof." The adult 


defendants suffered default. The minors answered by their guardian 
ad litem, submitting their rights to the consideration of the court, and 
demanding strict proof of the bill. The cause was heard on the bill, 
answers, proof taken before the master, and proofs heard in open 
court, and decree entered granting the relief prayed in the bill. The 
defendants to the bill have prosecuted this writ of error to reverse 
the decree. 

BoGGS, J, (after stating the facts). The estate of a trustee in the 
real estate which is the subject-matter of the trust is commensurate 
with the powers conferred by the trust, and the purposes to be effected 
by it. The trustee acquires whatever estate (even to a fee simple) is 
needed to enable him to accomplish the purposes of the trust. Society 
V. England, 106 111. 125 ; West v. Fitz, 109 111. 425 ; 27 Am. & Eng. 
Enc. Law, 110-113, 117. When the trustee is directed and empowered 
to convey the land to the objects of the settlor's bounty, the legal estate 
necessarily vests in the trustee. If a trustee is required to grant a 
fee, the fee must be conferred upon him. Kirkland v. Cox, 94 111. 
400; Society v. England, supra. Where, as here, the trustee is re- 
quired to convey the title to the beneficiaries on the happening of 
a certain event, the trust is not a passive or dry trust, and the statute 
of uses does not operate to vest the title in the usee. Kirkland v. Cox, 
%upra; Society v. England, supra. The legal title to the premises 
here involved rested in the trustee. Upon her death the title did not 
remain in abeyance. Courts of equity may be vested with the power 
to appoint a successor to a trustee in whom title to lands may rest, 
but such title cannot descend to and vest in the courts of equity. The 
title held by the trustee in this instance upon her death passed to her 
legal heirs, subject to the trust. 27 Am. & Eng. Enc. Law, 92. Such 
heirs were necessary parties to any proceeding instituted for the pur- 
pose of devesting them of such title. Skiles v. Switzer, 11 111. 533. 

The allegations of the bill are insufficient to justify a decree vacat- 
ing the deed. The trust was a voluntary settlement for the benefit 
of the settlors during their natural lives with remainder in fee to and 
for the benefit of their heirs. It was perfectly created, so that noth- 
ing remained to be done by the settlors to give it effect, and it may 
be enforced without regard to the presence or absence of any further 
consideration. Massey v. Huntington, 118 111. 80, 7 N. E. 269. 

The bill alleges that the grantors did not know the trust deed did 
not contain a revoking clause. But there is no averment that they 
desired or expected such a clause to be inserted, or that accident, mis- 
take, or fraud in any way intervened. It is not indispensable to a 
voluntary settlement that it should contain a power of revocation. 
"There is no such rule that the want of a power of revocation in a 
voluntary settlement, or the want of advice as to the insertion of such 
a power, will afford ground in equity for the donor to set aside such 
a settlement, but that the same is a circumstance, and a circumstance 


merely, to be taken into account in determining upon tlie validity of 
the settlement, and of more or less weight according to the facts of 
each particular case." Finucan v. Kendig, 109 Ili. 198; Patterson 
V. Johnson, 113 111. 559. 

The allegation that the grantors did not comprehend the legal effect 
of the instrument furnished no reason for vacating it. The bill does 
not allege that the legal effect was different from what it was intended 
it should be, or that the grantors understood it would have any differ- 
ent effect from that which the law would give it. There is no aver- 
ment of mistake, misapprehension, or misunderstanding as to the pur- 
port and effect of the deed. The court, however, found the deed had 
not been delivered. The decree was entered upon proofs taken and re- 
ported by the master, and proofs heard in open court. There is no 
certificate of evidence; hence, we cannot know what testimony was 
produced orally. In such state of case, we must assume the findings 
of the court were supported by adequate proof. Waiving the applica- 
tion of the rule that the allegations of a bill and the proof must cor- 
respond, and that a party is not entitled to relief, though the evidence 
may warrant it, unless there are averments in the bill to which the 
evidence may apply, we are of opinion the decree caiviot be supported 
on the ground that there was no delivery of the deed. When a decree 
m chancery granting affirmative relief is brought into review on error 
or appeal, the rule is that the decree must be supported by testimony 
preserved in the record, or by the facts appearing from specific find- 
ings of fact recited in the decree. Bank v. Baker, 161 111. 281, 43 N. 
E. 1074. The decree recites that the deed was prepared by an attorney 
who was acting on behalf of the trustee, and as to the delivery thereof 
the facts are found and recited as follows: ''Said attorney, without 
explaining the contents of the said deed or the legal effect thereof, 
delivered said deed to complainant John T. Lawrence, who, together 
with his wife, Frances Lawrence, executed and acknowledged the same 
before a justice of the peace; and after said deed had been signed 
by the trustee, Eliza A. Lawrence, with whom both of said complain- 
ants were then living, complainant left said deed with the recorder of 
Logan county to be recorded, under the instructions and directions of 
said attorney." The law presumes much more in favor of the delivery 
of deeds in case of voluntary settlements than in ordinary cases of 
bargain and sale. Insurance Co. v. Campbell, 95 111. 267, 35 Am. Rep. 
166; Williams v. Williams, 148 111. 426, 36 N. E. 104. No formal 
delivery to the grantee or trustee in person is necessary. The inten- 
tion of the party is the controlling element. Walker v. Walker, 42 
111. 311, 89 Am. Dec. 445. 

Here it appears from the findings of the court the deed was pre- 
pared by an attorney who was acting for the trustee, and who, after 
it was prepared and was ready to be executed, handed it to the de- 
fendant in error John T. Lawrence; that said defendants in error 


then executed and acknowledged it; that it was then signed by the 
trustee; and that the defendant in error John T. Lawrence, by the 
instruction and direction of the attorney of the said trustee, took the 
deed to the recorder of deeds, and left it with him to be recorded. 
The deed was duly spread of record by the proper tecorder of deeds 
2 days after it had been executed, and more than 28 years before 
the bill to cancel it was exhibited. No fact is recited tending to show 
that it was not the intention of the grantors to deliver the deed, and 
in such state of case the act of the grantors in delivering the deed 
to the recorder to be recorded, in obedience to the directions of the 
trustee, through her attorney, was equivalent to the manual delivery 
of the deed to the trustee. "Leaving the deed to be recorded will 
be a good delivery, if done with the knowledge of the grantee, and 
with the evident or expressed intention that the title is to pass to the 
grantee." 5 Am. & Eng. Enc. Law, 447; Weber v. Christen, 121 111. 
91, 11 N. E. 893, 2 Am. St. Rep. 68. 

The decree must be reversed, and the cause remanded. Reversed 
and remanded. *// / , , . ■.*<.* y^^ J ' ''• '1 

III. Implied Trusts* 

1. Resulting Trusts , . ' 

•Mcdonough v. o'niel. , '! 

(Supreme Judicial Court of Massachusetts, 1873. 113 Mass. 92.) 

Gray, C. J. The decision of this case depends upon the applica- 
tion to the evidence of well settled rules of equity jurisprudence. 

Where land conveyed by one person to another is paid ior with the 
money of a th irds a trust results to the latter , which is not within 
the statute of frauds . It is sufficient if the purchase money was lent 
to him by the grantee, provided the loan is clearly proved. And the 
grantee's admissions, like other parol evidence, though not compe- 
tent in direct proof of the trust, are yet admissible to show that the 
purchase money, by reason of such loan or otherwise, was the money 
of the alleged cestui que trust. Kendall v. Mann, 11 Allen, 15 ; Blodg- 
ett V. Hildreth, 103 Mass. 484; Jackson v. Stevens, 108 Mass. 94. 
Tn ^qtiity ^ ^ <;iQnv eyance absolu te on its face may be shown by parol 
evidence^ to have b een intended as a mortgage onlyj and its effect 
limited accordingly. Campbell v. Dearborn, 109 Mass. 130, 12 Am. 
Rep. 671. The findings of a master in matters of fact are not to 
be reviewed by the court, unless clearly shown to be erroneous. Dean 
V. Emerson, 102 Mass. 480. And in equity, as at law, the omission 
of a party to testify in control or explanation of testimony given by 

« For discussion of principles, see Burdlck, Real Prop. $§ 127-129. 


S ( 



others in his presence is a proper subject of consideration. Whit- 
ney V. Bayley, 4 Allen, 173. 

It a ppears and is not controverted t hat the dee d was made by God- 
frey to the defendant, whose wife was the testator's sister : that the 
pur chase m oney was $3>0 00, of which the testator furnished $300 
oThis own money^ a nd,S2Q(Lborr owed by him of Mr s. McGover n, 
upon a note signed by himself _aiid the defe ndant [ the defendant fur- 
nished $600 of his own money, and $400 borrowed of Dolan upon 
the defendant's note; and for the remaining $1,500 the defendant 
gave his own note, secured by mortgage on the premises, to Clem- 
ents, who held a previous mortgage for a like amount, and who testi- 
fied that before the purchase the defendant came to see if that mort- 
gage could lie on the property, and t old him that he was going t o 
bu y the land for the testator , and was told by the mortgagee that he 
must give a new mortgage, as he afterwards did, in discharge of the 
old one. The will recites that the defendant held a deed of c ertain 
real estate in trust for the t estato r's benefit, and had'paid certain sums 
of money on his account, and directs that all such sums of money, with 
interest, should be paid back to him, and he should then convey th e 
property in fee iQ . tihe testator's. Ydt^. The attorney who drew the 
will^certifies that he_ read, this part of it in the testator 's presence^ ari d 
before its execution^ to the defendant, and ^^^f^ h^'"l ^'^ '^^ ^as PfT^^i 

/./I (/ and he said it was^ and upon being asked what claims he had against 
the place, answered $600, besides $100 for repairs and $44.08 for 
taxes, and that he had received from the testator the whole amount 
with interest of the_note to Dolan, except $80, and th^t the. tfisjatpr 
had^paid the note to Mrs. McGovern. The other material testimony 

* may be taken as stated on the defendant's brief, namely, that the de- 

1.1 fendant repeatedly "admitted that he bought. the^place JorJohn_B. 
• • J McDonougb and that he meant to assist or help him;" that "the de- 
fendant said McDonough wanted him to buy the place for him," "that 
he had always wanted John to take the deed, but he had not paid 
up;" and "that he was rea dy to fix up the place when McDonough 
was ready to gay up." The master also reports that the defendant 
was present at the hearing before him, but did not offer to testify. 

From this evidence the master, who heard all the witnesses, was 
warranted in finding as matter of fact that the money paid by the 

1 defendant for the land was lent by him toTEe'pTaintiff for the pur- 

gose, andthat thus the whole purchase money was the Jtlainjtiff's 
money. Upon examination of the whole evidence, we see no sufficient 
cause for reversing the conclusion of the master; and taking the facts 
as found by him, the inference of law follows that there was a re - 
sultin^^ trust in favor of the testator, and that there must be a decree 
for the plaintiff. 



y . 




i IV. Incidents of Equitable Estatesj^ 

^' - L Merger 


(Supreme Court of Oalifomia, 1901. 133 CaL 617, 66 Paa 32, 85 Am. St. 

Rep. 227.) 

Commissioners' decision. Department 2. Appeal from superior 
court, city and county of San Francisco; A. A, Sanderson, Judge. 

Action by S. C. NelHs against JK._C. Rickard and another. From 
a judgment for plaintiff, and from an order denying a new trial, de- 
fendants appeal. Reversed. 

Chipman, C. Action to quiet title . Plaintiff had judgment, from 
which, and from the order denying motion for new trial, defend- 
ants appeal. 

Defendan t Matti e S. Rickard cl aims tit le un der deed of trust from 
h^ father/ D r. Richard ff. McDonald, to "her, June 27, 1891. She 
was at the time the wife of John C. Spencer, and had four children 
living, and they are still living. She had no other child. These chil- 
dren were born, respectively, at the following dates: November 28^ 
1879, October 10, 1881, October 15, 1883, March IS, 1885. She was - 
divorced fro m_^ Spen der, ajid, niarrifid- hcr. . C9-dcf endant* . JCenneth C, 
Rickard, with whom she is no w living. Dr. McDonald was a mem- 
ber of his daughter's household in June, 1891. Plaintiff w as a judg- 
ment creditor of McDonald, and clai^is under execution sale and 
sheriff's^ deed of da te sub sequ ejittq 1891. The deed of trust is between 
Dr. McDonald, party of the first part, and Mattie S. Spencer, party 
of the second part, and recites that Mrs. Spencer (now Mrs. Rick- 
ard) is the grantor's daughter, and that *' in considera tion of Jhe affec- 
tion which the p arty_^f_the. first part has fpx_her children, and the 
tru st repose dinjier, he does by these presents give, ^rant^ anixPn- 
v£vu nto the part y of the second part [the lands in _controversy] ; 
to have and to hold all and singular the said premises, together with 
the appurtenances, unto the said party of the second part in trust for 
the uses and purposes herein set forth and none other, to wit, to pos- 
sess, control, and_ have the income ^f_sajd property during_ the natural 
l ife o f the said_party^of jhe second part, and_u£on her^ death then the 
net income of said property shall belong to her children, share and 
sliare alike, except in case of the* death of any such child or chil- 
dren leavi ng is sue, then the share otherwise going to such child or 
children shall go to the issue of such child or children until the younjg^* 

T For discTiflsion of principles, se^ Burdick, Real Prop, i 184. 
• Beheailng denied September 10, 1901. 


est c hild of the p ar ^ of the second par t arriv es at t h ^^ _ . ^ 

years ; thereupon the s aid property shall vest "in fee share and shar e ^L^ 
alike in sai d children , and the issue of the aforesaid child or children ^ 
if any there be. The said party Df the second part or her aforesaid 
successors shall have no power to alienate, incumber, or create a 
lien on said property, or to lease the same for a term to exceed five 
years, and the income of said property shall be paid monthly." 

To rescue the deed entirely from the operation of the statute against 
perpetuities, or, if this cannot be done, to give it eflfect to some extent, 
appellants contend : First. Th at the d eed conv eyed the legal life estate 
to the grantor's daughter ,' Mrs.,Spencer. free of anv trust: and, if a 
t rust was created. Mrs. S penc er's inte rest is. severablty from the trus t 
for Jhe children, a nd would not be affected^by any. invalidity of ih e 
l atter , trustt Second. If the de ed cre ated a trus t of th e remainder afte r 
the life estate, it was for the benefit only of children living at the 
date of the deed, and therefore did not c ontrave ne the statute . But, 
even if it included after-bom children, it may be construed as lim- 
iting its benefits to children in being, and it is the duty of the court 
so to construe the deed if thereby a violation of the statute may be 
prevented. Third. That no trust was created for the chi ldren, but th e 
title vests in them at^the mother's death, subject at most to certain 
restrictions on their m ode of enjoyment until the youngest shall hav e 
arrived at the age of 25 years. Fourth. If the deed attempted to cre- 
ate a trust of the remainder for all the children of Mrs. Spencer, and 
such trust would be void, still the gift to the children ta kes effect and / 
will be uphe ld, the trust being disregarded; t hat in no aspect of th e / ; . 
dfifii^was^any interest or reversion left in McDonald, o r acquired un - ^'^v* 
der ex ecution sale agains t him . 

It is undoubtedly true, as a general proposition, that, where an e q- 

' ^itable estate an d a legal estate meet. in the same per son, the forqie r 

.IV is merged in the latter, if the two estates are commensurate and co- 

V ^. extensivCj^ and ijE the mer^eris not contrary to the intentio n of jh e 

•^^jA^C ^Vdes.' * Lewin,"'"Trusts, pp'. *14,"'*665;" Perry, Trusts, §§13, 347. 

"^ ^nd, ordinarily, a cestui que trust should not be appoi nted trustee . 

But the au thorities hold that a cestui que trust is not absolutely in - 

* /, 7 capacitated fro m being a trustee, ^^Ihe court itself, un der <^ peri^ gix- 

*^ ''. cumstances. appoints a cestui~que Irust a trustee. The question is 

one merely of relative fitness. Lewm, Trusts, p. *66S ; Perry, Trusts, 

§§ 59, 297, and cases cited ; Tyler v. Mayre, 95 Cal. 160, 27 Pac. 160, 

30 Pac. 196, where a trustee was also a beneficiary. 

Respondent contends that there could be no merger in this case, 
because the beneficiary takes no interest in the estate, and there was 
no estate to merge, the entire legal and equitable title passing by the 
deed to the trustee, the beneficiary having only the right to have the 
trust enforced. In re Walkerly's Estate, 108 Cal. 627, 41 Pac. 772, 
49 Am. St Rep. 97. It is not necessary to decide these questions. 


We t hink a tr ust wasj ntcnded to be^eated and was created^ but it 
is not SL_ single _tr ust c o nstit u ting an indivisible scheme for the dis- 
positio nj^Tthe" grantor's proper ty, and incapable of being cons idered 
Ey^its sev er al parts . The deed establishes : (1) A trust for the benefit 
of Mrs. Spencer, by which she was to have the incomes of the prop- 
erty during her natural life; and th e on ly res traint put upon her re- 
lated to the disposition of the corpus of the estate. There was no 
restriction whatever as to the incomes, all of which she was to enjoy 
during her natural life. As there was here no rgstrarint on alienation J 
hgynnd live, ^ in l^eing , t^^ trust as to her did not contravene the Stat- AfCK 
ute . (2) A further trust was established by which at Mrs. Spencer's 
death her children, and the issue of such children, were to enjoy the 
net incomes of the property until a certain period, when the fee was 
to vest in the survivors. 

As to this latter trust, it is urged by respondent that the alienation 
was suspended beyond the legal period, and is not only void, but that 
its invalidity taints the entire instrument, in consequence of which 
the whole trust must be held void, and that the property was sub- 
ject to execution on plaintiff's judgment against the grantor of the 
trust deed. If it be true that the trust created by the deed is of such 
a nature as to make k indivisible, and incapable of being carried out^ 
as to that trust which is clearly legal, because of the alleged inva- 
lidity of the other trust, and if the other trust is in fact illegal, plain- 
tiff's contention . would be sound. But, as we think the trusts arg. /^ 
seyerable^^ becomes Jmniaterial whether or not the trust as to Ihe ^ k,*- ^ f 
children is valid. The children are not made parties. All the parties 
to th ejtrUi^t firfi liyjng The judgment here as to Mrs. Spencer's inter- 
est will not affect the rights of the children after her interest ceases. 
Wc need not, therefore, determine the children's rights, in the event 
of Mrs. Spencer's death, should they or any of them outlive her. 

In Re Hendy's Estate, 118 Cal. 656, 50 Pac. 753, the testator left 
a bequest of $5,000 to his niece, Mrs. Green, to be held in trust by 
his executors for her benefit, and the interest to be paid her monthly, 
and at her death "the same to be continued to her two children, Har- 
rold and Mildred Green, until they are each twenty-five years of 
age, when the five thousand dollars, shall be paid to them share and 
share alike." , Mrs. Green petitioned to have the legacy distributed to 
her absolutely, on the assumption that the trust declared was void 
for undue suspension of the power of alienation. Civ. Code, § 715. 
It was held that the will did not create a single trust, but established 
(1) a trust for the benefit of Mrs. Green, and (2) a trust for the benefit 
of her two children. And it was said: "Harrold and Mildred were • 
in being at the creation of the trust, and are still living, and in their 
minorities. Therefore whatever conclusion may be reached as to the 
validity of the trust for the children, it is obvious that there can be 
no legal objection advanced against the trust to Mrs. Green. * * * 


It is manifest, therefore, that the decree awarding Mrs. Green five 
thousand dollars as an absolute legacy must be reversed; since, the 
trust, as to her, being valid, and distinct from that on behalf of the 
children, the utmost she wou^d be entitled to receive in any event 
would be the income from the fund during her life. The future dis- 
position of the principal of the fund would concern only the children 
and the residuary legatees." It is true that the court proceeded to 
show that the trust to' the children also was valid, and it is hence 
urged by respondent that the case is not decisive of the present one. 
As we understand the decision, however, there was a clear and dis- 
tinct expression of belief that the invalidity of the trust to the chil- 
dren would make no difference in the conclusion as to Mrs. Green's 
rights. And the court disposed of the other aspect of the case be- 
cause the matter was in probate, and seemed to call for a settlement 
of the children's rights, and not because it had any necessary bear- 
ing on the trust as to Mrs. Green. 

We a re una ble to distinguish between that case and the present one; 
and, besides, we"iire "satisfied upon authority and upon reason t Hat ^e 
trust as to Mrs. Spencer should be upheld. Mr. Gray says in ^is Rule 
against Perpetuities (section 341) : "When the settlor or tesiat gy ha s 
^ hjmself separate^ the contingencies^ there is no difficulty i n regarding 

. ♦ t he gifts separa tely, and upholding one^ although the other f ails: and 
I *yYj the courts naturally and properly lean to construing the gifts sepa - 
' rately wfien it can be done." It was stated as the rule in HarnsorT" 
V. Harrison, 36 N. Y. 543, that it is no objection that the limitations, 
as well those which are good as the one alleged to be bad, are em- 
braced in a single trust. Such trust, created for two purpose s, one 
lawful^ and the other unlawful, is good for the lawful purpo se, thoug h 
vojd as to the unlawful one. Amory v. Lord, 9 N.* Y. 403, was re- 
ferred to and distinguished because in that case "the estate in the 
rents and profits, etc., devised for the benefit of the children, and the 
remainder in fee to the grandchildren, were so mixed up with and 
dependent upon the illegal and void one [the life estate in the surviv- 
ing husband or wife] that it was impossible to sustain the one without 
giving effect to the other." That is precisely the distinction we find 
in the numerous cases on the subject where there is apparent conflict. 
If the several trusts are not so interdependent as that neit her on e 
can be dealt with without giving effect to all the others, the court will 
sort out the good from the bad, and give effect to the valid t rusts . 
It was said by the court in Van Schuyver v. Mulf ord, 59 N. Y, 426, 
where previous similar cases were re-examined, that, "if the estate was 
vested under the will in a trustee upon several independent trusts, 
some of which are legal while others are in contravention of the stat- 
ute regulating uses and trusts, or the statutes against perpetuities, the 
estate of the trustee will be upheld to the extent necessary to eiiable 
him to execute the valid trusts, and will only be void as to the ill eg al 


or invalid t rusts/* The rule was thus expressed in Tiers v. Tiers, 
98 N. Y. 568: "The rule is quite well settled that an ulterior limi- 
tation, though invalid, will not be allowed to invalidate the primary 
dispositions of the will, but will be cut off in the case of a trust which 
is not an entirety, as well as in the case of a limitation of a legal 
estate." That this is the generally accepted rule we think there is 
no doubt 

Looking at the deed before us, what seems to us to be intended as 
the primary trust is the trust for the benefit o f Mrs. Spen cer^ and that 
the ulterior contingent limitation is easily separable from the primary 
trust, and is but incidental, its purpose being to provide for a contin- 
gency which may never arise, since Mrs. Spencer may outlive all her 
cWldren, and the failure of the provision as to them would not affect 
the trust as to her. The judgment and order should be reversed. 
"We concur^ Haynes, C. ; Cooper, C. 

Per Curiam. For the reasons given in the foregoing opinion, the 
judgment and order are reversed. 

V. Charitable or Public Trusts • 
1. Definition 

(Sopreme Judicial Court of Massacbusetts, 1867. 14 Allen, 539.) 

Bill in equity by the executor of the will of Francis Jackson, of Bos- 
ton, for instructions as to the validity and effect of the following be- 
quests and devises : 

"Article 4th. I give and bequeath to William Lloyd Garrison, Wen- 
dell Phillips, Edmund Quincy, Maria W. Chapman, L. Maria Child, 
Edmund Jackson, William I. Bowditch, Samuel May, Jr., and Charles 
K. Whipple, their successors and assigns, ten thousand dollars ; not for 
their own use, but in trust, nevertheless, for them to use and expend 
at their discretion, without any responsibility to any one, in such sums, 
at such times and such places, as they deem best, for the preparation 
and circulation of books, newspapers, the delivery of speeches, lectures, 
and such other means as in their judgment, will create a public senti- 
ment that will put an end to negro slavery in this country ; and I here- 
by constitute them a board of trustees for that purpose, with power to 
fill all vacancies that may occur from time to time by death or resigna- 
tion of any member or of any officer of said board. And I hereby ap- 
point Wendell Phillips president, Edmund Jackson treasurer, and 
Charles K. Whipple secretary, of said board of trustees. Other be- 


• For discussion of principles, see Buidick, Beal Prop. 1 135. 


quests, hereinafter made, will sooner oi* later revert to this board of 
trustees. My desire is that they may become a permanent organiza- 
tion; and I hope and trust that they will receive the services and 
sympathy, the donations and bequests, of the friends of the slave. 
' "Article 5th. I give and bequeath to the board of trustees named in 
the fourth article of this will, their successors and assigns, two thou- 
sand dollars, not for their own use, but in trust, nevertheless, to be ex- 
pended by them at their discretion, without any responsibility to any 
one, for the benefit of fugitive slaves who may escape from the slave- 
holding states of this infamous Union from time to time. 

"Disregarding the self-evident declaration of 1776, repeated in her 
own constitution of 1780, that 'all men are born free and equal,' Massa- 
chusetts has since, in the face of those solemn declarations, deliberate- 
ly entered into a conspiracy with other states to aid them in enslaving 
millions of innocent persons. I have long labored to help my native 
state out of her deep iniquity and her barefaced hypocrisy in this mat- 
ter. I now enter my last protest against her inconsistency, her in- 
justice, and her cruelty, towards an unoffending people. God save the 
fugitive slaves that escape to her borders, whatever may become of the 
commonwealth of Massachusetts ! 

"Article 6th. I give and bequeath to Wendell Phillips of said Boston, 
Lucy Stone, formerly of Brookfield, Mass., now the wife of Henry 
Blackwell of New York, and Susan B. Anthony of Rochester, N. Y., 
their successors and assigns, five thousand dollars, not for their own 
use, but in trust, nevertheless, to be expended by them, without any 
responsibility to any one, at their discretion, in such sums, at such 
times, and in such places, as they may deem fit, to secure the passage of 
laws granting women, whether married or unmarried, the right to 
vote; to hold office; to hold, manage, and devise property; and all 
other civil rights enjoyed by men ; and for the preparation and circula- 
tion of books, the delivery of lectures, and such other means as they 
may judge best; and I hereby constitute them a board of trustees for 
that intent and purpose, with power to add two other persons to said 
board if they deem it expedient. And I hereby appoint Wendell Phil- 
lips president and treasurer, and Susan B. Anthony secretary, of said 
board. I direct the treasurer of said board not to loan any part of said 
bequest, but to invest, and, if need be, sell and re-invest, the same in 
bank or railroad shares, at his discretion. I further authorize and re- 
quest said board of trustees, the survivors and survivor of them, to fill 
any and all vacancies that may occur from time to time by death or res- 
ignation of any member or of any officer of said board. One other be- 
quest, hereinafter made, will sooner or later, revert to this board of 
trustees. My desire is that they may become a permanent organization, 
until the rights of women shall be established equal with those of men ; 
and I hope and trust that said board will receive the services and sym- 
pathy, the donations and bequests, of the friends of human rights. 
And being desirous that said board should have the immediate benefit 


of said bequest, without waiting for my exit, I have already paid it in 
advance and in full to said Phillips, the treasurer of said board, whose 
receipt therefor is on my files. 

"Article 8th. I now give to my three children equally the net income 
of the residue of my estate, during the term of their natural lives, in 
the following manner, namely : After the payment of my debts and the 
foregoing gifts and bequests, I give, bequeath and devise one undivided 
third part of the residue of my estate, real, personal and mixed, to my 
brother Edmund Jackson of said Boston, his successors and assigns, not 
for his* or their own use, but in trust, nevertheless, with full power to 
manage, sell and convey, invest and r^-invest, the same at his discre- 
tion, with a view to safety and profit;" and "the whole net income 
thereof shall be paid semi-annually to my daughter Eliza F. Eddy, dur- 
ing her natural life ;" and at her decease, one-half of such income to 
be paid semi-annually "to the board of trustees constituted in the sixth 
article of this will, to be expended by them to promote the intent and 
purpose therein directed," and the other half to Lizzie F. Bacon, her 
daughter, during her natural life; and at the decease of both mother 
and daughter, "to pay and convey the whole of said trust fund to said 
board of trustees constituted in the sixth article of this will, to be ex- 
pended by them in the manner, and for the intent and purpose, therein 

By article 9th, the testator gave another undivided third part of the 
said residue to his brother Edmund, his successors and assigns, in trust, 
with like powers of management and investment, "and the whole net 
income thereof shall be paid semi-annually to my son James Jackson, 
during the term of his natural life ; at his decease, I direct said trustee, 
or whoever may then be duly qualified to execute this trust, to pay 
semi-annually one-half part of the net income thereof to the board of 
trustees constituted in the fourth article of this will, and the other half- 
part of said net income shall be paid semi-annually to his children 
equally, during their natural lives ; at the decease of all his children, 
if they survive him, I direct said trustee, or whoever shall then be duly 
authorized to execute this trust, to pay and convey the whole of said 
trust fund to said board of trustees constituted in said fourth article in 
this will, to be expended by them for the intent and purpose directed in 
said fourth article; but, in case my said son James should leave no 
child living at the time of his decease, then, at his decease, I direct said 
trustee, or whoever shall then be duly authorized to execute this trust, 
to pay and convey the whole of said trust fund to said board of trustees 
constituted in the fourth article of this will, to be expended by them 
for the intent and purpose therein directed." 

By article 10th, the testator made a similar bequest and devise of the 
remaining undivided third part of said residue to his brother George 
Jackson, his successors and assigns, and in trust to pay the whole net 
income thereof semi-annually to the testator's daughter Harriette M. 
Palmer, during her natural life, and at her decease, one half of such 


income "to the board of trustees constituted in the fourth article of this 
will, to be expended by them in the manner and for the intent ^nd pur- 
pose therein directed ;" and the other half, in equal proportions, to all 
her children that may survive her, during the term of their natural 
lives ; and, at their decease, to pay and convey the whole of said trust 
fund to said board of trustees ; "but, in case my said daughter Har- 
riette M. Palmer should outlive all her children, then, at her decease, I 
direct said trustee, or whoever shall then be duly authorized to execute 
this trust, to pay and convey the whole of said trust fund to the board 
of trustees constituted in said fourth article in this will, to be expended 
by them as aforesaid." 

Gray, J. This case presents for decision many important and in- 
teresting questions, which have been the subject of repeated discussion 
at the bar and of much deliberation and reflection by the court. The 
able and elaborate arguments of counsel have necessarily involved the 
consideration of the fundamental principles of the law of charities, and 
of a great number of the precedents from which they are to be derived ; 
and have disclosed such diversity of opinion upon the extent and ap- 
plication of those principles, and the just interpretation and effect of 
the adjudged cases, as to require the principles in question to be fully 
stated, and supported by a careful examination of authorities, in deliver- 
ing judgment. 

I. By the law of this commonwealth, as by the law of England, gifts 
to charitable uses are highly favored, and will be most liberally con- 
strued in order to accomplish the intent and purpose of the donor ; and 
trusts which cannot be upheld in ordinary cases, for various reasons, 
will be established and carried into effect when created to support a 
gift to a charitable use. The most important distinction between chari- 
ties and other trusts is in the time of duration allowed and the degree 
of definiteness required. The law does not allow property to be^made 
inalienable, by means of a private trust, beyond the period prescribed 
by the rule against perpetuities, being a life or lives in being and twen- 
ty-one years afterwards ; and if the persons to be benefited are uncer- 
tain and cannot be ascertained within that period, the gift will be ad- 
judged void, and a resulting trust declared for the heirs at law or dis- 
tributees. But a public or charitable trust may be perpetual in its dura- 
tion, and may leave the mode of application and the selection of particu- 
lar objects to the discretion of the trustees. Sanderson v. White, 18 
Pick. 333, 29 Am. Dec. 591 ; Odell v. Odell, 10 Allen, 5, 6, and authori- 
ties cited; Saltonstall v. Sanders, 11 Allen, 446; Lewin, Trusts, c. 2. 

Each of the bequests in the will of Francis Jackson which the court 
is asked in this case to sustain as charitable, is to a permanent board of 
trustees, for a purpose stated in general terms only. The question of 
the validity of these trusts is not to be determined by the opinions of 
individual judges or of the -whole court as to their wisdom or policy, 
but by the established principles of law ; and does not depend merelv 
upon their being permitted by law, but upon their being of that peculiar 


nature which the law deems entitled to extraordinary favor because it 
regards them as charitable. 

It has been strenuously contended for the heirs at law that neither 
of the purposes declared by the testator is charitable within the intent 
and purview of St. 43 Eliz. c. 4, which all admit to be the principal test 
and evidence of what are in law charitable uses. It becomes necessary 
therefore to consider the spirit in which that statute has been con- 
strued and applied by the courts. 

The preamble of the stat-ute mentions three classes of charitable 
gifts, namely, First: For the relief and assistance of the poor and 
needy, specifying only "sick and maimed soldiers and mariners," "edu- 
cation and preferment of orphans," "marriages of poor maids," "sup- 
portation, aid and help of young tradesmen, handicraftsmen and per- 
sons decayed," "relief or redemption of prisoners and captives," and 
assistance of poor inhabitants in paying taxes, either for civil or mil- 
itary objects. Second : For the promoting of education, of which the 
only kinds specified in the statute (beyond the "education and prefer- 
ment of orphans," which seems more appropriately to fall within the 
first class) are those "for maintenance of schools of learning, free 
schools, and scholars of universities." Third: For the repair and 
maintenance of public buildings and works, under which are enu- 
merated "repair of ports, havens," and "seabanks," for promoting 
commerce and navigation and protecting the land against the encroach- 
ments of the sea ; of "bridges," "causeways" and "highways," by which 
the people may pass from one part of the country to another; of 
"churches," in which religion may be publicly taught; and of "houses 
of correction." 

It is well settled that any purpose is charitable in the legal sense of 
the word, which is within the principle and reason of this statute, al- 
though not expressly named in it; and many objects have been upheld 
as charities, which the statute neither mentions nor distinctly refers 
to. Thus a gift "to the poor"" generally, or to the poor of a particular 
town, parish, age, sex, race, or condition, or to poor emigrants, though 
not falling within any of the descriptions of poor in the statute, is a 
good charitable gift. Saltonstall v. Sanders, 11 Allen, 455-461, and 
cases cited; Magill v. Brown, Brightly, N. P. 405, 406; Barclay v. 
Maskelyne, 4 Jur. (N. S.) 1294 ; Chambers v. St. Louis, 29 Mo. 543. 
So gifts for the promotion of science, learning and useful knowledge, 
though by different means and in different ways frotn those enumer- 
ated under the second class ; and gifts for bringing water into a town, 
for building a town-house, or otherwise improving a town or city, 
though not alluded to in the third class : have been held to be charita- 
ble. American Academy v. Harvard College, 12 Gray, 594; Drury 
V. Natick, 10 Allen, 177-182, and authorities cited. 

By modem decisions in England, gifts towards payment of the 
national debt, or "to the queen's chancellor of the exchequer for the 
Bubd.Cas.Real Prop. — 18 


time being, to be applied for the benefit and advantage of Great 
Britain," are legal charities. Tudor, Char. Trusts (2d Ed.) 14, 15, 
and cases cited. Sergeant Maynard, long before, gave an opinion that 
a bequest "to the public use of the country of New England" was a 
good disposition to a charitable use. 1 Hutch. Hist. Mass. (2d Ed.) 
101, note. And it may be mentioned as evidence of the use of the 
word "charitable" by the founders of Massachusetts, that it wks ap- 
plied by the Massachusetts Company in 1628, before they crossed 
the ocean, to "the common stock" to be "raised from such as bear good 
affection to the plantation and the propagation thereof, and the same 
to be employed only in defrayment of public charges, as maintenance 
of ministers, transportation of poor families, building of churches and 
fortifications, and all other public and necessary occasions of the plan- 
tation." 1 Mass. Col. Rec. 68. 

No kind of charitable trusts finds less support in the words of St. 
43 Eliz. than the large class of pious and religious uses, to which the 
statute contains no more distinct reference than in the words "repair 
of churches." Such uses had indeed been previously recognized as 
charitable, and entitled to peculiar favor, by many acts of parliament, 
as well as in the courts of justice. St. 13 Edw. I. c. 41 ; 17 Edw. II. 
c. 2 ; 23 Hen. VIII. c. 10 ; 1 Edw. VI. c. 14 ; Anon., And. 43, pi. 108 ; 
Pitts V. James, Hob. 123; Cheney's Case, Co. Litt. 342; Gibbons v. 
Maltyard, Poph. 6, Moore, 594; Coke's note to Porter's Case, 1 Coke, 
26a; Bruerton's Case, 6 Coke, lb, 2a; Barry y. Ley, Dwight, Char. 
Cas. 92. In the latest of those acts, the "erecting of grammar schools 
for the education of youth in virtue and godliness, the further aug- 
menting of the universities, and better provision for the poor and 
needy," were classed with charities for the maintenance of preachers, 
and called "good and godly uses ;" and grammar schools were consid- 
ered in those times an effectual means of forwarding the progress of 
the Reformation. St. 1 Edw. VI. c. 14, §§ 1, 8, 9; Attorney General 
V. Downing, Wilm. 15; Boyle, Char. 7, S. 

Sir Francis Moore, who drew St. 43 Eliz., indeed says that a gift 
to maintain a chaplain or minister to celebrate divine service could 
not be the subject of a commission under the statute; but "was of pur- 
pose omitted in the penning of the act," lest, in the changes of opinion 
in matters of religion, such gifts might be confiscated in a succeeding 
reign as superstitious. Yet he also says that such a gift might be en- 
forced by "the chancellor by his chancery authority ;" and cites a case 
in which it was so decreed. Duke, Char. Uses (Bridgman's Ed.) 125, 
154. And from very soon after the passage of the statute, gifts for 
the support of a minister, the preaching of an annual sermon, or other 
uses connected with public worship and the advancement of religion, 
have been constantly upheld and carried out as charities in the English 
courts of chancery. Anon., Cary, 39 ; Nash, Char. ; Dwight, Char. Cas. 
114; Pember v. Inhabitants of Knighton, Heme, Char. Uses, 101, 
Toth. (2d Ed.) 34; Duke, Char. Uses, 354, 356, 381, 570, 614; Boyle, 


Qhar. 39-41; Tudor, Char. Trusts, 10, 11. So in this commonwealth, 
trusts for the support of public worship and religious instruction, or 
the spreading of religion at home or abroad, have always been deemed 
charitable uses. 4 Dane, Abr. 237 ; Bartlet v. King, 12 Mass. 537, 7 
Am. Dec. 99 ; Going v. Emery, 16 Pick. 107, 26 Am. Dec. 645 ; Sohier 
V. St. Paul's Church, 12 Mete. 250; Brown v. Kelsey, 2 Cush. 243; 
Earle v. Wood, 8 Cush. 445. 

It is not necessary in this connection to speculate whether the ad- 
mission of pious uses into the rank of legal charities in modern time& 
is to be attributed to the influence of the civil law ; to their having been 
mentioned in the earlier English statutes; to a more liberal interpre- 
tation, after religion had become settled in England, of the words "re- 
pair of churches," or, possibly, of the clauses relating to gifts for the 
benefit of education, in St. 43 Eliz. ; or to the support given by the 
court of chancery to public charitable trusts, independently of any 
statute. It is sufficient for our present purpose to observe that pious 
and religious uses are clearly not within the strict words of the statute, 
and can only be brought within its purview by the largest extension of 
its spirit. 

The civil law, from which the English law of charities was mani- 
festly derived, considered wills made for good and pious uses as priv- 
ileged testaments, which were not, like other wills, void for uncertain- 
ty in the objects, and which must be carried into effect even if their 
conditions could not be exactly observed; and included among such 
uses (which it declared to be in their nature perpetual) bequests for 
the poor, orphans, widows, strangers, prisoners, the redemption of 
captives, the maintenance of clergymen, the benefit of churches, hos- 
pitals, schools and colleges, the repairing of city walls and bridges, the 
erection of public buildings, or other ornament or improvement of a 
city. Poth. Pand. lib. 30-32, Nos. 57-62; Code, lib. 1, tit. 2, cc. 15, 
19; Id., tit. 3, cc. 24, 28, 42, 46, 49, 57; Godol. Leg. pt. 1, c. 5, § 4; 

2 Kent, Comm. (6th Ed.) 257; 2 Story, Eq. Jur. §§ 1137-1141; Mc- 
Donogh V. Murdoch, 15 How. 405, 410, 414, 14 L. Ed. 732. 

Charities are not confined at the present day to those which were 
permitted by law in England in the reign of Elizabeth. A gift for the 
advancement of religion or other charitable purpose in a manner per- 
mitted by existing laws is not the less valid by reason of having such 
an object as would not have been legal at the time of the passage of 
the statute of charitable uses. For example, charitable trusts for dis- 
senters from the established church have been uniformly uph*^ld in 
England since the toleration act of 1 Wm. & M. c. 18, removed the 
legal disabilities under which such sects previously labored. Attorney 
General v. Hickman, 2 Eq. Cas. Abr. 193, W. Kel. 34; Loyd v. Spillet, 

3 P. Wms. 344, 2 Atk. 148; Attorney General v. Cock, 2 Ves. Sr. 
273. And in this country since the Revolution no distinction has been 
made between charitable gifts for the benefit of different religious 


Gifts for purposes prohibited by or opposed to the existing laws 
cannot be upheld as charitable, even if for objects which would other- 
wise be deemed such. The bounty must, in the words of Sir Francis 
Moore, be "according to the laws, not against the law," and "not given 
to do some act against the law." Duke, Char. Uses, 126, 169. So 
Mr. Dane defines, as undoubted charities, "such as are calculated to 
relieve the poor, and to promote such education and employment ^s 
' the laws of the land recognize as useful." 4 Dane, Abr. 237. Upon 
this principle, the English courts have refused to sustain gifts for 
printing ind publishing a book inculcating the absolute and inalienable 
supremacy of the pope in ecclesiastical matters ; or for the support of 
the Roman Catholic or the Jewish religion, before such gifts were 
countenanced by act of parliament. De Themmines v. De Bonneval, 
5 Russ. 288 ; Tudor, Char. Trusts, 21-25, and cases cited. And a be- 
quest "towards the political restoration of the Jews to Jerusalem and 
to their own land," has been held void, as tending to create a political 
revolution in a friendly country. Habershon v. Vardon, 4 De Gex & 
S. 467. In a free republic, it is the right of every citizen to strive in 
a peaceable manner by vote, speech or writing, to cause the laws, or 
even the constitution, under which he lives, to be reformed or altered 
by the legislature or the people. But it is the duty of the judicial de- 
partment to expound and administer the laws as they exist. And 
trusts whose expressed purpose is to bring about changes in the laws 
or the political institutions of the country are not charitable in such 
a sense as to be entitled to peculiar favor, protection and perpetuation 
from the ministers of those laws which they are designed to modify 
or subvert. 

A precise and complete definition of a legal charity is hardly to be 
found in the books. The one most commonly used in modern cases, 
originating in the judgment of Sir William Grant, confirmed by that 
of Lord Eldon, in Morice v. Bishop of Durham, 9 Ves. 405, 10 Ves. 
541 — that those purposes are considered charitable which are enumer- 
ated in St. 43 Eliz. or which by analogies are deemed within its spirit 
and intendment — leaves something to be desired in point of certainty, 
and suggests no principle. Mr. Binney, in his great argument in the 
Girard Will Case, 41, defined a charitable or pious gift to be "what- 
ever is given for the love of God, or for the love of your neighbor, in 
the catholic and universal sense— given from these motives, and to 
these ends — free from the stain or taint of every consideration 
that is personal, private or selfish." And this definition has been 
approved by the supreme court of Pennsylvania. Price v. Max- 
well, 28 Pa. 35. A more concise and practical rule is that of Lord 
Camden, adopted by Chancellor Kent, by Lord Lyndhurst, and by the 
supreme court of the United States — "A gift to a general public use, 
which extends to the poor as well as the rich." Jones v. Williams, 
Amb. 652; Coggeshall v. Pelton, 7 Johns. Ch. (N. Y.) 294,. 11 Am. 
Dec. 471; Mitford v. Reynolds, 1 Phil. 191, 192; Perin v. Carey, 24 


How. 506, 16 L. Ed. 701. A charity, in the legal sense, may be more 
fully defined as a gift, to be applied consistently with existing laws, 
for the benefit of an indefinite number of persons, either by bringing 
their minds or hearts under the influence of education or religion, by 
relieving their bodies from disease, suffering or constraint, by assist- 
ing them to establish themselves in life, or by erecting or maintaining 
public buildings or works or otherwise lessening the burdens of govern- 
ment. It is immaterial whether the purpose is called charitable in the 
gift itself, if it is so described as to show that it is charitable in its 

If the words of a charitable bequest are ambiguous or contradictory, 
they are to be so construed as to support the charity, if possible. It is 
an established maxim of interpretation, that the court is bound to 
carry the will into effect, if it can see a general intention consistent 
with the rules of law, even if the particular mode or manner pointed 
out by the testator is illegal. Bartlet v. King, 12 Mass. 543, 7 Am. 
Dec. 99; Inglis v. Sailor's Snug Harbor, 3 Pet. 117, 118, 7 L. Ed. 617. 
If the testator uses a word which has two meanings, one of which 
will effect and the other defeat his object, the first is to be adopted. 
Saltonstall v. Sanders, II Allen, 455. When a charitable intent ap- 
pears on the face of the will, but the terms used are broad enough 
to allow of the ftmd being applied either in a lawful or an unlawful 
manner, the gift will be supported, and its application restrained with- 
in the bounds of the law. The most frequent illustrations of this in 
the English courts have arisen under St. 9 Geo. II. c. 36 (commonly 
called the "Statute of Mortmain"), prohibiting devises of land, or be- 
quests of money to be laid out in land, to charitable uses. In the lead- 
ing case. Lord Hardwicke held that a direction to executors to "settle 
and secure, by purchase of lands of inheritance, or otherwise, as they 
shall be advised, out of my personal estate," two annuities to be paid 
yearly forever for charitable objects, was valid, because it left the op- 
tion to the executor to make the investment in personal property, 
which was not prohibited by the statute ; and said, "This bequest is 
not void, and there is no authority to construe it to be void, if by law 
it can possibly be made good," or (according to another and perhaps 
more accurate report) "no authority to construe it to be void by law, if 
it can possibly be made good." Sorresby v. Hollins, 9 Mod. 221, 1 
Coll. Jurid. 439. 

The doctrine of that case has ever since been recognized as sound 
law. Attorney General v. Whitchurch, 3 Ves. 144; Curtis v. Hutton, 
14 Ves. 539 ; Dent v. AUcrof t, 30 Beav. -340 ; Mayor, etc., of Faver- 
sham V. Ryder, 5 De Gex, M. & G. 353; Edwards v. Hall, 11 Hare, 
12, 6 De Gex, M. & G. 89. In a like spirit the house of lords recently 
decided that a bequest to erect buildings for charitable purposes if 
other lands should be given was valid, and could not be held to be im- 
pliedly prohibited by St. 9 Geo. II. Philpott v. St. George's Hospital, 
6 H. L. Cas. 338. The rule stated in Attorney General v. Williams, 


2 Cox, Ch. 388, and Tatham v. Drummond, 11 L. T. (N. S.) 325, upon 
which the heirs at law rely, that "the court will not alter its conception 
of the purposes of a testator, merely because those intentions happen 
to fall within the prohibition of the statute of mortmain," shows that 
no forced construction of the testator's language is to be adopted to 
avoid illegality, but does not affect the principle that a bequest which 
according to the fair meaning of the words may include a legal as well 
as an illegal application is to be held valid. 

In the light of these general principles, we come to the considera- 
tion of the language of the different bequests in this will. 

11. The first bequest which is drawn in question is that contained 
in the fourth article of the will, by which the stun of ten thousand 
dollars is given in trust to be used and expended at the discretion of 
the trustees, "in such sums, at/SUch times and such places as they deem 
best, for the preparation and circulation of books, newspapers, the de- 
livery of speeches, lectures and such other means as in their judgment 
will create a public sentiment that will put an end to the negro slavery 
in this country ;" and the testator expresses a desire that they may be- 
come a permanent organization, and a hope "that they will receive 
the services and sympathy, the donations and bequests, of the friends 
of the slave." 

Among the charitable objects specially designated in St. 43 Eliz. 
is the "relief or redemption of prisoners and captives." And this was 
not a peculiarity of the law of England or of that age. The civil 
law regarded the redemption of captives as the highest of all pious 
uses — in the words of Justinian, causa piissima — and not only declared 
that no heir, trustee or legatee should infringe or unjustly defeat the 
pious intentions of the testator by asserting that a legacy or trust for 
the redemption of captives was uncertain, and provided for the ap- 
pointment of a trustee when none was named in the will, and for in- 
forming him of the bequest, but even authorized churches to alienate 
their sacred vessel and vestments for this one purpose, upon the ground 
that it was reasonable that the souls or lives of men should be pre; 
ferred to any vessels or vestments whatsoever — ^"Quoniam non ab- 
surdum est animas hominum quibuscunque vasis vel vestimentis pre- 
ferri." Code, lib. 1, tit. 2, c. 22; Id., tit. 3, cc. 28, 49; Id., lib. 8, tit. 
54, c. 36; Nov. 7, c. 8; Id., p. 115, c. 3; Id., p. 120, c. 10; Id., p. 131, 
c. 11 ; Godol. Leg", pt. 1, c. 5, § 4. 

The captives principally contemplated in St. 43 Eliz. were doubtless 
Englishmen taken and held as slaves in Turkey and Barbary. And the 
relief of our own citizens from such captivity was always deemed 
charitable in Massachusetts, an illustration of which is found in the 
records of the governor and council in 1693, by whom a petition of 
the relations of two inhabitants of the province, "some time since 
taken by a Salley man of war, and now under Turkish captivity and 
slavery," for permission "to ask and receive the charity and public 
contribution of well disposed persons for redeeming them out of their 


miserable suffering and slavery," was granted; "the money so collect- 
ed to be employed for the end aforesaid, unless the said persons hap- 
pen to die before, make their escape, or be in any other way redeemed ; 
then the money so gathered to be improved for the redemption of 
some others of this province, that are or may be in like circumstances, 
as the governor and council shall direct." Council Rec. 1693, fol. 323. 
But there is no more reason for confining the words of the statute 
of Elizabeth to such captives, than for excluding from the class of 
religious charities gifts for preaching the gospel to the heathen, which 
have uniformly been sustained as charitable, here and in Eifigland. 
Boyle, Char. 41 ; Bartlet v. King, 12 Mass. 537, 7 Am. Dec. 99. In- 
deed it appears by Sir Francis Moore's reading upon the statute, that 
even in his time the word ."captives" might include captive enemies. 
Duke, Char. Uses, 158. 

It was argued that the slave trade was fostered and rewarded by 
the English government in the reign of Elizabeth, and therefore gifts 
for the relief of negro slaves could not be deemed within the purview 
of the statute of charitable uses. The fact is undoubted ; but the con- 
clusion does not follow. The permission of slavery by law does not 
prevent en^ancipation from being charitable. A commission of manu- 
mission, granted by Queen Elizabeth, twenty-seven years before the 
statute, recites that in the beginning God created all men free by na- 
ture, and afterwards the law of nations place4 some under the yoke 
of slavery, and that the queen believed it would be pious and accepta- 
ble to God and according to Christian charity — ^"pium fore credimus 
et Deo acceptabile Christianaeque charitati consentaneum" — ^to wholly 
enfranchise the villeins of the crown on certain royal manors. 20 
Howell, St. Tr. 1372. See, also. Bar. Ob. (5th Ed.) 305, 308. 

The spirit of the Roman law upon this point is manifested by an 
edict of Constantine, which speaks of those who with a religious senti- 
ment in the bosom of the church grant their slaves that liberty which 
is their due — "Qui religiosa mente in ecclesiae gremio servis suis 
meritam concesserint libertatem." Code, lib. 1, tit. 13, c. 2. That 
the words of the statute of charitable uses may be extended to negro 
slaves of English masters is clearly shown by the decision of Lord 
Cottenham, when master of the rolls, applying for the benefit of ne- 
groes in the British colonies in the West Indies the acctunulations of 
a bequest made' in 1670 "to redeem poor slaves." Attorney General 
V. Gibson, 2 Beav. 317, note; Id., cited Craig & P. 226. In dealing 
with such a question, great regard is to be had to the favor which the 
law gives to liberty, so eloquently expressed by Chief Justice For- 
tescue: "Crudelis enim nfecessario judicabitur lex, quae servitutem 
augmehtat et minuit libertatem. Nam pro ea natura semper implorat 
humana. Quia ab homine et pro vitio introducta est servitus. Sed 
libertas a Deo hominis est indita naturae. Quare ipsa ab homine 
sublata semper redire gliscit, ut facit omne quod libertati naturali pri- 
vatur. Quo ipse et crudelis judicandus est, qui libertati non favet 


Haec considerantia Angliae jura in omni casu libertati dant favorem." 
Fortes. De Laud. c. 42. 

But the question of the lawfulness of this gift, if falling within the 
class, of charitable uses, depends not upon the laws and the public 
policy of England at the time of the passage of the statute, but upon 
our own at the time of the death of the testator. It was seriously 
argued that, before the recent amendment of the constitution of the 
United States, "a trust to create a isentiment to put an end to negro 
slavery, would, having regard to the constitution and laws under which 
we live, be against public policy and thus be void ;" but the court is 
unable to see any foundation for this position in the constitution and 
laws, either of the United States or of this commonwealth. 

The law of Massachusetts has always been peculiarly favorable to 
freedom, as may be shown by a brief outline of its history. The 
"rights, liberties and privileges," established by the general court of 
the colony in 1641, to be "impartially and inviolably enjoyed and ob- 
served throughout our jurisdiction forever," declared: "There shall 
never be any bond slavery, villenage or captivity amongst us, unless it 
be lawful captives taken in just wars, and such strangers as willingly 
sell themselves or are sold to us. And these shall have all the liberties 
and Christian usages which the law of God established in Israel con- 
cerning such persons doth morally require. This exempts none from 
servitude who shall be^ judged thereto by authority." The last proviso 
evidently referred to punishment for crime. Body of Liberties, art. 
91. This article, leaving out the word "strangers" in the clause as 
to slaves acquired by sale, was included in each revision of the laws 
of the colony. Mass. Col. Laws (Ed. 1660) 5; Id. (Ed. 1672) 10; 
4 Mass. Col. Rec. pt. 2, p. 467. It is worthy of observation, that 
the tenure upon which the Massachusetts Company held their char- 
ter, as declared in the charter itself, was as of the manor of East 
Greenwich in the county of Kent; that no one was ever bom a vil- 
lein in Kent ( Y. B. 30 Edw. I, p. 168 ; Fitzh. Abr. "Villenage," 46 ; 
3 Seld. Works, 1876); and that the Body of Liberties contained ar- 
ticles upon each of the principal points distinctive of the Kentish 
tenure of gavelkind — freedom from escheats on attainder and execu- 
tion for felony, the power to devise, the age of alienation, and descent 
to all the sons together — adoptino^ some and modifying others. Body 
of Liberties, arts. 10, 11, 53, 81; 2 Bl. Comm. 84. 

In the laws of Europe, at the time of the foundation of the colony, 
descent was named first among the sources of slavery. The common 
law, following the civil law, repeated "Servi aut nascuntur aut fiunt," 
and differed only in tracing it through the father, instead of the mother ; 
and each system recognized that a man might become a slave by 'capture 
in war, or by his own consent or confession in some form. Just. Inst, 
lib. 1, tit. 3; Bract. 4b; Fleta, lib. 1, c. 3; Eedes v. Holbadge, Act. Can. 
393 ; Swinb. Wills, pt. 2, § 7; Co. Litt. 117b. And such was then the es- 
tablished law of nations. Gro. De Jure B. lib. 2, c S, §§ 27, 29 ; Id. 


iil^. 3, c. 7. In parts of England, hereditary villenage would seem to 
have still existed in fact; and it was allowed by law until since the 
American Revolution. Pigg v. Caley, Noy, 27; Co. Litt. 116-140; 
2 Inst. 28, 45 ; 2 RoUe, Abr. 732 ; Smith v. Brown, 2 Salk. 666; Holt, 
495 ; Smith v. Gould, 2 Salk. 667, 2 Ld. Raym. 1275 ; Treblecock's 
Case, 1 Atk. 633 ; The King v. Ditton, 4 Doug. 302. Lord Bacon, in 
explaining the maxi^m, "Jvltsl sanguinis nulla jure civili dirimi possimt," 
with a coolness which shows that in his day and coimtry the illustra- 
tion was neither unfamiliar nor shocking, says, "If a villein be attaint- 
ed, yet the lord shall have the issue of his villein born before or after 
his attainder ; for the lord hath them jure naturae but as the increase 
of a flock." Bac. Max. reg. 11. 

The Massachusetts Body of Liberties, as Governor Winthrop tells 
us, was composed by Nathaniel Ward, who had been "formerly a 
stud'int and practiser in the course of the common law." 2 Winthrop's 
Hist. New England, 55. In view of the other laws of the time, the 
omission, in enumerating the legal sources of slavery, of birth, the 
first mentioned in those laws, is significant. No instance is known 
in which the lawfulness of hereditary slavery in Massachusetts under 
the charter of the colony or the province was affirmed by legislative 
or judicial, authority ; and it has been denied in a series of judgments 
of this court, beginning in the last century, in each of which it was 
essential to the determination of the rights of the parties. Littleton 
V. Tuttle, 4 Mass. 128, note ; Lanesborough v. Westfield, 16 Mass. 74 ; 
Edgartown v. Tisbury, 10 Cush. 408. The cisise of Perkins v. Emer- 
son, 2 Dane, Abr. 412, did not touch this question ; but simply deter- 
mined that a person received into a house as a slave of the owner was 
not received "as an inmate, boarder or tenant," so that notice of the 
place whence such person last came must be given to the selectmen un- 
der Prov. St. 10 Geo. II. ; Anc. Chart. 508. No doubt many children 
of slaves were in fact held as slaves here, especially after the Province 
Charter, during the period of which all acts of the general court were 
required to be transmitted to England for approval. Earlier ordi- 
nances which had not been so approved were hardly recognized by the 
English government as of any force. The policy of England restrain- 
ed the colonists from abolishing the African slave trade, and the ntun- 
ber of slaves (which had been very small under the comparatively in- 
dependent government of the colony) was much increased. The prac- 
tice of a whole people does not always conform to its laws. Thou- 
sands of negroes were held as slaves in England and commonly ^old in 
public at the very time when Lord Mansfield and other judges decided 
such holding to be unlawful. Sommersett's Case, 20 Howell, St. Tr. 
72, 79; LoflFt, 17; Quincy, 97, note; The Slave Grace, 2 Hagg. Adm. 
105, 106. 

While negro slavery existed in Massachusetts, it was in a compara- 
tively mild form. The marriages of slaves were protected by the legis- 
lature and the courts ; according to the opinion of Hutchinson and of 


Dane, slaves might hold property; they were admitted as witnesses, 
even on capital trials of white persons, and on suits of other slaves 
for freedom ; they might sue their masters for wounding or immoder- 
ately beating them; and indeed hardly differed from apprentices or 
other servants except in being bound for life. See authorities and 
records cited in Quincy, 30, 31, note; 2 Dane, Abr. 313. The annual 
tax acts show that before the Declaration of Independence they were 
usually taxed as property, always afterwards as persons. The general 
court in September, 1776, forbade the sale of two negroes taken as 
prize of war on the high seas and brought into this state, and resolved 
that any negroes so taken and brought in should not be allowed to be 
sold, but should be treated like other prisoners. Res. Sept. 1776, c. 83. 

It was in Massachusetts, by the first article of the declaration of 
rights prefixed to the constitution adopted in 1780, as immediately 
afterwards interpreted by this court, that the fundamental axioms of 
the Declaration of Independence — "that all men are created equal; 
that they are endowed by their Creator with certain inalienable rights ; 
that among these are life, literty, and the pursuit of happiness" — ^first 
took at once the form and the force of express law ; slavery was thus 
wholly abolished in Massachusetts ; and it has never existed here since, 
except so far as the constitution and laws of the state were held to be 
prevented by the constitution and laws of the United States from 
operating upon fugitive slaves. Caldwell v. Jennison, Rec. 1781, fol. 
79, 80; Jennison's Petition, Jour. H. R. June 18, 1782, fol. 89; Com. 
V. Jennison, Rec. 1783, fol. 85; Parsons, C. J., in Winchehdon v. Hat- 
field, 4 Mass. 128; 4 Mass. Hist. Coll. 203, 204; Com. v. Aves, 18 
Pick. 208, 210, 215, 217 ; 2 Kent, Comm. (6th Ed.) 252 ; Betty v. Horton, 
5 Leigh (Va.) 623. 

The doctrine of our law, upon this subject, as stated by Chief Justice 
Shaw in delivering the judgment of the court in Com. v. Aves, just cit- 
ed, is that slavery is a relation founded in force, contrary to natural 
right and the principles of justice, humanity and sound policy; and 
could exist only by the effect of positive law, as manifested either by 
direct legislation or settled usage. The same principle has been recog- 
nized by Chief Justice Marshall and Mr. Justice Story, speaking for the 
supreme court of the United States. The Antelope, 10 Wheat. 120, 
121, 6 L. Ed. 268; Prigg v. Pennsylvania, 16 Pet. 611, 10 L. Ed. 1060. 

The constitution of the United States uniformly speaks of those held 
in slavery, not as property, but as persons ; and never contained any- 
thing inconsistent with their peaceable and voluntary emancipation. As 
between master and slave, it would require the most explicit prohibition 
by law to restrain the right of manumission. M'Cutchen v. Marshall, 
8 Pet. 238, 8 L. Ed. 923. We cannot take judicial notice of the local 
laws of other states of the Union except so far as they are in proof. 
Knapp V. Abell, 10 Allen, 488. But it appears by cases cited at the bar 
that bequests of manumission were formerly favored in Virginia ; and 
that it was more recently decided in Mississippi that a trust created by 


will for paying the expenses of transporting the testator's slaves to 
Africa and maintaining them in freedom there was lawful. Charles v. 
Hunnicutt, 5 Call (Va.) 311; Wade v. American Colonization Soc, 7 
Smedes & M. (Miss.) 663, 45 Am. Dec. 324. A state of slavery, in 
which manumission was wholly prohibited, has never been known 
among civilized nations. Even when slavery prevailed throughout the 
world, the same common law of nations, jus gentium, which justified 
its existence, recognized the right of manumission as a necessary con- 
sequence. Just. Inst. lib. 1, tit. 5. 

We fully concur with the learned counsel for the heirs at law that if 
this trust could not be executed according to the intention of the testa- 
tor without tending to excite servile insurrections in other states of the 
Union, it would have been unlawful; and that a trust which looked 
solely to political agitation and to attempts to alter existing laws could 
not be recognized by this court as charitable. But such does not appear 
to us to be the necessary or the reasonable interpretation of this be- 
quest. The manner stated of putting an end to slavery is not by legisla- 
tion or political action, but by creating a public sentiment, which rather 
points to moral influence and voluntary manumission. The means spe- 
cified are the usual means of public instruction, by books and newspa- 
pers, speeches and lectures. Other means are left to the discretion of 
the trustees, but there is nothing to indicate that they are not designed 
to be of a kindred nature. Giving to the bequest that favorable con- 
struction to which all charitable gifts are entitled the just inference is 
that lawful means only are to be selected, and that they are to be 
-used in a lawful manner. 

It was further objected that "to create a public sentiment" was too 
vague and indefinite an object to be sustained as a charitable use. But 
"^a public sentiment" on a moral question is but another name for pub- 
lic opinion, or a harmony of thought — idem sentire. The only case 
cited for the heirs at law in support of this objection was Browne v. 
Yeall, 7 Ves. 50, note, in which Lord Thurlow held void a perpetual 
trust for the purchase and distribution in Great Britain and its domin- 
ions of such books as might have a tendency to promote the interests 
of virtue and religion and the happiness of mankind. But the correct- 
ness of that decision was doubted by Sir William Grant and Lord El- 
don in Morice v. Bishop of Durham, 9 Ves. 406, 10 Ves. 534, 539 ; and 
it is inconsistent with the more recent authorities, here and in England. 
The bequest now before us is quite as definite as one "for the increase 
and improvement of Christian knowledge and promoting religion," and 
the purchase from time to time of such bibles and other religious books, 
pamphlets and tracts as the trustees should think fit for that purpose,^ 
which was upheld by Lord Eldon in Attorney General v. Stepney, 10 
Ves. 22 ; or "to the cause of Christ, for the benefit and promotion of 
true evangelical piety and religion," through the agency of trustees, to 
be by them "appropriated to the cause of religion as above stated to be 
distributed in such divisions and to such societies and religious charita- 


ble purposes as they may think fit and proper," which was sustained by 
this court in Going v. Emery, 16 Pi(;k. 107, 26 Am. Dec. 645 ; or "for 
the promotion of such religious and charitable enterprises as shall be 
designated by a majority of the pastors composing the Middlesex Un- 
ion Association," as in Brown v. Kelsey, 2 Cush. 243 ; or to be dis- 
tributed, at the discretion of trustees, "in aid of objects and purposes 
of benevolence or charity, public or private," as in Saltonstall v. San- 
ders, 11 Allen, 446; or "for the cause of peace," to be expended by an 
unincorporated society, whose object, as defined in its constitution, was 
"to illustrate the inconsistency of war with Christianity, to show its 
baleful influence on all the great interests of mankind, and to devise 
means for insuring universal and permanent peace," as in Tappan v. 
Deblois, 45 Me. 122 ; or to found "an establishment for the increase 
and diffusion of knowledge among men ;" or "for the benefit and ad- 
vancement and propagation of education and learning in every part 
of the world, as far as circumstances will permit;" as in Whicker v. 
Hume, 7 H. L. Cas. 124, 155, and President of U. S. v. Drummond^ 
there cited. See, also, McDonogh v. Murdoch, 15 How. 405, 414, 14 L. 
Ed. 732. 

The bequest itself manifests its immediate purpose to be to educate 
the whole people upon the sin of a man's holding his fellowman in 
bondage ; and its ultimate object, to put an end to negro slavery in the 
United States ; in either aspect, a lawful charity. 

It is universally admitted that trusts for the promotion of religion 
and education are charities. Gifts for the instruction of the public in 
the cure of the diseases of quadrupeds or birds useful to man, or for 
the prevention of cruelty to animals (either by publishing newspapers 
on the subject, or by providing establishm^ts where kiUing them for 
the market might be attended with as little suffering as possible), have 
been held charitable in England. London University v. Yarrow, 23 
Beav. 159, 1 De Gex & J. 72; Marsh v. Means, 3 Jjir. (N. S.) 790; 
Tatham v. Drummond, 11 L. T. (N. S.) 325. To deliver men from a 
bondage which the law regards as contrary to natural right, humanity, 
justice and sound policy, is surely not less charitable than to lessen the 
sufferings of animals. The constitution of Massachusetts, which de- 
clares that all men are bom free and equal, and have the natural, es- 
sential and unalienable rights of enjoying and defending their lives and 
liberties, of acquiring, possessing and protecting property, of seeking 
and obtaining their safety and happiness ; also declares that a frequent 
recurrence to the fundamental principles of the constitution, and a con- 
stant adherence to those of piety and justice, are absolutely necessary 
•to preserve the advantages of liberty and to maintain a free govern- 
ment ; that "the encouragement of arts and sciences, and all good liter- 
ature, tends to the honor of God, the advantage of the Christian reli- 
gion, and the great benefit of this and the other United States of 
America ;" and that "wisdom and knowledge, as well as virtue, diffus- 
ed generally among the body of the people, being necessary for the 


Preservation of their rights and liberties, and as these depend on 
spreading the opportunities and advantages of education in the various 
parts of the country, and among the different orders of the people, it 
shall be the duty of legislatures and magistrates, in all future periods 
of this commonwealth," besides cherishing the interests of literature 
and the sciences, "to countenance and inculcate the principles ,of hu- 
manity and general benevolence, public and private charity," "and all 
social affections and generous sentiments among the people." Declara- 
tion of Rights, arts. 1, 18; Const. Mass. c. 5. This bequest directly 
tends to carry out the principles thus declared in the fundamental law 
of the commonwealth. And certainly no kind of education could better 
accord with the religion of Him who came to preach deliverance to the 
captives, and taught that you should love )rour neighbor as yourself and 
do unto others as you would that they should do unto you. 

The authorities already cited show that the peaceable redemption or 
manumission of slaves in any manner not prohibited by law is a charita- 
ble object. It falls indeed within the spirit, and almost within the let- 
ter, of many clauses in the statute of Elizabeth. It would be an anom- 
aly in a system of law, which recognized as charitable uses the relief of 
the poor, the education and preferment of orphans, marriages of poor 
maids, the assistance of young tradesmen, handicraftsmen and persons 
decayed, the relief of prisoners and the redemption of captives, to ex- 
clude the deliverance of an indefinite number of human beings from a 
condition in which they were so poor as not even to own themselves, in 
which their children could not be educated, in which marriages had no 
sanction of law or security of duration, in which all their earnings 
belonged to another, and they were subject, against the law of nature, 
and without any crime of their own, to such an arbitrary dominion as 
the modem usages of nations will not countenance over captives taken 
from the most barbarous enemy. 

III. The next question arises upon the bequest in trust for the bene- 
fit of fugitive slaves who might from time to time escape from the 
slaveholding states of the Union. 

The validity of this bequest must be determined according to the 
law as it stood at the time when the testator died and from which his 
will took effect. It is no part of the duty of this court to maintain the 
constitutionality, the justice, or the policy of the fugitive slave acts, now 
happily repealed. But the constitution of the United States, at the 
time of the testator's death, declared that no person held to service or 
labor in one state should be discharged therefrom by escaping into an- 
other. It may safely be assumed that, under such a constitution, a be- 
quest to assist fugitive slaves to escape from those to whom their serv- 
ice was thus recognized to be due could not have been upheld and 
enforced as a lawful charity. The epithets with which the testator ac- 
companied this bequest show that he set his own ideas of moral duty 
above his allegiance to his state or his country ; and warrant the con- 
jecture that he would have been well pleased to have the fund applied 


in a manner inconsistent with the constitution and laws of the United 
States. But he has used no words to limit its use to illegal methods, 
and has left his trustees untrammelled as to the mode of its application. 

Whether this bequest is or is not valid, is to be ascertained from a 
fair construction of its language, in the light of the maxims of interpre- 
tation stated in the earlier part of this opinion, by which the court is 
bound to carry into effect any charitable bequest in which can be seen 
a general intention consistent with the law, even if the particular mode 
pointed out is illegal ; and there is no authority to construe it to be void 
if it can be applied in a lawful manner consistently with the intention 
of the testator as manifested in the words by which it is expressed. 
One illustration of these maxims may be added in this connection. 

In Issac V. Gompertz, Amb. (2d Ed.) 228, note, the will contained 
one bequest for the support and maintenance of a Jews* synagogue; 
and another bequest of an annuity ''to the gabas of the said syna- 
gogue," who were found, upon inquiry by a master, to be treasurers of 
the s)magogue, whose office it was to collect and receive the annual sub- 
scriptions for the support of poor Jews belonging to the synagogue, and 
to apply the same to the expenses of supporting the synagogue and to 
the maintenance of such poor Jews. This last bequest was upheld, and 
referred to a master to report a scheme, although the support of the 
synagogue was adjudged to be an unlawful use; and thus a bequest 
manifestly intended for the benefit of persons professing a religion not 
tolerated by law, and which might, according to its terms, be applied 
either in an unlawful or a lawful mannef, was sustained as charitable, 
and its application confined to the lawful mode. 

A bequest for the benefit of fugitive slaves is not necessarily unlaw- 
ful. The words "relief or redemption of prisoners and captives" have 
always been held in England to include those in prison under condem- 
nation for crime, as well as persons confined for debt ; and to support 
gifts for distributing bread and meat among them annually, or for en- 
abling poor imprisoned debtors to compound with their creditors. 
Duke, Char. Uses, 131, 156; Attorney General v. Ironmongers' Co., 
Coop. Prac. Cas. 285, 290; Attorney General v. Painterstainers' Co., 2 
Cox. Ch. 5l ; Attorney General v. Drapers' Co., Tudor, Char. Trusts, 
591, 592, 4 Beav. 67; 36th Report of Charity Commissioners to Parlia- 
ment, pt. 6, pp. 856-868. It would be hardly consistent with charity 
or justice to favor the relief of those undergoing punishment for crimes 
of their own committing, or imprisonment for not paying debts of their 
own contracting; and yet prohibit a like relief to those who were in 
equal need, because they had withdrawn themselves from a service im- 
posed upon them by local laws without their fault or consent. 

It was indeed held in Thrupp v. CoUett, 26 Beav. 125, that a bequest 
to be applied to purchasing and procuring the discharge of persons 
committed to prison for non-payment of fines under the game laws was 
not a lawful charity. But such persons were convicted offenders 
against the law of England, who would by such discharge be wholly re- 


leased from punishment. A fugitive slave was not a criminal By the 
laws of this commonwealth or of the United States. 

To supply sick or destitute fugitive slaves with food and clothing, 
medicine or shelter, or to extinguish by purchase the claims of those 
asserting a right to their service and labor would in no wise have tend- 
ed to impair the claim of the latter or the operation of the constitution 
and laws of the United States ; and would clearly have been within the 
terms of this bequest. If, for example^ the trustees named in the will 
had received this fund from the executor without question, and had 
seen fit to apply it for the benefit of fugitive slaves in such a manner, 
they could not have been held liable as for a breach of trust. 

This bequest therefore, as well as the previous one, being capable of 
being applied according to its terms in a lawful manner at the time of 
the testator's death, must, upon the settled principles of construction, be 
held a valid charity. 

It is hardly necessary to remark that the direction of the testator that 
his trustees shall not be accountable to any one is simply void. No tes- 
tator can obtain for his bequests that support and permanence which 
the law gives to public charities only, and at the same time deprive the 
beneficiaries and the public of the safeguards which the law provides 
for their due and lawful administration. 

As the trustees named in the will are not a corporation established 
by law, and these two bequests are unlimited in duration, and by their 
terms might cover an illegal as well as a legal appropriation, it is the 
duty of the court, before ordering the funds to be paid to the trustees, 
to refer the case to a master to settle a scheme for their application in 
a lawful manner. Isaac v. Gompertz, Amb. 228, note ; Attorney Gen- 
eral v. Stepney, 10 Ves. 22; Boyle, Char. 100, 217. 

IV. It is quite clear that the bequest in trust to be expended "to se- 
cure the passage of laws granting women, whether married or unmar- 
ried, the right to vote, to hold office, to hold, manage and devise prop- 
erty, and all other civil rights enjoyed by men," cannot be sustained as 
a charity. 

No precedent has been cited in its support. This bequest differs 
from the others in aiming directly and exclusively to change the laws ; 
and its object cannot be accomplished without changing the constitution 
also. Whether such an alteration of the existing laws and frame of 
government would be wise and desirable is a question upon which we 
cannot, sitting in a judicial capacity, properly express any opinion. 
Our duty is limited to expounding the laws as they stand. And those 
laws do not recognize the purpose of overthrowing or changing them, 
in whole or in part, as a charitable use. This bequest therefore, not 
being for a charitable purpose nor for the benefit of any particular per- 
sons, and being unrestricted in point of time, is inoperative and void. 

For the same reason, the gift to the sar^e object of one third of the 
residue of the testator's estate after the death of his daughter Mrs. Ed- 


dy and her daughter Mrs. Bacon, is also invalid, and will go to his heirs 
at law as a resulting trust. 

It is proper to add that the conclusion of the court upon this poirit, as 
well as upon the gift to create a public sentiment which would put an 
end to negro slavery in the United States, had the concurrence of the 
late Mr. Justice Dewey, whose judicial experience and large acquaint- 
ance with the law of charitable uses give great weight to his opinion, 
and whose lamented death, while this case has been under advisement, 
has deprived us of his assistance in determining the other questions in 

V. The validity of the other residuary bequests and devises de- 
pends upon the law of perpetuities as applied to private trusts. The 
principles of this branch of the law have been so fully considered by 
the court in recent cases as to require no extended statement. 

The general rule is that if any estate, legal or equitable, is given by 
deed or will to any person in the first instance, and then over to an- 
other person, or even to a public charity, upon the happening of a 
contingency which may by possibility not take place within a life or 
lives in being (treating a child in its mother's womb as in being) and 
twenty-one years afterwards, the gift over is void, as tending to create 
a perpetuity by making the estate inalienable; for the title of those 
taking the previous interests would not be perfect, and until the hap- 
pening of the contingency it could not be ascertained who were enti- 
tled. Brattle Square Church v. Grant, 3 Gray, 142, 63 Am. Dec. 725 ; 
Odell V. Odell, 10 Allen, 5, 7, If therefore the gift over is limited 
upon a single event which may or may not happen within the pre- 
scribed period, it is void, and cannot be made good by the actual hap- 
pening of the event within that period. 

But if the testator distinctly makes his gift over to depend upon 
what is sometimes called an alternative contingency, or upon either 
of two contingencies, one of which may be too remote and the other 
cannot be, its validity depends upon the event; or, in other words, 
if he gives the estate over on one contingency which must happen, if 
at all, within the limit of the rule, and that contingency does happen, 
the validity of the distinct gift over in that event will not be affected 
by the consideration that upon a different contingency, which might or 
might not happen within the lawful limit, he makes a disposition of 
his estate, which would be void for remoteness. The authorities upon 
this point are conclusive. Longhead v. Phelps, 2 W. Bl. 704; Sug- 
den and Preston, arguendo, in Beard v. Westcott, 5 Bam. & Aid. 809, 
813, 814; Minter v. Wraith, 13 Sim. 52; Evers v. Challis, 7 H. L. 
Cas. 531; Armstrong v, Armstrong, 14 B. Mon. (Ky.) 333; 1 Jarm. 
Wills, 244; Lewis, Perp. c. 21; 2 Spence, Eq. Jur. 125, 126. 

By the ninth and tenth articles of the will, the income of one third 
of the residue of the testator's estate, real and personal, is to be 
paid to his son James and to his daughter Mrs. Palmer, respectively, 


during life. Each of these articles contains a distinct direction that, 
in case such son or daughter shall die leaving no child surviving, the 
principal of his or her share shall be paid and conveyed to the board 
of trustees named in the fourth article, to be expended for the intent 
and purpose therein directed. As the first tenant for life in each be- 
quest is living at the death of the testator, the event of such tenant's 
dying, leaving no child then living, must happen within the period of 
a life in being, if at all ; and, if it does happen, the gift over to the 
charity will be valid. Neither James Jackson nor Mrs. Palmer there- 
fore is entitled to a present equitable estate in fee. But as James, 
though now unmarried, may marry and have children who survive 
him, and as Mrs. Palmer's children may survive her, in either of which 
cases half of the income of the share would by the will go to such 
children during their lives and the bequest over to the charity be too 
remote, the validity and effect of that bequest over cannot be now de- 
termined. If the contingency upon which it is valid should hereafter 
occur, namely, the death of the testator's son or daughter, respectively, 
leaving no children surviving, the whole remainder of the share will 
then go to the charity established by the fourth article, and be paid, 
after the settlement of a scheme for its lawful application, to the trus- 
tees therein named. 

VI. By the thirteenth amendment of the constitution of the United 
States, adopted since the earlier arguments of this case, it is declared 
that "neither slavery nor involuntary servitude, except as a punish- 
ment for crime whereof the party shall have been duly convicted, shall 
exist within the United States or any place subject to their jurisdic- 
tion." The effect of this amendment upon the charitable bequests of 
Francis Jackson is the remaining question to be determined ; and this 
requires a consideration of the nature and proper limits of the doc- 
trine of cy pres. 

It is contended for the heirs at law, that the power of the English 
chancellor, when a charitable trust cannot be administered according 
to its terms, to execute it so as to carry out the donor's intention as 
nearly as possible — cy pres — is derived from the royal prerogative or 
St. 43 Eliz. and is not an exercise of judicial authority ; that, whether 
this power is prerogative or judicial, it cannot, or, if it can, should 
not, be exercised by this court ; and that the doctrine of cy pres, even 
as administered in the English chancery, would not sustain these char- 
itable bequests since slavery has been abolished. 

Much confusion of ideas has arisen from the use of the term "cy 
pres" in the books to describe two distinct powers exercised by the 
English chancellor in charity cases, the one under the sign manual 
of the crown, the other under the general jurisdiction in equity; as 
weH as to designate the rule of construction which has sometimes been 
applied to executory devises or powers of appointment to individuals, 

BtJBD.CAS.REAI. Pbop. — 19 


in order to avoid the objection of remoteness. It was of this last, 
and not of any doctrine peculiar to charities, that Lord Kenyon said, 
'The doctrine of cy pres goes to the utmost verge of the law, and 
we must take care tfiat it does not run wild ;" and Lord Eldan, "It is 
not proper to go one step farther." Brudenell v. Elwes, 1 East, 451, 
7 Ves. 390; 1 Jarm. Wills, 261-263; Sugd. Powers, c. 9, § 9; Coster 
V. Lorillard, 14 Wend. (N. Y.) 309, 348. 

The principal, if not the only, cases in which the disposition of a 
charity is held to be in the crown by sign manual, are of two classes ; 
the first, of bequests to particular uses charitable in their nature but 
illegal, as for a form of religion not tolerated by law; and the sec- 
ond, of gifts of property to charity generally, without any trust inter- 
posed, and in which either no appointment is provided for, or the 
power of appointment is delegated to persons who die without exer- 
cising it. 

It is by the sign manual and in cases of the first class, that the ar- 
bitrary dispositions have been made, which were so justly condenmed 
by Lord Thurlow in Moggridge v. Thackwell, 1 Ves. Jr. 469, and Sir 
William Grant in Gary v. Abbot, 7 Ves. 494, 495 ; and which, through 
want of due discrimination, have brought so much discredit upon the 
whole doctrine of cy pres. Such was the case of Attorney General 
V. Baxter, in which a bequest to Mr. Baxter to be distributed by him 
among sixty pious ejected ministers, (not, as the testator declared, for 
the sake of their nonconformity, but because he knew many of them 
to be pious and good men and in great want,) was held to be void, 
and given under the sign manual to Chelsea College; but the decree 
was afterwards reversed, upon the ground that this was really a 
legacy to sixty individuals to be named. 1 Vern. 248 ; 2 Vern. 105 ; 
1 Eq. Cas. Abr. 96; 7 Ves. 76. Such also was the case of Da Costa 
V. De Pas, in which a gift for establishing a jesuba or assembly for 
reading the Jewish law was applied to the support of a Christian 
chapel at a foundling hospital. Amb. 228; 2 Swanst. 489, note; 1 
Dickens, 258; 7 Ves. 76, 81. 

This power of disposal by the sign manual of the crown in direct 
opposition to the declared intention of the testator, whether it is to 
be deemed to have belonged to the king as head of the church as well 
as of the state, "intrusted and empowered to see that nothing be done 
to the disherison of the crown or the propagation of a false religion" 
(Rex V. Portington, 1 Salk. 162, 1 Eq. Cas. Abr. 96); or to have 
been derived from the power exercised by the Roman emperor, who 
was sovereign legislator as well as supreme interpreter of the laws 
(Dig. 33, 2, 17; 50, 8, 4; Code, lib. 1, tit. 2, c. 19; Id., tit. 14, c. 12); 
is clearly a prerogative and not a judicial power, and could not be 
exercised by this court ; and it is difficult to see how it could be held 
to exist at all in a republic, in which charitable bequests have never 
been forfeited to the use or submitted to the disposition of the govern- 


ment, because superstitious or illegal. 4 Dane, Abr. 239; Gass v. 
Wilhite, 2 Dana (Ky.) 176, 26 Am. Dec. 446 ; Methodist Church v. 
Remington, 1 Watts (Pa.) 226, 26 Am. Dec. 61. 

The second class of bequests which are disposed of by the king's 
sign manual is of gifts to charity generally, with no uses specified, 
no trust interposed, and either no provision made for an appointment, 
or the power of appointment delegated to particular persons who die 
without exercising it. Boyle, Char. 238, 239; Attorney General v. 
Syderfen, 1 Vern. 224, 1 Eq. Cas., Abr. 96; Att^omey General v. 
Fletcher, 5 Law J. Ch. (N. S.) 75. This too is not a judicial power of 
expounding and carrying out the testator's intention, but a prerogative 
power of ordaining what the testator has failed to express. No in- 
stance is reported, or has been discovered in the thorough investiga- 
tions of the subject, of an exercise of this power in England before 
the reign of Charles II. Moggridge v. Thackwell, 7 Ves. 69-81 ; 
Dwight's Argument in the Rose Will Case, 272. It has never, so 
far as we knoV, been introduced into the practice of any court in 
this country ; and, if it exists anywhere here, it is in the legislature of 
the commonwealth as succeeding to the powers of the king as parens 
patriae. 4 Kent, Comm. 508, note ; Fontain v. Ravenel, 17 How. 369, 
384, 15 L. Ed. 80; Moore v. Moore, 4 Dana (Ky.) 365, 366, 29 Am. 
Dec. 417; Witman v. Lex, 17 Serg. & R. (Pa.) 93, 17 Am. Dec. 644; 
Attorney General v. Jolly, 1 Rich. Eq. (S. C.) 108, 42 Am. Dec. 349 ; 
Dickson v. Montgomery, 1 Swan (Tenn.) 348 ; Lepage v. Macnamara, 
5 Iowa, 146; Bartlet v. King, 12 Mass. 545, 7 Am. Dec. 99; Sohier 
v. Massachusetts General Hospital, 3 Cush. 496, 497. It certainly 
cannot be exercised by the judiciary of a state whose constitution 
declares that "the judicial department shall never exercise the legis- 
lative and executive powers, or either of them ; to the end it may be 
a government of laws and not of men." Declaration of Rights, art. 30. 

The jurisdiction of the court of chancery to superintend the adminis- 
tration and decree the performance of gifts to trustees for charita- 
ble uses of a kind stated in the gift stands upon different grounds; 
and is part of its equity jurisdiction over trusts, which is shown by 
abundant evidence to have existed before the passage of the statute 
of charitable uses. Sir Francis Moore records a case in which a man 
sold land to another upon confidence to perform a charitable use, which 
the grantor declared by his last will that the grantee should perform ; 
"the bargain was never enrolled, and yet the lord chancellor decreed 
that the heir should sell the land to be disposed according to the lim- 
itation of the use ; and this decree was made the 24th of Queen Eliza- 
beth, before the statute of charitable uses, and this decree was made 
upon ordinary and judicial equity in chancery." Symon's Case, Duke, 
Char. Uses, 163. About the same time the court of chancery enter- 
tained a suit between two parties, each claiming to be trustee, to de- 
termine how bequests for the weekly relief of the poor of certain towns. 


for the yearly preferment of poor children to be apprentices, and for 
the curing of divers diseased people lying by the highway's side, should 
he "employed and bestowed according to the said will." Reade v. 
Silles (27 Eliz.) Act. Can. 559. A decree in 16 Eliz., confirming a 
report of the master of the rolls and others to whom a suit for en- 
forcing a charitable trust founded by will had been referred, is cited 
in 1 Spence, Eq. Jur. 588, note. For years before St. 43 Eliz,, or 
the similar act of 39 Eliz., suits in equity by some in behalf of all 
of the inhabitants of a parish were maintained to establish and en- 
force bequests for schools, alms, or other charitable purposes for the 
benefit of the parish, which would have been too indefinite to be en- 
forced as private trusts. Parker v. Browne (12 Eliz.) 1 Cal. Pro. Ch. 
81, 1 Mylne & K. 389, 390; D wight. Char. Cas. 33, 34, in which the 
devise was in trust to a corporation incapable at law of taking. Par- 
rot v. Pawlet 1(21 Eliz.) Cary, 47; Elmer v. Scot (24 Eliz.) Cho. Cas. 
Ch. 155; Matthew v. Marow (32-34 Eliz.); and Hensman v. Hack- 
ney (38 Eliz.) Dwight, Char. Cas. 65, 77 y in which tfie decrees ap- 
proved schemes settled by masters in chancery. Many other examples 
are collected in the able and learned arguments, as separately printed 
in full, of Mr. Binney in the Case of Girard's Will, and of Mr. Dwight 
in the Rose Will Case. And the existence of such a jurisdiction an- 
terior to and independent of the statute is now generally admitted. 
Vidal v. Girard, 2 How. 194-196, 11 L. Ed. 205, and cases cited; 
Perin v. Carey, 24 How. 501, 16 L. Ed. 701; Magill v. Brown, 
Brightly, N. P. 346; 2 Kent, Comm. 286-288, and n6te; Burbank v. 
Whitney, 24 Pick. 152, 153, 35 Am. Dec. 312; Preachers' Aid Soc. v. 
Rich, 45 Me. 559 ; Derby v. Derby, 4 R, I. 436 ; Landis v. Wooden, 
1 Ohio St. 160, 59 Am. Dec. 615 ; Chambers v. St. Louis, 29 Mo. 543; 
1 Spence, Eq. Jur. 588 ; Tudor, Char. Trusts, 102, 103. 

The theory that St. 43 Eliz. enlarged the discretion of the chancel- 
lor to depart from the expressed intention of the founder of a charity 
is refuted by the words of the statute itself. After reciting that many 
gifts and appointments for the charitable purposes therein named "have 
not been employed according to the charitable intent of the givers 
and founders thereof, by reason of frauds, breaches of trust, and 
negligence in those that should pay, deliver and employ the same;" 
it then, for redress and remedy thereof, authorizes the lord chancellor 
or lord keeper to make such decrees that the property "may be duly 
and faithfully employed to and for such of the charitable uses and in- 
tents before rehearsed respectively for which they were given, limited, 
assigned or appointed by the donors and founders thereof;" which 
decrees, "not being contrary or repugnant to the orders, statutes or 
decrees of the donors or founders," shall "stand firm and good, accord- 
ing to the tenor and purpose thereof, and shall be executed accord- 
ingly," until altered by the lord chancellor or lord keeper upon com- 
olaint by any party aggrieved; and upon such complaint the chan- 


ccllor or keeper may "by such course as to their wisdoms shall seem 
meetest, the circumstances of the case considered, proceed to the ex- 
amination, hearing and determining thereof ; and upon hearing thereof 
shall and may annul, diminish, alter or enlarge" the decrees of the 
commissioners as "shall be thought to stand with equity and good con- 
science, according to the true intent and meaning of the donors and 
founders thereof." • These last qualifications are specially marked by 
Lord Coke, who was attorney general at the passage of the statute 
and for some time before and after, and who adds, by way of note 
to the final clause, "This is the lapis ductitius, whereby the commis- 
sioners and chancellors must institute their course." 2 Inst. 712. See, 
also, Duke, Char. Uses, 11, 156, 169, 372, 619. 

In cases of bequests to trustees for charitable uses, the nature of 
which is described in the will, the chancellor acts in his equity juris- 
diction over trusts ; and the prerogative of the king finds its appro- 
priate exercise through his attorney general in bringing the case before 
the court of chancery for a judicial determination. This has been 
well explained by Lord Eldon. "It is the duty of a court of equity, 
a main part, originally almost the whole, of its jurisdiction, to ad- 
minister trusts ; to protect not the visible owner, who alone can pro- 
ceed at law, but the individual equitably, though not legally, entitled. 
From this principle has arisen the practice of administering the trust 
of a public charity ; persons possessed of funds appropriated to such 
purposes are within the general rule; but, no one being entitled to 
an immediate and peculiar interest to prefer a complaint, who is to 
compel the performance of. these obligations, and to enforce their 
responsibility? It is the duty of the king, as parens patriae, to protect 
property devoted to charitable uses ; and that duty is executed by the 
officer who represents the crown for all forensic purposes. On this 
foundation rests the right of the attorney general in such cases to ob- 
tain by information the interposition of a court of equity." Attorney 
General v. Brown, 1 Swanst. 291, 1 Wils. 354. To the like effect 
are the opinions of Lord Redesdale in Attorney General v. Mayor, 
etc., of Dublin, 1 Bligh (N. S.) 347, 348, and Corporation of Ludlow 
V. Greenhouse, Id. 48, 62; of Lord Keeper Bridgman in Attorney 
General v. Newman, 1 Ch. Cas. 158; of Sir Joseph Jekyll in Eyre v. 
Shaftsbury, 2 P. Wms. 119; and of Lord Hardwicke in Attorney 
General v. Middleton, 2 Ves. Sr. 328, — which also state that the juris- 
diction of the court of chancery over charities was exercised on such 
informations before St. 43 Eliz. See, also, Attorney General v. Car- 
roll, Act. Can. 729 ; Dwight's Argument in the Rose Will Case, 259- 
268. This duty of maintaining the rights of the public, and of a num- 
ber of persons too indefinite to vindicate their own, has vested in the 
commonwealth, and is exercised here, as in England, through the at- 
torney general. Going v. Emery, 16 Pick. 119, 26 Am. Dec. 645; 
County Attorney v. May, 5 Cush. 338-340; Gen. St. a 14, § 20. It 


is upon this ground that, in a suit instituted by the trustees of a charity 
to obtain the instructions of the court, the attorney general should be 
made a party defendant, as he has been by order of the court in this 
case. Harvard College v. Society for Promoting Theological Educa- 
tion, 3 Gray, 280; Tudor, Char. Trusts, 161, 162. The power of the 
king or commonwealth, thus exercised, is simply to present the ques- 
tion to a court of justice, not to control or direct'its judicial action. 

A charity, being a trust in the support and execution of which the 
whole public is concerned, and which is therefore allowed by the law to 
be perpetual, deserves and often requires the exercise of a larger dis- 
cretion by the court of chancery than a mere private trust ; for with- 
out a large discretionary power, in carrying out the general intent of 
the donor, to vary the details of administration, and even the mode of 
application, many charities would fail by change of circumstances and 
the happening of contingencies which no human foresight could pro- 
vide against ; and the probabilities of such failure would increase with 
the lapse of time and the remoteness of the heirs from the original 
donor who had in a clear and lawful manner manifested his will to di- 
vert his estate from his heirs for the benefit of public charities. 

It is accordingly well settled by decisions of the highest authority, 
that when a gift is made to trustees for a charitable purpose, the gen- 
eral nature of which is pointed out, and which is lawful and valid at 
the time of the death of the testator, and no intention is expressed to 
limit it to a particular institution or mode of application, and after- 
wards, either by change of circumstances the scheme of the testator be- 
comes impracticable, or by change of law becomes illegal, the fund, 
having once vested in the charity,, does not go to the heirs at law as a 
resulting trust, but is to be applied by the court of chancery, in the ex- 
ercise of its jurisdiction in equity, as near the testator's particular di- 
rections as possible, to carry out his general charitable intent. In all 
the cases of charities which have been administered in the English 
courts of chancery without the aid of the sign manual, the prerogative 
of the king acting through the chancellor has not been alluded to, ex- 
cept for the purpose of distinguishing it from the power exercised by 
the court in its inherent equitable jurisdiction with the assistance of its 
tnasters in chancery. 

At the time of the settlement of the Massachusetts Colony, this pow- 
er was most freely exercised by the court of chancery, either on infor- 
mation by the attorney general, or on proceedings by commission under 
the statute of charitable uses. Attorney General v. Warwick (1615, 
1638) Dwight, Char. Cas. 140, 141, West, Ch. 60, 62; Bloomfield v. 
Stowemarket (1619) Duke, Char. Uses, 644. In the last case, lands 
had been given before the Reformation to be sold, and the proceeds 
applied, one half to the making of a highway from the town in which 
the lands were, one fourth to the repair of a church in that town, and 
the other fourth to the priest of the church to say prayers for the souls 
of the donor and others ; and Lord Bacon decreed the establishment of 


the uses for making the highway and repairing the church, and directed 
the remaining fourth (which could not, by reason of the change in 
religion, be applied as directed by the donor) to be divided between the 
poor of the same town, and the poor of the town where the donor in- 

In the Case of Baliol College, this doctrine was enforced by succes- 
sive decrees of the greatest English chancellors between the English 
Revolution and our own, which have been recently confirmed by the 
unanimous decision of the house of lords. Attorney General v. Guise, 
2 Vern. 166 ; Attorney General v. Baliol College, 9 Mod. 407 ; Attorney 
General v. Glasgow College, 2 Colly. 665, 1 H. L. Cas. 800. The case 
is of such importance and reported at different stages in so many books 
and at such length, that it may be well to state it. John Snell, an Epis- 
copalian, who made his last will and died in 1679, while the form of 
religion established by law in Scotland as well as in England was Epis- 
copal, gave lands in trust to apply the income for the maintenance and 
education at the university of Oxford of Scotchmen to be designated 
by the vice chancellor of that university and the heads of certain col- 
leges therein, and who should, upon their admission, give security to 
enter into holy orders and to be sent into Scotland and there remain. 
After the Revolution of 1688, Presbyterianism was reestablished in 
Scotland by act of parliament ; and in 1690 an information was filed by 
the attorney general, at the relation of the vice chancellor and heads of 
colleges named in the will, against the testator's heiress at law, suggest- 
ing a pretence by her that as Episcopacy and Prelacy had been abolish- 
ed in Scotland, and the Presbyterian form of worship established in- 
stead, the testator's intentions could not be carried into effect, the de- 
vise became void, and the property reverted to her. But the lords com- 
missioners of the g^eat seal, by a decree passed in 1692, established the 
devise against her, ordered an account, and reserved all directions for 
the establishment of the charity. 2 Vern. 267, note; 2 Colly. 665-670, 
1 H. L. Cas. 802-804, 820, 822. In 1693 the cause came on for further 
directions before Lord Keeper Somers, who, acting upon the doctrine 
that it was within the province of a court of equity to administer the 
trust upon the principle of cy pres, ordered the estate to be conveyed to 
the six senior fellows of Baliol College, one of the colleges named in 
the will, to maintain a certain number of Scotch scholars at that college, 
and, in consideration of the privileges enjoyed by such scholars, to ap- 
ply the surplus income to its library ; and this decree was made subject 
to such alteration and disposition as the court should from time to time 
make, upon the application of any person concerned, for the better 
and more effectual execution of the trust, as near as could be to the 
testator's will and intentions. 2 Vern. 267, note ; 2 Coily. 670, 671, 1 
H. L. Cas. 804, 805, 824. In 1744 Lord Hardwicke, in the execution 
of the directions in the decree of Lord Somers, referred the cause to a 
master to approve of a scheme "for the better establishment and regula- 
tion of the charity, and carrying the same into effect for the future as 


near to the will and intention of the testator as the alteration of circum- 
stances since the making of the will would admit ;*' and upon his re- 
port, and against the exceptions of the heads of colleges in Oxford, 
confirmed a scheme which did not impose any condition of the scholars 
taking holy orders — thus carrying out the general intention of the trust 
so far as to educate Scotch scholars at Oxford, although the testator's 
ultimate ob}ect that they should be educated in the Episcopal form 
of church government to take part in the established religion in Scot- 
land could not, by reason of the change of law since his death, be effect- 
ed. 9 Mod. 407 ; 1 H. h. Cas. 805, 806, 825-827. In 1759 Lord Keep- 
er Henley (afterward Lord Northington) varied the scheme in other 
particulars, but declined to vary it in this; and further orders were 
afterwards made in chancery as the revenues increased. 2 Colly. 672- 
674, 1 H. L. Cas. 806, 807, 825, 826 ; 3 Ves. 650, note. Upon a new 
information filed at the relation of some Scotch Episcopalians, the 
house of lords in 1848, reversing an order of Vice Chancellor Knight 
Bruce, held that the charity must continue to be administered according 
to the earlier decrees. 1 H. L. Cas. 800. 

In another case, Queen Elizabeth, by letters patent, established a 
hospital for forty lepers, and made the inmates a corporation. After 
leprosy had become almost extinct in England, and the members of the 
corporation reduced to three, an information was filed, alleging that the 
corporation was dissolved, and praying for a new application of the 
revenues agreeably to the letters patent and the donor's intention, or as 
near thereto as circumstances would permit and the court should direct. 
Lord Eldon held that neither the donor's heirs at law nor the crown 
took the land discharged of the charity ; referred the case to a master 
to report a scheme ; and confirmed the report of the master, approving 
a scheme for the application of the revenues to a general infirmary, re- 
serving a preference to all lepers who might offer themselves. Attor- 
ney General v. Hicks, Highm. Mortm. 336-354, 3 Brown, Ch. 166, 

Sir John Romilly, M. I^., afterwards made a like decision, holding 
that a gift made in 1687 of land (for which in 1774 other land had been 
substituted by leave of parliament) in trust out of the income to keep it 
ready for a hospital and burial place for patients sick of the plague, 
was a present gift for charitable purposes, and valid, although the 
plague had not reappeared in England for more than one hundred and 
eighty years ; and, after alluding to a class of cases, cited for the heirs 
at law in that case, as they have- been in this, in which the charitable be- 
quest could never have taken effect, added, "But who can say, when 
this deed was executed or the act passed, that this was not a charitable 
trust, capable of being performed ;" "and if it were ever wholly devot- 
ed to charity, those cases do not apply." Attorney General v. Craven, 
21 Beav. 392, 408. 

The principle that a bequest to trustees for charitable purposes indi- 
cated in the will, which are lawful and capable of being carried out at 


the time of the testator's death, will not be allowed to fail and result 
to the heirs at law upon a change of circumstances, but will be applied 
by the court according to a scheme approved by a master to carry out 
the intent of the testator as nearly as possible, has been affirmed and act- 
ed on in many other English cases. Attorney General v. Pyle, 1 Atk. 
435 ; Attorney General v. Green, 2 Brown, Ch. 492 ; Attorney General 
V. Bishop of London, 3 Brown, Chy 171 ; Moggridge v. Thackwell, Id, 
517, 1 Ves. Jr. 464; Attorney General v. Glyn, 12 Sim. 84; Attorney 
General v. Lawes, 8 Hare, 32 ; Attorney General v. Vint, 3 De Gex & 
S. 705. The dicta of Lord Alvanley, upon which the heirs at law much 
rely, do not, in the connection in which they were uttered, substantially 
differ from the general current of authority. Attorney General v. 
Boultbee, 2 Ves. Jr. 387, 388 ; Attorney General v, Whitchurch, 3 Ves. 
143, 144 ; Attorney General v. MinshuU, 4 Ves. 14. 

By the opinion of Lord Eldon, formed after great doubt and hesita- 
tion, the principle has been held to extend to the case of a bequest of 
property to a person named in trust for such charitable purposes, not 
otherwise described, as he should appoint. Moggridge v. Thackwell, 7 
Ves. 96, 13 Ves. 416; Paice v. Archbishop of Canterbury, 14 Ves. 364; 
Mills V. Farmer, 19 Ves. 483, 1 Mer. 55. Such a trust has been held 
valid in this commonwealth, so far as to vest a title in the trustee as 
against the next of kin. Wells v. Doane, 3 Gray, 201. Whether, in 
case of his death, it could properly be administered by a court of chan- 
cery, without the aid of the prerogative power, need not be considered 
in this case. See Fontain v. Ravenel, 17 How. 387, 388, 15 L. Ed. 80 ^ 
Moore v. Moore, 4 Dana (Ky.) 366, 29 Am. Dec. 417.'^ 

In most of the cases cited at the argument, in which the heirs at 
law were held to be entitled to the property, the charitable gift never 
took effect at all ; either because it could not be carried out as directed, 
without violating the mortmain act of 9 Geo. IL, as in Jones v. Wil- 
liams, Amb. 651; Attorney General v. Whitchurch, 3 Ves. 141, an4 
Smith V. Oliver, 11 Beav. 481; or because the testator had in terms 
limited it to a special object which could not be accomplished at the 
time of his death; as in the case of a bequest to build a church in 
Wheatley, which could not be done without the copsent of the bishop, 
and he refused (Attorney General v. Bishop of Oxford, 1 Brown, Ch, 
444, note; Id., cited 2 Cox, Ch. 365; 2 Ves. Jr. 388; and 4 Ves. 431, 
432) ; or of a direction to contract with the governors of a hospital for 
the purchase of a presentation of a boy to that charity, if the residuary 
assets should prove sufficient for that purpose, and they proved to be 
insufficient (Cherry v. Mott, 1 Mylne & C. 123). 

In Marsh v. Means, 3 Jur. (N. S.) 790, the testator gave a legacy, 
after the death of his wife, "for continuing the periodical published 
under the title of 'The Voice of Humanity,' according to the objects 
and principles which are set forth in the prospectus contained in the 

10 See, also, Lorlng y. Marsh, 6 Wall. 337, 18 L. Ed. 802 (1867). 


third number of that publication." "The Voice of Humanity" had 
been published quarterly by an association for the protection of ani- 
mals, but no number hsid appeared for nearly a year before the date 
of the will. Upon the death of the widow twenty years later, Vice 
Chancellor Wood held that the gift was not to support the principles 
of the publication, but only the publication itself, and, the publication 
having ceased and the association perished, that the legacy lapsed. 
But he added, "It would, I think, have fallen within the description of 
charity, if this periodical had been subsisting at the date of the will, 
and afterwards Ceased. That would be simply a case where, the par- 
ticular intention having failed, the general intention must be carried 

Two striking cases upon this subject have arisen in England under 
charitifes for the redemption of captives. 

In the Case of Betton's Charity, Thomas Betton in 1723 bequeathed 
the residue of his estate to the Ironmonger* Company, in trust, "posi- 
tively forbidding them to diminish the capital sum by giving away any 
part, or that the interest and profit arising be applied to any other 
use or uses than hereinafter mentioned and directed," namely, one 
half of the income yearly unto the redemption of Bt;itish slaves- in 
Turkey or Barbary, one fourth unto charity schools in the city and 
suburbs of London where the education is according to the church 
of England, and one fourth "unto necessitated decayed freemen of 
the company, their widows and children." The first half of the in- 
come of the fund greatly accumulated, few such slaves having been 
found for a century. Lord Brougham, reversing the decree of Sir 
John Leach, M. R., held that the court had jurisdiction to apply the 
surplus income of this moiety and its accumulations as near as might 
be to the intentions of the testator; having regard to the bequest 
touching British captives, and also to the other charitable l^equests in 
the will; and that the case should be referred back to the master to 
approve a proper scheme for such application. Attorney General v. 
Ironmongers' Co., 2 Mylne & K. 576. Sir Christopher Pepys, M. R. 
(afterwards Lord Cottenham,) accordingly ordered it to be so refer- 
red. On the return of the master's report. Lord Langdale, M. R., 
approved a scheme to apply the whole fund to the second and third 
purposes declared in the will. 2 Beav. 313. Lord Chancellor Cotten- 
ham on appeal reversed this decree; and upon the ground that the 
testator had not limited the first charity, like the others, to persons in 
London, ordered the first moiety to be applied to supporting and as- 
sisting charity schools in England and Wales, and referred it back 
to the master to settle a scheme for that purpose. Craig & P. 208. 
And this decree was affirmed in the house of lords with the concur- 
rence of Lord Chancellor Lyndhurst, and Lords Brougham, Cotten- 
ham and Campbell. 10 Clark & F, 908. In that case, though there 
were diflferences of opinion as to the details of the scheme, the juris- 


diction of the court of chancery to frame one in such a case was thus 
affirmed by the deliberate judgments of five law lords; and all agreed 
that, for the purpose of ascertaining what was cy pres to the particu- 
lar object which had failed, the court might look at all the charitable 
bequests in the will ; applying in this respect the principle upon which 
Lord Bacon had acted more than two centuries before in the case of 
Bloomfield v. Stowemarket, above cited. 

But the case most like that now before us is that of Lady Mico's 
Charity, Lady Mico, by her will made in 1670, gave a thousand pounds 
"to redeem poor slaves in what manner the executors shotdd think 
most convenient." This charity was established by decree in chan- 
cery in 1686. Upon an information filed in 1827, after the fund had 
accumulated a' hundred fold, it was referred to a master to approve 
of a scheme for the application of the income according to the will 
of the testatrix, or, if he should find that it could not be executed 
according to her will, then as near the intent of the will as could be, 
regard being had to the existing circumstances and to the amount of 
the fund. The master, by his general report in 183S, stated that the 
relators had laid before him a scheme for applying the fund to the 
enfranchisement of slaves in the British Colonies who were too poor 
to purchase their own freedom ; which application, in consequence of 
St. 3 & 4 Wm. IV. c. 73, abolishing slavery (which took effect in 
1834), had become impracticable; that he was of opinion that the 
testatrix by her wilL contemplated the redemption of poor slaves in 
the Barbary States, but that intention could not be carried into effect ; 
and he approved a scheme to apply the capital and income in pur- 
chasing and building school-houses for the education of the emanci- 
pated apprentices and their issue, qualifying teachers, paying the sal- 
aries of masters and other expenses, and to apply the surplus rents 
to the support of any other schools, and generally in promoting edu- 
cation in the British Colonies. Sir Christopher Pepys, M. R., con- 
firmed this scheme by a decree ; and, after he had become lord chan- 
cellor, stated the reasons to have been that "in this there was no 
restriction as to the description of slaves, or the countries in which 
the slaves were to be looked forV that upon the reference to the 
master "it appeared that there were not within any part of the British 
dominions any poor slaves to be redeemed, but that there were in the 
colonies many thousands of human beings from whom the odious 
appellation of slaves had been removed, but whose state was very far 
short of that of freemen, from whose bodies the chains of slavery 
had been struck, but whose minds and morals were still in that state 
of degradation which is inseparable from the unfortunate situation 
from which they had recently been in part rescued ; it was proposed 
to the master to apply^ and he approved of a scheme for the comple- 
tion of that holy work, by assisting in the education of those poor 
beings. If, before the slavery abolition act, these funds could prop- 


erly have been applied to procuring the redemption of slaves in the 
colonies, the proposed application for the benefit of the apprentices 
was doubtless cy pres to the intention of the donor." And his reason 
for not applying Betton's Charity in the same manner was that it 
was in terms limited to slaves in Turkey or Barbary.. Attorney Gen- 
eral V. Gibson, 2 Beav. 317, note; Attorney General v. Ironmongers' 
Co., Craig & P.. 226, 227. 

There is no adjudication of this question by the supreme court of 
the United States. The dicta of Chief Justice Marshall in Baptist 
Ass'n V. Hart's ExVs, 4 Wheat. 1, 4 L. Ed. 499, were based upon an 
imperfect survey of the authorities, were not required by the decision, 
and are hardly reconcilable with the more recent judgments of the 
same court; and that case, as well as Wheeler v. Smith, 9 How. 79, 
i3 L. Ed. 44, arose under the law of Virginia. Vidal v. Girard's 
Ex'rs, 2 How. 192, 11 L. Ed. 205; Perin v. Carey, 24 How. 501, 16 
L. Ed. 701; Bartlett v. Nye, 4 Mete. 380; American Academy of 
Arts & Sciences v. President, etc., of Harvard College, 12 Gray, 593 ; 
2 Kent, Comm. 287. In Fontain v. Ravenel, 17 How. 369, IS L. Ed. 
80, the testator authorized his executors or the survivor of them to 
dispose of the residue of his estate "for the use of such charitable in- 
stitutions in Pennsylvania and South Carolina, as they or he may 
deem most beneficial to mankind,*' and they died without appointing ; 
and it was held that the title did not vest in the executors as trustees, 
and that according to the English law the disposition would have been 
in the crown by sign manual. As Mr. Justice McLean, delivering 
the opinion of the court, said: "Nothing short of the prerogative 
power, it would seem, can reach this case. There is not only uncer- 
tainty in the beneficiaries of this charity, but behind that is a more 
formidable objection. There is no expressed will of the testator. 
He intended to speak through his executors or the survivor of them, 
but by the acts of Providence this has become impossible. It is then 
as though he had not spoken. Can any power now speak for him, 
except the parens patriae?" The further remarks about the power of 
cy pres, if intended to cover a case in which the charitable purposes 
were described or indicated in the will, were upon a question not be- 
fore the court. The separate opinion of Chief Justice Taney in Fon- 
tain V. Ravenel was but his own, based mainly upon that of Chief 
Justice Marshall in Baptist Ass'n v. Hart's Ex'rs. And it is impos- 
sible to avoid the inference that the impressions of both of those emi- 
nent magistrates were derived from the laws of Maryland and Vir- 
ginia in which they had been educated, and by which St. 43 Eliz. has 
been expressly repealed, and charities are not recognized as entitled 
to any favor, either in duration or construction, beyond other trusts. 
Dashiell v. Attorney General, 5 Har. & J. (Md.) 392, 9 Am. Dec. 572 ; 
Gallego V. Attorney General, 3 Leigh (Va.) 450, 24 Am. Dec. 650. 
In North Carolina, the supreme court once declared that it had all 


the powers exercised by the English chancellor, either in the equity 
jurisdiction. or under the sign manual; and since, rebounding from 
that extreme opinion, seems to have adopted the view of Maryland 
and Virginia. Griffin v. Graham, 8 N. C. 96, 9 Am. Dec. 619 ; Mc- 
Auley v, Wilson, 16 N. C. 276, 18 Am. Dec. 587 ; Holland v. Peck, 
37 N. C. 255. There is a dictum to a like effect in Carter v. Balfour, 
19 Ala. 830. So in New York, the court of appeals, after some divi- 
sion and vacillation of opinion in the course of the frequent changes 
in the composition of the court, has recently adjudged that in that 
state the English law of charitable uses has been wholly abrogated 
by statute, and that charities are within the rule against perpetuities, 
and have no privileges about private trusts. Bascom v. Albertsbn, 34 
N. Y. 584. 

On the other hand, the court of appeals of Kentucky, in an able 
judgment delivered by Chief Justice Robertson, marked the distinc- 
tion between the power exercised under the sign manual, and that in- 
herent in the equity jurisdiction; and, after speaking of the former 
as not judicial, added: "The cy pres doctrine of England is not, or 
should not be, a judicial doctrine, except in one kind of case; and 
that is, where there is an available charity to an identified or ascer- 
tainable object, and a particular mode, inadequate, illegal or inap- 
propriate, or which happens to fail, has been prescribed. In such 
case, a court of equity may substitute or sanction any other mode that 
may be lawful and suitable and will effectuate the declared intention 
of the donor, and not arbitrarily and in the dark, presuming on his 
weakness or wishes, declare an object for him. A court may act judi- 
cially as long as it effectuates the lawful intention of the donor." 
Moore v. Moore, 4 Dana (Ky.) 366, 29 Am. Dec. 417. See, also, 
Gass V. Wilhite, 2 Dana (Ky.) 172, 26 Am. Dec. 446; Curling v. 
Curling, 8 Dana (Ky.) 38, 33 Am. Dec. 475. The power of cy pres, 
which was declared by the supreme court of Pennsylvania in Methodist 
Church V. Remington, 1 Watts, 226, 26 Am. Dec. 61, and Witman v. 
Lex, 17 Serg. & R. 93, 17 Am. Dec. 644, not to exist in that state, 
was the power exercised under the sign manual in case of a gift to 
superstitious uses, or of any expression of general intention to devote 
a sum to charitable purposes not designated. In a very recent case, 
the same court said : "The rule of equity on this subject seems to be 
clear, that when a definite charity is created, the failure of the partic- 
ular mode in which it is to be effectuated does not destroy the charity ; 
for equity will substitute another mode, so that the substantial inten- 
tion shall not depend upon the formal intention.'* "And this is the' 
doctrine of cy pres, so far as it has been expressly adopted by us" — 
"a reasonable doctrine, by which a well defined charity, or one where 
the means of definition are given, may be enforced in favor of the 
general intent, even where the mode or means provided for by the do- 
nor fail by reason of their inadequacy or unlawfulness." Philadelphia 


V. Girard, 45 Pa. 27, 28, 84 Am, Dec. 470. Like principles have been 
maintained in South Carolina and Illinois. Attorney General v. Jolly, 
1 Rich. Eq. 99, 42 Am. Dec. 349 ; Id., 2 Strob. Eq. 395 ; Gilman v. 
Hamilton, 16 111. 231. The existence of a judicial power to admin- 
ister a charity cy pres where the expressed intention of the founder 
cannot be exactly carried out has been either countenanced or left 
an open question in all the New England states except Connecticut. 
Burr V. Smith, 7 Vt. 287, 288, 29 Am. Dec. 154; Second Congrega- 
tional Soc. V. First (Congregational Soc, 14 N. H. 330; Brown v. 
Concord, 33 N. H. 296; Derby v. Derby, 4 R. I. 439; Tappan v. 
Deblpis, 45 Me. 131 ; Howard v. American Peace Soc, 49 Me. 302, 
303; Treat's Appeal, 30 Conn. 113. See, also, 2 Redf. Wills, 815, 
note; McCord v. Ochiltree, 8 Blackf. (Ind.) 15; Beall v. Fox, 4 Ga. 
427; Chambers v. St. Louis, 29 Mo. 590, 592; Lepage v. Macnamara, 
5 Iowa, 146; Mclntyre v. Zanesville, 17 Ohio St. 352. 

The narrow doctrines which have prevailed in some states upon 
this subject are inconsistent with the established law of this common- 
wealth. Our ancestors brought with them from England the elements 
of the law of charitable uses, and,- although the form of proceeding 
by commission under St. 43 Eliz. has never prevailed in Massachu- 
setts, that statute, in substance and principle, has always been con- 
sidered as part of our common law. 4 Dane, Abr. 6, 239 ; Earle v. 
Wood, 8 Cush. 445. Under the Colony charter, charities were regu- 
lated and administered, according to the intent of the donors, under 
the direction of the general court, the court of assistants, and the 
county courts; and under the Province charter, although ncy court was 
vested with equity jurisdiction, charitable bequests were not the less 
valid. Anc. Chart. 52; Drury v. Natick, 10 Allen, 180, 181, and 
authorities cited; Winslow v. Trowbridge, stated in 11 Allen, 459, 
460. The English mortmain act of 9 Geo. II. c. 36, did not extend 
to Massachusetts ; and the similar provision in Prov. St. 28 Geo. II. 
c. 9, was repealed immediately after our Revolution by St. 1785, c. 
51. Odell V. Odell, 10 Allen, 6. Charities are held not to be within 
the common rule limiting perpetuities and accumulations. Dexter v. 
Gardner, 7 Allen, 243; Odell v. Odell, 10 Allen, 1. Charitable be- 
quests to an unincorporated society here, to a foreign corporation or 
society, or to a particular religious denomination in a certain county, 
have been carried into effect, even where no trustees have been named 
in the will. Burbank v. Whitney, 24 Pick. 146, 35 Am. Dec. 312; 
Bartlett v. Nye, 4 Mete. 378; Washburn v. Sewall, 9 Mete. 280; Uni- 
versalist Soc. V. Fitch, 8 Gray, 421, See, also, Wells v. Doane, 3 
Gray, 201 ; Saltonstall v. Sanders, 1 1 Allen, 446. 

The intention of the testator is the guide, or, in the phrase o^ Lord 
Coke, the lodestone, of the court; and therefore, whenever a char- 
itable gift can be administered according to his express directions, 
this court, like the court of chancery in England, is not at liberty 


to modify it upon considerations of policy or convenience. Harvard 
College V. Society for Promoting Theological Education, 3 Gray, 280 ; 
Baker v. Smith, 13 Mete. 34; Trustees of Smith Charities v. In- 
habitants of Northampton, 10 Allen, 498. But there are several cases, 
where the charitable trust could not be executed as directed in the 
will, in which the testator's scheme has been varied by this court in 
such a way and to such an extent as could not be done in the case of 
a private trust. Thus bequests to a particular Bible society by name, 
whether a corporation established by law or a voluntary association, 
which had ceased to exist before the death of the testator, have been 
sustained, and applied to the distribution of Bibles through a trustee 
appointed by the court for the purpose. Winslow v. Cummings, 3 
Cush. 358; Bliss v. American Bible Soc, 2 Allen, 334. At a time 
when the general chancery jurisdiction of this court over trusts was 
limited to those arising under deeds and wills, the legislature by a spe- 
cial statute authorized it to hear and determine in equity any and all 
matters relating to a certain gift to a scientific corporation, to be 
invested in a certain manner, and paid in premiums for discoveries or 
improvements on heat or light published in America within two years 
before each award. Upon a bill being filed, and it appearing that it 
had become impracticable to carry out the "intent of the donor in the 
mode prescribed, Chief Justice Shaw authorized a different investment 
of the fund ; and, in accordance with a scheme reported by a master, 
authorized the corporation to apply the surplus income, after paying 
such premiums, to purchasing books, papers and philosophical appa- 
ratus, and making suc^ publications or procuring such lectures, experi- 
ments or investigations as should facilitate and encourage the making 
of such discoveries and improvements; and said: "Whenever it ap- 
pears that a general object of charity is intended, and the purpose is 
not unlawful and void, the right of the heir at law is divested." "It 
is now a settled rule in equity that a liberal construction is to be given 
to charitable donations, with a view to promote and accomplish the 
general charitable intent of the donor, and that such intent ought 
to be observed, and when this cannot be strictly and literally done, 
this court will cause it to be fulfilled as nearly in conformity with the 
intent of the donor as practicable. Where the property thus given is 
given to trustees capable of taking, but the property cannot be applied 
precisely in the mode directed, the court of chancery interferes, and 
regulates the disposition of such property under its general jurisdic- 
tion on the subject of trusts, and not as administering a branch of 
the prerogative of the king as parens patriae." "What is the nearest 
method of carrying into effect the general intent of the donor must of 
course depend upon the subject matter, the expressed intent, and the 
other circuipstances of each particular case, upon all of which the 
court is to exercise its discretion. American Academy v. Harvard 
College, 12 Gray, 582. The same principle was also recognized or 


assumed in 4 Dane, Abr. 242, 243, in Sanderson v. White, 18 Pick. 
333, 29 Am. Dec. 591, and other cases already cited. Baker v. Smith, 
13 Mete. 41; Harvard College v. Society for Promoting Theological 
Education, 3 Gray, 282, 298; Trustees of Smith Charities v. Inhab- 
itants of Northampton, 10 Allen, 501, 502. 

By Gen. St. c. 113, § 2, this court may hear and determine in equity 
all suits and proceedings for enforcing and regulating the execution 
of trusts, whether the trusts relate to real or personal estate, "and 
shall have full equity jurisdiction, according to the usage and prac- 
tice of courts of equity, in all other cases, where there is not a plain, 
adequate and complete remedy at law." The powers usually exercised 
by the court of chancery in the course of its jurisdiction in equity 
have thus been expressly conferred upon this court by the legislature. 
The authority of administering a charitable trust according to the 
expressed intention of the donor, and, when that cannot be exactly 
followed, then as nearly as possible, is a part of this jurisdiction, which 
the court is not at liberty to decline. The only question is, whether 
the facts of the case show a proper occasion for its exercise according 
to the settled practice in chancery. 

In all the cases cited at the argument, in which a charitable bequest, 
which might have been lawfully carried out under the circumstances 
existing at the death of the testator, has been held, upon a change of 
circumstances, to result to the heirs at law or residuary legatees, the 
gift was distinctly limited to particular persons or establishments. 
Such was Russell v. Kcllett, 3 Smale & G. 264, in which the gift was 
of five pounds outright to each poor person of a particular description 
in certain parishes, and Vice Chancellor Stuart held that the shares of 
' those who died before receiving them went to the residuary legatees. 
Such, also, was Clark v. Taylor, 1 Drew. 642, in which it was held 
that a legacy to a certain orphan school by name, which ceased to exist 
after the death of the testator, failed and fell into the residue of the 
estate; and which can hardly be reconciled with the decisions in In- 
corporated Soc. V. Price, 1 Jones & L. 498, 7 Ir. Eq. 260 ; In re Clergy 
Society, 2 Kay & J. 615 ; Marsh v. Attorney General, 2 Johns. & H. 61 ; 
Winslow v. Cummings, 3 Cush. 358, and Bliss v. American Bible Soc, 
2 Allen, 334. So in Easterbrooks v. Tillinghast, 5 Gray, 17, the trust 
was expressly limited, not only in object, but in duration, to the main- 
tenance of the pastor of a certain church of a specified faith and prac- 
tice in a particular town, "so long as they or their successors shall 
maintain the visibility of a church in said faith and order;" and could 
not have been held to have terminated, had it not been so limited. At- 
torney General v. Columbine, Boyle, Char. 204, 205 ; Perry v. Thurs- 
ton, 7 R. I. 25 ; Dexter v. Gardner, 7 Allen, 243. 

The charitable bequests of Francis Jackson cannot, in the opinion 
of the court, be regarded as so restricted in their objects, or so limited 
in point of time, as to have been terminated and destroyed by the aboli- 
tion of slavery in the United States. They are to a board of trustees 


for whose continuance careful provision is made in the will, and which 
the testator expresses a wish may become a permanent organization 
and may receive the services and sympathy, the donations and bequests, 
of the friends of the slave. Their duration is not in terms limited, like 
that of the trust sought to be established in the sixth article of the 
will, by the accomplishment of the end specified. They take effect 
from the time of the testator's death, and might then have been law- 
fully applied in exact conformity with his expressed intentions. The 
retaining of the funds in the custody of the court while this case has 
been under advisement cannot affect the question.. The gifts being 
lawful and charitable, and having once vested, the subsequent change 
of circimistances before the funds have been actually paid over is of 
no more weight than if they had been paid to the trustees and bee:^ 
administered by them for a century before slavery was extinguished. 

Neither the immediate purpose of the testator — ^the moral education 
of the people ; nor his ultimate object — ^to better the condition of the 
African race in this, country ; has been fully accomplished by the aboli- 
tion of slavery. 

Negro slavery was recognized by our law as an infraction of the 
rights inseparable from htunan nature; and tended to promote idle- 
ness, selfishness and tyranny in one part of the community, a destruc- 
tion of the domestic relations and utter debasement in the other 
part. The sentiment which would put an end to it is the sentiment 
of justice, humanity and charity, based upon moral duty, inspired by 
the most familiar precepts of the Christian religion, and approved by 
the constitution of the commonwealth. The teaching and diffusion 
of such a sentiment are not of temporary benefit or necessity, but of 
perpetual obligation. Slavery may be abolished ; but to strengthen and 
confirm the sentiment which opposed it will continue to be useful and 
desirable so long as selfishness, cruelty, the lust of dominion, and in- 
difference to the rights of the weak, the poor and the ignorant, have 
a place in the hearts of men. Looking at the trust established by the 
fourth article of this will as one for the moral education of the people 
only, the case is within the principle of those, already cited, in which 
charities for the relief of leprosy and the plague were held not to end 
with the disappearance of those diseases; and is not essentially dif- 
ferent from that of Attorney General v. Baliol College, in which a 
trust for the education at Oxford of Scotch youths, to be sent into 
Scotland to preach Episcopalianism in the established church there, 
was applied by Lords Somers and Hardwicke and their successors to 
educate such youths, although, by the change of faith and practice of 
the Church of Scotland, the donor's ultimate object could no longer be 

The intention of Francis Jackson to benefit the negro race appears 
not only in the leading clause of the fourth article, and in his expres- 
sion of a hope that his trustees might receive the aid and the gifts of 
Bubd.Cas.Real Pbop. — 20 


the friends of the slave, but in the trust for the benefit of fugitive 
slaves in the fifth article of the will, to which, according to the prin- 
ciple established by the house of lords in the Case of Betton's Charity, 
resort may be had to ascertain his intent and the fittest mode of carry- 
ing it out. The negroes, although emancipated, still stand in great need 
of assistance and education. Charities for the relief of the poor have 
been often held to be well applied to educate them and their children. 
Bishop of Hereford v. Adams, 7 Ves. 324; Wilkinson v. Malin, 2 
Cromp. & J. 636, 2 Tyrw, 544; Anderson v. Wrights of Glasgow, 12 
L. T. (N. S.) 807. . The Case of Mico Charity is directly to the point 
that a gift for the redemption of poor slaves may be appropriated, after 
they have been emancipated by law, to educate them ; and the reasons 
given by Lord Cottenham for that decision apply with no less force 
to those set free by the recent amendment of the constitution in the 
United States, than to those who were emancipated by act of parlia- 
ment in the West Indies. 

The mode in which the funds bequeathed by the fourth and fifth 
articles of the will may be best applied to carry out in a lawful manner 
the charitable intents and purposes of the testator as nearly as possible 
must be settled by a scheme to be framed by a master and confirmed 
by the court before the funds are paid over to the trustees. In doing 
this, the court does not take the charity out of the hands of the trus- 
tees, but only declares the law which must be their guide in its admin- 
istration. Shelf. Mortm. 651-654; Boyle, Char. 214-218. The case is 
therefore to be referred to a master, with liberty to the attorney gen- 
eral and the trustees to submit schemes for his approval ; and all fur- 
ther directions are reserved until the coming in of his report. 

Case referred to a master. 

The case was then referred to John Codman, Esquire, a master in 
chancery for this county, who, after notice to the trustees and the at- 
torney general, and hearing the parties, made his report, the results 
of which were approved by the attorney general ; and upon exceptions 
to which the case was argued by W. Phillips for himself and other 
excepting trustees, and by J. A. Andrew in support of the master's 
report, before Gray, J., with the agreement that he should consult the 
whole court before entering a final decree. No account was asked by 
any party of sums already expended by the trustees. 

As to the bequest in the fifth article, the master reported that the 
unexpended balance (amounting to $1,049.90) was so small that it was 
reasonable that it should be confined to a limited territory; and that it 
should therefore be applied by the trustees, in accordance with their 
unanimous recommendation, to the use of necessitous persons of Afri- 
can descent in the city of Boston and its vicinity. This scheme was 
approved and confirmed by the court, with this addition: "Prefer- 
ence being given to such as have escaped from slavery." 

As to the simi bequeathed in the fourth article of the will, the master 
reported that a portion had been expended by the trustees before any 


question arose as to its validity ; and that but two schemes had been 
suggested to him for the appropriation of the residue, namely, first, 
(which was approved by four of the seven trustees who had accepted 
the trust,) in part to the support of the Anti-Slavery Standard, and in 
part to the New England Branch of the American Freedmen's Union 
Commission; or, second, (which was approved by the remaining trus- 
tees,) that the whole should be applied to the last named object. 

The master disapproved of the first of these schemes ; and reported 
that the Anti-Slavery Standard was a weekly newspaper published in 
the city of New York with a circulation of not more than three thou- 
sand copies, which was established nearly thirty years ago for the 
purpose of acting upon public opinion in favor of the abolition of 
slavery; that in his opinion, since the abolition of slavery, and the 
passage of the reconstruction acts of congress, "the support of a paper 
of such limited circulation as hardly to be self-sustaining would do 
very little for the benefit of the colored people in their present status, 
and its direct influence would be almost imperceptible on the welfare 
of that class most nearly corresponding to those whom the testator had 
in view in making this bequest ;" and that the argument, that it was evi- 
dently the intention of the testator to accomplish the object indicated 
in the fourth article of his will by means of which a newspaper like 
this might be considered an example, was answered by the fact that 
the object for which these means were to be used had been already 
accomplished without them. The master returned with his report a 
few numbers of the Anti-Slavery Standard, (taken without selection 
as they were given to him by the chairman of the trustees,) by which 
it appeared that it was in large part devoted to urging the passage 
of laws securing to the freedmen equal political rights with the whites, 
the keeping of the southern states under military government, the im- 
peachment of the president, and other political measures. 

The master reported that he was unable to devise any better plan 
than the second scheme suggested; that this mode of appropriation 
was in his opinion most in accordance with the intention of the testator 
as expressed in the fourth article of the will, because the intention near- 
est tQ that of emancipating the slaves was by educating the emancipat- 
ed slaves to render them capable of self-government; and this could 
best be done by an organized society, expressly intended and exactly 
fitted for this function, and which, if the whole or any part of this 
fund was to be applied to the direct education and support of the freed- 
men, was admitted at the hearing before him to be the fittest channel 
for the appropriation. The master returned with his report printed 
documents by which it appeared that the object of the American Freed- 
men's Union Commission, as stated in its constitution, was "the relief, 
education and elevation of the freedmen of the United States, and to 
aid and cooperate with the people of the South, without distinction of 
race or color, in the improvement of their condition, upon the basis of 
industry, education, freedom and Christian morality;" and that the 


New England and other branches of the commission were now main- 
taining large nvunters of teachers and schools for this purpose through- 
out the southern states. 

The master accordingly reported that what remained of the fund 
bequeathed by the fourth article of the will should be "ordered to be 
paid over to the New England Branch of the Freedmen's Union Com- 
mission, to be employed and expended by them in promoting the educa- 
tion, support and interests generally of the freedmen (late slaves) in 
the states of this Union recently in rebellion." And this schetne was 
by the opinion of the whole court accepted and confirmed, modified 
only by directing the executor to pay the fund to the trustees, to be 
by them paid over at such times and in such sums as they in their 
discretion might think fit to the treasurer of the branch commission ; 
and by substituting for the words "recently in rebellion" the words 
"in which slavery has been abolished, either by the proclamation of 
the late President Lincoln or the amendment of the constitution." 

Final decree accordingly. 

2. Beneficiaries 


(Supreme Coart of California, 1896. 113 CaL 129, 45 Pac. 270, 85 L. R. A. 269.) 

Department 2. Appeal from superior court, city and county of San 
Francisco ; Walter H. Levy, Judge. 

Action by the state, on relation of L. R. EHert, mayor against Henry 
D. Cogswell, Caroline Cogswell, and others. Judgment for plaintiff, 
and defendant Caroline Cogswell appeals. Affirmed. 

Henshaw, J.** Appeals from the judgment and from the order 
denying a new trial. Defendants Henry D. Cogswell and his wife, 
Caroline E. Cogswell, upon March 19, 1887, executed to certain trus- 
tees, themselves among the number, a deed of trust to real estate in the 
city and. county of San Francisco. The trust was created under the 
provisions of the act of the legislature entitled "An act to advance 
learning, the arts and sciences, and to promote the public welfare by 
providing for the conveyance, holding and protection of property, and 
the creation of trusts for the founding, endowment, erection and main- 
tenance within this state of universities, colleges, schools, seminaries 
of learning, mechanical institutes, museums and galleries of art." St 
1885, p. 49. The nature, object, and purposes of the trust were declar- 
ed to be the erection and maintenance of a polytechnic college for the 
purpose of giving the boys and girls of the state of California a practi- 
cal training in the mechanical arts and industries, the better to fit them 

11 Part of the opinion is omitted. 


to engage in the different pursuits of life. The trustees, including the 
defendants Cogswell, accepted the trust upon the day of the execution 
of the deed, and thereafter as a board managed and conducted its af- 
fairs. The defendants Cogswell attended the meetings of the board, 
and participated in its deliberations and acts. 

The present action was brought by the state upon the relation of L. 
R. Ellert, mayor of San Francisco, to have the trust decreed valid, and 
for relief against certain acts and abuses of the defendants Cogswell 
and other defendant trustees, which acts, it is alleged, were designed to 
hinder the management of the trust, and to frustrate its purpose and 
defeat its object. The nature of these acts need not be specified, as an 
amicable stipulation was afterwards entered into, which eliminated 
these matters as issue* in the case. Under this stipulation the action 
was dismissed as to one of the alleged recalcitrant trustees, other trus- 
tees were appointed to fill existing vacancies in the board, the Polytech- 
nic College was to be reopened, and the defendant H. D. Cogswell con- 
sented to the entry of a judgment against himself decreeing that the 
deed created a valid and operative public trust. By this stipulation the 
rights of the wife, Caroline, were protected, and her claims and con- 
tentions reserved for adjudication. In the action she answered and 
filed a cross complaint.' By her answer she raised the question of the 
validity of the trust, and by her cross complaint she pleaded that her 
hearing was imperfect, and that she did not know that she had signed 
the deed, nor did she understand its full meaning and import. It was 
read to her by the notary, but she failed to hear or comprehend it. 
There was no one present to advise her as to the meaning of the deed 
and its effect, or to inform her of her rights. She thought the papers 
were for the purpose of "establishing a school for those of small 
means," and believed she was merely signing for the incorporation of 
the college, and was simply accepting the trust as trustee. She discov- 
ered, while the paper was being rpad to her by the notary, that it pur- 
ported to be a deed of some kind, because she heard him read descrip- 
tions of land ; but she did not know in what way it concerned her, or 
that she had signed that particular paper. She trusted her husband, 
who deceived her in the matter. She had never had independent ad- 
vice, and did not know that under the law the conveyance, which was 
of community property, was inoperative unless she joined therein. 
Had she known, she would not have executed it. She also pleaded that 
the trust is in contravention of the constitutional inhibition against per- 
petuities. The answer to this cross complaint was a denial and a plea 
of the statute of limitations. Defendant Caroline Cogswell also de- 
murred to the complaint, and her demurrer was overruled. 

The only ground of demurrer inviting consideration is that the state 
is not a party in interest, and therefore has not capacity to sue. The 
objection is not sound, and the demurrer was properly overruled. This 
action is based upon averments of a public trust. It is brought to rem- 
edy abuses in the management of this trust. It is not only the right. 


but the duty, of the attorney general to prosecute such an action. The 
state, as parens patriae, superintends the management of all public 
charities or trusts, and in these matters acts through her attorney gen- 
eral. Generally speaking, such an action will not be entertained at all 
unless the attorney general is a party to it. Such was the rule at com- 
mon law, and it has not been changed in this state. Even in those states, 
such as Massachusetts, where by special statute the attorney general is 
instructed to prosecute such actions, it is declared that the statute does 
not narrow or diminish in this regard the common-law powers incident 
to the office. Parker v. May, S Cush. (Mass.) 336. The principle and 
rule are thus succinctly stated in Attorney General v. Compton, 1 
Younge & C. Ch. 417: Where property affected by a trust for public 
purposes is in the hands of those who hold it devoted to that trust, it 
is the privilege of the public that the crown should be entitled to in- 
tervene by its officers for the purpose of asserting, on behalf of the 
public generally, the public interest and the public right, which probably 
no individual could be found effectually to assert even if the interest 
were such as to allow it. 2 Kent, Comm. (10th Ed.) 359; Lewin, 
Trusts, § 665 ; 1 Daniell, Ch. Prac. § 13 ; Perry, Trusts, § 732. 

2. It is next contended that the trust designating for its beneficiaries 
"the boys and girls of California" is void for uncertainty, because the 
trustees are not empowered to designate what boys and girls, and, if all 
applied, the trust would be impossible of execution. It should scarcely 
be necessary to observe that when the class has been designated this 
very vagueness and uncertainty and indefiniteness as to individuals and 
numbers is a necessary and essential element to the creation of a valid 
charitable trust. Perry, Trusts, § 710; Estate of Hinckley, 58 Cal. 
488. It is in discussing such trusts that the supreme court of the 
United States says in Russell v. Allen, 107 U. S. 163, 2 Sup. Ct. 327, 
27 L. Ed. 397 : "They may, and indeed must, be for the benefit of an 
indefinite number of persons, for, if all the beneficiaries are personal- 
ly designated, the trust lacks the essential element of indefiniteness, 
which is one characteristic of a legal charity. If the founder describes 
the general nature of the charitable trust, he may leave the details of 
the administration to be settled by trustees under the superintendence 
of a court of chancery." 

3. It is claimed that the trust is void as creating a perpetuity which 
does not come within the exception of the constitution which forbids 
perpetuities "except for eleemosynary purposes." Herein it is argued 
that "eleemosynary" pertains exclusively to almsgiving ; that alms are 
given to the poor ; and that this trust is generally for "the boys and 
girls of California," and not specifically for the poor boys and girls. 
From this claim is made that the constitution never meant to permit 
perpetuities for strictly educational purposes, or the word "eleemosy- 
nary" would never have been used. It may at once be said that the 
trust creates, and is intended to create, a perpetuity. It may further 
be said that the beneficiaries under it are not limited to the poor. But 


is it for these reasons any the less an eleemos/nary trust ? It is quite 
true that the word "eleemosynary" comes to us from the Greek word 
meaning "alms/* but, while it is always interesting to note the origin 
and first meanings of words, this knowledge is frequently more curious 
than valuable; while to insist that the original meaning shall govern 
the word in its modem use and acceptation is very rarely permissble. 
It is in this way interesting to note that "sycophant" comes from Greek 
words meaning "fig informer" ; but it would scarcely be contended to- 
day that a man could not properly be called a sycophant unless he had 
dealings in figs. In short, words by use are sometimes degraded, some- 
times ennobled; sometimes narrowed in meaning, sometimes broad- 

"Eleemosynary" has come in the law to be interchangeable with the 
word "charitable." A charitable trust or a charity is a donation in 
trust for promoting the welfare of mankind at large, or of a communi- 
ty, or of «ome class forming a part of it, indefinite as to numbers and 
individuals. It may, but it need not, confer a gratuitous benefit upon 
the poor. It may, but it need not, look to the care of the sick or in- 
sane. It may, but it need not, seek to spread religion or piety. Schools 
and libraries, equally with asylums, hospitals, and religious institutions, 
are included within its scope. It is impossible to enumerate specifically 
all purposes for which an eleemosynary trust may be created. The dif- 
ficulty is inherent in the subject-matter itself. With the progress of 
civilization new needs are developed, new vices spring up, new forms 
of human activity manifest themselves, any or all of which, for their 
advancement or suppression, may become the proper object of an elee- 
mosynary trustl As was said by this court in People v. Association, 84 
Cal. 114, 24 Pac. 277, 12 L. R. A. 117: "The enforcement of charitable 
uses cannot be limited to any narrow and stated formula. As has been 
well said, it must expand with the advancement of civilization and the 
daily increasing needs of men. New discoveries in science, new fields 
and opportunities for human action, the difiFering condition, character, 
and wants of communities and nations, change and enlarge the scope of 
charity; and, where new necessities are created, new charitable uses 
must be established. The underlying principle is the same ; its applica- 
tion is as varying as the wants of humanity." 

The objects and purposes of the present trust are purely^ charitable. 
The mode of effectuating the charity by the erection and maintenance 
of a polytechnic college is clearly set forth. The salaries of the pro- 
fessors, teachers, and instructors are to be paid out of the trust funds. 
Suitable college buildings are to be provided. Tuition is to be absolute- 
ly free so long as the resources of the trust will permit, and when a 
tuition fee is charged it is only to aid in maintaining the institution. 
Nothing is reserved for profit or gain. All goes to the spread of tech- 
nical knowledge, and to the gratuitous instruction in the mechanic arts 
of the boys and girls of the state. Such a trust is in conformity with 
the act of 1885, and that act in no way contravenes the provisions of 


section 9, art. 20, of our constitution. Dartmouth College v. Wood- 
ward, 4 Wheat. 518, 4 L. Ed. 629; Vidal v. Girard's Ex'rs, 2 How. 
127, 11 L. Ed. 205 ; Russell v. Allen, 107 U. S. 163, 2 Sup. Ct. 327, 27 
L. Ed. 397; American Academy, etc., v. President, etc., of Harvard 
College, 12 Gray (Mass.) 582 ; Whicker v. Hume, 7 H. L. Cas. 124 ; 
President of United States of America v. Dnifaitnond, 33 Beav. 
449. * * * 

Other findings are against the averments of defendants' answer that 
the trust had been abandoned by the trustees ; that they had made an 
improper lease of the trust property, and had violated their trust ; that 
the trust had become impracticable, and that, therefore, the property 
had reverted, and should, in equity, be decreed to have reverted, to the 
founders. A trust in this state is not extinguished, nor does the prop- 
erty revert, for any of these reasons. If the trustees abandon, or in 
any way abuse, their trust, equity will correct the abuses, and remove 
the offenders. A 'trust is extinguished by the entire fulfillment of its 
object, by its object becoming impossible, or by its object becoming 
unlawful. Civ. Code, § 2279. No one of these contingencies has arisen, 
and the court was right in finding that the object of the trust had not 
become impracticable. The founders had reserved no power of revoca- 
tion (Civ. Code, § 2280), and the acts complained of were mere abuses, 
which, in the absence of an express condition to that effect, did not 
work a reversion, but merely warranted the interposition of equity for 
their correction. Perry, Trusts, § 744; Brown v. Society, 9 R. I. 177; 
Barr v. Weld, 24 Pa. 84; Stanley v. Colt, 5 Wall. 119, 18 L. Ed. 502; 
Attorney General v. Town of Dublin, 38 N. H. 459; Sanderson v. 
White, 18 Pick, (Mass.) 328, 29 Am. Dec. 591. The jutigment and or- 
der appealed from are affirmed. 

We concur: McFari^and, J.; Temple, J. 


(oapreme Judicial Court of Massachusetts, 1886. 142 Mass. 216, 7 N. B. 7S0, 

56 Am. Rep. 667.) 

This was a bill in equity by the plaintiffs, heirs at law of Josiah Dun- 
ham, deceased, praying that the will of the said Dunham be annulled, 
and adjudged invalid and of no effect, so far as it contained a residu- 
ary clause, which clause, together with the facts, appear in the opin- 
ion. The defendants demurred to the bill. Hearing in the supreme 
court before C. Allen, J., who reserved the case for the full court. 

Devens, J. The gift to "Samuel Leeds and Josiah Dunham, Jr., 
their heirs and assigns, forever, and to the survivors of them, and his 
heirs, forever, in trust, to sell, dispose of, invest, and manage the 
same, and appropriate such part of the principal and interest as they 
may deem best for the aid and support of those of my children, and 
their descendants, who may be destitute, and, in the opinion of the 


trustees, need such aid," will not admit of being construed as a gift 
to the testator's children and their descendants who might be living 
at the time of the testator's decease, or that of the last of his children. 
The language used, as well as the declared purpose, show that it is a 
gift in trust for the benefit of those who should thereafter, through- 
out an indefinite period of time, being descendants of the testator, be- 
come destitute and in need of aid and support. The words import 
that the bequest is ultimately to be administered by others than the 
trustees named, and that the testator has not sought to repose a special 
confidence in them exclusively, but to establish a permanent trust, for 
which trustees were ultimately to be appointed according to ordinary 
rules of courts of equity. That such a gift is too remote, as tending 
to create a perpetuity, when it is to be held for the benefit of those 
who may not have been living at the time of the testator's death, or 
that of his children, and who may not come into being until many 
years thereafter, cannot be controverted, unless it can be sustained as 
a public charity. Nightingale v. Burrell, 15 Pick. 104; Brattle Square 
Church V. Grant, 3 Gray, 142, 63 Am. Dec. 725 ; Sears v. Russell, 8 
Gray, 86; Thorndike v. Loring, 15 Gray, 391. The attorney general 
has therefore been made a party to this bill, as well as all the demand- 
ants of the testator. Jackson v. Phillips, 14 Allen, 539. 

A public or charitable trust may be indefinite in duration, and its 
general object or purpose, as indicated, being charitable, the applica- 
tion and selection of the particular objects or individuals who are to re- 
ceive its benefits may be confided to those who are its trustees. That 
a gift should have this character there must be some benefit to be con- 
ferred upon, or duty to be preferred towards, either the public at large, 
or some part thereof, or an indefinite class of persons. If a trust were 
created for the benefit of the poor of a particular town or parish, or of 
persons of a specified class or occupation, as seamen, laborers, or me- 
chanics, it would not be doubted that it would be good as a charity. 
So, if a sum were bequeathed, the income of which, from time to time, 
or in the discretion of the trustees, was to be applied to the relief of 
the destitute, by distribution of fuel or provisions, or in any other 
similar defined mode, or as the trustees might deem most expedient, 
the gift would be enforced as a public charity. 

The gift in the case at bar is solely for the benefit of the children of 
the testator, and their descendants. The only public interest that there 
can be in connection with it is that where, as there may be hereafter, 
certain destitute persons, descendants of the testator, who might other- 
wise become a public charge, they will be entitled to relief from this 
fund. This legacy, it will be observed, is readily distinguishable from 
one by which the income of a fund is devoted to the poor of a par- 
ticular town or parish, preference being given to the descendants or 
the relations of tihe testator. In such a donation there is a public ob- 
ject, as they are thus provided for only as a part of the poor who 
are to receive the benefit of the charity, although a preference is 


given them, on account of their descent or relationship, in its distribu- 

There were certain English cases which, as the trustees contend, of- 
fered strong ground for holding this legacy to be public charity. In 
Attorney General v. Bucknall, 2 Atk. 328, (1741,) the point decided 
was that any person, though the most remote in the contemplation of 
the charity, might be a relator in an information in reference thereto. 
The facts, as stated in the note, do not show that any question arose 
as to whether the bequest was a public charity ; the only inquiry ap- 
parently being whether the relator was one of the poor relations who 
were the objects of the bounty. In White v. White, 7 Ves. 423, (1802,) 
it was held that a bequest to poor relations of two families for putting 
out their children as apprentices, the duration of which would have 
exceeded the limits allowed by law, unless it was a public charity, 
migh^ be executed by putting out those who were then ready as 
apprentices. ' There was no discussion of the subject in the opinion of 
the master of the rolls. Sir William Grant. In Attorney General v. 
Price, 17 Ves. 371, (1810,) there was a direction to pay £20 per an- 
num to the testator's poor relations in the county of Brecon, which 
was held good as a charity, apparently upon the giuthority of Isaac 
V. Defriez, Amb. 595, and on the ground that it was entitled to have 
perpetual continuance for the benefit of a particular class of poor. 
In Gillam v. Taylor, L. R. 16 Eq. Cas. 581, it was held that where the 
testator gave the residue of his real and personal estate to trustees 
for investment in their joint names, and directed the interest from 
. time to time to be paid to such lineal descendants as they might sever- 
ally need, that the gift was charitable, and that it need not be distribut- 
ed to those actually poor, but only to those relatively so, and thus that, 
if all the relations except one had £20,000 a year, and the latter 
£10,000 a year, he would be entitled. This decision is treated with but 
scant respect in Attorney General v. Northumberland, L. R. 7 Ch. Div. 
745, by Sir George Jessel, M. R., where it is said that such a charit>' 
would only be good in favor of those actually poor. In this latter case 
the gift gave only a preference to the relations of the testator in the 
distribution of the income of the trust fund to the poor, which was 
provided for annually. 

These cases do not fully sustain the position that the legacy here in 
question can be upheld as a public charity. In all of them there were 
persons so situated as to be entitled to the benefit of the charity, so 
that an indefinite accumulation was not to be permitted in favor of a 
class which might never have an existence, or might never come into 
existence within any period of time when its connection with the testa- 
tor could be traced. 

Bequests in favor of poor relations also are for a far more extensive 
class than descendants. While the failure of issue, and thus the ter- 
mination of the line of lineal descent, is comparatively common, the 
ancestors of every person are indefinitely numerous, and there can be 


no failure of collateral relations, except such as may arise from the 
impossibility of tracing the descent of the testator. 

Without desiring to express any opinion as to whether we- should 
hold it to be our duty to follow the doctrine of these cases if the ques- 
tion presented by the case at bar was fairly within them, the reasons 
why the gift of the testator cannot be sustained as a public charity ap- 
pear to us entirely sufficient. It is the policy of the law to prevent 
indefinite accumulation of property for the benefit of individuals. The 
descendants of the testator are now, and have been since his decease, 
in comfortable circumstances. Not only may a long time elapse before 
any descendant will exist who can be termed "a destitute person," but 
such a time may practically never occur, as it may be at so distant a 
period that descent cannot be traced, or the event of the failure of 
descent from the testator may render it impossible that it should ever 
occur. In the expectation of the remote contingency that there shall 
be a descendant who is a destitute person, the fund is to be permitted 
to accumulate if the will of the testator is followed. If the line of 
descent from the testator fails, it will have been accumulated for his 
heirs, it may be, in a remote generation. There is no general public 
object sufficient to justify this accumulation in the possible advantage 
which the public may obtain by having the descendants of the testator 
protected from beggary, and thus from becoming a public charge. To 
establish as a permanent charity a provision for a single family, and 
thus, it may be, to prevent an indefinite accumulation of property which 
might eventually be solely for the benefit of the testator's heirs, and 
those who may claim under them, would be foreign to the general prin- 
ciples of our law on this subject, and cannot be justified by so slight 
a prospective public benefit 

The result is that the portion of the eighth clause of the testator's 
will which seeks to establish a trust in two-thirds of the residue of 
his estate for the benefit of his children and their descendants "who 
may be destitute, and, in the opinion of said trustees, need such aid/' 
must be deemed to be invalid and without eflfect Demurrer overruled. 


See Jackson v. Phillips^ ante, p. 269. 

v.//^/..,,. /, : y f'-^<,<^ - //;^; 


I. Reversions ^ 

See Hobson v. Huxtable, below. 

II. Possibilities of Reverter 


See Proprietors of Church in Brattle Square v. Grant, ante, p. 212. 

III. Future Estates — At Common Law 


• ♦ k. 


(Supreme Ck)urt of Nebraska, 1908. 79 Neb. 340, 116 N. W. 278.) 

On rehearing. Former opinion and the decree of t)ie district court 
vacated and decree rendered. 

For former opinion^ see 112 N. W. 658. 

Root, C* In 79 Neb. 334, 112 N. W. 658 et seq., may be found a 
statement of the facts in this case. A rehearing has been granted 
and the entire record presented for our consideration. 

1. The defendants Huxtable insist that the record does not dis- 
close that Anna E. Hobson owned the real estate in litigation in fee 
simple; that they stipulated only that she died seised of the real es- 
tate; that seisin may be for life or for years, and fall far short of 
an estate in fee simple ; that, as they had interposed the defense of title 
by adverse possession, the heirs of Anna E. Hobson must trace their 
title back to the United States. We do not think it necessary to de- 
cide the legal definition of the word "seisin," because it was used 
in this case evidently as a synonym for title in fee simple. The tes- 
timony of the witness Tomkins further establishes that Mrs. Hob- 
son purchased the farm some 10 years before her death, and resided 
thereon with her family from the time she Acquired the land until 
she died. 

1 For discussion of principles, see Burdick, Real Prop. 1 188. 

* For discussion of principles, see Burdick, Real Prop. ) 139. 

> For discussion of principles, see Burdick, Real Prop. {{ »140~149« 

* Part of the opinion is omitted. 

' / 


Ay^^ .\l tt I 



,^/,l ?-:t v/ 






2. It is c laimed that the children of Anna E. Hobson did not take 4 

a vested estate in remainder upon the death of their mother. .We ryj^ ^ : 
cannot agree with coimsel. The writers refer to the estate included n 
within the homestea? as a life estate for the surviving spouse, ancj* ^**^ 
either a remainder or reversion in the heirs. "A remainder is a rem- 
nant of an estate \x^ land, depending upon a particuFar prior estate 
created" at the same time, and by the same instrument, and limited to 
arise immediately on the determination of that estate, and not in 
abridgment of it." 4 Kent, Commentaries (13th Ed.) 197, "A rever- 
sion is a return of the land to the grantor and his heirs after the 
grant is over." 4 Kent, Commentaries (13th Ed.) 353. In Caldwell 
v. Pollak, 91 Ala. 353, 8 South. 546, the estates are referred to as 
"a homesteadexemption^actudlxand rightfully, interposed, has the / 
effect in law of dividing the freehold into two quasi ownerships* the / * :' ' . 
one for life, and the other in remainder." The title in the succession 
of a homestead is not evidenced by written grant, bt^t arises from 
seisin, the family relation and residence, and those facts take the 
place of the written instrument that usually evidences the prior estate 
and the one in remainder. The nature of the estate devolving upon 
the heirs at the death of the fee-holding spouse is settled as squarely 
as the decision of this court can establish any principle of law, and 
is not open to question. In Schuyler v. Hanna, 31 Neb. 308, 47 N. W. 
933, we held, "Under, section 17 of the homestead law of 1879 (Laws 
1879, p. 61), that the heirs of the person whose property has been 
selected for a Romestead took a vested remainder therein, subject to 
the life estate of the surviving husband or wife." In Fort v. Cook, 
3 Neb'. (Unof.) 12, 90 N. W. 634, Mr. Commissioner Hastings re- 
views the case of Schuyler v. Hanna, and clearly demonstrates that the 
estate of the heir vests upon the death of the parent. Durland v. 
Seller, 27 Neb. 33, 42 N. W. 741 ; Cooley v. Jansen, 54 Neb. 33, 74 
N. W. 391. 

3. It is asserted that an action to quiet title cannot 4)e maintained by ' 
the hei rs during the lifetime of the surviving spouse. Our s tatutes ^^ '/* 
plaijiljj give the right. Sections 57, 58, 59, c. 73, Comp. St. 1907 (sec- < 
tions 4814-4816). "Section 59 is surplusage, unless it extends that 
right to the remaindermen: "Any person or persons having an in- 
terest in remainders or reversion in real estate shall be entitled to all 
^^._??Sll^rLJtP^ benefits of this act" Upon the termination of the 
prior estate, those who were remaindermen or reversioners cease to 
hold the title by that description, and would fall within the class re- 
ferred to in section 57, supra. We have held the action could be 
maintained before the surviving spouse departs this life. Holmes v. 
Mason, 80 Neb. 448, 114 N. W. 606. We also held in said case that • 
the statute of limitations bars that right, unless exercised within 10 
years of the time the cause for action accrues ; the heirs being adults. 

It is said that the action may still be maintained by all the heirs of 

(.' ' 

'^, ^ 

^. '^ 



Anna E. Hobson because commenced within 10 years of th e date th e 
youngest child attained hi^ majority; that the cause of "actjon_ j%.^an 
entirety and cannot be severed, and hence good as to one is good as 
to all. Thompson v. Wiggenhorn, 34 Neb. 725, 52 N. W. 405, is cited 
to sustain this proposition. In that case an infant had the right to 
rebuild a burned mill, whereas, if he had been an adult at the time 
his ancestor died, he would have forfeited that privilege. The other 
heirs of the deceased were adults when the father died, and it was 
held the forfeiture could not apply to one joint owner and not to the 
others, because the two buildings could not at the one time occupy the 
same space, and, if the statute worked a forfeiture as to the adults 
and not as to the infant, the impossible condition of two persons or 
sets of persons each having the exclusive right to construct a building 
within the same space at the same time would exist The rule does 
not apply in the instant case, because each one of two or more tenants 
in common may maintain a separate action for the protection or re- 
covery of his estate, and he may not litigate as to other than his own 
interests in the land. Johnson v. Hardy, 43 Neb. 368, 61 N. W. 624, 
47 Am. St. Rep. 765. We arc also cited to authorities holding that 
the statute does not commence to run agamst the remaind ennan or re - 
versioner until he has a right of entry, and^this we 
to actions for the possession of real estate. Allen v. De Groodt, 98 
Mo. 159, 11 S. W. 240, 14 Am. St. Rep. 626, and monographic note 
commencing on page 628; Smith v. McWhorter, 123 Ga. 287, 51 S. 
E. 474, 107 Am. St. Rep. 85 ; Hanson v. Ingwaldson, 77 Minn. 533, 
80 N. W. 702, 77 Am. St. Rep. 692 ; McCorry v. King's Heirs, 3 
Humph. (Tenn.) 267, 39 Am. Dec. 166^171. * * *. 

In re KENYON. 
(Supreme Contt of Rhode Island, 1880. 17 R. 1. 149, 20 Atl. 294.) 

Case stated for opinion of the court under Pub. St. R. I. c. 192, 
§ 23. 

The last will and testament of George C. Kenyon^ late of East 
Greenwich, duly proven, is as follows : 

"I, George C. Kenyon, of East Greenwich, in the county of Kent, 
and state of Rhode Island, do make and publish this my last will and 
testament in manner following: 

"First. After the payment of my just debts and the expenses of 
settling my estate, I give and bequeath all my estate, both real and 
personal, of whatever kind or nature, of which I shall die possessed, 
* to Simeon F. Perry, of Westerly, in the county of Washington; and 
state of Rhode Island, and his heirs, to have and to hold, for and d ur- 
ing the natural life of my son, DanjelC. Kenyon, in trust, to collect 
the rents and profits of the property hereby devised ; and after the pay- 




ment of all taxes and assessments thereon, and for necessary repairs 
thereto, to pay over the biilance to my said_ .son, .Daniel C. Kenyon. 
And I further authorize and empower said trustee, whenever in his 
judgment it shall be necessary or proper to raise money for the pur- 
pose of paying off incumbrances on said property, or for making re- 
pairs, additions, or improvements thereto, or to any part thereof, or 
if, in his judgment, some other investment shall be more advantageous 
or profitable, or whenever he shall deem the inqome or profits arising 
from said^ ET^P^^^y insufficient to secure the necessary support and 
sustenance of the said Daniel C. Kenyon^ or for his advancement in 
life, to sell or mortgage or lease for a term of years, with the written 
consent of the said Daniel C. Kenyon, the above-devised property, or 
any part thereof, for the best prices that can be obtained therefor. 
And the duly-executed deed of conveyance of said trustee, with the 
written consent of the said Daniel C. Kenyon attached thereto, or in- 
corporated therewith, shall in all cases vest a clear and complete title 
in the purchaser thereof, free from the provisions of this trust. And 
it shall be the duty of said trustee, with the written consent of said 
Daniel C. Kenyon, to invest the proceeds of such sales not necessary 
for the payment of inctmibrances on said property, or for repairs 
thereof, or for the necessary support and advancement of said Daniel 
C. Kenyon, in suitable improvements upon the remaining property, 
or in other secure and productive property. And all property pur- 
chased shall be held by the trustee under the same title and conditions, 
and with the same powers and privileges, as the property originally 
devised to him, and for such sums as said trustee shall expend in the 
sustenance, support, and advancement of the said Daniel C. Kenyon ; 
the receipt of said Daniel C. Kenyon shall be a sufficient discharge for 
said ^trustee: provided^. tLOwever^ that if the said Simeon F. Perry 
shall die in my life-time, and no other trustee shall have been duly ap- 
pointed Tfy me in my life-time, the above bequest shall then vest in 
the person who at the time of my death shall be or shall be acting as 
town-clerk of East Greenwich aforesaid and his heirs, until a trustee 
can be appointed as hereinafter provided, except that the said town- 
clerk or his heirs shall have no power to sell or otherwise convey any 
of the property hereby devised ; and provided, further, that, if the con- 
tingency mentioned in the last clause shall happen, or if the said 
Simeon F. Perry, or any othei^ trustee, shall die during the continu- 
ance of this trust, or shall become incapable of fulfilling the duties 
thereof, or shall refuse to perform them, I hereby authorize and em- 
power the supreme court of this state, sitting in any county thereof, 
to appoint another trustee ; and upon such appointment the above be- 
quest as regards the person or the heirs of the person so deceased or 
superseded shall cease and determine, and shall vest in full force with 
the same powers and privileges, and subject to the same conditions, in 
the person so appointed. 



\ , ■ '^Second. After the decease of said Daniel C. Kenyon, I giv e and be - 

queath all the property affected by the above trust which shall then re- 
main to my own right heirs. 

"Third. I appoint said Simeon F. Perry executor of this my last 
will and testament, and hereby revoke all former wills and testaments 
• by me made. 

"In testimony whereof I have hereunto set my hand this thirty-first 
of the seventh month, A. D. 1863. George C. Kenyon. 

"Signed,, published, and declared by Ge«rge C. Kenyon as and for 
his last will and testament in our presence, who have, at his request, 
in his presence, and in presence of each other, set our names as wit- 
nesses. Ebenezer Slocum. David C. Potter. Joseph W. Congdon." 

After the death of Daniel C. Kenyon. childless and intestate, the 
administrator of his estate and the then heirs at law of George C. 
iCenyon presented this petition to the court to determine what disposi- 
tion was made by the will of the latter of the remainder after trustee's 
estate for the life of Daniel C. Kenyon. " 

DuRFEE, C. J. The case stated shows that George C. Kenyon died 
at East Greenwich in 1874, leaving real and personal estate, and one 
son, Daniel C. Kenyon, his only heir at law. He left a will by the 
first clause of which he devised and bequeathed all the residue of his 
estate, after payment of his debts, "to Simeon F. Perry * * * 
and his heirs, to have and to hold, for and during the natural life of 
my son, Daniel C. Kenyon," in trust for said Daniel, with power to 
sell, mortgage, or lease the same, with said Daniel's written consent, 
for the purpose of paying off incumbrances, making repairs, improving 
the investment, or raising money for the necessary support or for the 
advancement of said Daniel. The second clause is as follows, to-wit : 
"After the decease of said Daniel C. Kenyon, I give and bsaueath^ll 
the property affected by the above trust which shall then remain to my 
own right heirs." Daniel C. Kenyon died in 1887, without issue. The 
estate remaining is claimed on the one hand by persons who, if the 
testator had died childless, would have been at the time of his death, 
and who are now, his sole heirs at law. On the other is claim- 
ed by the administrator on the estate of Daniel C. Kenyon as said' 
Daniel's estate, liable as such for the payment of his debts, his claim 
being that it vested in said Daniel under said second clause, by way 
of remainder, at the death of the testator, said Daniel being the testa- 
\ tor's only "right heir." We are asked to say which of the two claims 
^ is right. 

It is contended for the heirs at law that the estate could not pass 
under the second clause as a remainder, because it was given by the 
first clause to Simeon F. Perry in fee-simple, after which there can 
be no remainder. The^ second clause, it is argued, could o nly tdk e 
effect by way of executory devise. We are not convinced by the argu- 
ment. It is true that the residuary estate is given to Simeon F. 
Perry "an3 his heirs," but nevertheless it is only given to him and his 



heirs for and during the natural life of Daniel C. Kenyon, and in our 
opinion the devise, correctly interpreted, creates only an estate pur 
autre vie: i. e., for the life of said Daniel, the heirs of said Perry tak- 
ing after him, if he had died before said Daniel, as special occupants. 
Carpenter" V. Dunsmure, 3 El. & Bl. 918; Doe v. Robinson, 8 Barn. 
& C. 296 ; Atkinson v. Baker, 4 Term R. 229. See, also. Doe v. Con- 
sidine, 6 Wall. 458, 18 L. Ed. 869, wherean estate devised to a trustee ) 
and his h eirs for objects terminating with lives in being, with re- / ^ 
niainder over^ was^held to be constructively only an estate pur autre 5*1 .• 
vTeTsuch an estate being; sufficient for all the purposes of the trust. ' -• 
We'tTimk there was nothing to prevent the estate from passing under 
said clause by way of remainder. 

It IS contended for the heirs at law that the language of the first 
clause is such as shows an intent on the part of the testator to give 
to his son, Daniel, only an estate for^ life. The first clause clearly 
shows an intent to put the estate, during the life of this son, in the ' 
trammels of a trust, but it does not in express terms limit the son to 
the estate so put in trust, nor use any language which is necessarily 
inconsistent with his taking in remainder. It isjirged that the powers 
given to the trustee to dispose of the entire estate for the son's benefit, 
but not without the son's written consent, would not have been given 
so if the testator had intended to haye his son take not only the equita- 
ble nfe-estate, but also the legal remainder. We do not think this is 
clear, since the powers, if not necessary, might be convenient, and 
would tend to give the trustee a restraining and protective influence. 
The great obstacle to the construction contended for by the heirs at 
law is that the estate was given by the testator in remainder to his 
"own right heirs," and the son answered to that description at the 
testator's death. We are bound to hold that the words were used in 
their proper technical meaning until the contrary clearly appears. 
^jJUie counsel for the heirs at law contend that Daniel could not have 
tal^ a vested remainder under the second clause, because the clause 
was not intended to take effect until after his death, being then in- Vj^^^ 
tended to take effect in favor of the persons then answering to the \ 
description of the testator's right heirs; or, in other words, that the 
remainder was contingent until then, the persons entitled being pre- 
viously undetermined. YJn support of this contention he directs atten- 
tion particularly to the language of the second clause, which gives, 
after the clause of Daniel, notX'the remainder of the estate," but "all 
the property affected by the above trust which shall then remain.'V 
The view is not without force, but the precedents are against it. .The 
estate given by the second clause does not vest in possession until 
aTteFDaniel's death; but the question is, when did it vest in title or 
ownership? This question is to be decided in the light of the rule 
tliafTHe^law favors vesting very strongly, and will not regard a re- 
m'SuTder as contingent, in the absence of very decisive tenns of con- 
Bubd.Gas.Real Prop.— 21 


tingeiicy, unless th^ J)X:aYi§ion% or implications of the will clearly re- 
(juirejt, and that words expressive of future time are to be referred 
to the vesting in possession, if they reasonably can be, rather than 
to the vesting in right. 2 Jarm. Wills, (5th Amer^ Ed.) 421, note; 
Cusack v. Rood, 24 Wkly. Rep. 391; Bullock v. Downes, 9 H. L. 
Cas. 1. 

The words "I give and bequeath," in a testamentary paper, says 
Chief Justice Shaw, in Eldridge v. Eldridge, 9 Cush. (Mass.) 516, 519, 
"import a benefit in point of right, to take effect upon the decease of 
the testator and the proof of the will, unless it is made in terms to 
depend on some contingency or condition precedent." This remark 
applies pointedly to said second clause, as will clearly appear if we 
slightly alter the form, without altering the sense, so that the clause 
shall read thus: "I give and bequeath all^theprpperty affected by. the 
^bove trust, which shall remain after the decease of said Daniel C. 
Kenyon, to my own right heirs." The gift so expressed is clearly ini.- 
mediate, though how much will eventually pass by it is unc ertain^ to 
be^ ascertained only at the death of Daniel. The same uncertainty 
would exist if this were the form "of 'the gift, to-wit:. "I give to A. 
for life, with power, in case the income is insufficient for his comforta- 
ble support, to sell and use the corpus or principal therefor, so far 
as required, and after the death of A., to B. and his heirs ;" and yet, 
without doubt, the remainder under such a devise would vest immedi- 
ately at the testator's decease. It would vest, subject to be divested, 
either wholly or in part, by the exercise of the power. The devise in 
either form is in effect the same, and so likewise is it, in our opinion, 
in legal construction, at least so far as the question of vesting is con- 

In Surman v. Surman, 5 Madd. 123, the gift was of personal prop- 
erty in this wise, to-wit : "I give and bequeath the same to my wife 
for life, or during widowhood, with power to use and appropriate 
the same as she thinks proper for her own benefit, or the maintenance 
of my nephew and daughter-in-law during minority; and on her de- 
cease I give and bequeath the same, or so much of the same as shall 
then remain, to said nephew and daughter-iil-law." And the court 
held that upon the marriage or death of the wife the remainder of 
the capital unapplied was well limited to the nephew and daughter-in- 
law. In Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23, the gift 
included real and personal estate, and was thus: "I do give, devise, 
. and bequeath unto my wife, * * * to her use and disposal during 
her natural life, and what is remaining at her decease undisposed of 
by her I give, devise, and bequeath to D. and his heirs." Held, that 
D. took a vested remainder subject to be divested by the executor of 
the power. These cases, in our opinion, are not distinguishable in 
point of principle from the case at bar. In White v. Curtis, 12 Gray 
(Mass.) 54, it was decided that a devise in trust, to apply the income, 
and if necessary the principal, to the support of the testator's sons for 


life, and after their death to divide the remainder among his grand- 
children, gives each grandchild a vested interest at the death of the 
testator. See, also, Ackerman v. Gorton, 67 N. Y. 63. 

Our conclusion is that said second clause does not show clearly Aj-TI;^ 
an intent on the part of the testator to have the property given there- jVl^''*^ 
by gO j after the. death of his son, to the persons then answering to the 
desmptionjpLliis own right heirs. 

if the first and second clauses, taken separately, do not show such 
an intent, do they, taken together, show it ? We think there can be no 
doubt if, the will remaining otherwise the same, the immediate gift 
were to some person other than the son, or to the son he being one 
of several heirs at law, that the son would take at the death of the 
testator a vested remainder under said second clause, solely in the first 
case supposed and together with his co-heirs in the second. The ques- 
tion, then, is whether the fact that he is the sole heir at law is suffi- 
cient to exclude him by implication from taking under the second clause, 
and to carry the estate given thereby over until after his death to 
the persons then answering to the description of the testator's right 
heirs. The case of Miller v. Eaton, Coop. 272, decided A. D. 1815, 
by Sir William Grant, suppor