Avery v. Everett

• Decision Date: 02 October 1888
• Citation: 110 N.Y. 317,18 N.E. 148
• Parties: AVERY v. EVERETT.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 317

18 N.E. 148

AVERY

v.EVERETT.¹

Court of Appeals of New York.

October 2, 1888.

Appeal from supreme Court, general term, Fifth department.

Action to recover possession of real property, and for damages, brought by John M. Avery against George Everett and Louisa Everett. John H. Southwick owned the property in question at the time of his death. After making some unimportant bequests of personal property, and three small legacies of money, the testator in his will says: ‘I give and bequeath to my beloved wife, Eliza Ann, all my household furniture, and all the rest of my personal property, after paying from the same the several legacies already named, to be hers forever. I also give, devise, and bequeath to my beloved wife, Eliza Ann, all of my real estate as long as she shall remain unmarried and my widow; but on her decease or marriage, then what may remain of said real or personal property I give and devise to my son, Charles H. In case my son, Charles H., should die without children, then, after my wife, Eliza Ann's, death, and my son, Charles H.'s, death, my will is all the property, real or personal, that may remain shall go to Augustus Southwick.’ Plaintiff is the grantee of Augustus Southwick. Defendant entered into possession under Eliza Ann Southwick, the widow of said John H. Southwick. Charles H. Southwick was convicted of murder in the second degree, and setenced to the state prison for the term of his natural life by the court of oyer and terminer, in October, 1875. The widow died on September 28, 1878. After her death appellant leased from said Charles H. Southwick, so far as he was competent to lease the same. The action was tried before WILLIAM RUMSEY, justice, without a jury, and on an admitted state of facts judgment was rendered for plaintiff. Defendant, George Everett, having appealed, the general term reversed the judgment, and ordered a new trial. From this order plaintiff appealed.

EARL, J., dissenting.

Rhodes, Coon & Higgins, for appellant.

Wm. Tiffany, for respondent.

ANDREWS, J.

We concur in the conclusion of the courts below that by the true construction of the will of John H. Southwick his son, Charles H. Southwick, took upon the testator's death a vested remainder in fee, limited upon the life-estate of his mother in the premises in question, subject, however, to be defeated by a condition subsequent, viz., his death without children, in which event the substituted remainder given on that contingency to Augustus Southwick, the son of the testator's brother Nathan, would vest in possession, thereby displacing the prior fee given to the testator's son, Charles. Vanderzee v. Slingerland, 103 N. Y. 47, 8 N. E. Rep. 247; In re Railroad Co., N. Y. 89, 11 N. E. Rep. 492. The plaintiff claims under the devise to Augustus Southwick. The widow of the testator died September 1, 1869, after the death of her husband. Charles H. Southwick is still living, unmarried, and without children. If nothing further appeared, the plaintiff's action would necessarily fail, for the reason that the contingency had not happened upon which the estate of Augustus Southwick is limited, and the defendant, George Everett, who is the lessee of Charles H. Southwick, would be entitled to judgment. The plaintiff, to obviate this apparent difficulty, proved that Charles H. Southwick, in October, 1875, was convicted of the crime of murder in the second degree, and was thereupon sentenced to improsonment in the state prison at Auburn for the term of his natural life, and from that time has been imprisoned pursuant to such sentence. The plaintiff contends that as the life-estate of the widow was terminated by her death, and as Charles H., on his sentence to imprisonment for life, became civilly dead, the contingent estate given by the will to Augustus Southwick in case ‘Charles H. should die without children,’ has became an actual fee.

Assuming that a civil death consequent upon a sentence to imprisonment for life operates eo instanti to divest the person sentenced of his estate,-a point we shall hereafter consider,-there is still another question, viz., whether such a death was contemplated by the testator, and whether the words of limitation to Augustus Southwick are to be construed as applying to a civil, or only to the natural, death of Charles H. Southwick. It is possible that Charles H. may be pardoned, and may marry, and have children. It is plain that Augustus Southwick can take only according to the will, and that, if by its true construction the natural death of Charles H. without children was solely the contingency upon which the substituted fee is to vest, the plaintiff must fail on this ground, independently of any other, and whatever conclusion might be reached as to the effect of the civil death of Charles H upon his own estate under the will. It is said by Coke, (Co. Litt. § 200,) speaking of the two species of death, mors civilis and mors naturalis, that to ‘oust all scruples leases for life are ever made during the natural life,’ etc. We have found no authority upon the construction of the word ‘death’ in a will, as applied to circumstances like these in the present case. We deem it unnecessary to decide the point suggested, as we are of opinion that the title of Charles H. Southwick to his land was not divested as a consequence of his sentence to imprisonment for life, and it follows as a necessary consequence from this premise that Augustus Southwick, or his grantee, has no present vested interest upon which to maintain ejectment. The Revised Statutes declare that a person sentenced to imprisonment for life ‘shall thereafter be deemed civilly dead.’ 2 Rev. St. p. 701, § 20. This provision was re-enacted in the Penal Code, § 708. The only statutory provision on this subject existing in this state prior to the Revised Statutes is found in an act passed March 29, 1799, which enacted that in all cases where a person shall be convicted and attainted of any felony thereafter committed, and adjudged to imprisonment for life in the state prison, ‘such person shall be deemed and taken to be civilly dead to all intents and purposes in the law,’ and the statute of 1799 remained unchanged until the provision in the Revised Statutes to which we have referred was substituted. 1 Rev. Laws 1813, p. 411. In the absence of any legislation on the subject, the common-law consequences of a conviction for felony attached in this state, and remained until abrogated or changed by constitution or statute. 2 Kent, Comm. 386. By the common law the civil death of the offender was one of the consequences of attainder for treason or felony; and in Troup v. Wood, 4 Johns. Ch. 248, the chancellor seemed to entertain no doubt that on a conviction in this state prior to 1799 of an offense which was a felony at common law, the common-law incident of civil death attached, and this as well where the statute had changed the punishment from death to imprisonment for life, as in the case of a capital sentence.

To ascertain the meaning of the phrase ‘civil death,’ as used in the Revised Statutes, and whether the statute on a sentence of an offender to imprisonment for life operates eo instanti to divest him of his estate, it is important to consider how civil death affected rights of property at common law. By the ancient common law, when sentence was pronounced for a capital offense, the offender, by operation of law, was placed in state of attainder. 1 Chit. Crim. Law, 723. There were three principal incidents consequent upon an attainder for treason or felony,-forfeiture, corruption of blood, and an extinction of civil rights, more or less complete, which was denominated civil death. Forfeiture was a part of the punishment of the crime, and was of Saxon origin, by which the goods and chattels, lands and tenements of the attainted felon were forfeited to the king; the former absolutely on conviction, and the latter perpetually, or during the life of the offender, on sentence being pronounced. The doctrine of corruption of blood was of feudal origin, introduced after the Norman conquest. The blood of the attainted person was deemed to be corrupt, so that neither could he transmit his estate to his heirs, nor could they take by descent from the ancestor. The crime of the attainted felon was deemed a breach of the implied condition in the donation of the feud, dum bene segesserit, and the descent to his heirs being interrupted by the corruption of blood, his lands escheated to the lord. But this escheat was subordinate to the prior and superior law of forfeiture. Com. Dig. tit. ‘Forfeiture’ K; 2 Bl. Comm. 252; 1 Chit. Crim. Law, 723-728; 1 Broom. & H. Comm. 404; Rex v. Morphes, 1 Salk. 85. The incident of civil death attended every attainder of treason or felony, whereby, in the language of Lord Coke, the attainted person ‘is disabled to bring any action, for he is extra legem positus, and is accounted in law civiliter mortuus,’ (Co. Litt. § 199, note,) or, as stated by Chitty, (1 Crim. Law, 724,) ‘he is disqualified from being a witness, can bring no action, nor perform any legal function; he is in short regarded as dead in law.’ The forfeiture of the estate of the attainted felon to the king or to the lord, was not, it would seem, a consequence of the situation in which he was placed, of civiliter mortuus, but proceeded upon distinct and independent reasons, and this, we think, is rendered plain when we consider how the law of forfeiture was construed. The attainted person was not divested of his lands till office found. This is very distinctly held in Nichols v. Nichols, 2 Plow. 486, where the question was put: ‘If the possession in deed or law of the lands of a person attainted of treason should not be in the king before office found, in whom should it be, by the course of the common law, in the life of the person attainted?’ and it was held that the freehold of such lands would be in fact in the person...