Hardenbergh v. Ray

• Decision Date: 03 January 1894
• Docket Number: No. 113,113
• Parties: HARDENBERGH v. RAY et al
• Court: U.S. Supreme Court

151 U.S. 112

14 S.Ct. 305

38 L.Ed. 93

HARDENBERGH

v RAY et al.

No. 113.

January 3, 1894.

Henry B. B. Staples and Henry W. Smith, for plaintiff in error.

[Argument of Counsel from pages 113-116 intentionally omitted] John H. Mitchell and J. K. Kelly, for defendants in error.

Mr. Justice JACKSON delivered the opinion of the court.

The principal questions presented by the record in this case are—First, whether, by the laws of Oregon in force in 1872, a testator was authorized or empowered to devise after-acquired real property; and, second, whether, if such power existed, the after-acquired real estate in controversy passed by the testator's will in the present case.

The facts which give rise to these questions are as follows: Peter De Witt Hardenbergh, unmarried and without children, a citizen of Portland, Or., died in 1886, leaving a will executed by him May 15, 1872, which was duly probated, and remains in full force and effect. By the first clause of the will the testator devised to several nephews named therein a certain farm in Ulster county, N. Y.; by the second clause he devised to his sister Catherine L. Tremper all his right, title, and interest in and to all other lands in that county and state; and by the third and last clause he gave and bequeathed to his sister Ellen E. Ray 'all my right, title, and interest in and to all my lands, lots, and real estate lying and being in the state of Oregon or elsewhere, except as aforesaid; also, all my personal property and estate, of whatsoever kind and nature.'

At the date of the will the testator owned certain real property in Portland, Or., and in January, 1882, some 10 years after the will was executed, he purchased, and at the time of his death owned, a parcel of land in the city of Portland, valued at $30,000, which is the subject of controversy in this suit.

Ellen E. Ray, the devisee under the third clause of the will, died intestate in 1873, leaving, as her heirs, Thomas L. Ray, Rachel L. Ray, Hylah E. Ray, and Mary E. Arbuckle, citizens of Oregon; John De Witt Ray, a citizen of Illinois; and Sarah A. Ray, a citizen of New York. Upon the death of the testator, these heirs of Ellen E. Ray, who, under the laws of Oregon, (section 3077, Hill's Ann. Laws Or.,) succeeded to her rights as devisee, took possession of the premises in controversy, as well as other real property in Oregon owned by the testator at the time the will was executed.

Herman R. Hardenbergh, a brother of the testator, claimed and demanded an interest in common with the heirs of Ellen E. Ray in the real property acquired after the execution of the testator's will, on the ground that as to those lands he died intestate. This claim was denied, and he thereupon brought an action at law in the nature of ejectment against Charles Sliter, J. C. Miller, and W. H. West, citizens of Oregon, who were in possession of the demanded premises as tenants of the heirs of Mrs. Ellen E. Ray.

Subsequently, on their own motion, these heirs were substituted as defendants in place of their tenants, against whom the action was originally brought, and by their answer set up that, by the law of Oregon, the land in question passed to them by the third clause of the will, and that the testator did not die intestate in respect thereto.

The heirs of Ellen E. Ray having thus made themselves parties to the suit, and one of them (Sarah A. Ray) being a citizen of the same state (New York) as the plaintiff, the point was made in the court below, and has been presented in this court, that the jurisdiction of the United States circuit court was thereby defeated.

This objection to the jurisdiction of the court is without merit, and was properly overruled by the lower court. When the original suit was brought against Sliter, Miller, and West, the persons in possession, the court acquired jurisdiction of the controversy, and no subsequent change of the parties could affect that jurisdiction. This is well settled by the authorities. Mollan v. Torrance, 9 Wheat. 537; Dunn v. Clarke, 8 Pet. 1; Clarke v. Matthewson, 12 Pet. 164; Whyte v. Gibbes, 20 How. 542; Phelps v. Oaks, 117 U. S. 236, 240, 6 Sup. Ct. 714. In this last case it was held that in ejectment against tenants in possession of real estate, whose landlord is a citizen of another state, the plaintiff has a real and substantial controversy with the defendant, within the meaning of the act for the removal of cause from state courts, which continues after the landlord is substituted and becomes a party for the purpose of protecting his own interests. The rule announced in this case clearly settles, in a case like the present, that, where the jurisdiction of the court has completely attached against the tenant in possession, the substitution of the landlord as a defendant for such tanant will in no way affect or defeat the jurisdiction of the court.

By stipulation of parties, the trial of the cause by jury was waived, and all questions of law and fact were submitted to the court for its decision. The court found the facts substantially as set out above, and the conclusions of law announced were to the effect that, at the time the will was made, the testator was empowered and authorized by the laws of Oregon to devise any real estate situated in that state, whether acquired before or after the making of the will, of which he might die seised and possessed; also, that the intention of the testator, as manifested by the will in the present case, was to devise all of his real estate situated in the state of Oregon to Ellen E. Ray, and that, under and by virtue of the devise, the demanded premises, on the death of the testator, vested in the defendants as her heirs, and that they were entitled to the exclusive possession thereof. 33 Fed. 812.

The present writ of error is prosecuted to reverse that judgment. The two assignments of error present the questions heretofore stated.

For the plaintiff in error it is contended that the testator died intestate in respect to the demanded premises, for the reasons that at the time of the execution of his will he possessed no teatamentary power to devise after-acquired lands, and because his will manifests no intention to dispose of such property. If either of these propositions can be sustained, the judgment of the court below must be reversed.

In support of the first proposition, it is urged, on behalf of the plaintiff in error, that the common law, with its limitations and restrictions upon testamentary power in respect to real estate, was in force in the state of Oregon at the date of the execution of the will, and up to the death of the testator. Without reviewing the authorities, it is well settled that, by the common law, lands were not devisable, except in particular places, where custom authorized it. This disability of the common law was partially removed by the statute of 32 Hen. VIII., which authorized persons having title to land to dispose thereof by will, and was construed as restricting the right of devising lands to such an interest, only, as the testator had at the time of the execution of the will. Under this statute, real estate subsequently acquired could not pass by devise,—in other words, under the statute of 32 Hen. VIII., the will, as to lands, spoke from the date of its execution; so that a general devise of all the testator's estate would comprehend and include all the personalty to which he was entitled at the time of his death, but would not embrace after-acquired land, though such might be the expressed intention of the testator. The reason given for the distinction between real and personal estate was that a devise of land was regarded in the same light as a conveyance, and, as a conveyance at common law would not vest for want of seisin, it was therefore held to be operative only on such real estate as the testator might have at the time of the making of the will,—that is to say, that a devise was in the nature of a conveyance or appointment of real estate then owned, to take effect at a future date, and could not, therefore, operate on future acquisitions.

While this strict and arbitrary rule of the common law has been modified by the statutes of most, if not all, of the states of the Union, it is contended for the plaintiff in error that the rights of the parties in the present case are controlled by it, for the reason that the legislature of Oregon did not confer, by statute, testamentary power to dispose of after-acquired real property until February, 1891.

The provisional government of Oregon, in 1844, formally declared by its legislature that 'all the statute laws of lowa territory, passed at the first legislative assembly of that territory, and not of a local character, and not incompatible with the conditions and circumstances of this country, shall be the law of this country, unless otherwise modified; and the common law of England, and principles of equity, not modified by the statutes of Iowa, and of this government, and not incompatible with its principles, shall constitute the law of the land.'

Among the laws enacted by the first territorial legislature of Iowa, and thus adopted by the provisional government of Oregon, was the following act relative to wills:

'Section 1. Be it enacted by the council and the house of representatives of the territory of Iowa, that any person having an estate in any lands, tenements, or hereditaments, or any annuity or rent charged upon, or issuing out of the same, or any goods or chattels, rights, credits, and choses in action, or in possession, and property of every description, whatever, may give or devise the same to any person by last will and testament by him or her lawfully executed.' Laws of the First Session of the Legislative Assembly of the Territory of Iowa, 1838-39, p. 471.

This statute was substantially the same as that of 32 Hen. VIII., under which, as settled by the decisions of the English courts, and by those of the states...