Barnitz Lessee v. Robert Casey

• Decision Date: 10 March 1812
• Citation: 7 Cranch 456,11 U.S. 456,3 L.Ed. 403
• Parties: BARNITZ'S LESSEE v. ROBERT CASEY
• Court: U.S. Supreme Court

11 U.S. 456

7 Cranch 456

3 L.Ed. 403

BARNITZ'S LESSEE v. ROBERT CASEY.

March 10, 1812

Present. All the Judges.

ERROR to the Circuit Court for the district of Maryland, in an ejectment brought by the lessee of Barnitz against Casey, to try the title of Barnitz to certain real estate in Baltimore.

The facts of the case were stated by STORY, J. in delivering the opinion of the Court, as follows:

On or about the 6th of Feb. 1780, Daniel Barnitz died seized of the premises in the declaration mentioned, having, by his will, devised the same to his wife, Catharine Barnitz, in fee, and leaving issue, by his said wife, an only child and heir, Elizabeth Barnitz, who intermarried with one Charles McConnell, by whom she had an only child, John McConnell; after whose birth, and sometime in 1781, Charles McConnell died. Afterwards, his widow, Elizabeth, intermarried with one John Hammond, by whom she had one child only, John Barnitz Hammond, and died on the 22d of April, 1788. After her death, John Hammond intermarried with Elizabeth Anderson, and died on the 7th of April 1805, leaving issue by the last marriage, Jane B. Hammond and Henry Hammond, his heirs at law, who are now alive, under whom the Defendant in ejectment claims. On the 7th of April, 1794, Catharine Barnitz died seized of the premises having first duly made her last will and testament. By that will she devised to the said John McConnell, in fee, two certain parcels of land. She then devised another parcel of land, including her mansion-house to the said John Barnitz Hammond, to the intent and uses following, viz. subject, (as to the rents thereof) to certain trusts for the maintenance and education of the said John Barntiz Hammond, and for the payment of certain specific debts of the testatrix, 'to the use of John Hammond, the father, for and during the minority of the said John B. Hammond, if he shall so long live, provided the said John Hammond shall maintain, clothe and educate the said John B. Hammond, out of the rents thereof during his minority; and from and immediately after the said John B. Hammond shall arrive to the age of 21 years, or the death of the said John Hammond, his father, which shall first happen,' then to the said John B. Hammond in fee. The testatrix then provides, 'and if it should hereafter happen that the said John McConnell should die before he shall arrive to the age of 21 years, and without issue, then I give, devise, and bequeath all the estate of the said John McConnell, which is hereby devised to him, to go immediately to the said John B. Hammond, his heirs and assigns forever. And if it should hereafter happen that the said John B. Hammond should die, before he shall arrive to the age of 21 years, and without issue, then and in such case, after the payment of my debts as above mentioned, I give, bequeath, and devise,' &c. (the same land and mansion-house before devised to John B. Hammond) to the said John Hammond, his heirs and assigns forever; and also all the residue of estate herein before or after devised to the said John B. Hammond, and not hereby otherwise disposed of, I then, and in such case, give and devise the same to the said John McConnell, to hold to him, his heirs and assigns forever, from and immediately after the death of the said John B. Hammond as aforesaid; and in case of the death of both of my grandsons, under age and without issue as aforesaid, then I give, devise, and bequeath all that part of my estate which I have herein before given to the said John McConnell, to Charles Barnitz, of,' &c. 'to hold to him, his heirs and assigns forever.'- The testatrix then provides for the payment of her debts, by a sale, if necessary, of some of her lots of land, on or near church-hill, in Baltimore, and then proceeds, 'And I give and devise all the rest and residue of the said lots on or near church-hill aforesaid, and all my estate therein (subject nevertheless to the devises aforesaid) to my said grandsons John McConnell and John B. Hammond, their heirs and assigns forever, to be equally divided between them, share and share alike, as tenants in common, and not as joint tenants.' After some intermediate bequests, the testatrix devises 'all the rest, residue, and remainder of her estate, real and personal, to the said John McConnell and John B. Hammond, their heirs and assigns forever, to be equally divided between them, share and share alike.'

John McConnell attained his full age of 21 years, married, had issue, and afterwards on the 7th of April, 1802, died without leaving any surviving issue. And John B. Hammond died on the 12th of February, 1808, under the age of 21 years, and without issue.

The lessors of the Plaintiff are the children and heirs at law of Charles Barnitz, who was the only brother of Daniel Barnitz, the testator. And upon the defect of lineal heirs, the said lessors claim as next heirs, in blood, of John McConnell, on the part of his mother Elizabeth Barnitz, the daughter of Daniel Barnitz. It is admitted that the inheritable blood is extinct on the part of Charles McConnell, the father of John McConnell.

At the death of John B. Hammond, the property consisted of four descriptions; which it may be proper to enumerate.

1. The land specifically devised to John McConnell, with a limitation over to John B. Hammond.

2. The land specifically devised to John B. Hammond, with a limitation over in fee to his father.

3. The moiety of the church-hill lots, and the residuary estate devised to John McConnell, in fee.

4. The moiety of the church-hill lots, and the residuary estate devised to John B. Hammond in fee, with a limitation over to John McConnell.

At the time of the death of Catharine Barnitz, (as she survived her daughter) her two grandsons, McConnell and Hammond, were her heirs at law.

HARPER, for Plaintiff in error.

1. As to the devise to John McConnell, with limitation over, in case of his death under age, and without issue, to J. B. Hammond. This was a fee simple in McConnell, with a conditional limitation, and not an estate tail. 1. Fearne on Contingent Remainders, 9, 10, Dublin ed. 1795. id. 409. Powell on Devises, 261. 7 T. R. 589. Shears v. Jeffrey. Plowd. 408. 3 Co. 10. Carthew, 175. Dyer, 127.

Upon J. McConnell's arrival at full age he had an absolute estate in fee, because the condition never could happen which was to defeat his estate.

As he took by purchase, and not by descent, and as at the time of his death he left neither child, nor brother or sister of the whole blood, the estate descended, according to the statute of descents in Maryland, to his brother of the half blood, John B. Hammond.

J. B. Hammond took it by descent, through his mother, and therefore the estate descended to him 'on the part of his mother,' within the meaning of the statute.

He certainly took by descent, and not by purchase; and the commune vinculum, which connected him with his brother, must be traced through his mother.

The statute was intended to prevent escheats pro defectu sanguinis, and to provide for all cases.

The legislature meant to comprehend all cases in three classes.

1. Where the estate had descended to the intestate, on the part of the father.

2. Where it had descended, on the part of the mother; and-

3. Where it had vested in the intestate by purchase, and not derived from or through any of his ancestors.

The Court will not suppose that the legislature has omitted to provide for the case where the estate has descended from a brother to a brother, but will rather place the present case in the second class.

The legislature did not mean to limit the 2d class to cases where the estate had descended from the mother, because it provides, that if there be no child or descendant of the intestate, the estate shall go to the mother: And it would be absurd to say, that an estate which had descended from the mother, should descend again to the mother. So if the estate had descended from the mother's father directly to the mother's son, it would be an estate which had descended to the son on the part of his mother, and yet it had not descended either from or through his mother, for the estate had never vested in her. The statute must mean every case where the blood must be traced through the mother; every case where the mother is a link of the chain which connects the intestate with the person from whom the estate descended to him.

This estate, therefore, must be understood, as having descended to J. B. Hammond, on the part of his mother; and therefore, inasmuch as at his death, he left neither child nor descendant, nor mother, nor brother or sister of the blood of the mother, nor descendant of such brother or sister, nor grandfather on the part of the mother, nor descendant of such grandfather, nor father of such grandfather, and inasmuch as the lessors of the Plaintiff are the descendants of the father of such grandfather, the estate must, by the provisions of the statute, descend to them.

2d. The devise to John McConnell, in fee, of the moiety of the church-hill lots, and of the general residuum, vested in him a fee simple estate from the beginning. He took by purchase under the will. It descended to J. B. Hammond by the same rule of descent as in the former case, and by the came construction of the statute has descended from him to the Plaintiffs.

3d. The third case under this will, is that of the specific devise to J. B. Hammond, with limitation over, in case of his death under age and without issue, to John McConnell.

J. B. Hammond died under age and without issue, so that the fee devised to him was defeated, and would have vested immediately in John McConnell, if he had been alive, but he died in the life time of J. B. Hammond. In whom then did it vest? By the rules of the common law, John McConnell had such an interest in the devise, as was descendible to his heirs. Who were his heirs? Not they who were such at the time of his death, but they who answered...