Daniel v. Whartenby

• Court: U.S. Supreme Court
• Writing for the Court: SWAYNE
• Citation: Daniel v. Whartenby, 17 Wall. 639, 84 U.S. 639, 21 L.Ed. 661 (1873)
• Decision Date: 01 October 1873
• Parties: DANIEL v. WHARTENBY

84 U.S. 639

21 L.Ed. 661

17 Wall. 639

DANIEL v. WHARTENBY.

October Term, 1873

IN error to the Circuit Court for the District of Delaware.

James Whartenby brought ejectment in the court below against William Daniel and others for certain premises in the State of Delaware.

Under the instructions given to the jury a verdict was rendered in favor of the plaintiff and judgment was entered accordingly. The defendants, having excepted to the instructions, sued out this writ of error and brought the case here for review.

Mr. Reverdy Johnson, for the plaintiffs in error; Messrs. T. F. and J. A. Bayard, contra.

Mr. Justice SWAYNE stated the case and delivered the opinion of the court.

The premises in controversy were devised by the will of James Tibbitt. The case turns upon the construction and effect to be given to the following clause of that instrument:

'All the rest, residue, and remainder of my estate, both real and personal, of what kind and nature soever, I give, devise, and bequeath to my son, Richard Tibbitt, during his natural life, and after his death to his issue, by him lawfully begotten of his body, to such issue, their heirs and assigns forever. In case my son, Richard Tibbitt, shall die without lawful issue, then, in that case, to my wife, Elizabeth Tibbitt, and my sister, Sarah Heath, and my sister, Rebecca Mull, during the natural life of each of them, and to the survivor of them, and, after the death of all of them, to James Whartenby, son of Thomas Whartenby, of the city of Philadelphia, to him, the said James Whartenby, his heirs and assigns forever. In case the said James Whartenby shall die before my son, Richard Tibbitt, my wife, Elizabeth, my sister, Sarah Heath, and my sister, Rebecca Mull, then, and in that case, to Samuel Stevenson, son of Philip, and to Richard Whartenby, son of John, each two hundred dollars shall be paid out of my estate, and the rest and remainder to William Whartenby, Thomas Whartenby, and John Whartenby, children of said Thomas Whartenby, of Philadelphia, to them and their heirs and assigns forever.'

Richard Tibbitt, the first devisee, on the 14th of May, 1853, after the death of the testator, conveyed the premises to Jacob Hazel, who, on the same day, reconveyed to Richard. Richard died in April, 1863, without issue, not having married. Elizabeth Tibbitt, the widow of the testator, and his two sisters, Sarah Heath and Rebecca Mull, were living at the time of the making of the will, survived the testator, and died before the commencement of this suit. James Whartenby, the devisee in remainder, and the next in succession, is still living, and is the defendant in error in this case. The plaintiffs in error claim title by virtue of a sale under a judgment and execution against Richard Tibbitt.

The rule in Shelley's case is in force in Delaware, and an estate tail may be barred there by such a conveyance as that by Richard to Hazel.

Under the law of descents of Delaware all the children share alike—descendants from them taking per stirpes.

The question before us is whether the estate given to Richard, the first taker, was an estate in fee-tail, or whether he took only an estate for life, with remainder in fee to the issue of his body, contingent upon the birth of such issue, and, in default of such issue, remainder for life to his widow and two sisters, with remainder over in fee after their death to James Whartenby, the defendant in error.

It is insisted by the counsel for the plaintiffs in error that the words 'issue of his body by him lawfully begotten' in the devise, are words of limitation and not of purchase, and that the rule in Shelley's case applies.

For the defendant in error it is maintained that those words are the synonym of children, and must have the same legal effect as if that phrase had been used by the testator instead of those found in the devise; that under the circumstances they are words of purchase, and that the rule in Shelley's case has, therefore, no application.

That rule is thus laid down by Lord Coke: 'Where the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same instrument an estate is limited, either mediately or immediately, to his heirs in fee or in fee-tail, the heirs are words of limitation of the estate, and not of purchase.'¹ An eminent English authority gives this definition, as abridged by Chancellor Kent. The chancellor pronounces it accurate. 'Where a person takes an estate of freehold, legally or equitably, under a deed, or will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of any interest of the same legal or equitable quality to his heirs, or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.'²

The rule is much older than Shelley's case. In that case several judgments in the Year-Books in the time of Edward III are cited in support of it. Blackstone found it recognized in a case adjudged in 18th Edward II.³ Some writers trace its origin to the feudal system, which favors the taking of estates by descent rather than by purchase, because in the former case the rights of wardship, marriage, relief, and other feudal incidents attached, while in the latter the taker was relieved from those burdens. Others attribute it to the aversion of the common law to fees in abeyance, a desire to promote the transferability of real property, and, as far as possible, to make it liable for the specialty debts of the ancestor. The subject is one of curious and learned speculation rather than of any practical consequence.

Although the rule has been an undisputed canon of the English common law for more then five centuries it has been abolished in most of the States in our Union, and where it still obtains, questions relating to it are of unfrequent occurrence.

In considering it with reference to the present case a few cardinal principles, as well settled as the rule itself, must be kept in view.

In construing wills, where the question of its application arises, the intention of the testator must be fully carried out so far as it can be done consistently with the rules of law, but no further.⁴ The meaning of this is that if the testator has used technical language, which brings the case within the rule, a declaration, however positive, that the rule shall not apply, or that the estate of the ancestor shall not continue beyond the primary express limitation, or that his heirs shall take by purchase and not by descent, will be unavailing to exclude the rule and cannot affect the result.⁵ But if there are explanatory and qualifying expressions, from which it appears that the import of the technical language is contrary to the clear and plain intent of the testator, the former must yield and the latter will prevail.⁶ The rule is one of property and not of construction.⁷

While the rule is held to apply as well to wills as to deeds, the words issue of his body are more flexible than the words heirs of his body, and courts more readily interpret the former as the synonym of children and a mere descriptio personarum, than the latter. 'The word issue is not ex vi termini within the rule in Shelley's case. It depends upon the context whether it will give an estate tail to the ancestor.'⁸

Where there is a devise like this, if the rule in Shelley's case applies, the estate, upon the death of the first taker, goes, according to the English common-law rule of descent, to the eldest son, to the exclusion of all the other children.⁹ But if to the gift in remainder there are superadded words of limitation which change this course of descent, the rule in Shelley's case does not apply and the children take by purchase.¹⁰

It remains to examine the case before us in the light of these considerations.

The estate is given to Richard, the first taker, 'during his natural life.'

Lord Chancellor Sugden says these words 'are, I think, entitled to weight, although when the intention requires it they may be wholly rejected.'¹¹

The estate is given, 'after his death, to his issue by him lawfully begotten of his body.' These must necessarily have been his children. They could not have been otherwise. It will do no violence, either to the language here used or to the context, if this clause be regarded as if the testator had substituted the latter words for the former in framing this part of the instrument. If this had been done there could have been no controversy between these parties.¹² The words of inheritance which follow are, 'to such issue, their heirs and assigns, forever.' These are the usual and largest terms employed in the creation of a fee simple estate. A descent of the property, to satisfy them, must be according to the law of inheritance of the State of...