Doe, Lessee of Poor v. Considine

• Decision Date: 01 December 1867
• Citation: 18 L.Ed. 869,6 Wall. 458,73 U.S. 458
• Parties: DOE, LESSEE OF POOR, v. CONSIDINE
• Court: U.S. Supreme Court

73 U.S. 458

18 L.Ed. 869

6 Wall. 458

DOE, LESSEE OF POOR, v. CONSIDINE.

December Term, 1867

ERROR to the Circuit Court of the United States for the Southern District of Ohio.

The lessors of the plaintiff in error brought an action of ejectment in that court to recover certain real estate now here in controversy. The parties agreed upon the facts. Under the instructions given to the jury, they found for the defendants, and judgment was rendered accordingly.

The plaintiff excepted to the instructions, and this writ was prosecuted upon the ground that they were erroneous.

The facts, as agreed on, were as follows:

William Barr, Senior, died on the 15th of May, 1816, leaving a will duly admitted to probate in Hamilton County, Ohio. It was out of the will that the controversy arose.

The testator left three daughters: Mary, the wife of William Barr; Susan, the wife of John B. Enness; and Mary B., the wife of James Keys. He left also one son, John M. Barr, who, at the time of his father's death, had living, a wife, Maria Barr, and an infant daughter, Mary Jane Barr.

John M. Barr, the son of the testator, died on the 10th of August, 1820.

Mary Jane Barr, the daughter of John M. Barr, died on the 27th of November, 1821. Maria Barr, her mother, died on the 3d of August, 1860.

The sons-in-law and daughters of the testator were all dead, each one leaving children born in lawful wedlock.

The testator also left living at the time of his death four brothers and two sisters. They are all dead. Two of them left no lineal heirs.

The will contained among others the following provisions:

'I give and devise unto my sons-in-law, William Barr, James Keys, and John B. Enness, of Cincinnati aforesaid, and to their heirs, all and singular, that certain farm, tract or parcel of land, situate, lying, and being in the country of Hamilton, State of Ohio, which I purchased of John Cross, containing one hundred and sixty acres, to hold the same premises to them and their heirs in trust, (first) for the use of my son, John M. Barr, during his natural life; but, nevertheless, to permit and suffer my son, John M. Barr, to hold, use, occupy, possess, and enjoy the said farm, and to receive and take the rents and profits thereof, during his natural life. And in case my said son, John M. Barr should die leaving a legitimate child, or children, then, also, in trust for Maria Barr, wife of the said John M. Barr, in case she survive him, during her natural life, for the purpose of maintaining hereself and the said child, or children, and educating the said children; but, nevertheless, to permit and suffer the said Maria Barr, wife of the said John M. Barr, to hold, use, occupy, possess, and enjoy the said farm, and to receive and take the rents and profits thereof, during her natural life. And upon the decease of the said Maria Barr, wife of the said John M. Barr, in case she survive him; if not, then upon the decease of the said John M. Barr, I do further give and devise the remainder of my estate in said farm unto the legitimate child, or children, of the said John M. Barr, and their heirs forever. If my said son leave but one child, as aforesaid, then I give and devise the said farm to him or her, or his or her heirs forever. But, if he leave two or more children, then I give and devise the said farm unto such children and their heirs, to be equally divided between them. But should my said son, John, M. Barr, die without leaving any issue of his body, then, and in that case, I do give and devise the remainder of my estate in the said farm unto my said sons-in-law, William Barr, James Keys, and John B. Enness, and their heirs forever.

* * *

'Also, I do further give, devise, and bequeath the remainder of my estate, both real and personal, to my sons-in-law, William Barr, James Keys, and John B. Enness.'

John M. Barr having died, leaving no issue but Mary Jane Barr, and she having died in infancy, unmarried, and the life estate of her moh er, Maria Barr, having terminated by the death of that person, the question was presented, In whom is vested the title to the premises in controversy?

The lessors of the plaintiffs claimed title under the three sons-in-law of the testator, or their wives, who were his daughters.

The defendants claimed through the heirs of the brothers and sisters of the testator, under the statute of descents of Ohio, of the 30th of December, 1815, which was as follows:

§ I. That when any person shall die intestate, having title to any real estate of inheritance lying and being in this State, which title shall have come to such intestate by descent, devise, or deed of gift from an ancestor, such estate shall descend and pass in parcenary to his or her kindred, in the following course:

1. To the children of such intestate or their legal representatives.

2. If there be no children, or their legal representatives, the estate shall pass to the brothers and sisters of the intestate, who may be of the blood of the ancestor from whom the estate came, or their legal representatives, whether such brothers and sisters be of the whole or of the half blood of the intestate.

3. If there be no brothers and sisters of the intestate of the blood of the ancestor from whom the estate came, or their legal representatives, and if the estate came by deed of gift from an ancestor who may be living, the estate shall ascend to such ancestor.

4. If there be neither brother nor sister of the intestate of the blood of the ancestor from whom the estate came, or their legal representatives, and if the ancestor from whom the estate came be deceased, the estate shall pass to the brothers and sisters of the ancestor from whom the estate came, or their legal representatives; and for want of such brothers and sisters, or their legal representatives, to the brothers and sisters of the intestate of the half blood, or their legal representatives, though such brothers and sisters be not of the blood of the ancestor from whom the estate came.

5. If there be no brothers or sisters of the intestate, or their legal representatives, the estate shall pass to the next of kin to the intestate of the blood of the ancestor from whom the estate came.

The court instructed the jury——

1. That at the death of the said Mary Jane Barr, the granddaughter of the testator and daughter of said John M. Barr, she was seized of a vested remainder.

2. That at the death of the said Mary Jane Barr, her said estate in said farm descended to the brothers and sisters of the said testator then alive, and the legal representatives of such of them as were then deceased.

3. That the trust estate to the sons-in-law was only an estate par autre vie and terminated at the death of Maria Barr; but whether that trust estate continued or not after her death the result is the same, for if the estate so vested in Mary Jane Barr were only an equitable estate, no recovery could be had against the parties in possession under her title, in favor of the trustees or their heirs; and in no event, except the death of John M. Barr without issue, did the will give to the sons-in-law any interest in the property in controversy, other than the temporary trust estate.

The correctness of these instructions was the matter before the court.

Messrs. T. Ewing and H. H. Hunter, for the plaintiffs in error:

Two controlling questions are presented, the determination of either of which, in favor of the plaintiff, must result in a reversal, namely:

First. Whether the devise over, of the remainder in fee, to the sons-in-law, took effect on the death of Maria Barr, in favor of their heirs, they being dead, the issue of John M. Barr having failed by the death of his daughter Mary Jane, without issue, in the lifetime of the said Maria?

Second. Whether, assuming that the remainder in fee did not vest in the heirs of said sons-in-law, on the death of the said Maria, in virtue of the devise to them, the said her s-at-law, being also heirs-at-law of their deceased mothers—the daughters of the testator—did not inherit the said remainder under the statute of descents, from the said Mary Jane, as her next of kin, of the blood of the testator, the ancestor, from whom the estate came?

A legal estate in fee passed to the trustees, and continued in them during the life of John M. Barr, and during the life of his wife—each of them holding only an equitable use during their respective lives. During the life of the father—and after his death, during the life of the mother—no fee vested in the issue of the marriage. If the fee continued in the trustees till the death of the wife, the remainder to the issue, which was a fee also, could not vest till that time. Two distinct fees in the same tenements, cannot, under any circumstances, be made to coexist. The remainder given is a remainder in fee; it can, therefore, never vest until the fee given to the trustees ceases, and as the fee given to them must continue until both the parents die, the fee given to the child cannot vest until both parents are dead.

We need not inquire whether, up to the time of the termination of the life estate, under the circumstances, active duties might not have been devolved upon the trustees. There would have been, if the widow had been ousted by a wrongdoer. But be that as it may, the legal title was vested in them, in trust, and it cannot be pretended, that, so long as the life estate continued, they could have been required, by anybody interested, to convey to them the legal title.

What was the testator's intent in placing the legal title pending the estate for life, in the hands of his sons-in-law, his residuary legatees? Plainly that, if the issue of his son should fail in the meantime, the title should then be in the possession of those, in whose behalf was included in his will the alternative devise of the remainder.

Did the remainder devised to the child or children of John M. Barr, 'upon the decease of Maria Barr,' vest in ...