Hall v. Cresset

• Decision Date: 01 March 1899
• Citation: 43 A. 118,92 Me. 514
• Parties: HALL v. CRESSET.
• Court: Maine Supreme Court

43 A. 118

92 Me. 514

HALL

v. CRESSET.

Supreme Judicial Court of Maine.

March 1, 1899.

(Official.)

Agreed statement from supreme Judicial court, Cumberland county.

Action by William M. Hall against Daniel Cressey. Submitted to the lower court on agreed facts. Judgment for defendant.

Argued before PETERS, C. J., and POSTER, WHITEHOUSE, WISWELL, STROUT, and SAVAGE, JJ.

F. M. Ray, for plaintiff.

Wm. Lyons, for defendant.

SAVAGE, J. In 1847, James McIntosh conveyed certain real estate In Gorham to his two sons, Stephen and George, "their heirs and assigns, forever," one-third to Stephen and two-thirds to George. The conveyance was expressed to be on certain conditions subsequent, all of which have since been performed. Among the provisions in the deed were these: "Said Stephen and George to come into possession of said property after the decease of me and my wife, Margaret and not before. * * * This deed is to take effect and go into operation on the decease of me and my wife, and not before; and, if my son Stephen die without children, then Stephen's third part is to go to my son George." This same deed was before the court in Watson v. Cressey, 79 Me. 381, 10 Atl. 59, and its general effect was considered. It was there held that the grantees took vested remainders in the granted premises. The case at bar presents a new issue, and the controversy arises concerning the present ownership of "Stephen's third part."

Stephen died in 1881, having never married, but leaving an illegitimate child, to whom ha had given statutory recognition. The plaintiff claims title through mesne conveyances from Stephen; the defendant claims through mesne conveyances from George. The rights of the parties depend upon the proper construction to be given to the clause in the deed above quoted: "And, if my son Stephen die without children, then Stephen's third part is to go to my son George."

The plaintiff contends, in the first place, that Stephen took a vested remainder in tail in the demanded premises; that, upon the death of his father and mother, he became seised as tenant in tail; and that by subsequent conveyance, the entail was barred, and the title in fee simple passed to Stephen's grantee, and so on to the plaintiff. Rev. St. c. 73, § 4. On the other hand, the defendant's contention is that Stephen took a vested remainder in fee simple, determinable upon a contingency, namely, the death of Stephen without children; and that, upon the death of Stephen without legitimate children, the title pased to George, and so on to the defendant.

The plaintiff contends, in the second place, that, if Stephen's remainder was not an estate in tail, then, inasmuch as Stephen died leaving surviving him a child born out of wedlock, he did not, in legal contemplation, "die without children," and so the contingency provided for in the deed did not happen; and, in that event, the plaintiff says that Stephen took only a life estate, and that the remainder in fee passed by inheritance to his illegitimate child, who had then been legitimated, and who subsequently conveyed to the plaintiff.

The first important question Is, did Stephen "die without children"? Unless he did, the defendant has no title, in any event. By the common law, a bastard was filius nullius. He possessed no inheritable blood. The sins of the father were visited upon the child. Modern sentiment, as expressed in modern statutes, is more merciful to the unfortunate offspring of illicit intercourse. In this state, as in most others, by pursuing statutory methods, a bastard may be legitimated, and may acquire rights of inheritance, and some or all of the usual consequences of consanguinity. So it was in the case at bar. Stephen gave his daughter statutory recognition. But that conferred only statutory rights and privileges. We are not concerned with the status of this child under a statute, but are endeavoring to ascertain the legal meaning of the word "children" in a deed. We do not perceive how that meaning can be enlarged in this case, nor how the interpretation of the word can be aided by reference to a statutory condition which was created many years after the deed was executed. Unless there is something in this deed—and there is not—to show that the grantor contemplated that his son Stephen would become the father of a bastard child, and intended that child to be included in the term "children," we must give to the word its ordinary common-law signification. The authorities are to the effect that the word "child" in a will or deed means a legitimate child. In Bolton v. Bolton, 73 Me. 299, the late Judge Virgin, after stating that the word "widow" in a life insurance policy meant the lawful widow, used the following language: "The foregoing rules find numerous illustrations in the construction of wills wherein legacies and devises are given to a 'child' or 'children' of some person named, and such person has legitimate and illegitimate child or children, in which case the legitimate, and not the illegitimate, issue take. The word 'children,' it is said, means prima facie legitimate children, as much as if the word 'legitimate' were written before it." An Illegitimate child was not permitted to take under a bequest in a will which gave a legacy to "nephews" as a class, in Lyon v. Lyon, 88 Me. 395, 34 Atl. 180. So, in the construction of the statute which provides, after the payment of debts, funeral expenses, etc., that, "if there be no kindred to the said intestate, then she [the widow] shall be entitled to the whole of said residue," it was held, in Hughes v. Decker, 38 Me. 153, that the term "kindred" meant lawful kindred. In Blacklaws v. Milne, 82 Ill. 505, it was held that the word "children," in a statute regulating descent, had reference to lawful children only. In construing the Massachusetts statute, which provided that "where any testator shall omit to provide in his will for any of his children they shall take the same share that they would have been entitled to if he had died intestate," the court held that the word "children" did not include illegitimate children. See, also, Cooley v. Dewey, 4 Pick. 93: 2 Jarm. Wills, 217. The rule of interpretation drawn from the foregoing cases of wills and statutes seems to be equally applicable in cases of deeds. We therefore bold that Stephen McIntosh died "without children," so far as the construction of the deed is concerned.

We are now brought to inquire what was the legal character of the estate conveyed to Stephen by the deed in question. Was it an estate tail? The plaintiff says that the word "children" in the clause under consideration is equivalent to "heirs of the body," and that, so considered, the clause created an estate tail. In support of this claim, the plaintiff cites the well-known definition and examples of an estate tail given by Mr. Washburn in 1 Washb. Real Prop. *72-*74. He also cites our own cases of Pisk v. Keene, 35 Me. 349; Richardson v. Richardson, 80 Me. 585, 16 Atl. 250. A devise of an estate to a person and his heirs, with a devise of it over, in case he should die without issue, vests in the first devisee an estate in fee tail, with a remainder to the second devisee. Pisk v. Keene, 35 Me. 349. The words "dying without issue" are construed to mean an indefinite failure of issue. Pisk v. Keene, supra. The estate goes "to the heirs of the donee's body, which means his lawful issue, his children, and through them to his...