Havens v. Sea-Shore Land Co.

• Decision Date: 21 October 1890
• Citation: 20 A. 497,47 N.J.E. 365
• Parties: HAVENS et al. v. SEA-SHORE LAND CO.
• Court: New Jersey Court of Chancery

20 A. 497

47 N.J.E. 365

HAVENS et al.

v. SEA-SHORE LAND CO.

Court of Chancery of New Jersey.

Oct. 21, 1890.

(Syllabus by the Court.)

On final hearing on bill, answer, and proofs.

John L. Conover and Frank P. McDermott, for complainants. George Holmes and Isaac W. Carmichael, for defendant.

VAN FLEET, V. C. This is a partition suit. The title to one of the tracts which the complainants seek to have divided is in dispute. The defendant asserts title to the whole tract. The complainants, on the other hand, assert a title to the undivided half of it, but admit that the defendant has title to an undivided fourth, and that the title to the other undivided fourth is in certain other persons. The defendant exhibits a paper title to the whole tract. The important question, therefore, presented for decision is, is the title exhibited by the defendant valid? For, if it is, the bill, as against the defendant, as to that tract, must be dismissed. Both parties claim under David Curtis, who died testate between 1783 and 1788. At the time of his death he owned two undivided sevenths of Manasquan beach, one of which he acquired from Elisha Lawrence by deed dated July, 1770, and the other from Benjamin Lawrence by a deed which it is alleged is lost. Among the gifts made by David Curtis by his will, there is one which reads, in substance, as follows: "I give and devise unto my eldest son, Elisha, that right of beach I bought of Elisha Lawrence,—to him, and the heirs of his body lawfully begotten; and, for the want of such heir or heirs, then to be equally divided between my two sons John and Benjamin." David Curtis, besides limiting over to his two sons John and Benjamin the land devised to his son Elisha, made John and Benjamin his residuary devisees, and they, as such devisees, took that undivided seventh of Manasquan beach which had been conveyed to their father by Benjamin Lawrence. The thing in dispute is the one-half of that seventh which David Curtis acquired from Elisha Lawrence, and which he, by his will, limited over to his son John, in case his son Elisha, for the want of heirs of his body, did not take it. The defendant claims this half, and puts forward as the foundation of its title a deed purporting to have been made on the 31st day of May, 1788, by John Curtis to Joseph Lawrence. The whole contest between the parties centers in this deed. If it passed the land in controversy, the defendant will be entitled to prevail in this suit. If it did not, the complainants will be entitled to the decree they ask. The complainants contend—First, that the deed has not been sufficiently proved to entitle it to be admitted in evidence; and, secondly, that, if it was admitted, no effect could be given to it(l) for the want of apt words to pass any right or estate which the grantor may have held at the time of its execution, and (2) because the grantor then held no right or estate in the land which he could grant or convey. These questions will be considered in an order directly the reverse of that in which they have just been stated. It is undisputed that Elisha Curtis, the eldest son of David, died childless, never having had issue of his body. John died before Elisha. Their deaths occurred very near together in point of time, but the proof makes it entirely clear that John died first, so that it was undetermined when John died whether or not Elisha would have issue of his body. As the law stood when the devise to Elisha took effect, it is clear that he took an estate tail in the land devised. Our statute cutting an estate tail down to an estate for life in the first taker, with remainder in fee to the issue of his body, was not passed until 1820, (Elmer, Dig. p. 130, pt. 6,) and the devise to Elisha took effect prior to 1788. Chief Justice KIRKPATRICK stated with great clearness, in Den v. Taylor, 5 N. J. Law, 413, 417, what words would be held to be sufficient to create an estate tail. He said: "It is as well settled that a devise to one and his heirs, and, if he die without issue, then over to another, creates an estate tail, as if the principal devise had been, in the most technical language, to him and the heirs of his body. The words of the devise over, 'if he die without issue, then over to another,' limit the generality of the term 'heirs' in the principal devised, and lead us to the inevitable conclusion that the testator intended heirs of the body only, and not heirs generally. And whenever this intention can be collected from the whole will, taken together, let the phraseology in the particular clauses of it be what it may, it has been always construed to make an estate tail." This statement of the law has been so uniformly folio wed by the courts of this state as to have become a canon of real property law. Moure v. Rake, 26 N.J. Law, 574, 585. It is entirely clear that Elisha Curtis took an estate tail in the land in controversy. This being so, it necessarily follows that the devise over to John and Benjamin, in case Elisha did not have issue of his body, gave them a vested remainder in fee, subject to be defeated by the birth of issue to Elisha. The law is settled that a remainder limited upon an estate tail will beheld to be vested, though it is uncertain whether a right to possession will ever vest in the remainder-man.

The decision of the court of errors and appeals in Moore v. Rake, 26 N. J. Law, 574, is directly in point, and furnishes an authoritative illustration of the manner in which this principle of law is to be applied. The devise in that case took effect in 1795, and was expressed substantially in this form: "I give to my son Isaac, his heirs and assigns, all my lands whereon I now live, to hold to him, his heirs and assigns, forever; but, if my son Isaac should die without lawful issue, then I give my land to my wife, her heirs and assigns, forever." The testator's son Isaac died in 1843, without issue, never having been married. His mother, the testator's widow, died in 1832, over 10 years before Isaac. The controverted question in the case was what estate the testator's wife took under the devise. The court held that she took a vested remainder, and not by way of an executory devise, nor a contingent remainder. Each of the three judges who wrote opinions—Chancellor WILLIAMSON, and Justices ELMER and VREDENBURGH—so expressly declared. Justice VREDENBURGH (page 586) gave the following summary of the leading rules distinguishing a vested from a contingent remainder: "An estate is vested when there is a present fixed right of present or future enjoyment. The law favors the vesting of remainders, and does it at the first opportunity. It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. It is the uncertainty of the right which renders a remainder contingent, not the uncertainty of the actual enjoyment. A remainder limited upon an estate tail is held to be vested, though it is uncertain if the possession will ever take place." There can, therefore, be no doubt that John Curtis, by force of the devise to him, took a vested remainder in fee in the land in controversy, and it is equally certain, if such was the character of his estate, that he had good right and full power to make an effectual conveyance of it during the life of his brother Elisha.

If a different conclusion had been reached as to the nature of John's estate, and it had been found that the remainder limited to him was contingent, still I think the court would have been bound to declare, in conformity to the well-settled law on this subject, that he had full power, during the life of Elisha, to make an effectual conveyance of his estate in the land, though it was uncertain whether such estate would ever vest in possession. All contingent estates of inheritance, or possibilities coupled with an interest, where the person who is to take is certain, may be conveyed or devised before the contingency on which they depend happens. In Ackerman's Adm'rs v. Vreeland's Ex'r, 14 N. J. Eq. 23, 29, Chancellor GREEN said: "It may be relied on as a rule that every interest in lands, however remote the possibility is, may be released." The law on this subject, as stated by Sergeant Williams in his note to Purefoy v. Rogers, 2 Saund. 388, and adopted by the supreme court in Den v. Manners, 20 N. J. Law, 142,145, and restated approvingly by Justice VREDENBURGH in Moore v. Rake, 26 N. J. Law, 593, is this: "It seems now to be established, notwithstanding some old opinions to the contrary, that contingent and executory estates and possibilities, accompanied by an interest, are descendible to the heir, or transmissible to the representative, of a person dying, or may be granted, assigned, or devised by him, before the contingency upon which they depend takes effect." These authorities make it plain that the first question must be decided in favor of the defendant. At the date of the deed which the defendant puts forward as the foundation of its title, there can be no doubt that John Curtis had full power to make an effectual conveyance of the land in controversy.

Assuming, for the present, that the deed on trial has been sufficiently proved to entitle it to be admitted in evidence, the next question is, what effect shall be given to it? Did it pass the estate of John Curtis in the land in controversy? Its granting clause is in these words: "Witnesseth, that the said John Curtis, for and in consideration of the just and full sum of sixteen pounds, proclamation money, hath remised, released, and forever quitclaimed, and by these presents, for himself and his heirs, doth fully, clearly, and absolutely remise, release, and forever quitclaim, unto the said Joseph Lawrence, all his right, title, interest, and property," etc. It will be observed that, although the grant is not made to the grantee and his heirs, it is made by the grantor for himself and...