Van Horne v. Campbell

• Decision Date: 24 November 1885
• Citation: 100 N.Y. 287,3 N.E. 316
• Parties: VAN HORNE v. CAMPBELL and another.
• Court: New York Court of Appeals Court of Appeals

100 N.Y. 287

3 N.E. 316

VAN HORNE

v.CAMPBELL and another.¹

Court of Appeals of New York.

Filed November 24, 1885.

RUGER, C. J., dissents.

For dissenting opinion, see 3 N.E. 771.

A. J. Parker, for appellant, Giles H. F. Van Horne.

Horace E. Smith, for respondents, William Campbell and another.

ANDREWS, J.

The original plaintiff, Jane Van Horne, claimed title to the premises in controversy under Henry v. Fonda, one of the sons of Jellis Fonda, who died seized of the premises in 1791, leaving a widow and two sons and three daughters surviving him. The title of Henry V. Fonda depended upon the validity of a devise over in the will of Jellis Fonda. Jellis Fonda, in his will, devised a parcel of land containing about 14 acres, including the lot in question, to his wife, Jannettie, for life, remainder to his son Douw, his heirs and assigns, forever. He devised another parcel, under a similar limitation, to his son Henry V. In a subsequent clause of the will it was provided that ‘if either of my two sons shall die seized of the estate hereinbefore bequeathed, or any part thereof, without lawful issue, that then the estate of him so dying seized, hereby bequeathed, shall descend to the other of my sons, in which case the survivor shall pay to my said three daughters, each, the sum of one hundred dollars.’ Jannettie, the widow of the testator, died soon after her husband, and prior to the year 1800. Douw Fonda, after the death of the testator, entered into the possession of the 14 acres devised to him, and died intestate in 1837, without issue, and without having conveyed or otherwise disposed of the land. The contingencies hereby happened upon which, by the terms of the will, the limitation over to his brother, Henry V., was to take effect. The question is whether this ulterior limitation was valid and vested the fee of the 14 acres, devised in the first instance to Douw Fonda, in his brother, Henry, upon the happening of the contingencies specified. If the limitation was valid, the plaintiff is entitled to recover; if invalid, he has no title, and cannot maintain the action.

Before proceeding to examine the authorities bearing upon the question, it is important to observe the terms of the devise, and the character of the contingencies upon which the limitationover is made to depend. The devise to the testator's son Douw, in the first instance, was of a remainder in fee, dependent upon the life-estate of the mother. The devise was to him and his heirs and assigns forever,-words apt and sufficient to carry an absolute fee. The devise over was upon a double contingency: the death of Douw without issue, and without having disposed of the property in his life-time. The latter contingency is not stated in express words; but the power of the primary devisee to dispose of the land by a conveyance taking effect in his life-time, and thereby defeat the ulterior limitation, is implied from the words limiting the gift over to the land, or such part thereof as the primary devisee ‘shall die seized of.’ That these and similar words import an absolute power of disposition in the first taker has been frequently adjudged, and some of the cases on this point will hereafter be referred to. The devise may therefore be described in general terms as a devise to the testator's son Douw in words importing an absolute fee, with superadded words conferring an absolute beneficial power of disposition of the whole subject of the devise by conveyance executed in his life-time, and a limitation over in the event of his dying without issue and without having exercised the power of alienation. If the devise in question was a simple devise to the testator's son Douw, in words importing a fee, and a devise over to his brother, Henry, in the event of the death of Douw without issue at his death, it would have constituted a valid executory devise, accordint to the doctrine finally settled by the court of king's bench in Pells v. Brown, Cro. Jac. 590, decided in 1619, and which has been uniformly followed in subsequent cases. In that case, as the will was construed, lands were devised to A. and his heirs, and if he died without issue living at his death, then to B. The devise to A. was in words importing a fee-simple, and, according to the rule of the common law prevailing in respect to conveyances inter vivos, no further limitation was permitted. The common law did not allow a remainder or other legal estate to be limited after a fee. The rule was founded upon the postulate that a conveyance of a fee was a conveyance of the whole estate, and that nothing was left upon which the limitation over could operate. Upon the assumption that a fee given in the first instance carried the entire and absolute interest in the land to the grantee, the common-law rule that there could be no further limitation was logical and consistent, because, where the whole is given, there can be nothing beyond that left to give. But under the statute of uses, and, indeed, before they were legalized by that statute, a species of limitations known as shifting or springing uses had been recognized, which permitted ulterior estates to be created, to arise upon the defeasance of prior estates in the same property, contrary to the strict rules of the common law. The courts, after the passage of the statute of wills, (32 Hen. VIII.,) following the analogies furnished in conveyances to uses, and in support of the intention of the testator, gradually came to recognize the validity of limitations not permitted in conveyances at common law. In this desire to sustain the intention of a testator originated the species or property limitations known as executory devises. There are traces of the doctrine that a fee limited after a fee may be good by way of executory devise, prior to the case of Pells v. Brown. But that case completely established the validity and indestructibility of that species of limitations, and it has ever since, as stated by Lord KENYON in Porter v. Bradley, 3 Term R. 145, been regarded as the ‘foundation and, as it were, magna charta of this branch of the law.’ Since that time, executory devises limiting a fee after a fee, upon some contingency operating to defeat the estate of the first taker, as upon his death without issue, or other specified event, have become common forms of assurance.

The common-law doctrine of repugnancy between the two estates, which, as has been said, was perfectly rational upon the assumption upon which it proceeded, has given way to the more just and reasonable view which regards the prior gift, although made in words which, standing alone, import an absolute estate, as restrained by the subsequent limitation, and as conferring only a qualified estate. This prior estate, although properly denominated a fee, because it may last forever, is nevertheless a base or determinable fee, because it it liable to be defeated by the happening of the contingency upon which it is limited. In other words, in such a case, as the limitation is construed, an absolute fee is not given to the first taker, but only a qualified and determinable one. But a reference to the devise contained in the will of Jellis Fonda discloses an element not contained in the will under consideration in Pells v. Brown. It is not a simple devise, as in that case, to A. and his heirs, with a devise over on the death of A. without issue; but there is interposed between the primary and secondary limitation a disposing power, whereby the first taker was entitled to dispose of the whole fee for his own benefit, and thereby cut off and defeat the ulterior limitation; because it is evident that the testator, in conferring this power on his son Douw, was not providing for a disposition by him, subject to the limitation over to Henry, but for a disposition which would defeat and destroy it. It is hardly necessary to call attention to the radical difference in the situation of the ulterior devise, affected by this power of disposition in the first taker, from the situation of the executory devisee in Pells v. Brown, and similar cases. In cases of the latter class the right of the ulterior devisee cannot be cut off or divested by any act of the primary devisee. It is true that the secondary limitation depends upon a contingency which may never happen, and so no estate may ever vest thereunder; but whether it shall or shall not, is not subject to the will of the first taker, but depends upon the event of life, or death, or other contingency, which in no reasonable sense are within his volition or control. On the other hand, where, as in the will in question, in addition to words importing an absolute fee in the first taker, there is superadded a beneficial disposing power, authorizing him to convey an absolute fee, and thereby divest all rights in the secondary devisee and cut of the limitation over, the interest of the ulterior devisee, assuming that the limitation is valid, is reduced to scarcely more than a mere possibility. The power given to the first taker is conjoined with an interest in him to exercise the power, and thereby defeat the subsequent estate. In any view, the estate of the first taker is scarcely less then complete ownership, and the right of the ulterior devisee is, as has been said, scarcely more than a very remote possibility.

The precise question presented, therefore, for our determination is whether an executory devise can be made to depend on the non-execution by the first taker of an absolute beneficial disposing power, vested in him by the will creating the limitation; or, in other words, whether there can be a valid executory devise where the executory limitation is conjoined with an absolute power in the primary devisee to defeat and cut off the future estate or interest by alienation of the entire fee in his life-time, and whether it makes any difference, as to the rights of the ulterior devisee, whether the power has or has not been...