The question for the opinion of the Court was, Whether the lessor of the Plaintiff was entitled to recover? Lens Serjt. for the lessor of the Plaintiff. The first question is, Whether Isaac Andrew, the heir at law of the whole blood of Stephen Andrew, be entitled to the premises in question in preference to the devisee of Deborah Andrew, who was sister of the half blood to the said Stephen Andrew? The several devises to Stephen Andrew and Deborah Andrew not being to vest until they should respectively attain the age of 21 years, were executory devises, and until the vesting of one or other of the estates limited thereby, the fee descended to the heir at law of the devisor. Upon the death of the devisor therefore the fee descended to Stephen Andrew, subject indeed to be devested by the events of his or his sister Deborah's attaining the age of 21. But as Stephen Andrew died before either of those events took place, the fee, which remained in him till his death, descended to his uncle of the whole blood, Isaac Andrew, in preference to Deborah Andrew his sister of the half blood. It is true, that if a man be seised of an estate for life, and after that estate a freehold be limited to another person, and then the reversion in fee descend to the first taker, his possession will not convey the inheritance to his sister of the whole blood in preference to his brother of the half blood, for in such case it is held, that he never has the reversion in possession, and consequently the heir must claim through his ancestor and not through him. But in this case there was no reversion existing at the death of Stephen Andrew, since the life estates, upon which the reversion was to depend, had not then arisen. It is held, that if the heir enter on the death of his ancestor, and assign dower to the widow and die, his sister of the whole blood will only take two-thirds of the estate in preference to his brother of the half blood; and the reason of this is clear, for as the widow has a freehold estate in one third of the whole, nothing but a reversion of that third remains in him. The exceptions to the rule of possessio fratris have been confined to cases where an estate of freehold has been interposed between the possession of the first taker and the reversion in fee. In this case, no such estate having been interposed, the rule of possessio fratris must prevail, and consequently Isaac Andrew, the uncle of the whole blood, must take in preference to Deborah, the sister of the half blood. The estate indeed which descended to Stephen Andrew, being liable to be defeated, may possibly be called a base fee; but TT 2 it 1804. DOE V. HUTTON. it may be doubted whether it ought to be so considered. There was no conveyance of a limited estate in fee; but by the operation of an executory devise, the entire fee, which descended upon the heir at law, was in a certain event to be transferred to some other person. But even supposing the estate which descended upon Stephen Andrew to have been no more than a base fee, the rule may still prevail; for there is no authority from which it can be inferred that the rule is confined to a fee simple absolute. Secondly, Deborah Andrew took only an estate for life under the will. There are no expressions from which a larger estate can be implied. The words "all my effects whatsoever not otherwise disposed of in my will," do not carry any estate in the realty. In Hogan d. Wallis v. Jackson, Cowp. 229., where the testator gave to his mother all the residue of all the effects both real and personal which he should die possessed of,” it was holden, that a fee passed to the devisee; but the addition of the word "real" plainly shewed that the testator did not mean to use the word "effects" in the usual sense, and upon that word the Court laid great stress. Independent of which they materially relied upon the introductory words there used as shewing an evident intention to convey a fee. The present case is essentially different from Doe d. Chilcott. v. White, 1 East, 38., in which the testator's wife, under a power to devise what " she thought proper of her said effects" to her sisters for life, was deemed to be empowered to devise real estates; for in that case the testator had previously given her an estate for life in his realty, as well as bequeathed to her his personalty; and the Court thought the words" said effects" must refer to all the estates before given her by the same will. The case of Camfield v. Gilbert, 3 East, 516. is a decisive authority upon the present case. The testator there having given the "real residue and remainder of his effects wheresoever and whatsoever, and of what nature, kind, and quality soever," the Court of .King's Bench thought that this residuary clause must be confined to personalty. Lord Ellenborough there said, "the principal stress is laid on the word effects; but that word stands alone, and nothing is added to alter its usual signification, as in Hogan v. Jackson, where the word 'real' was added together with it; but in its natural signification it means personal effects." Bayley Serjt. for the Defendant. First, Stephen Andrew never was possessed of a sufficient estate in the premises to constitute him a stipes. There is no cause or dictum to be found from which it can be inferred that the possession of any thing less than an absolute fee simple will have that effect. Now it is clear that Stephen Andrew never took any thing more than a base fee. For the inheritance which descended upon him at the death of his ancestor was subject to be defeated by the vesting of the executory devise to his sister. If he had attained 21, the estate which descended upon him would have ceased, and he would have taken a new estate by way of executory devise, which would either have been an estate for life, and which would have merged in the reversion, or a new estate in fee simple. But on the death of Stephen the base fee ceased, and the fee simple descended to Deborah as heir of the devisor. It is clear from Co. Lit. 15. a. that the intervention of any estate of freehold between the possession and the absolute fee simple will prevent the possessor of the first estate from becoming a stipes. For it there appears that, if the father die leaving a widow, and the son enter, and take the rents and profits, yet his estate in fee simple as to one third being defeasible by the right of dower in the widow, will not descend to his sister of the whole blood in preference to his brother of the half blood, though the former will be entitled to the remaining two-thirds. [Lord Alvanley Ch. J. If the son die before dower be assigned to the widow, I rather think that the whole would descend to the heir of the son; though if dower be assigned during the life of the son, the estate in dower will interrupt the seisin of the son as to one third, and turn it into a reversion.] Secondly, Under the words of the will an estate in fee passed to Deborah Andrew. The intention of the testator to give a fee is evident. It is clear that he meant Deborah to take every thing which Stephen would have taken if he bad lived; and that if Stephen attained 21, he meant that he should take every thing and Deborah nothing. Now he could not intend to make an estate for life only to Stephen; for eo instanti that such an estate vested in Stephen it would have merged in the reversion in fee which descended upon him. Stephen therefore must, at all events, have taken a fee had he attained 21; and as the testator appears clearly to have intended to give to Deborah all that Stephen would have taken, it is hardly to be supposed that he could mean, in case of her death under 21, leaving issue, that her children should be excluded. Such then being the apparent intention, the Court will give an effect to the words used conformable to that intention, unless restrained by positive rules 1804. DOE 1. HUTTON. of law. The words "all my effects whatsoever not otherwise [648] disposed 1804. DOE v. HUTTON. disposed of in my will," are sufficient for this purpose. These words are at least as strong as the words "testamentary estate," which in Smith v. Coffin, 2 H. Bl. 444. were holden to apply to the realty, though coupled with words peculiarly applicable to personalty. In Hogan v. Jackson, it is true that the epithet "real" was added to " effects." But Lord Mansfield does not appear to have altogether relied upon that circumstance, and he refers to the clauses in the bankrupt laws, where the word "effects" includes every thing which can be turned into money. And the reasons assigned in the House of Lords, when that case was carried there by a writ of error, seem to shew that the judgment of the Court of King's Bench did not proceed on the word "real" being used. On this day the opinion of the Court was delivered by Lord ALVANLEY Ch. J. The question intended to be reserved for the opinion of the Court was, Whether, according to the true construction of the will, the testator's daughter Deborah would take on estate for life or an estate in fee? On reading the case it occurred to the Court that there was a preliminary point to be decided before that question could arise, viz., Whether the fee simple expectant on the estate for life (if it should be so considered) vested in Isaac Andrew, as heir of Stephen Andrew the son of the testator, or whether the devisee of Deborah, his sister of the half blood, be entitled to claim? That point the Court desired to hear argued as well as the other, and it is upon that point only that we shall now give our opinion. The question is, therefore, Whether, supposing an estate for life only to be given to the daughter, the son ever took such an estate that the reversion in fee would descend to his heir at law, or whether it would descend to the heir at law of his father? There is no rule better known in Westminster Hall than "that a man that claimeth as heir in fee simple to any man by descent must make himself heir to him that was last seised of the actual freehold and inheritance," Co. Litt. 15 b., where Lord Coke, in commenting upon the maxim possessio fratris de feodo simplici facit sororem esse hæredem, says, "regularly he must make himself heir to him that was last actually seised to the purchaser." It is necessary that this rule should be accurately understood, for there are some cases in which the ancestor need not be actually seised. If a man purchase a reversion only, he is never actually seised at all, and yet his heir would be entitled. In Hale's MSS. cited in the notes to Hargrave and Butler's Co. Litt. 14 a. it is said "if 4. pur chases chases a reversion expectant on an estate for life, and dies without issue, regularly his brother of the half blood shall not be heir to him, because, though when there is a mesne seisin he ought to make himself heir to him who is last actually seised; yet, wheu there is not such a mesne seisin, he ought to make himself heir to him in whom it first vests by purchasé." After referring to Hodgkinsonne v. Whood, Cro. Car. 23., where, upon a devise to B., the testator's son by one venter, and the heirs male of his body, remainder to the heirs male of the body of the devisor, remainder to the devisor's right heirs, it was holden, upon the death of B. without issue, that C., the devisor's son by another venter, should take as heir male of the devisor, because it was quasi an estate tail; Lord Hale says, "But it seems that the fee shall descend to him, since it is a void devise of the fee simple, and doth not vest by purchase in the eldest son, but by descent." The same doctrine is laid down in Jenk's case, Cro. Car. 151., where the Plaintiff having declared in debt on bond against the Defendant, as brother and heir to J. S., and the Defendant having pleaded riens per descent from his brother, it appeared that the obligor died seised, leaving issue, and that upon such issue dying without issue, the lands descended to the Defendant as heir to the son of his brother, whereupon the Court gave judgment for the Defendant, for he had nothing as immediate heir to his brother, but by descent from the son of his brother. But in the case of Kellow v. Rowden, Carth. 126. 3 Mod. 253., where A. being seised in fee, bound himself and his heirs in a bond, and having two sons B. and C. limited the estate to himself for life, remainder to B. his eldest son in tail, reversion to his own right heirs; B. entered and died, leaving a son D., who died without issue, upon whose death the estate tail being extinct, the reversion came into possession, and descended in fee upon C., it was holden in debt on bond against C., as the heir of A., that the declaration was proper, for though B. and D. had each of them such an interest in the fee as that they might have sold, charged, or forfeited it, yet they had not actual seisin thereof in possession, so as to be either assets in their hands, or to make a possessio fratris to prevent a brother of the half blood from entering, but they were seised only of the estate tail, and the father being the person who was last seised of the fee, it was sufficient to charge the Defendant as heir to him. In that case judgment was given by the Plaintiff by three judges against Eyre 1804. DOE v. HUTTON. |