Woodley v. Findlay , 9 Ala. 716 ( 1846 )

ORMOND, J.

In our opinion, the limitation over in this case, to the sisters of Mary Foster, the tenant of the life estate, is good by way of executory devise. The bequest is of a life estate in the slave, to Mary Foster, and at Her death it is to go to the lawful issue of her body, that may then be living. It is manifest that the first limitation was not too remote, as it evidently contemplated, that the estate should vest in her heirs at her death; it was not therefore upon an indefinite failure of issue, as it must necessarily vest upon the death of the first taker, if there is any one then in being, capable of taking. It is further urged, that the words of this devise created an estate tail, which, by the statutes of Georgia, was converted into an absolute estate in the first taker. The Georgia statute, as well as our own, was not intended to operate on personal property, as that could not be entailed at common law. By the common law, if the language employ-would create an estate tail, if the subject matter was land, being of personal property, the absolute estate would be vested in the first taker. The words necessary to create an estate tail by the common law, in a deed, are heir, or heirs of the body. The language used here, is “ issue of her body.” But it is settled by numerous adjudications, that the words issue and heirs of the body, in a will, are controlled, and explained, by the intention, and may be either words of limitation, or words of purchase, as may be necessary to effectuate the intention of the testator. See the numerous cases on this head, marshalled by Hayes in his second table, in his work on limitations.

Here the intention was perfectly obvious, that the issue of the body were to take as purchasers, and not as heirs of the first taken ; an estate tail could not therefore have been intended. See Jones v. Morgan, 1 Brown C. C. 218, where the rule is forcibly stated by Lord Thurlow, and Fearn on Rem. 194.

The.limitation over to the sisters of the first taker, is also good, by the same process of reasoning — as it is evident the testatrix contemplated the remainder to vest in them, during their lives. The case of McGraw v. Davenport, 6 Porter, 319, is a case exactly in point. This, then, being a good remainder, as an executory devise, was a vested interest, and if the remaindermen had died, before the tenant of the life estate, would have passed to their representatives. The case of Price v. Price, 5 Ala. 578, was the case of a contingent" remainder, created by deed. What is there said of the loss of the remainder, by the destruction of the particular estate, before the contingency happened, has no application here. This remainder is good as an executory devise, and as those in remainder take as purchasers, it is a vested interest. Being a vested interest, it was not in the power of the tenant for life, by. any act of his, to affect it, and by the termination of the particular estate, their right became perfect.

The will appears to have been admitted to probate in Georgia, but the certificate of Mr. Blunt, who calls himself “ one of the presiding Justices of the court,” is, in our opinion, insufficient. The act of Congress requires the transcript to be authenticated by the certificate of the presiding Judge or Justice. If, from the organization of the court, no one of the Justices has precedence of the rest, from the necessity of the case, one of the Justices must have authority to make the certificate; such is said to be the fact in this case, and we have been referred to the Georgia, statute to prove that such is the organization of their Courts of Ordinary. If that proof had been made in the court below, the certificate would have been considered sufficient. This court cannot judicially know the statutes of other States. See Johnson v. How’s Adm’r, 2 Stewart, 27.

The objection that the plaintiffs must fail in the action, because the wife of Findlay is not joined with him in the suit, cannot prevail. When the wife’s chose in action accrues during the coverture, the husband may, or may not, join the wife with him in the suit, at his election. [Morris v. Booth and wife, at the present term; Philliskirk v. Pluckwell, 2 M. & S. 393.]

For the error of the court, in admitting the transcript of the will and probate, without proof of the constitution of the Court of Ordinary, so as to authorize any one of the Judges thereof to certify the transcript, the judgment must be reversed and the cause remanded.