Jewell v. Warner , 35 N.H. 176 ( 1857 )

Bell, J.

So far as we are aware this is the first case in which the question has been raised and contested, whether estates tail can exist here consistently with the statutes of the State.

It may be admitted that an impression has to some extent prevailed that such estates might and did exist here, and actions have been brought, and questions raised and discussed, in which that idea has been tacitly admitted ; and it has been laid down in books published elsewhere, and in one instance here, that the law of England relative to estates tail was in force here. 1 Cruise Dig. T. 2, ch. 2, note 20, 161 Am. Ed.; Griff. L. R. 42; Atherton’s Address, &c., cited for the plaintiff.

We have found little to support it in the reported decisions. Frost v. Cloutman, 7 N. H. 9, was a formedon in remainder, and the question was if the remainder had been barred by a common recovery, followed by an entry, where no writ of possession had been issued. There was no controversy as to the validity or the effect of the will under which the parties claimed, or as to the law relative to estates tail. “ It is not disputed,” says Richardson, C. J., “ that the demandant is entitled to judgment in this ease, unless the defence upon which the tenants rely is a legal answer to the action.” The court decided nothing as to the point before us, and there is no allusion to any previous decision of the courts here upon it.

Hall v. Chaffee, 14 N. H. 215, related to aWexecutory devise and not to an estate tail. It is incidentally said by the court that estates tail, though not abolished, are not in accordance with the general spirit of our laws, and are hardly known among us; but there was no investigation or decision upon the point.

The eases of Bell v. Scammon, 15 N. H. 390, and Downing v. Wherren, 19 N. H. 9, and Ladd v. Harvey, 1 Foster 526, each contain allusions to estates tail, in discussing the law relating to executory devises, but there is nothing of weight upon the question before us.

An inference is attempted to be drawn from the statute of 1837, authorizing tenants in tail to convey by deed, and to bar their heirs and the remainder or reversion, that in the opinion of the legislature estates tail still existed here. It seems to us rather designed to obviate some doubt which might have arisen on the subject.

Believing then that no such action of the courts or of the legislature has taken place as to preclude an inquiry into this question, we propose to examine the statutes, and ascertain to what conclusion they lead. To present clearly our views on this matter it may be proper to look back to the state of the law anterior to the statute of Westminster the second, passed in 1285, (13 Ed. I.) called the statute de donis.

j' Conveyances made to a man and his heirs gave to the purchaser an estate in fee, and to an estate in fee certain incidents were held to belong, among which, and the most essential, was the absolute dominion, the power to dispose of it as he pleased. To limit this power and to secure the return of the property to the donor in case the purchaser should have or leave no descendants, it became usual to convey property to a man and the heirs of his body. But it became the settled construction of these conveyances that the purchaser took a fee subject to the condition that he had heirs of his body. By the birth of such an heir, the estate of the purchaser became absolute, at least for three purposes. 1. To enable him to alien the land, and thereby to bar not only his own issue, but the reversion of the donor. 2. To subject it to forfeiture for treason ; and 3, to empower him to charge the land with rents and incumbrances, so as to bind his issue. 2 Bla. Com. 111; 4 Kent Com. 11.

To defeat this construction, and to limit the power of the purchaser to divert the property from his heirs, and to divest the title of his grantor on failure of issue, the statute de donis was passed. It provided, “ quod voluntas donatoris, secundum formara in chartam doni sui, manifesté expressam, de caetero observetur, ita quod non habiant illi, quibus tenementum sic fuit datum sub conditione, potestatem alienandi tenementum sic datum, quo minus ad exitum illorum, quibus tenementum sic fuerit datum, remaneat post eorum obitum, vel ad donatorem vel ad ejus heredem, si exitus deficiat, nerestatuiv’ 1 Sull., sec. 286; 1 Cruise Dig. 77.

Upon this statute is founded the whole system of the law relative to estates tail. []Before the statute the donor had what was called a possibility of reverter; a right to have the property if the condition failed, either by the failure or extinction of the prescribed heirs of the donor, but subject to be wholly defeated if the donee, after he had issue, or any of his heirs, should alienate the property. After the statute this possibility was held to become a certain interest; an estate in reversion.

Before the statute, no remainder could be limited after a fee simple conditional, because it was a settled maxim that no remainder could be limited after any fee simple, under the construction of the statute, as the estate given could not be defeated, and the right of the donor was secured, the donee took a limited interest less than a fee simple, called a fee-tail, and the reversion, after it became susceptible of conveyance, and consequently one or more remainders could be limited after the estate tail.

The limitation of the estate to descend to some or all of the heirs of the body of the donee, and to revert to the donor or his heirs on failure of such heirs of the donee, and the prohibition to the donee and his heirs to alien the land, so that it should not so descend or revert, were the essential characters of an estate tail, which distinguished it from an estate in fee simple. They ¡were all indispensable, and it would cease to be an estate tail at I once when the cause of descent should be changed, or the re- ! ■version be cut off, or whenever the donee or his heirs should ac-j quire the unlimited power of alienation.

By the decisions of the courts, common recoveries and fines with proclamations, were established as the common assurances of a tenant in tail, and the liability to be defeated by these modes of alienation became an inseparable quality of an estate tail; but though they modified the effect of the statute in a very essential manner, they could effect no repeal of it, even by implication, and the statutes which subjected estates to forfeiture for treason, and made certain leases of the tenants in tail binding on the issue, were too limited in their effect to do more than slightly modify the statute.

It is clear that later statutes repeal, by implication and without express words, such earlier statutes as are inconsistent with them. ■ Foster’s Case, 10 Co. 63 ; Brown’s Max. 23. But such repeals are not favored. Only so much of the present law is repealed as is plainly repugnant to the new provisions, and both are to be’construed so that they may stand together as far as may be. Thornby v. Fleetwood, 10 Mod. 118; Bowen v. Lease, 5 Hill 225; Williams v. Potter, 2 Barb. 320; Snell v. Bridge, 24 Pick. 297.

Still,though a statute is not repugnant in all its provisions toa prior one, yet if the latter statute was intended to prescribe the only rule that should govern the case provided for, it repeals the prior one. Davis v. Fairbanks, 3 Haw. U. S. 636; Plank Road v. Allen, 16 Barb. 18.

The statute de donis, as was said in Hall v. Chaffee, has never been directly repealed, nor estates tail directly abolished here. If the statute and the estates which grow out of it are not in force here, it is not in consequence of any statute abolishing it in terms, or of any legislation directly tending to its repeal, but of statutes having other objects chiefly in view, but containing provisions inconsistent with it, and irreconcilable with the idea that it can remain in force here, and which, because of their inconsistency, must be held to have impliedly repealed it.

We regard it as clear, that if it shall be found that by our legislation the law of entails has been substantially abolished; if principles subversive of that system have been established here, it is no duty of the courts to scrutinize closely to see whether some relic of a worthless system could not, by nice reasoning, be preserved.^”If our statutes have overturned the two great objects of the statute de donis, to secure to the eldest sons in succession of the grantee an inalienable interest in the property, and to the grantor and his heirs the reversion on failure of the heirs of the body of the grantee, we may regard the statute as repealed, and with it all the doctrines of the English law on the subject of estates tail.

In the year 1789 the statutes relating to devises and descents were revised and reenacted, and it is in them chiefly that we discover such great and radical changes of the law as we conceive to be inconsistent and irreconcilable with the statute de donis, and repugnant to the nature of estates tail.

By the statute entitled “ An act ordering the descent of intestate estates,” &c., passed February 3, 1789, Laws of 1789, p. 76; Laws of 1797, p. 242 ; Laws of 1815, p. 207; it is provided, “ that when any person shall die seized of lands, tenements or hereditaments, within this State, not by him devised, the same shall descend in equal shares among his children, and such as legally represent such of them as may be dead. And where there are no children or child of the intestate, the inheritance shall descend equally to the next of kin, in equal degree, and to those who represent them.” And by this statute it is further provided, that “ the real estate shall stand chargeable with the debts of the deceased over and above what the personal estate shall be sufficient to pay.”

By the statute of the same date, entitled “ An act for the settling of testate estates,” (Laws, Ed. 1789, p. 71; Laws, Ed. 1797, p. 233; Laws 1815, p. 198,) it is provided, “ that every person, lawfully seized and possessed of any estate in lands, tenements or hereditaments, within this State, of the age of twenty-one years and upwards, and of sane mind, shall have power to give, devise and dispose of the same, as well by his last will and testament in writing, as by any other act duly executed, to and among his children or others, as he or she may think fit;” and it is further provided, “ that all such estate, real and personal, that is not devised or bequeathed in the last will and testament of any person hereafter to be proved, shall be distributed in the same manner as if it were an intestate estate.”

If these statutes apply to estates tail, it will not be questioned that the first entirely defeats the two great objects of the statute de donis and of the law of entails, to secure the descent of the estate to the heir performam doni, and to the donor and his heirs the reversion. All distinction is destroyed between estates tail male, and estates tail female, and estates tail general, because the statute declares in effect that the estate shall descend neither to the heir male nor to the heir female, nor yet to the heir general, but to the children of the deceased, who may none of them be capable of inheriting by force of the entail; and in case there are no children, then to the next of kin, who may be but remote collaterals. That cannot be an entailed estate which must descend in equal shares to the children of the owner and those who represent them, and which must be distributed, in default of children and their descendants, to the next of kin in equal degree ; and which, therefore, can in no event revert to the donor or his heirs, or remain to those entitled per formam doni to the estate on failure of heirs of the body. Such an estate is a fee simple. It is to descend to all the statute heirs alike, without regard to the claims of the eldest son, without reference to heirship of the body of the donee, or any particular wife of the donee ; without regard to heirs, male or female; to the half blood and the whole blood alike, and to heirs by the side of females, who are in no way related to the donee or his family, except as next of kin to the person deceased.

The distinction between estates tail and estates in fee simple, which it was the great object of the statute de donis to maintain, being thus abolished, all the restrictions imposed by that statute upon the right of alienation are swept away, as being inconsistent with the nature of fee simple estates. And in the same way the distinction which existed before the statute de donis between estates in fee simple and estates in fee simple conditional, is also abolished, and the grantor of real estate is deprived of all power to limit the course of descent. If property descends at all it must descend according to our law to the children and next of kin. Any attempt, therefore, to limit the descent of estates here to any other course of descent must be futile. The restrictive words added to “ heirs ” “ of the body,” or “ male or female of the body,” or “ by the body of any particular wife or husband,” are simply inoperative. They create neither an estate tail nor a fee simple conditional, but an estate in fee simple, as if they had been entirely omitted.

Having thus seen the effect of the first of these statutes upon the principal object arid purpose of the statute de donis, we may look at the effect of the second upon the means by which it was attempted to secure those objects, the prohibition of any alienation by the tenant, by which the estate should be prevented from descending to the prescribed heirs of the donee, or from reverting to the donor. Though not necessary to effect the object, because, as we have said, the unlimited power of alienation is inseparable from an estate in fee simple, these provisions serve to show that it was no part of the policy of our legislators to preserve estates tail.

As we understand this statute, the power is given to every person of full age, and sane, to dispose of any estate in lands, tenements or hereditaments by devise, or by any other act duly executed. Admitting that it applies to estates tail, and that it authorizes the person seized to dispose of the estate by deed or will, it repeals entirely the restriction upon the power of alienation imposed by the statute de donis.

The phrase, “ as well by his last will and testament as by any other act duly executed,” is capable of being understood as if it were written, “ as effectually by will as by any other actbut besides ihat we regard this as not the usual signification of the phrase; it is entirely destitute of force as a qualification of the power of devising. A tenant seized of any estate could convey it by some other act duly executed. The tenant in tail could effectually convey by fine or common recovery, and could of course devise, if the clause is so understood; but he could devise equally well if it had been entirely omitted ; but if it is understood as conferring or declaring the power to dispose both by will and by any other act duly executed, the clause has force and significance, and we can see why it should have found a place in the statute. It is clear that significant words in a statute are not to be rejected or rendered ineffectual by construction, but the statute is to be so read as to give to every part its due weight. Hibbard v. Hurlbut, 10 Vt. 178; Drew v. Drew, 8 Foster 494.

The same principle applies to what is indeed the great question relative to these statutes. Do they apply to the case of estates tail ? In this respect they may be considered together, as they were passed on the same day, and as they are a revision of a single statute of earlier date. The natural as well as the technical meaning of the language used, applies to estates tail as strongly as to estates in fee. The words, “ when any person shall die seized of lands, tenements or hereditaments,” of the one statute, and “ every person lawfully seized of any estate in' lands, tenements or hereditaments,” of the other, cannot be limited to estates in fee simple merely. A tenant in tail is “ seized ” equally as a tenant in fee simple; his seizin is of an estate in lands, &c., and he is properly said to be seized of lands, tenements, &e., like a tenant in fee simple, and his estate is an “ her-editament,” or an “ inheritance,” as it is styled in one of these statutes, like a fee simple. The language is equally applicable to both estates, and we see no reason why, if we were to judge by tbe terms of this statute alone, it should not be extended to both.

But these statutes were framed upon the provincial statute of 4 George I., (Province Laws, 1771, p. 104.) This statute provided “ that every person lawfully seized of any lands, tenements or hereditaments, within this Province, in his own proper right in fee simple, shall have power to give, dispose and devise, as well by his last will and testament in writing, as otherwise by any other act executed in his life, all such lands, tenements and her-editaments, to and among his children, or others, as he shall think fit, at his pleasure. And if no such disposition, gift or devise be made by the owner of any such lands, tenements or hereditaments, the same shall be subject to a division with his personal estate, and be alike distributed according to the rules hereinafter expressed for intestate estates.” These rules provide for the distribution equally to the children and those who represent them, except that the eldest son is to have two shares, or a double portion.

The language of the provincial statute is changed by the statutes of 1789 in a point most essential to the construction, and in a way which could not be accidental.^* The words, in his own proper right in fee simple, are omitted, and the words, of any estate, inserted in one of the statutes, so as to make the original phrase, “ seized of any lands, tenements or hereditaments, in his own proper right in fee simple,” read in that act, “ seized of any estate in lands, tenements or hereditaments,” and in the other, “ seized of lands, tenements or hereditaments.” The provision which in the early statute was confined to estates in fee simple, is extended to any estate in lands, &c., of which a person may be seized. There was no estate in any hereditament but an estate tail, which could be included in the broader language of the later statutes, and it must be held that they apply to such estates. Unless it is so construed no effect can be given to the change.

What was there left of the statute de donis and of estates tail, after the passage of these acts of 1789 ? Lands conveyed by such terms as in England would make an estate tail, were here liable to be conveyed by the tenant, as there, by fine and recovery; and by any act duly executed in his life were devisable by the tenant at his pleasure, were chargeable with his debts after his death, and could not descend to the heir per formam doni, nor revert to the grantor for default of such heirs, and must descend to the children equally, or to the next of kin in default of children. In fact, by the descent to heirs generally, they were become estates in fee simple, and as such liable to alienation by deed or levy. Not one object of the statute de donis remained; no characteristic of an estate tail continued to exist; and no other conclusion can be drawn than that the statute de donis was impliedly repealed, and estates tail finally abolished.

The policy of our institutions has remained the same since 1788 to the present time, as is shown by the revision of these statutes in 1822, and in 1842, without change, and by the statute of 1837, which, though in our view unnecessary, was useful in removing the doubts then existing.

The conclusion to which we have arrived is the same adopted by Chancellor Kent as long ago as 1836. See 4 Com. 15, n. b.

The action of formedon in the descender being applicable only to estates tail, of course fell with them, and this action consequently cannot be maintained.

The questions arising on the plaintiff’s motion, being immaterial, have not been considered.

Judgment for the plaintiff.

* It does not seem probable that the language of this act was not well weighed, and its meaning carefully considered, when we consider that the committee to draft public bills comprised Messrs. J. Sullivan, J. Smith, W. Plumer, and P. Green, of the House, and J. Pickering, of the Senate; five of the most eminent lawyers of the State.