Jackson ex dem. Hicks v. Van Zandt , 12 Johns. 169 ( 1815 )

Thompson, Ch. J.

delivered the opinion of the court. (Spencer, J. dissenting.) The grounds upon which the plaintiff’s counsel rested their argument, to show that the act of 1782 did not reach their case, were,

1st. That the act did not operate prospectively.

2d. That it did not give to the tenant jn tail, a fee simple absolute, but only operated as a repeal to the statute de donis, leaving the estate a conditional fee, as at common law.

With respect to the first objection ; it is true that the act is not' drawn with skill and accuracy; and, according to strict grammatical construction, may be liable to the criticism made by the plaintiff’s counsel. But the sense and meaning of the act, and the intention of the legislature, cannot be mistaken. It is a well-established principle in the exposition of statutes, that every part is to be considered, and the intention of the legislature to be extracted from the whole, and when great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning qf the legislature be plain. (2 Cranch, 386.)

It is a first principle in legislation, that all laws are to operate prospectively. And it appears to me that it would be doing .great violence to the intention of the legislature, to limit this act to estates tail then existing. This would be comparatively doing nothing. It would be obviously, against the general scope and object of the statute, which was to. abolish entails. It is a settled rule of construction, that when the words of a statute are obscure or doubtful, the intention of the legislature is to be resorted to in order to find Out the meaning of the words. This intention is sometimes to be collected from the canse or necessity of making the statute. And whenever the intention can be discovered, it ought to be followed, with reason and discretion* in the construction,1 although it seems contrary to the letter of the statute. (6 Bac. Ab. 384.) If this be a. sound rule of interpretation, and Of which, there can be; no doubt, it must apply with great force to the ease before us. And,, indeed* the. intention of the legislature is so obvious, that it was not pretended to be denied by the plaintiff ?s, counsel in the argument. The act Of 1787, by which the premises, in question are given to Richard Penn Hicks, is a strong legislative construction of the act of 1782. For it was -obviously made for the express purpose of carrying into effect the will of Thomas Hicks,, according to the intention of the testator? It alleges, by way of recital, that were it not for the late acts abolishing entails, Richard Peñn Hicks Would have become seised in fee tail general of the premises in question. But by such law the estate in fee tail general, devised to Mary Hicks, was-'converted into a fee simple* and she -having been born out of lawful wedlock could have no heirs, by means whereof the lands escheated to the people: It is nó answer to "this argument, that this is a private act, and the suggestion made by the party. This is true where the suggestions are matters of fact, but that is' not the case here. There was an alleged construction of a public act, and which the legislature were bound to look to and adopt or reject, as in their judgment the act would warrant. And if the act of 1782 did not extend to this case, most certainly the act of 1787'oüght not to have been passed. In my opinion, therefore, the act of 1782 must have a prospective operation, and apply to the will in question.

Nor is the Mother ground of argument, in my judgment, better founded. This seems to have been suggested by the difference in the phraseology between the acts of 1782 áfid 1786. By the former, the estate in fee tail is converted into a fee simple, and by the latter, into a fee simple absolute. This difference, however, does not extend throughout the act, for, in the second section of the act of 1786, the term fee simple is used in the same sense with fee simple absolute in the first section. But if it were not so, it would make no difference in the construction of the two statutes* The terms fee simple and fee simple absolute have one and the same meaning. Littleton, (sect. 1.) says, a tenant in fee simple is he who hath lands or. tenements to hold to him and his heirs for ever: and it is called fee simple, or feodum simplex, because it signifies a lawful and pure inheritance. Coke, in his Commentary, adopts the same definition, and says, that simple is added to fee for the purpose of showing, that it is descendible to the heirs generally, without restraint to the heirs of the body, or the like. And he uses the terms, simple and absolute, as synonymous, when subjoined to fee. Thus, says he, the more apt division of a fee is into fee simple or absolute, conditional, and qualified or base. For the word simple properly excludeth both conditions and limitations that defeat or abridge the fee. It would be a very strained .construction of the act of 1782, to say it only converted fee tails into conditional fees, as at common law. The result of the opinion of the court accordingly is, that the act of 1782 operated prospectively, and of course extended to the will of Thomas Hicks ,* that the fee tail general, devised to his sister, Mary Hicks, was, by the statute, converted into an estate in fee simple. And if so, it is not denied but that the defendant has shown a good title to the premises in question, and is entitled to judgment.

Spencer, J., dissented.

Judgment for the defendant»