Smith v. Jones ( 1829 )

By the Court:

The statute of Ohio is much more comprehensive in its terms than those of 32 and 34 Henry VIII. “ Every male person aged twenty-one years, or upward, being of sound mind, shall have power at his or her will and pleasure, by last will and testament, to devise all the estate, right, title, and interest, in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, in, or to, lands, tenements, hereditaments, annuities, or rents charged upon, or issuing out of them. 6 Ohio L. 64.

The third section provides for the revocation of wills, in the details of which, an alteration of the estate, after making and publishing the will, is not mentioned.

A prominent feature of the English law is to favor the heir, and prevent disinherison. This has introduced the fixed principle that at the inception of the will a man must be seized of the estate he devises, which should remain unaltered to the time of its consummation by his death. Pow. on Dev. 566. The difference in circumstances has, with us, *led to a difference in legislation, and cases may arise in which our courts may, with great propriety, depart, in their judicial decisions, from those of England, upon questions arising out of wills. The laws of the Various states show that it is the general policy of the government, that estates should not accumulate in families, or succeed in perpetuity. This is universally supposed to be the most effectual way to guard from degeneracy and destruction our free and equal institutions. Notwithstanding this solicitude in favor of the heir which is manifested in the course of decisions in that country, it has been held that when a devise is made in general words, it will carry the estate both in law and equity. 1 Ves. 437. So any contract which a court of equity would enforce on an application for a specific performance, would be sufficient to pass under sweeping words in a will. 1 Ves. 437, 494; Pow. on Dev. 208. But such contract must exist at the time of making the will, because one having no title whatever can devise nothing. 2 P. Wins. 629. It has also been decided that if a man devise all his lands for the payment of his debts, and afterward purchase lands, .although there were no articles of agreement previous to the will, a sale will be decreed of those after-purchased lands. 2 Ch. Cas. 144. It appears to be the settled law in England, that an equity may be devised, and if a deed is not executed- during the life of the testator, the obligor will be held a trustee for the devisor, and may compel an execution of the articles for his benefit. If the testator may pass equitable interests in land, by will, in England, there can be no doubt he may do it under the more comprehensive terms -of our statute. In this case no doubt can exist as to the intention of the testator. The words embrace his whole estate. It is beyond controversy that whatever interest the testator had in this land, when the will was made and published, passed to Agnes Smith, his wife.

The question more difficult, is, whether getting in the legal estate before his death, and after the execution of the will, amounts toa revocation, and whether the legal estate so obtained, passed by the will, or descends to the heir.

In the case of Rex, ex dem. Norden, v. Griffiths and others, it was held that an admittance would refer back to a surrender, being only a completion of it. 4 Burr. 1952.

*In Selwin v. Selwin, 2 Burr. 1131, the principle was decided that the whole of a conveyance shall-be taken together, and the several parts of it shall have relation back to the principal part. S., being seized in fee by indenture of lease and release, conveyed to uses and covenanted to levy a fine. All were adjudged an assurance. 2 Bur. 704. Mr. Justice "Wimot: “He considered these deeds as a covenant to levy a fine, and they- ought, with the fine, to be considered as one and the same assurance.” The same principle was decided in Croke Ja. 643. All the court held that a bargain and sale, and the fine and recovery, are but-one assurance,, and, says the court: “The recovery being executed, which is grounded upon the covenant, is quasi a conveyance to the use abinitio.” 2 Ves. 681. These cases are deemed analogous in principle to the one under consideration. The equity which existed at the time of making the will clearly passed, and the conveyance to the devisor is no change of the estate to work a revocation, but rather a confirmation of it.

For the purpose of protecting the devisee, it would but conform to the authorities to hold the legal • conveyance accepted by the testator, posterior to-the execution of the will, as an act of confirmation on his part, and to consider them both as one assurance. It can not be doubted if the testator had refused to accept the deed in his lifetime, the right would have been complete in the devisee, and she could have compelled a specific performance of the contract. The principles involved in this case were decided in Gist’s Heirs v. Robinet, 3 Bibb, 2. The case was this: Under the royal proclamation of 1763, Thomas Gist, for military services in the war with Great Britain and France, became entitled to a grant of two thousand acres of land, upon his personal application to any of the governors of the colonies of North America. In 1772, before he applied for his claim, he made and published his will, by which he devised to his sister, Anne Gist, one moiety of his whole-estate, both real and personal; the other moiety he gave to Elizar beth Johnson. He afterward obtained a warrant, caused it to be surveyed, and in January, 1780, obtained a grant. He died in 1785, without altering or republishing his will, leaving Nathaniel Gist his heir at law. Anne Gist conveyed to Nathaniel Gist, in-fee, a moiety of the tract of land; Nathaniel died, leaving the lessors of *the plaintiff his heirs at law. The question was, whether Thomas Gist, at the time of making his will, had such an interest, under the proclamation of 1763, as was transmissible by devise. The court lay down the doctrine as incontrovertible that-an equity will pass by a devise. The judgment, which had been, in favor- of the plaintiff for a moiety only, was affirmed. The effect of this decision is, that when an equity existed at the time of publishing the will, and before the testator’s death it was carried into grant, the equitable and legal estate could not bo parted; but the latter attached to the former, so as to vest a complete estate in the devisee. If otherwise, the lessor of the plaintiff, who was heir at law of the testator, must have recovered the whole tract of land instead of the moiety, and turned the devisee of the other moiety to a court of chancery for relief. This defendant is the grantee of the devisee, and if the legal estate has descended to the heir at law of the testator, whatever equities may exist, the plaintiff is entitled to recover in this action. The cases before cited would appear, however, fully to warrant this court in considering the estate complete in the devisee in consequence of the will vesting the equity, and by reason that the legal estate was acquired by the testator before his death. To consider it in any other light would be separating the equitable and legal estate to no purpose, except to produce litigation and expense, or indulge in subtleties which have little to do with reason or justice. The court are therefore of opinion that the acceptance of a deed after the execution of the will is not an ademption of the legacy, and for the purpose of preventing circuity of action, the deed may be attached to the devise and considered but one assurance.

Judgment on the .verdict.