Doe v. Roe , 1 Del. 477 ( 1835 )

By the Court.

Harrington, Justice.

The question now submitted to the court is of more consequence in its general bearing than in its operation on the present case. Regarding either the policy of the law or the known rules of evidence, applicable to the question, we are perfectly clear that, on principle, the objection to the evidence now offered ought not to be sustained.

In developing his title the plff. has set out with the proof of a possession many years ago in Hannah Heavilo. To show the transfer of title from her to Mary Fergus, under whom he claims, he offers in evidence an order of the orphans’ court, made on the application, of Benjamin Johnson, the executor of John Heavilo, who was executor of Hannah Heavilo, for the sale of these lands for the payment of debts, and the proceedings upon that order under which Mary Fergus became the purchaser. It is objected to this evidence that Benjamin Johnson was not the representative of the estate of Hannah Heavilo, and had no authority to sell these lands; in short, that the order of the orphans’ court directing the sale was irregular and void, because made on the petition of a person who was not legally constituted the executor of Mrs. Heavilo. By her will she constituted her two sons, John and Roderick, to be her executors; whether letters were in fact granted to one or both of them is not clearly shown, the only evidence of the grant of letters being a testamentary bond, filled up in the name of both, and conditioned for the faithful administration of the estate by both, but signed only by John Heavilo and by his surety. Roderick Heavilo, it is proved, left the state shortly after the death of his mother, and has never returned. John Heavilo died, having appointed Benjamin Johnson his executor, who took out letters, and as the executor of John Heavilo, who was executor of Hannah Heavilo, obtained the order which is now objected to.

It is conceded that the entering into bond and giving surety is necessary to the appointment of an executor, and that the grant of letters without such bond is void. Roderick Heavilo was therefore never actually the executor of liis mother. Whether the bond given by John Heavilo in the name of both will sustain the grant of letters to Mm alone, and whether the administration passed to his executor or survived to Roderick, or was void as to both, are questions not necessary now to be decided, as we rest our opinion on other considerations. Though it may be remarked that after this lapse of time much would be presumed by a court and jury to supply defects in procedings, and sustain titles acquired under the orders and decrees of a court of competent jurisdiction.

The orphans’ court is a court of peculiar and exclusive jurisdiction over the subject matter of this order; and, of course, over the incidents to the proper exercise of this jurisdiction. The act of assembly (1 vol. 281) authorizes it to call executors to an account of their administration, and if the personal estate shall be found insufficient for the payment of debts, and the heirs or devisees of the decedent shall refuse or neglect to pay them, to make an order for the sale of the decedent’s lands, all which sales “shall be deemed as available as if the decedents had sold and conveyed the same lands in their life time.” With such authority to proceed in the premises and to decree a sale of the lands, would any irregularity in the proceedings vitiate the title under the court, and could such irregularity be inquired into in 'a collateral way? The proceeding in the orphans’ court was said to be ex-parte; it is nevertheless a proceeding in remf which by the act of assembly passes all the title of the decedent in the land, and concludes every body. Roscoe Ev. 103; 1 Levinz. 236. 1 Stark. Ev. 229; “It is evidently essential to the existence of a jurisdiction of this nature that its adjudications upon' the subject matter should be final, not only in the courts in which they are pronounced but in all other courts where the same question arises. It would not only be inconsistent that the decision in rem should not be final in the court in which it is pronounced, but, from the nature of the subject matter, mischievous and inconvenient. Although the parties who are in a greater or less degree affected by the consequenquences of the judgment may change, the subject matter is immutable, and therefore the decision upon it ought not to be liable to be disturbed. And it ought to be binding in other courts, in order to prevent inconsistency, and to support the jurisdiction of the court in which that sentence has been pronounced, for it would be in vain for a court of exclusive jurisdiction to decide, if its decisions upon the subject matter were to be wholly disregarded.” It is doubtful whether any but the heir at law or a creditor could object to the decree, even in the orphans’ court or by way of appeal, and it must be regarded as conclusive upon them until vacated or reversed in a regular manner. As a judgment of the court, the propriety of the order of sale of Mrs. Heavilo’s land for the payment of her debts is as uncontrovertible in any collateral proceeding as a judgment at law binding on the land and rendering it liable to sale. Suppose the case of a judgment recovered at law against an executor and a sale on such judgment. Could a title derived under such a judgment be invalidated by showing an informality in the executor’s bond? And if the objection here made be considered available, you had as well require proof that the executor filed before the orphans’ court the accounts of his administration required by the act of assembly, or that the heirs at law or devisees refused or neglected to pay the deficiency, which are pre-requisites to the order for a sale. There is no stopping place if you once get behind the order of the orphans’ court and open the door for objection to its proceedings. The principle is immensely important in its general bearings. Many of the titles to land in this state are derived immediately or remotely under a sale by order of the orphans’ court, and if these titles are liable to be overturned by any defect in the mode of proceeding, however slight, which may be discovered after a lapse of even thirty-five years, the consequences to the community would be alarming. A defect in the executor’s bond, it is here insisted, shall have this operation. A stronger example could not be presented of the danger of looking beyond the decree of the court. What purchaser under a sale in the orphans’ court ever examines into the validity of the executor’s appointment? And can he reasonably be expected to do so? It is conceded that the existence of a legally constituted executor is necessary to the order of sale, but no more essential than the filing an account of his administration of the personal assets; the establishing of a deficiency; the refusal or neglect of the devisees or heirs at law to pay the debt; or, (under the present law) the giving a new bond by the executor. All these are matters for the orphans’ court to examine into and decide upon; and any matter necessarily decided by that court in making its decree cannot ever afterwards be questioned in any collateral proceeding. The representative relation of Benjamin Johnson to the estate of Hannah Heavilo was a matter necessary to be decided by the orphans’ court in this proceeding; for the order of sale could have been made only on the application of the representative of the estate.

On this general ground we are of opinion that the record and proceedings of the orphans’ court may be given in evidence; but perhaps this case might also be decided on another fact appearing from the record. It is clear that at the time of making the order of sale no one could have objected to it on the ground now taken, but the two other devisees Roderick and Edward Heavilo; and the record shows that they were notified and consented to the order.

Evidence admitted. Exception prayed and granted.

The record showed a sale under the order of the Orphans’ court of the premises now in possession of the deft. Roach to James Martin as the agent of Mary Fergus on the 14th June, 1800. Sale approved and confirmed.

Plif. then offered in evidence the record of the deed of Benjamin Johnson, executor of John Heavilo, who was executor of Hannah Heavilo to Mary Fergus, dated ;22d November, 1800—proved 21st April, 1802, and recorded, but there was no date of the time of recording. Objected to.

Bayard. No paper entered on the records of the recorder’s office thereby becomes evidence unless such entry be made by the authority of law. The law requires deeds to be recorded within a year after their execution, 1 vol. D. L. 220, and this deed not having been recorded within that time is not evidence without the formal proof of its execution. The deed is not invalidated by not being recorded in due time, but the record of it after the year is not authorized and is therefore not evidence. The deed itself must be produced and proved as at common law.

Frame. The language of the old act is that deeds may be recorded within one year after the execution, and not after they bear date. This deed, though dated in Nov. 1800, was not proved or entitled to record until 1802. ■ The time therefore of its execution within the meaning of the law and for the purpose of recording is not so apparent from the face of the deed; and much would be presumed after such a length of time. But the point has always been considered as settled by the practice in the late courts which always permitted these old records to be read in evidence though not made within a year from the date of the deeds. We offer this deed also as an antient paper whose execution would be presumed after such a lapse of time.

The Chief Justice said he had made the objection many years ago before the late supreme court in this county and that court would not permit him to argue it. They considered it then to be well settled. It was afterwards decided in Kent in the case of Stout vs. Pollen (or Nickerson vs. Stout) about twenty years ago.

Black Justice said he had often heard it spoken of in Newcastle county but had not known the point made. The bar considered the question doubtful on the act, but settled by the practice and by decisions which were understood to have been made in the other counties. These decisions had probably induced the strong exclusive expressions in the revised act to which it has been found necessary to add so many supplements extending the time. Objection overruled.

By agreement the further examination of testimony was suspended on the following arrangement. In the case of Martin’s Lessee vs. Isaac White, verdict to be rendered for deft. In the case of Martin’s Lessee vs. James Roach, verdict to be rendered for the plff. subject to the opinion of the court on the devise in Mary Fergus’ will; and subject also to any benefit of exception to the opinion of the court on the preceding questions of evidence.

Frame, for plff. —The question arises on the fourth clause of the will of Mary Fergus. What is the estate which Eliza Fergus took? We say that it is an estate tail, and the devise over is a vested remainder in fee in James Martin. On the part of the deft, it will probably be contended that it is an estate in fee in Eliza Fergus with an executory devise over to James Martin. There is no doubt that the first clause is a direct devise of a fee to Eliza Fergus; yet it is well settled that, even in such a devise, if there be any words added which qualify the word “heirs” and show an intention of limiting it to the heirs of the body of the devisee, it will only create an estate tail.—6 Cruise 202; Devise ch. 12 sec. 7. The question then is, what superaded words will have this effect? and we lay it down with confidence that the expression in this will “except she should die without an heir born of her own body” is of all others the most apt for this purpose.

The whole clause is; “Fourthly. I give and bequeath unto my beloved daughter Eliza Fergus the remainder part of all my real and personal estate to her and her heirs forever, except she should die without an heir born of her own body, then my will and desire is that all the last above real and personal estate goes to James Martin him and his heirs forever.”

The words “if he die without issue” if there be nothing to restrict them to issue living at the death will always reduce a fee simple to an estate tail (sec. 9): yet they are not so strong as this. Heir is a more technical term than issue. Suppose it were “except she should die without issue born of her body” could there he a doubt that it would be but an estate tail? yet the expression here is even stronger. If this is to be construed an executory devise it cannot be after a general failure of issue or heirs of the body, but must be restricted to heirs of the body of Eliza Fergus living at the time of her death. Is there any thing in this will so to restrict it? can it arise from the use of the word “heir” in the singular number? Not so. Here was the devisee an illegitimate daughter of the testatrix. She could have no collateral heirs, and the testatrix saw the propriety of confining it. to the issue of the body, or lineal descendants. It cannot be confined to the immediate issue of the devisee’s body, or children; because technically speaking, Eliza Fergus could have no “heir” during her life, as nemo est hceres viventis, but chiefly because it would violate the principal intent of the testator and give the property over to James Martin, a stranger, to the exclusion of grand children. For if Eliza Fergus had had issue or children which had died leaving children these could not take on the death of their grandmother and the whole line of lineal heirs would be cut off. Nothing shall be construed an executory devise which can take effect as a remainder, and a vested remainder is preferred to a contingent. 6 Cruise 319. If there be a devise of both real and personal property the terms may be rendered each to each. The same words may give a fee simple or the entire property in the personal estate, and but an estate tail in the realty. 1 P. Wms. 667; Fearne 476.

Bayard. The intention of the testatrix in this case cannot be effectuated without giving to her daughter Eliza Fergus a fee simple, dependent, not on her dying without leaving issue at the time of her death, but on the contingency of her having had no heir, or child, born of her own body. The will is evidently drawn by a person unskilled in the use of legal terms—it was in fact drawn by James Martin, the devisee over—want of technical knowledge is evident on the face of it. Our business is from such a will; regarding the condition of the testatrix and her family; and her main purposes as appearing from the will itself; to elicit and carry out her designs; without so much regarding the precise legal meaning of the words used. Plain common sense would interpret this will thus:—“I give to Eliza Fergus my daughter and to her heirs forever all the remainder part of my property.” This is the general intent; to benefit in the fullest extent this first and greatest object of her bounty, her child. And thus far it is a plain fee; but there is a limitation, the common sense meaning of which is equally plain; “except she should die without having had an heir (i. e. a child) born of her body” in that case, and in that case only shall the property go over to a stranger. The word heir may be construed as a word either of limitation or of purchase to meet the intent of the testatrix. 2 Atkyns 582; 3 Chitty Dig. 1365. I agree that “heir” is nomen coilectivum and is the same as heirs, but the use of it here shows that it was intended to mean the same as child; and that it is to be taken as a word of purchase. 1 Croke Rep. 66; Archer’s case. The use of the word heir in the singular is the reason why in that case it was construed a word of purchase, and not because there is a limitation over to the heirs of that heir. Fearne 102 (150.) I agree that technically there caqnot be an heir to a living person but the ordinary acceptation and use of the word is the same with child, or heir apparent. Croke Eliz. 453, another report of Archer’s case in which it is said that this is the vulgar meaning of heir. “Except she should die without an heir born of her own body;” a very strong expression; the word own is added to show that the design was to confine it to her immediate issue, and not to the issue of such issue. What common person would say that an heir born of her pion body could mean an heir horn of her child’s body.” “In case he should depart this life and hear no issue” construed to confine it to issue living at the death of the devisee. Roe vs. Jeffry, 7 T. Rep. 585. “Except she should die without an heir born oí her own body is much stronger to show that she meant to confine it to the issue or children born of the body of Eliza Fergus—to a failure of issue at her death.

When words applied to real estate would give an estate tail they give an absolute estate in personal property, 1 Mad. 264; Tollel vs. Chatham. The limitation of an estate tail in personal property is void. 3 Vezey Jr. 99 Chandler vs. Price. Is it not certain that Mary Fergus meant to give her personal estate over to Martin on the same event that she gave the real estate. The plff.’s construction undoubtedly defeats this intention as to the personalty, and gives to Eliza Fergus the whole of it without the possibility of its going over to Martin. On our construction that it is a contingent fee dependent on the birth of a child, all the devises both of personal and real may take effect; and the rules of construction require that no part of the instrument shall be defeated if all can take effect. Forth vs. Chapman, 1 P. Wms. 663 is not law.

Clayton. “Heirs” is a word of peculiar meaning. Heirs of the body of A. are his issue and their issue forever. Powel on devises 361-2. But there is a manifest distinction between heirs of the body of A. and “an heir born of her own body” the former is an estate tail because it plainly embraces all the lineal descendants of the first taker; the latter expression shows an equally plain intention to confine it to the immediate descendants or children of the first taker. It has been said that cases on a will are of very little importance as precedents unless in the same words, for they depend on the intent. No case can be found in which such an expression as this has been construed as restricting a previous plain devise in fee to an estate tail, or giving to the heir born of a person’s own body the extended signification of issue or of lineal descendants generally. This case then is not to be governed by authority. It must depend on the meaning which the testatrix herself attached to the words. What was her meaning and intention? Did she use the word heir in its legal signification, extending to the thousandth generation, or did she mean such an heir as should spring immediately from her daughter’s body; a child born, in the strong language of the will, of her own body. It is impossible to construe this into an indefinite failure of issue without rejecting the word “own” which is too important as manifesting intent to be rejected. If the words used here force us to the conclusion that the event upon which Mrs. Fergus intended this limitation over to Martin should take effect must happen within the compass of a life or lives in being and twenty one years after, the limitation over is an executory devise and the devise to Eliza Fergus is a contingent fee. And the event necessarily happened within that time. Eliza Fergus was in being, and the heir to be born of her own body had necessarily to be born during her life; if it was not so born the limitation over would take effect; and on the birth of such an heir it was defeated, and the contingent fee became absolute. Cites 1 Chitty, Dig. 345; 9 Vezey 197; 7 T. Rep. 589; Roe vs. Jeffry, Fearne 445; 431; (316) Gore vs. Gore.

Frame, in reply.—The counsel on the other side have taken somewhat different views of this will but they both seem to have settled down on this, that the expression “heir of her own body” means child or children and not issue generally. The great question is, at what time and upon what event was the limitation over to James Martin designed to take effect. Shall it take effect in default of issue living at the death of Eliza Fergus or after a general failure of issue. The law has fixed a meaning to such forms of expression as “dying without issue”, “without heir of the body,” “heirs of the body,” &c. &c. and the legal import of all such expressions is a general or indefinte failure of issue. It devolves then on the other side, if this is to be construed an executory devise which it cannot be after a general failure of issue, to show us something indicating the intention of the testatrix to have these terms understood differently from their usual and legal meaning. Doubtless this may and must yield to clear intention, but such intention must be plain and not doubtful. How do they attempt to show this intention? By resorting to the expression itself and rely upon words which have a legal definite meaning to prove a different meaning. Much stress has been laid on the word own. It is not denied that “dying without heirs of her body” would make an estate tail; but “dying without heirs of her own body” is supposed to be a very different thing, as if her body could be other than her own body!! And Powell was cited as supporting some such distinction; which is denied. (Powell on Devises 361-2.) The words first—next—eldest child, &c. do not vary the construction, because they express no more than heir; neither can it be varied by heir born of her own body for this is nothing more than heir born of her body. 4 T. Rep. 605; 8 Term Rep. 211; 26 Johns Rep. 396; n. a. Chr. Kent’s opinion.

The general intention of the testator in the use of these words is in accordance with the legal meaning attached to them, though the Vulgar meaning may be different; for when a man leaves his property to his child and the lawful issue of that child’s body, his intention is that not only children shall take but grandchildren, and the whole line of lineal descendants; though in common acceptation ‘‘issue of his child’s body” would mean only children.

To what result will Mr. Clayton’s construction lead? If “heir born of her own body” means a child or children living at the death Eliza Fergus, then in case she had had a child and that child had died in the life time of her mother leaving numerous children, the estate would "go over to James Martin to the exclusion of all these grandchildren, for the event would have happened of Eliza Fergus dying “without leaving a child born of her own body.” Such a construction is too monstrous to be entertained for a moment on the ground of the intention of Mrs. Fergus.

Mr. Bayard’s construction is still less plausible. He will have it that the event upon which the estate was to go over to Martin was the dying of Eliza Fergus without “having had a child born of her own body.” How much of a will does he have to make for Mrs. Fergus to get at this!! But establish this construction and it makes it a contingent and conditional fee, and Eliza Fergus having once had a child, the estate could not go to Martin even though at the time of her death there was an entire extinction of her race. Now can it be doubted that the testatrix meant James Martin should have the property if Eliza Fergus died without leaving either children, grandchildren or any issue or descendants? One other thing is absolutely certain from the will; the question whether 'Martin should in fact ever become-entitled to this land was to be determined at the period and on the event of Eliza Fergus’ death. But Mr. Bayard’s construction makes it dependent on a previous event; the birth of a child. It cannot therefore be correct.

On the question whether the bequest of the personal property in the same words affects the construction as to the reality. I care not whether the same words have the same meaning when applied to different kinds of property, or not. Suppose the law does prevent an entailpient of the personalty, it does not necessarily prevent an entailment of realty; on the contrary the law adjudges such an estate from the very words which fail as to the personal property. A devise of “all my property both real and personal to my son A” gives him the absolute estate in the personalty, and only a life estate in the realty. And see Forth vs. Chapman, 1 P. Wm’s. 663 Porter vs. Bradley, et. al. 3 Term, R. 143; 7 T. Rep. 589; Roe vs. Jeffry, &c. 6 Term Rep. 307; Daintry vs. Daintry, 17 Vesey 479; 16 Johns 413.

The Court directed the following entry of judgment.

And now, to wit, this twentieth day of April,- A. D. 1835, this cause having been argued by counsel on both sides, learned in the law, upon the case stated and agreed upon on both sides and filed in the cause, and the court having heard the same upon the said case stated, it is therefore considered and adjudged by the court, and the court are of the opinion, that the said Eliza Fergus took an estate in tail in the said lands and premises in the said case stated mentioned, by and under the said devise contained in the said last will and testament of the said Mary Fergus in the said case stated also mentioned; and that the limitation or devise of the said lands and premises made in and by said will to the said James Martin was a vested remainder in fee simple; ^(a) and it is further considered and adjudged by the court that the plff. do recover against the deft, seven equal undivided eighth parts of the said lands and premises in the said case stated mentioned; and that judgment be rendered, and the court do hereby render judgment for the plff. against the deft, for the said seven equal undivided eighth parts of the said lands and premises, together with the costs of suit.

(a) Where there is a devise to one and his heirs forever if there be a limitation over and any expression from which it can be collected that the testator intended to restrain the first devise to any particular class of heirs it will be so restricted. As where the limitation over is on a failure of issue; dying without issue of the body, or heirs of the body, &c. the previous g»neral devise is restrained to this description of heirs and reduced to an estate tail with a remainder over.

The terms “failing issue”—“dying without issue” and other expressions of similar import have a fixed legal signification, and mean a general or indefinite failure of issue, unless there be something to show that the testator meant to restrict it to a failure of issue at the time of the death of the first taker. For it is reasonably supposed, when nothing appears to the contrary, that the whole line of lineal descendants of the first taker are the objects of the testutors’ bounty as much as the children or immediate issue; and that a construction which would cut oil grandchildren and give the estate to the devisee over on the death of the first taker without children cannot in the general be in accordance with a testators intention. And, though there has been a constant struggle in the cases to apply the first devise to children, and limit the event on which the devise over shall take effect to a dying without issue living at the time, the whole current of authorities has established, that whether the form of expression be “dying without issue”—“without issue of his body”—“lawfully begotten of his body”—“leaving no issue of their respective bodies”—“dying without an heir of his body”—&c. &c. the meaning is still the same, an indefinite failure of issue.

The first case in which this form of expression was construed to mean a definite and not a general failure of issue was the case of Pells vs. Brown, Cro. Jac. 590. But that case was decided on the particular form of the devise and was not designed to controvert the general rule. It has moreover been much questioned. See Anderson vs. Jackson, 16 Johns, Rep. 407. Yet it was followed in Porter vs. Bradley, 3 Term. Rep. 143, and Roe vs. Jeffery both of which cases chancellor Kent designates as “blind guides.” In the first, Lord Kenyon thought the words “if he should die leaving no issue behind him” sufficient to restrict it to issue living at his death; and though he placed much stress on the words “behind him” he intimated that the expression leaving no issue would be sufficient. Yet in Daintry vs. Daintry, 6 Term. Rep. 307, it was decided that “if he should happen to die without leaving issue of his body” meant a general failure of issue.

It is observable that in all the cases giving a restricted construction to “issue” they profess not to violate the general rule, but to establish exceptions on the particular words of the will; yet most of them have been regarded as .infringing on the established construction, and have always been more or less controverted. In the principal case the defendant’s counsel admitted the general rule; they agreed that if the expression had been “except she should die without issue born of her body” it would have been an estate tail; but they distinguished between “heir” and issue, and laid much stress on the word “own” as indicating an intentian to restrict the meaning. The reason which induced the enlarged meaning applied in legal construction to the word issue, .equally applies to this form of expression, namely, that the testatrix did not intend the estate to go over while there were lineal descendants of her daughter to take it. It applied to this will with peculiar force. The first devise was to the testatrix’s only child; the remainderman was a stranger in blood. Without strong evidence of that intention it would not be supposed that she intended he should take to the exclusion of the grandchildren or other lineal descendants of her daughter. There is nothing in the word “heir” either in the singular, or “heirs” in the plural, that should give it a more restricted signification than issue. Heirs is a technical word of greater latitude than issue, comprehending all the blood relatives either lineal or collateral. Heirs of the body or “heirs born of the body” is precisely the same as issue, being restricted to lineal heirs and extending to all the lineal descendants. And “heir” is nomen collectivum, and the same with “heirs.” 3 Bin. Rep. 374. In one of the earliest cases on the stat. de donis a grant to B. and his heirs forever, provided B. had issue of his body begotten; and if he died without heir of his body the land was to revert, was construed an estate tail. In Denn vs. Slater, 5 Term. Rep. 355, on a devise to B. and if he died without male heir then to C. and his heirs; Lord Kenyon said it was clearly an estate tail in B. A devise to a son, and, in case he died without heir of his body lawfully begotten, then over, is an estate tail. Royal vs. Eppes, 2 Munfa. 479. Has the word “own” in this connection, the force attributed to it by the defendant’s counsel? It is difficult to distinguish between the heirs of a man’s body, and the heirs of his own body; and such a distinction would seem to be too refined to overturn an established rule of construction. It has been sought to apply a like stress on the words “first,” “next,” “eldest heir,” &c. but they have been held not to vary the construction. Powell 361. Lessee of James vs. Avis. 4 Term Rep. 605: under a devise “to A. and B. and their heirs” and in case they agree to sell the estate that they should have their equal share of the money arising therefrom, but if they agreed to keep the estate whole together then that the rents should be equally paid and divided between them and the several and respective heirs of them on their bodies lawfully begotten. ” A. and B. took only estates tail. Lessee of Gregory vs. Whichelo, 8 Term Rep. 211. A devise to “A and B. and their heirs forever, provided that if both have issue, then both their dividends to go to the issue of their own bodies” was held an estate tail. Here the word pion actually occurs, and is applied to the issue generally, the nail natonm, et epá nascentur ab illis.