Smith, et al. vs. Smith, et al., 2 H. & J. 314

Chase, Ch.

J. certified the following, opinion to the Chancellor: On the question of law, submitted to my decision by the honourable the chancellor, arising in this case under the will of William Crandall, and the act to direct descents, (1786, ch. 46,) it appears to me that the. true construction of that act, as to estates tail general, created and acquired after the commencement of it, is, that the course or manner of transmitting the tenancy in tail to the issue of the tenant, is altered or changed only by making the land descendible to all the children of the tenant in tail, and their respective issue, indefinitely, and not the eldest son, in the first instance, in exclusion of the other children.

It could not be the intention of the legislature to abolish estates tail general, or remainders limited thereon, and to convert them into fee simple estates by giving them the same properties. The words of the act must receive such an exposition as they are capable of, and must be so construed as to carry into effect the evident intention of. the legislature. That part of the act which relates to the collateral relations of the intestate, cannot apply to a tenancy in tail, becausq such estate cannot descend to collaterals.

As soon as th®, ■tenant ill tail dies without issue, his estate and interest in the laud ceases, and in the same instant the limitation over, on the extinction of the estate tail, vests in the resiainder-man, and no estate remains in the tenant ill tail, which is transmissible to his collateral relations. According to mv judgment, it was not in the contemplation of the general assembly to alter or change the nature of an estate tail in any other respect than by making it descendible to all the children, and this is plain from the sixth

section of the act. It certainly could not be contemplated by the legislature to give the estate tail an existence after the failure of the issue of the tenant in tail, contrary to the nature of the estate, and the words of the grant, and in violation of the rights of the remainder-man. The words of the Jaw must be expounded according to the subject matter, and that part which relates to collateral relations must cx necessitate rei, be confined to estates in fee simple, and cannot comprehend estates which have too existence at the time of the decease of the intestate.

I am of opinion, in this case, as to a moiety of the land devised by William Crandell, that on the death of William Cranddl, of Adam, one of the devisees, without lawful issue, the estate tail became extinct, and the limitation over to Gilbert Smith took effect, and one moiety of tire laud vested in him in fee simple.

Kilty, Chancellor,, thereupon passed the following decree: The object of the bill in this cause is to obtain a decree for the sale or partition of certain l^nds therein mentioned, which are alleged to have descended to, or devolved on, the complainants and defendants, as the children of Ad-rah Smith, who was the surviving sister of William Cram-dell, but which lands could not be sold or divided on Ac ■ eount of the minority of two oí the said heirs. (The chansellor here stated the facts of the case and then proceeded.) After hearing the arguments of the counsel on the trial, the chancellor considered it the most proper course to re. quest the opinion of the chief judge of the third judicial district, as he is empowered by law to do.

And on this request, and the answer thereto, which are among the proceedings, the opinion of the chief judge was declared as fallows: “As to a moiety of the land devised by William Crandell, that oh the deafli of William Crandell, son of Addin, one of the devisées, without lawful issue, the estate tail became éxtinct; and tlie limitation over to Gilbert smith took effect, and one mbiety of the land vested in him in fee simple.’.’ • In conformity tb the opinion thus expressed — Decreed by tiie chancellor, that -the complainants are not entitled to h Sale Or pariition of that part of the land of William Crandell which by tlie will was devised to Gilbert Smithy ih case William Crandell therein mentioned should die without lawful issue, arid that á decree for such sale or partition ought not tb be made; The decree goes onto direct a sale of the other land; The complainants appealed to this court.

But the casó having been compromised; it was át the present term, DISMISSED',.