Isaac Perry & others vs. Joseph C. Kline, 12 Cush. 118

Shaw, C. J. 1. This is a writ of entry brought to recover real estate in Egremont, by the demandants, as the children and heirs of Stephen Perry, deceased, who was one of the children and devisees of John Perry, who died seised of the premises prior to 1803, and whose will was admitted to probate January 3, 1803. The tenant defends on the ground that, by various mesne conveyances from the devisees of John Perry, he has acquired a valid title to the estate, and that the demandants had nothing in the premises at the time of the commencement of this action.

The facts upon which the case depends are perhaps not fully stated in the report; but by the will and deeds referred to, and concessions made at the argument, we believe they are now fully understood. The question depends on a devise in John Perry’s will to his three sons, Benjamin, Lambert, and Stephen, whom he makes executors. It appears by his will that he had three other sons living, two daughters, and grandchildren, the children of a deceased daughter, his heirs at law. The clause in the will is as follows: “ Item.

I also give and bequeathe unto my three sons, Benjamin, Lambert, and Stephen, all the real and personal estate (except household goods above mentioned) that I shall die seised or in any way possessed of, to be equally divided between them, to them and the heirs of their bodies lawfully begotten, except as hereafter excepted, viz: that, in case either of my before-mentioned sons, Benjamin, Lambert, or Stephen, should die without any legal issue, it is my will that said deceased son’s estate be equally divided between the two surviving sons or their legal heirs ” We consider that this devise gave to the three sons estates tail, as tenants in common, with cross-remainders in tail. “ Should either die without legal issue,” we think refers to an indefinite failure of issue, and renders the gift over to the survivors a remainder, and not an executory devise.

The last words in the clause, “or their legal heirs,” might seem to make the devise over a remainder in fee, and not a remainder in tail. But taken in connection with the principal clause, which is clearly an estate tail, we incline to the opinion that the term “ legal heirs,” following immediately as it does “heirs of their bodies,” this clause was intended to have the same meaning. But if the present case turned upon it, as we think it does not, it might require more consideration. 2.

In August, 1805, Lambert made a deed, executed in presence of two witnesses, and duly acknowledged, by which, for a valuable consideration, he conveyed his one third to his two brothers, Benjamin and Stephen, in fee, with covenants of warranty. This deed, in conformity with the law then in force, (St. 1791, c. 60, § 1,) was sufficient to bar the entail and vest an estate in fee in the grantees. After this conveyance, Benjamin and Stephen each held one half the estate, viz : two sixth parts in tail, under the will, and one sixth in fee, under the deed of Lambert. 3.

In 1822, Benjamin died without issue, never having done anything to bar his tenancy in tail of one third. Then, by force of John Perry’s will, providing that, in case of the death of either of the tenants without issue, the same should go to the survivors in tail, the third which was originally devised to Benjamin went to Stephen and Lambert, as such survivors, in equal shares, viz: one sixth each. Stephen then owned two thirds of the estate, viz: one third, or two sixths, in his own right under the will in tail; one sixth under Benjamin, as tenant in tail in remainder; one sixth in fee under the deed of Lambert.

Lambert took one sixth as tenant in tail in remainder. The one sixth which Benjamin held in fee, under deed from Lambert, went to his hens general, of whom Stephen, as a brother, was one. Supposing him one of nine, he took one ninth of one sixth, or one fifty fourth, in fee, as heir of Benjamin. 4. Such was the state of the title when Stephen Perry executed his deed to Kline, February 26,1826.

This was a deed for a valuable consideration, executed in presence of two witnesses, and in all respects conformably to the statute, and barred the estate tail then vested in him, that is, to three sixths, being one half of the estate. It also conveyed the one sixth which he held in fee under the deed from Lambert, and all his share, be it more or less, which he held as heir of Benjamin, in the one sixth which Benjamin held in fee under the deed from Lambert.

This purported to be a conveyance of the whole farm, with certain exceptions not now in question, and described as being “ the same lot of land bequeathed and devised to me by my father, John Perry.” By force of this deed, Kline obtained a title, as far as Stephen was concerned, to five sixths; but there was one sixth, as an estate tail, held by Lambert as tenant in tail in remainder. Lambert died without issue, in 1843, not having barred the entail.

Leaving no one to take as heir in tail, this part of the devise in tail was determined, and the estate reverted to the heirs of the devisee, John Perry, of whom Stephen, who had survived Lambert, was one. This part of the estate, thus coming to Stephen, enured by way of estoppel, by his warranty to Kline, and made good his title from Stephen. This estoppel bound Stephen and all those claiming under him, and of course the demandants, who can only claim as heirs of Stephen. By this warranty they are estopped and barred. But there is another view of the case leading to the same result and equally decisive.

If Lambert took, as heir of Benjamin, one sixth, either in tail or in fee, his right accrued on the decease of Benjamin in 1822. If he made no entry and brought no action within twenty years from the time his right accrued, he and all those claiming under him were barred by the statute. Rev. Sts. c. 119, § 1. By

section 3, cl. 3, when he claims as heir or devisee, unless there be a tenancy by the curtesy, &c., his right shall be deemed to have accrued at the time of such death. By

section 9, when the right of entry or of action of a tenant in tail is barred by force of this statute, all the estate tail, and all remainders and reversions expectant thereon, shall be barred as fully as they might have been by a conveyance by the tenant in tail, &e. It appears by the case that the right of Lambert accrued in 1822; that he lived till 1843, more than twenty years ; that he brought no action, and it does not appear that he made any entry; and therefore, primâ facie, the estate tail and all reversions therein were barred.

But further; in 1826, Stephen conveyed the whole estate to Kline, with warranty, and this was a disseisin of Lambert, if he had entered. By the statute already cited, (§ 3, cl. 1,) when any person shall be disseised, his right of entry or of action shall be deemed to have accrued at the time of such disseisin. And by

section 10, when any one entitled to recover as tenant in tail, before the expiration of twenty years, no one claiming the estate, which such deceased tenant in tail may have barred, shall make an entry or bring an action, but within the period during which the deceased tenant, if he had so long lived, might have made such entry or brought such action.

Suppose, therefore, Lambert was disseised in 1826, and died within twenty years from that time, whoever succeeded to his right, in reversion or otherwise, must have entered or brought his action before the expiration of twenty years from the disseisin in 1826, or before the end of 1846, which was not done.

We referred, in the early part of this opinion, to the terms of John Perry’s will, by which he gave an estate to Benjamin, Lambert, and Stephen, as tenants in common in tail, with a proviso, that, if either of the three should die without legal issue, such deceased son’s estate should be equally divided between the two surviving sons and their legal heirs. We said that if this should be construed to give a remainder in fee, or an executory devise to the survivors, instead of a remainder in tail, the result would be the same.

The only difference would be that upon the death of Benjamin, Lambert would have taken a sixth in fee. If Lambert made no entry and brought no action, within twenty years from the death of Benjamin, he was equally barred. And the above statute, § 2, provides, that if an entry be made or an action brought in right of an ancestor, or predecessor, the twenty years shall be computed from the time the right first accrued to the ancestor.

To apply this rule, it appears certain that Lambert was tenant in fee of one sixth; he was disseised, by Stephen’s deed to Kline, in 1826; his right of action and of entry then accrued ; if he died within twenty years, as he did, any person claiming must bring his action within the same term of twenty years, i. e. before the expiration of 1846, which was not done, and so, all persons claiming under him were barred.

Besides; if Lambert died seised of the one sixth, leaving no lineal heirs, his estate descended to his brothers and sisters, of whom Stephen, who survived him, was one, and the deed of Stephen to Kline, which would estop him, estops the demandants who claim through him, and as his heirs. As to the ten and a half acres, part of the original estate of John Perry, it stands on a somewhat different footing. It was embraced in the devise to Benjamin, Lambert, and Stephen, as tenants in tail.

The difference in the two cases, is, that Benjamin and Stephen conveyed their part of the entailed estate to Ephraim Baldwin, by a deed executed in presence of one witness only, a deed not within the statute then in force, to bar the entail. St. of 1791, c. 60. Another distinction is, that not being embraced in the deed of Stephen Perry to Kline, the demandants are not affected by the estoppel effected by that deed. We have already had occasion to state, that by the deed of Lambert Perry to Benjamin and Stephen, a deed competent to bar his, Lambert’s, estate tail, they became seised of one third in fee-simple.

In this state of the title, 24th February, 1821, Benjamin and Stephen conveyed the ten and a half acres, with warranty, to Ephraim Baldwin, in fee, through whom, by mesne conveyances, it has come to Kline, the tenant. This deed conveyed to Ephraim Baldwin one third of the ten and a half acres in fee. As to the one sixth, which Stephen took after the death of Benjamin, if he took as tenant in tail in remainder, never hav■•ng entered or brought his action, for more than twenty years, he is barred, and the estate tail, and all remainders and reversions expectant upon it are determined.

The same is true of the one sixth which came to Lambert, and so, for the reasons and upon the grounds already stated, no claim can be made by the demandants. The same conclusion would follow, if Stephen and Lambert took estates in fee in that sixth, as a remainder or an executory devise. And if it is an estate in fee, as to Stephen’s one sixth, his heirs general would be es-topped by his warranty to Ephraim Baldwin and his assigns.

But in regard to the one third originally devised to Stephen Perry in tail, so far as respects the ten and a half acres, we do not perceive why the demandants, as heirs in tail, are not entitled to recover. The estate tail has not been barred by a common recovery suffered by the tenant in tail, nor by any conveyance, made equivalent by statute to a common recovery ; a common deed executed by tenant in tail, not in conformity with the statute, is not sufficient for the purpose. Nor can the deed of the tenant in tail operate by way of estoppel upon the heirs.

They do not claim the estate as coming from him as its source, but an estate, coming through him as special heir, which he cannot intercept, except in the modes provided by law. The demandants are heirs of the body of Stephen, and as such, they, or some one of them, are heirs in tail. Their right of entry, or of action, did not accrue until the death of their father in 1848, so that they are not barred by any limitation.

Whether this is to go to the children equally, as heirs of the body, with or without right of representation to the children of deceased children, or whether to the oldest son, if any, as heir at law, quœre See Davis v. Hayden, 9 Mass. 514.