Crisfield v. Storr

Grason, J., delivered the opinion of the Court. In 1834, Thomas "Watson conveyed one undivided half part of his farm in Dorchester county, known as the “ Too tell Land,” to his mother, Mary Watson, in fee, and afterwards died intestate, leaving his sister, Sally Bradshaw, wife of Joseph Bradshaw, his only heir-at-law, to whom the other half of said farm descended. In 1837, Mary Watson died, having first executed a will in due form to pass real estate, by which she devised to Sally Bradshaw, for life, all that part of the farm which had been conveyed to her by Thomas Watson, with a limitation over as follows: “ But if the said Sally Bradshaw should have a child to cry, then it is my will and ¹⁴³ desire that the above-mentioned land should go to the said child; hut if the said child should die, then it is my will and desire that the above-mentioned land should go to Algernon S. Piercy, son of the late George Piercy, during his natural life, and then it is my will and desire that it should go to George W. Piercy, to him and his heirs lawfully begotten, forever in fee simple.” On the 24th of May, 1842, Joseph and Sally Bradshaw conveyed all said farm to Henry Page, in fee with a covenant of warranty against all persons who might thereafter claim the same under the will of Mary "Watson, and against all persons whatsoever, except Algernon S. Piercy, who had, on the 23d of May, 1842, conveyed all his interest in said land to said Page. On the 25th of September, 1842, Sally Bradshaw had a son, William Eugene Sulivane Bradshaw, born alive.

On the 24th of January, 1843, Henry Page and wife conveyed said land to Leah S. Howard, in fee with warranty, and on the 7th day of JSovember, 1844, she conveyed the same to Thomas Storr in fee, with warranty. Thomas Storr died in the spring of 1866, having first made his will in due form to pass real estate, by which he devised one part of said land to his son William W. Storr, and the remaining part to his son John H. Storr. On the second day of July, 1867, William E. S. Bradshaw brought his action of ejectment against William W. and John H. Storr, to recover one-half of said land, devised to him in remainder by Mary Watson’s will, and on the seventh day of May, 1868, recovered a judgment for the same. The defendants in the ejectment brought suit on the seventeenth day of March, 1870, on the covenant, of Henry Page, he and his wife being then dead, against his heirs, who are the appellants in this case.

At the trial of the case below, a demurrer was filed to the narr. and was overruled, and exceptions were taken to the granting of the two prayers of the plaintiffs and to the rejection of the four prayers of the defendants, and the judgment being in favor of the plaintiffs, the defendants appealed. ¹⁴⁴ /It was admitted, at the argument of the case in this Court, tltat under the will of Mary Watson, Sally Bradshaw took a life estate in the one-half of the land named, with remainder in fee to her unborn child, and, in the event of such child dying, then with remainder overhand that the fee descended to Sally Bradshaw, sub modo, so as to let in her after-born child, in the event of one being born/ It was contended however that the remainder, limited to Sally Bradshaw’s unborn child, was' a contingent remainder and that it was destroyed before the birth of the child, either by the merger of the life estate, which Sally Bradshaw took under her mother’s will, in the fee, which descended to her as heir at law of her mother; or by the deed from Joseph and Sally Bradshaw to Henry Page, which it was alleged operated as a feoffment, or by the warranty of Joseph and Sally Bradshaw, which being a collateral warranty descending from them to W. E. S. Bradshaw, their heir, barred his recover^ We do not think that either of these points is tenable, /in the first place there was no' merger of the life estate in the fee in Sally Bradshaw, for the reason that the fee descended from the same person, under "whose will she took the life estate, and the life estate began and the fee descended at the same instant. Fearne, in his work on Contingent Remainders, marg., 344, says: “Wherever a testator limits a contingent remainder, it is agreed that the inheritance descends to the heir only till the contingency ' happens; if so, nothing can be more absurd than to make such descent destroy the contingency. The will does not operate till the testator’s death; the descent takes effect at the same time; so that, under such a construction, the ^particular estate, given to the heir by the will, arises and is destroyed in one and the same instant; and how is it destroyed? by the descent which that very same will permitted. • This would be making a will and no will at the same time, and would, in effect, be saying, that a limitation of a particular estate in a will to a testator’s heir-at-law, with a contingent remainder over without any ulterior vested remainder, must be void in ¹⁴⁵ its creation. For it is evident that,, under such a construction, the particular estate can never take effect at all, its existence and destruction commencing together; and that being destroyed, the contingent remainder over is also gone before it has even a moment’s chance for existence.” Koav this would be making the will, in this respect, ipso facto, void.

See also Plunket vs. Holmes, 1 Lev., 11 ; Boothby vs. Vernon, 9 Mod., 147; 4 Kent’s Comm., 253, 254. So that, even if the estate limited to the unborn child of Sally Bradshaw be a contingent remainder, it would not have been destroyed by a merger of Sally Bradshaw’s life estate in. the fee wjnch descended to her as heir-at-law of her mother. ) ( But there is another answer to this point, which applies with equal force to the point that the deed from Bradshaw and wife to Page operated as a feoffment, and is conclusive of both, even if that deed could be regarded as a feoffment, which we think its language and terms would not warrant us in holding it to be. At the date of that deed, William E. S. Bradshaw was en ventre sa mere, and the remainder became vested and was not contingent.} In the case of Reeve vs. Long, 1 Salk., 228, marg., it was held by the House of Lords, upon appeal from the Common Bench, that, where a testator devised an estate for life to his nephew, Henry Long, remainder to his firs!, son in tail male, remainder to his successive sons, and in defaidt of such issue, then over; and Henry Long died, his son born after his death took the remainder. Chancellor Kent, (4 Comm., 249 marg.,) refers to the case of Reeve vs. Long, and says: ‘‘It is now settled law in England and in this country that an infant, en ventre sa mere, is to be deemed in esse for the purpose of taking a remainder, or any other estate or interest Avhich is for his benefit.” But it Avas argued that, as the remainder, in this particular case, Avas limited to such child as should be born to cry, it Avas dissimilar to a remainder to a child of Sally Bradshaw, and that it could not therefore vest until the contingency happened, that is, until a child Avas ¹⁴⁶ born, and ceied.

Even if this were so, we have shown that there was no merger and no feoffment by which the contingent remainder could be destroyed. But it is evident that nothing more was intended by the use of the words, “ born to cry,” than that the child should be born alive. This is made manifest by the terms used in the will in limiting the remainder over to Algernon S. Piercy, which was to take effect only in the event of such child dying, clearly showing that it was the testatrix’s intention that the remainder to the unborn child of Sally Bradshaw should take effect if it was born alive. This being so, we have shown that the remainder vested in the child, en ventre sa mere.

It was also argued with much earnestness that William E. S. Bradshaw was barred from recovering the land in question, by the collateral warranty which descended upon him, and that the Statute of IV Anne, ch. 16, is not in force in this State. That Statute is found in Kilty’s British Statutes, 246, among those which are in force in this State, and he says that the 21st section is proper to be incorporated as applicable to our circumstances; and as there is no case to be found in which a collateral warranty has been enforced in our Courts, we must presume that it has always been considered in force here, especially as it is peculiarly “ applicable to our circumstances,” and well adapted to the policy of our laws and system of government, which favor and facilitate the free disposition and transmission of real estate. The 21st section of the Statute provides that all warranties which shall be made after the time therein mentioned by any tenant for life, of any lands, &c., the same descending or coming to any person in reversion or remainder, shall be void; and that all collateral warranties of any lands, tenements or hereditaments made by any ancestor who has no estate of inheritance in possession in the same, shall be void against the heir. The warranty of Bradshaw and wife to Page is therefore void as against Wm.

E. S. Bradshaw, and cannot affect his right of recovery against the-defendants in the action of ejectment, because at ¹⁴⁷ the time of the warranty the remainder had, as we have shown, vested in him, and Sally Bradshaw had then a life estate only in the land. Having shown that none of the objections urged against the right of Wm. E. S. Bradshaw to recover the one-half of the Tootell land, devised to him by Mary Watson, are valid, it becomes necessary to consider the objections raised to the rulings of the Court below during the progress of the trial, and first, those raised by the demurrer to the declaration. It is alleged that there is a variance between the narr. and the proof, the narr. alleging that the “herein described premises were devised to the plaintiffs” by Thomas Storr, which imported a joint devise, whereas his will shows that he devised the land to them in severalty.

This also involves the question of the alleged misjoinder of the plaintiffs. Henry Page’s covenant ran with the land and came to the devisees of Thomas Storr, who stood in the place of the original covenantee, and therefore they had a joint interest in the covenant as against the covenantor, although their interests, as between themselves, were several, and consequently they had the right to join in the action. Had they sued separately, it might well have been objected that separate suits could not be maintained, because it would be impossible to ascertain what proportion of the damages should be awarded to each, especially as it does not appear what proportion of the land in question in the ejectment suit, was devised to the plaintiffs in this ease, respectively. It was for the interest and convenience of the appellants that the appellees should sue jointly aud have but one recovery.

In the case of Paul vs. Witman, 3 Watts & Sergt., 409, it was said, “ whether the plaintiffs can sustain a joint suit is a point not without difficulty. The contract was made with the testator; and it would be unreasonable that he should be at liberty, by devising the land in separate parcels, to subject the warrantor to as many actions as there are devisees. Suppose the warrantor, on eviction of the warrantee, is ready and willing to pay, how is he to ascertain the propor ¹⁴⁸ tion to which each of the devisees is entitled, when the portions of the real estate devised are of unequal value? Is the Avarrantor to be liable to as many suits as there are heirs ?

Although, as between themselves, their interests are several, yet, as respects the Avarrantor, they hold a joint interest, and as such may sue jointly.” There is much force in this reasoning, and the decision lays doAvn the correct rule of laAV by which