Taylor v. Thompson
22 U.S. 325

Annotate this Case

U.S. Supreme Court

Taylor v. Thompson, 22 U.S. 9 Wheat. 325 325 (1823)

Taylor v. Thompson

22 U.S. (9 Wheat.) 325

Syllabus

R.B., being seized of lands in Maryland, made three instruments of writing, each purporting to be his will. The first, dated in 1789, gave his whole estate to his nephew J.T.M., after certain pecuniary legacies to his other nephews and nieces. In the second will, dated in 1800, the testator gave his whole real estate to J.T.M. during his life, and after his death to his eldest son A., in tail, on condition of his changing his name to A. Barnes, with remainder to the heirs of his nephew J.T.M. lawfully begotten, forever, on their changing their surnames to Barnes.

The third will, which was executed after the others and probably in 1803, after some small bequests, proceeded thus:

"I give the whole of my property, after complying with that I have mentioned, to the male heirs of my, nephew, J.T.M., lawfully begotten, forever, agreeably to the law of England, which was the law of our state before the revolution, that is, the oldest male heir to take all, on the following terms: that the name of the one that may have the right, at the age of twenty-one, with his consent, be changed to A. Barnes, by an act of public authority of the state, without any name added, together with his taking an oath, before he has possession, before a magistrate of St. Mary's County, and have it recorded in the office of the clerk of the county, that he will not make any change during his life in this my will relative to my real property. And on his refusing to comply with the above mentioned terms, to the next male heir, on the above-mentioned terms, and so on to all the male heirs of my nephew, J.T.M., as may be on the same terms, and all of them refusing to comply, in a reasonable time after they have arrived at the age of twenty-one, say not exceeding twelve months, if in that time it can be done, so that no act of intention to defeat my will shall be allowed of, and on their refusing to comply with the terms above mentioned, if any, such person may be, then to the son of my late nephew, J.T.M., named A.T.M. on the above mentioned terms, and on his refusal to his brother J.T.M., and on his refusing to comply with the above mentioned terms to the heirs male bf my nephew A.B.T.M., lawfully begotten, on the above mentioned terms, and on their refusal, to the male heirs of my niece, Mrs. C., lawfully begotten, on their complying with the above-mentioned terms, and on their refusal, to the daughter of, my nephew, J.T.M., named Mary, so on to any daughter he may have or has."

The testator then appoints J.T.M. his sole executor, with a salary of one thousand six hundred dollars per annum for his life, and adds "and my will is that he shall keep the whole of my property in his possession during his life." He then empowers his executor to manage the estate at his discretion, to employ agents, and to pay them such salaries as he shall think proper; to repair the houses and build others as he may think necessary; to reside at his plantations, and to use their produce for his support, and adds, "after which, to be the property of the person that may have a right to it as above mentioned."

Held that the conditions annexed to the estate devised to the oldest male heir of J.T.M. were subsequent, and not precedent, and that consequently the contingency on which the devise was to take effect was not too remote, the estate vesting on the death of J.T.M., to be divested on the nonperformance of the condition.

Quaere whether J.T.M. took an estate tail?

Quaere whether the last will revoked those which preceded it?

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The bill in this cause was filed in behalf of

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one of the coheirs of Richard Barnes, deceased, and her children, and claims an account of the profits of his estate from the defendant, J.T.M., also a co-heir, who claims and holds possession of the estate under the will of the said Richard.

Three instruments of writing purporting to be the will of the testator, all of them properly authenticated, were exhibited in the record. The first, dated on 31 October, 1789, gives his whole estate, after pecuniary legacies to his other nephews and niece, to the defendant, J.T.M.

In the second will, which is dated 16 July, 1800, the testator gives his whole real estate to J.T.M. during his life, and after his death to his eldest son, Abraham in tail on condition of his changing his name to Abraham Barnes, with remainder to the heirs of his nephew, J.T.M., lawfully begotten, forever, on their changing their surname to Barnes.

The third will is without date, but is proved by its contents to have been executed after the others, probably in the year 1803. After some small bequests, the testator says,

"I give the whole of my property, after complying with what I have mentioned, to the male heirs of my nephew, J.T.M., lawfully begotten, forever, agreeable to the law of England, which was the law of our state before the revolution, that is, the oldest male heir to take all, on the following terms: that the name of the one that may have the right, at the age of twenty-one, with his consent, be changed to Abraham

Page 22 U. S. 328

Barnes by an act of public authority of the state, without any name added, together with his taking an oath, before he has possession, before a magistrate of Saint Mary's County, and have it recorded in the office of the clerk of the county, that he will not make any change during his life in this my will relative to my real property. And on his refusing to comply with the above mentioned terms, to the next male heir on the above mentioned terms, and so on to all the male heirs of my nephew, J.T.M., as may be, on the above terms, and all of them refusing to comply in a reasonable time after they have arrived at the age of twenty-one, say not exceeding twelve months, if in that time it can be done, so that no act of intention to defeat my will shall be allowed of, and of their refusing to comply with the terms above mentioned, if any such person may be, then to the son of my late nephew, J.T.M., named A.T.M., on the above mentioned terms; and on his refusal, to his brother, J.T.M.; and on his refusing to comply with the above mentioned terms, to the heirs male of my nephew, A.B.T.M., lawfully begotten, on the above mentioned terms; and on their refusal, to the male heirs of my niece, Mrs. Chichester, lawfully begotten, on their complying with the above mentioned terms; and their refusal, to the daughter of my nephew, J.T.M., named Mary; so on, to any daughter he may have or has."

The testator then appoints J.T.M. his sole executor, with a salary of sixteen hundred dollars per year for his life, and adds, "and that my will is that he shall keep the whole of my property

Page 22 U. S. 329

in his possession during his life." The testator then empowers his executor to manage the estate at his discretion, to employ agents and to pay them such salaries as he shall think proper; to repair the houses, and to build others, as he may think necessary; to reside at his plantations, and to use their produce for his support, and adds "after which to be the property, of the person that may have a right to it, as above mentioned." The testator also requires his executor to take an oath, "that he will justly account for the property that he may have the power of."

Richard Barnes died in April, 1804, and J.T.M. proved three several paper writings as his last will and qualified as his executor. The testator had one brother, who died in his lifetime without issue, and one sister, who intermarried with Thompson Mason and died also in the lifetime of the testator, leaving three sons, H.T.M., A.B.T.M., and J.T.M., and one daughter, A.T.M., one of the complainants, who intermarried with R. W. Chichester. The rights of the said A. T. Chichester are conveyed, by deed, to trustees, for the benefit of herself and children. J.T.M. had no son living at the death of the testator, but has two after-born sons, who are now alive.

The circuit court dismissed the bill, and the cause was brought by appeal to this Court.

The appellants made the following points in this Court:

1. That the third will, whether its disposition

Page 22 U. S. 330

be valid or not, revokes the other two, since it expresses a clear intention on the part of the testator, to dispose differently of the whole estate.

2. That it gives no estate for life or years, absolute or in trust, to John Thompson Mason the respondent, but merely the custody and care of the property, during his life, as agent or curator, with a salary for his services.

3. That no estate for life or years, can be raised for him by implication, because the original estate did not move from him, and never was in him.

4. Consequently that he has no estate of freehold with which a subsequent limitation in fee could unite so as to create a fee in him under the rule in Shelly's Case.

5. That if he takes a life estate, it is merely fiduciary, and not beneficial, for which reason it could not unite with a limitation over in fee, if there were one, so as to give him a fee under the rule.

6. That the words in this will "the male heir of my nephew, John Thompson Mason lawfully begotten, forever," as explained and modified by the subsequent expressions, designate the "male heir of the body of J. T. Mason" as the person who is to take the estate, and thus operate as a "descriptio personae," and not as a "limitation." Consequently that they do not create such an estate of inheritance, as is capable of uniting with a life estate, under the rule, but must operate, if at all, as a devise, per se, of an estate

Page 22 U. S. 331

in possession or remainder, or as an executory devise.

7. That this disposition cannot operate as the devise of an estate in possession, for want of some person in existence at the testator's death who could then take, 1st, because the person designated, was to be "the heir" of John Thompson Mason who was then alive, and nemo est haeres viventis; 2d, because, as he had then no issue male or heir male of his body, there was no person who answered the description, taken in its largest and most general sense.

8. That the disposition in question cannot operate as a remainder, vested or contingent, because there was no preceding estate to support it, none having been directly given to John Thompson Mason by the will or being raised for him by implication.

9. That, admitting John Thompson Mason to have a life estate under the will which might support a remainder, this disposition cannot operate as a vested remainder because at the testator's death there was no person in existence who answered the description, nor as a contingent remainder because it depended on two distinct and successive contingencies -- 1st, that John T. Mason should have a son; 2d, that this son should live to the age of twenty-one years, then assume the name of Abraham Barnes, by legislative authority, and take the oath prescribed by the will, which is a possibility too remote.

10. That this disposition cannot be supported as an executory devise because it was to take

Page 22 U. S. 332

effect on two remote and contingent events -- 1st, that the eldest son of John T. Mason should voluntarily, and after he attained the age of twenty-one years, change his name to that of Abraham Barnes, through the operation of a legislative enactment; and 2d, that he should take an oath as prescribed by the will, which events, if they took place at all, might not happen within the lifetime of John Thompson Mason and twenty-one years and nine months afterwards.

Page 22 U. S. 339

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