Doe v. Considine
73 U.S. 458

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U.S. Supreme Court

Doe v. Considine, 73 U.S. 6 Wall. 458 458 (1867)

Doe v. Considine

73 U.S. (6 Wall.) 458

Syllabus

1. Though a devise to trustees "and their heirs" passes, as a general thing, the fee, yet where the purposes of a trust and the power and duties of the trustees are limited to objects terminating with lives in being, where the duties of the trustees are wholly passive, and the trust thus perfectly dry, the trust estate may be considered as terminating on the efflux of the lives. The language used in creating the estate will be limited to the purposes of its creation.

2. Estates in remainder vest at the earliest period possible unless there be a clear manifestation of the intention of the testator to the contrary. And in furtherance of this principle, the expression "upon the decease of A., I give and devise the remainder" construed to relate to the "time of the enjoyment of the estate, and not the tune of the vesting in interest." Where the language of a statute, read in the order of clauses as passed, presents no ambiguity, courts will not attempt by transposition of clauses, and from what it can be ingeniously argued was a general intent, to qualify, by construction, the meaning.

Page 73 U. S. 459

The lessors of the plaintiff in error brought an action of ejectment in that court to recover certain real estate now here in controversy. The parties agreed upon the facts. Under the instructions given to the jury, they found for the defendants, and judgment was rendered accordingly.

The plaintiff excepted to the instructions, and this writ was prosecuted upon the ground that they were erroneous.

The facts, as agreed on, were as follows:

William Barr Senior, died on the 15th of May, 1816, leaving a will duly admitted to probate in Hamilton County, Ohio. It was out of the will that the controversy arose.

The testator left three daughters: Mary, the wife of William Barr; Susan, the wife of John B. Enness; and Mary B., the wife of James Keys. He left also one son, John M. Barr who, at the time of his father's death, had living, a wife, Maria Barr and an infant daughter, Mary Jane Barr.

John M. Barr the son of the testator, died on the 10th of August, 1820.

Mary Jane Barr the daughter of John M. Barr died on the 27th of November, 1821. Maria Barr her mother, died on the 3d of August, 1860.

The sons-in-law and daughters of the testator were all dead, each one leaving children born in lawful wedlock.

The testator also left living at the time of his death four brothers and two sisters. They are all dead. Two of them left no lineal heirs.

The will contained among others the following provisions:

"I give and devise unto my sons-in-law, William Barr James Keys, and John B. Enness, of Cincinnati aforesaid, and to their heirs, all and singular, that certain farm, tract or parcel of land, situate, lying, and being in the County of Hamilton, State of Ohio, which I purchased of John Cross, containing one hundred and sixty acres, to hold the same premises to them and their heirs in trust (first) for the use of my son, John M. Barr during his natural life, but nevertheless to permit and suffer my son, John M. Barr to hold, use, occupy, possess, and enjoy the said farm, and to receive and take the rents and profits thereof, during his natural life. And in case my said son, John M. Barr,

Page 73 U. S. 460

should die leaving a legitimate child or children, then also in trust for Maria Barr wife of the said John M. Barr in case she survive him, during her natural life, for the purpose of maintaining herself and the said child, or children and educating the said children, but nevertheless to permit and suffer the said Maria Barr wife of the said John M. Barr to hold, use, occupy, possess, and enjoy the said farm and to receive and take the rents and profits thereof during her natural life. And upon the decease of the said Maria Barr, wife of the said John M. Barr in case she survive him; if not, then upon the decease of the said John M. Barr, I do further give and devise the remainder of my estate in said farm unto the legitimate child or children of the said John M. Barr and their heirs forever. If my said son leave but one child as aforesaid, then I give and devise the said farm to him or her or his or her heirs forever. But if he leave two or more children, then I give and devise the said farm unto such children and their heirs, to be equally divided between them. But should my said son, John, M. Barr, die without leaving any issue of his body, then and in that case I do give and devise the remainder of my estate in the said farm unto my said sons-in-law, William Barr James Keys, and John B. Enness, and their heirs forever."

"* * * *"

"Also I do further give, devise, and bequeath the remainder of my estate, both real and personal, to my sons-in-law, William Barr James Keys, and John B. Enness."

John M. Barr having died, leaving no issue but Mary Jane Barr, and she having died in infancy, unmarried, and the life estate of her mother, Maria Barr having terminated by the death of that person, the question was presented in whom is vested the title to the premises in controversy.

The lessors of the plaintiffs claimed title under the three sons-in-law of the testator, or their wives, who were his daughters.

The defendants claimed through the heirs of the brothers and sisters of the testator, under the statute of descents of Ohio of the 30th of December, 1815, which was as follows:

"§ I. That when any person shall die intestate, having title to any real estate of inheritance lying and being in this state, which

Page 73 U. S. 461

title shall have come to such intestate by descent, devise, or deed of gift from an ancestor, such estate shall descend and pass in parcenary to his or her kindred, in the following course:"

"1. To the children of such intestate or their legal representatives."

"2. If there be no children, or their legal representatives, the estate shall pass to the brothers and sisters of the intestate, who may be of the blood of the ancestor from whom the estate came, or their legal representatives, whether such brothers and sisters be of the whole or of the half blood of the intestate."

"3. If there be no brothers and sisters of the intestate of the blood of the ancestor from whom the estate came or their legal representatives, and if the estate came by deed of gift from an ancestor who may be living, the estate shall ascend to such ancestor."

"4. If there be neither brother nor sister of the intestate of the blood of the ancestor from whom the estate came, or their legal representatives, and if the ancestor from whom the estate came be deceased, the estate shall pass to the brothers and sisters of the ancestor from whom the estate came, or their legal representatives; and for want of such brothers and sisters, or their legal representatives, to the brothers and sisters of the intestate of the half blood, or their legal representatives, though such brothers and sisters be not of the blood of the ancestor from whom the estate came."

"5. If there be no brothers or sisters of the intestate or their legal representatives, the estate shall pass to the next of kin to the intestate of the blood of the ancestor from whom the estate came."

The court instructed the jury:

"1. That at the death of the said Mary Jane Barr the granddaughter of the testator and daughter of said John M. Barr she was seized of a vested remainder."

"2. That at the death of the said Mary Jane Barr her said estate in said farm descended to the brothers and sisters of the said testator then alive, and the legal representatives of such of them as were then deceased."

"3. That the trust estate to the sons-in-law was only an estate par autre vie and terminated at the death of Maria Barr, but

Page 73 U. S. 462

whether that trust estate continued or not after her death the result is the same, for if the estate so vested in Mary Jane Barr were only an equitable estate, no recovery could be had against the parties in possession under her title in favor of the trustees or their heirs, and in no event except the death of John M. Barr without issue did the will give to the sons-in-law any interest in the property in controversy, other than the temporary trust estate."

The correctness of these instructions was the matter before the court.

Page 73 U. S. 469

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