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?
Page 22 U. S. 326
The bill in this cause was filed in behalf of
Page 22 U. S. 327
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
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court,
and after stating the case proceeded as follows:
If the estate should yield any surplus profits, after satisfying
the charges placed on it by the testator, J.T.M. is directed to
account for those profits, and they are the property of "the person
that may have the right," according to the language of the
will.
Are the heirs at law the persons "who have the right," according
to this language?
Certainly not. The plain intention of the will is to exclude
them. They admit this, and support their claim by alleging that the
will, so far as respects the devises which are to take place after
the death of J.T.M., is utterly void, the limitations over being
too remote.
The first limitation is to "the male heirs of my nephew, J.T.M.,
lawfully begotten, forever, agreeably to the law of England" --
that is, the oldest male heir to take all.
If the clause stopped here, there could be no question in the
case. The person who should be the eldest male heir of J.T.M. at
the time of his death would take the estate. But the testator
proceeds to prescribe the "terms" on which such
Page 22 U. S. 340
eldest male heir should take. They are
"that the name of the one that may have the right, at the age of
twenty-one, with his consent, be changed to Abraham Barnes, by an
act of public authority of the state, without any name added,
together with his taking an oath before he has possession; 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
on their refusing to comply with the terms above mentioned, if any
such person may be, then to the son of my late nephew, H. T.
M.,"
&c.
The time allowed the eldest male heir of J.T.M. to perform the
condition on which his estate would, according to the words of the
will, become absolute is twelve months after he shall attain his
age of twenty-one years. As J.T.M. might die leaving no son alive
at his death but leaving his wife enceinte of a son, it is obvious
that the contingency on which the estate depended might not happen
within a life or lives in being, or within twenty-one years and
nine months after the death of J.T.M. If, therefore, the estate did
not vest until the contingency should happen, the limitation over
to the eldest male heir of J.T.M. depends
Page 22 U. S. 341
on an event which is too remote to be tolerated by the policy of
the law, and the remainder is consequently void. If, on the
contrary, the estate is to vest on the death of J.T.M., to be
divested on the nonperformance of the condition, the limitation in
remainder is valid and the plaintiffs are not entitled to the
account for which the bill prays.
The inquiry, then, is whether the conditions annexed to the
devise of the remainder be precedent or subsequent, and this, it is
admitted, must be determined by the intention of the testator,
which intention is to be searched for in his will.
All the instruments of writing purporting to be his last will
show that his firm and continuing purpose, from 31 October, 1789,
to the time of his death in the year 1804 was to preserve his
estate entire for the benefit of a single devisee, and not to
permit it to be divided among his heirs. The same papers likewise
show that the first object of his affection and bounty was J.T.M.,
and the second was the eldest male heir of J.T.M. An ample and
unconditional provision, perhaps equivalent to the whole value of
his real estate, is made for J.T.M. during his life, and on his
death the whole real estate, with any residuum of profit which
might possibly be accumulated during his life, is given to his
eldest male heir. If these devises should be expressed in ambiguous
language, this obvious and paramount intention ought to serve as a
key to the construction.
The language of the devise in remainder imports an intention
that it should take effect on the
Page 22 U. S. 342
determination of the particular estate. So soon as J.T.M., the
first object of his bounty, is removed, the eldest male heir of
J.T.M., the second object of his bounty, comes into view:
"I give the whole of my property . . . to the male heirs of my
nephew, J.T.M., lawfully begotten, forever, agreeable to the law of
England -- that is, the oldest male heir to take all, on the
following terms,"
&c. These words postpone the interest of the devisee no
longer than till he can be ascertained -- that is, till the death
of J.T.M., who was to occupy the premises for his life. The eldest
male heir of J.T.M. would be known at his death, at which time the
particular estate which was carved out of this general devise would
determine, or at farthest within nine months afterwards. The
language is not such as a man would be apt to use who contemplated
any interval between the particular estate and the remainder. The
words import the same intention as if he had said
"I give to the eldest male heir of J.T.M. all my property on
condition that, at the age of twenty-one years, his name be changed
to that of Abraham Barnes, by an act of public authority of the
state, &c."
Such words, it seems to the Court, would carry the estate
immediately to the devisee, without waiting for the performance of
the condition.
With this general intent manifested in each of these
instruments, and this language showing the expectation that no
interest would intervene between the particular estate devised to
J.T.M. and that to his eldest male heir, the conditions on which
that devise was made must be expressed
Page 22 U. S. 343
in language to show very clearly that they were to be performed
before the estate could vest, to justify the court in putting that
construction on this will.
Let that language be examined. The devise is of the whole
property to the male heirs of J.T.M., in succession, the eldest to
take first. The condition is to be performed by "the one that may
have the right." In the mind of the testator, then, the right was
to precede the condition, not be created by it. He would not have
described the person who was to perform the condition, as already
having "the right," if the impression on his mind had been, that no
person would have the right until the condition should be
performed.
This expression is entitled to the more influence, from the
consideration that the condition is to be performed by the person
having the right at the age of twenty-one, or in a convenient time
afterwards. The devisee might be an infant at the time of the death
of J.T.M. The person who has the right, if an infant, is allowed
till he attains his age of twenty-one years and a reasonable time
afterwards to perform the condition. This is inconsistent with the
idea that the condition must be performed before the estate vested
before the right accrued.
The testator then directs, in addition to the change of name,
that an oath, prescribed in his will, shall be taken, and then
proceeds, "and on his [the person that may have the right]
refusing
Page 22 U. S. 344
to comply with the above mentioned terms, to the next male heir
on the same terms."
The property is, in the first instance, devised to all the male
heirs of J.T.M., the oldest to take first. The testator then
proceeds to describe the state of things in which the next oldest
is to take. That state of things is the refusal of the oldest to
comply with the terms annexed to the estate given to him. Upon this
refusal, the devise is immediate. No intervention of the heir at
law is necessary to defeat the title of the oldest, and to vest the
property in the next male heir. But, until this refusal, the rights
of the oldest remain unchanged.
Although the words "refusing to comply," may in general have the
same operation in law as the words "failing to comply" would have;
yet in this case, they are accompanied and explained by other
words, which show that the word "refusing" was used in a sense
which might leave the estate in the devisee, though his name should
not be changed. Where the condition to be performed depends on the
will of the devisee, his failure to perform it is equivalent to a
refusal. But where the condition does not depend on his will, but
on the will of those over whom he can have no control, there is a
manifest distinction between "refusing," and "failing" to comply
with it. The first is an act of the will, the second may be an act
of inevitable necessity.
In this case, the name is to be changed by a legislative act.
Now the eldest male here of J.T.M. may petition for this act, but
the legislature
Page 22 U. S. 345
may refuse to pass it. In such a case, the devisee would not
"refuse" to comply with the terms on which the estate was given to
him; those terms would neither be literally nor substantially
violated. If there were nothing in the words of the will to give
additional strength to this construction, the refusal of the
legislature to pass the act would not be a refusal of the devisee
to comply with the terms, and would seem in reason to dispense with
the condition, as effectually as the passage of an act to render
the condition illegal. Its performance would be impossible, without
any default of the devisee.
But there are other words which show conclusively that the
testator intended by this expression to make the devise to the next
and other devisees to depend entirely on a willful and voluntary
disregard, on the part of the eldest, of the terms on which the
property was devised to him.
After giving the estate to the male heirs of J.T.M. in
succession, the testator proceeds,
"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, H. T. M.,"
&c.
These words expressly refer to all the male heirs of J.T.M.,
including the oldest, apply to each particular devise, and fully
explain the intention of the testator on the subject of the change
of
Page 22 U. S. 346
name. It is to be changed in twelve months after the devisee
attains his age of twenty-one years, "if in that time it can be
done," and this provision is made that "no act of intention to
defeat his will may be allowed of." The devise over is on
"refusing" to comply with the terms on which the estate is given in
the first instance, and this "refusing to comply," takes place only
"if it can be done" -- exists only where there is "an act of
intention to defeat his will." If it "cannot be done," if there be
"no act of intention to defeat his will," then there is not that
"refusing to comply with the terms" on which the devise over is to
take place.
All these provisions appear to the court to demonstrate that the
testator intended the devise to take effect immediately, to be
defeated by the devisee's refusing to comply with the terms on
which the property was given.
The devisees are, all of them, the coheirs of the testator, and
the whole purpose of the will is to prevent their inheriting any
part of his estate as his heirs. J.T.M. takes an interest for life,
beneficially, to a considerable extent, perhaps to the whole extent
of the profits, certainly to the whole extent, if he chooses to
expend the whole, except $1,600 per annum in repairs, buildings,
and the support of himself and family, and is to take the surplus
profits, if there be any, as trustee -- but as trustee for whom?
For his eldest male heir, not for the heirs of his testator.
That eldest male heir takes the whole property, including these
possible surplus profits, on
Page 22 U. S. 347
certain conditions, one of which is the change of his name by
act of assembly. He might possibly, nay probably, be an infant, for
J.T.M. had no male heir at the death of the testator. The event of
his being an infant is particularly contemplated and provided for
in the will. Such infant devisee is allowed twelve months, after
attaining his full age, to perform the condition. No provision
whatever, if the estate does not vest immediately, is made for his
education and maintenance. Not even these surplus profits, which
are so carefully to accumulate for his use, are given to him. The
infant orphan, heir of an enormous estate, who was the particular
favorite, and whose future grandeur constituted the pride of his
ancestor, is cast, by this construction, on the world without the
means of subsistence, while the whole profits of his estate pass
without account to those for whom the testator intended
nothing.
The estate is devised in succession to each of the heirs of the
testator, on the same condition, and if it be a condition
precedent, the consequence is that the same persons who could not
take it in succession, as he wished it to pass, would take it in
common, as he wished it not to pass. The whole scheme of the will
would be defeated and an object be effected which all his ingenuity
had been exerted to prevent.
In this view of the case, it may be proper again to observe that
the devise over to the second male heir of J.T.M. is limited to
take effect on the refusal of the oldest to perform the terms on
which the estate is given to him. This must be a voluntary
Page 22 U. S. 348
refusal, an "act of intention to defeat his will." Now a failure
to perform the condition may take place, although the devisee may
have used his utmost endeavors to perform it; the legislature may
refuse to pass the act required.
If it be a condition precedent, the estate in that event can
never vest, and the whole intention of the testator may be
defeated, without the fault of the devisee. But the will was framed
with very different views. The testator declares that each devise
over is to take effect on the previous devisee's "refusing" to
comply with the terms on which the devise was made to him; on his
obtaining the act of assembly, "if it can be done," on there being
no "act of intention to defeat his will." This construction would
make the devise to depend on the will of the legislature, although
the testator declares that it shall depend on the devisee
himself.
To take the oath not to make any alteration in the will, so far
as respects the real property, is completely within the power of
the devisee, and this is directed to be taken "before he has
possession." This direction shows the opinion of the testator that
the estate vested immediately, otherwise there could be no
necessity for the clause suspending the possession. It would be a
very useless declaration to say that the devisee should not take
possession of an estate to which he had no right. This assists,
too, in marking more clearly the distinction taken by the testator,
between a condition annexed to the estate, which was in the power
of the devisee, and one not in his power. The possession
Page 22 U. S. 349
is not postponed until he shall obtain an act of the legislature
for the change of his name, but is postponed until he shall take
the oath directed by the will.
In the case of
Gulliver v. Ashby, 4 Burr. 1929, William
Wykes devised his estate to several persons in succession, after
the death of his wife, and added the following clause:
"Provided always, and this devise is expressly on this
condition, that whenever it shall happen that the said mansion
house and said estates, after my wife's decease, shall descend or
come to any of the persons hereinbefore named, [that] the person or
persons to whom the same shall, from time to time, descend or come
[that he or they] do or shall then change their surname, and take
upon them and their heirs the surname of Wykes only, and not
otherwise."
In giving his opinion on this case, Lord Mansfield said
"First, that this is not a condition precedent. It cannot be
complied with instantly. It is 'to take the name for themselves and
their heirs.' Now many acts are to be done in order to oblige the
heirs to take it, such as a grant from the King, or an act of
Parliament. It is not, therefore, a condition precedent, but, being
penned as a condition, it must be a condition subsequent."
All the judges concurred in the opinion, that it was not a
condition precedent. Mr. Justice Yates thought it no more than a
recommendation. The other judges considered it as a condition
subsequent.
To the reason given by Lord Mansfield, for
Page 22 U. S. 350
considering the conditions on which the testator, in the case in
Burrow devised his estates, as conditions subsequent, are
superadded, in the case at the bar, others of great weight, which
have been mentioned and relied on.
The case put at the bar that the eldest male heir of J.T.M.
might die within twelve months after attaining his age of
twenty-one years, leaving an infant son, deserves serious
consideration. If the state vested in the ancestor, it would
descend to him. If the condition be precedent, the estate die not
vest, and cannot descend to him. This would be contrary to the
general spirit of the will.
If the change of name constituted the whole condition of the
devise, the proofs furnished by the will of its being a condition
subsequent, are so strong as to dispel all reasonable doubt. But
there is another condition, respecting which the intention is less
obvious.
The person "that may have the right" is to procure an act of
assembly for the change of his name
"together with his taking an oath, before he has possession,
before a magistrate, . . . that he will not make any change during
his life in this my will, relative to my real property."
It has been truly said that this condition is against law, is
repugnant to the nature of the estate, and consequently void. But
if this be a condition precedent, its being void will not benefit
the devisee. It becomes necessary to inquire, therefore, whether
this also be a condition subsequent, or must be performed before
the estate can vest.
Page 22 U. S. 351
In making the devise, the testator uses the words, "I give the
whole of my property." Immediately afterwards, he describes the
person who is to perform the conditions on which the property is
given, as "the one that may have the right," and after directing
the change of name, adds, "together with his taking an oath, before
he has possession, before a magistrate of St. Mary's county,"
&c.
The person who "has the right," is to take the oath "before he
has possession." Title then is distinguished from possession. The
most attentive perusal of the will furnishes no reason for the
opinion that the testator has confounded possession with title. All
those parts of the will which respect change of name, dispose of
the whole property, and dispose of it in such terms as to show, we
think, a clear intention that the right should vest in the devisee
on the death of J.T.M., to be defeated on the nonperformance of the
condition annexed to the estate. The change of language, and the
adoption of the word "possession," indicate very strongly that the
word was used in its popular sense to denote the taking actual and
corporal possession of an estate. The testator was contemplating
the event of an infant becoming entitled to his property, and
providing for that event. Such infant was, within twelve months
after attaining his age of twenty-one years, "if in that time it
could be done," to obtain an act of the legislature for the change
of his name; and moreover to take the oath prescribed, "before he
has possession;" alluding, we think, clearly, to that possession
which an infant devisee takes of
Page 22 U. S. 352
his estate, when he attains his majority. A different
construction would make this devise repugnant to itself. It would
make the devise to depend on two conditions, to be performed at the
same time, and yet the one to precede the vesting of the estate,
and the other to be capable of being performed more than twenty
years after it had vested. The word possession cannot be construed
as equivalent to right, for the purpose of producing such
consequences as these.
After disposing of his estate in fee tail, the testator proceeds
to carve out a particular estate for his favorite nephew, J.T.M.,
and it is not entirely unworthy of notice, that he continues the
use of the word "possession," with the obvious intent to affix to
it the meaning of simple occupancy. It is impossible to read these
wills without perceiving a continuing and uninterrupted desire to
bestow his whole estate on J.T.M. and his family. The first will
gives him the estate absolutely. His desire to preserve it in mass
and to connect it with his name increased with his age, and his
second will gives his estate to J.T.M. for life, remainder to his
eldest son in tail male, remainder to the heirs of J.T.M., the
oldest to take all on condition of their changing their surname to
that of Barnes. The last will contains intrinsic evidence that,
preserving the same intention with respect to his estate, he had
been alarmed by the suggestion that the remainder in tail to the
heirs of J.T.M. might coalesce with his life estate, and, vesting
in him, might enable him to break the entail and divide the estate.
To reconcile
Page 22 U. S. 353
his kindness to J.T.M. with his pride, he endeavors to give his
nephew the advantages of an estate for life, in such form as to
leave him no power over the fee. It is not unworthy of remark that
in endeavoring to accomplish this object, he continues the use of
the word "possession." My will is, he says, "that he [J.T.M] shall
keep the whole of my property in his possession during his life,
with full power," &c. Whether the legal effect of this clause
be the same with an express devise to J.T.M. for life, remainder to
his heirs in tail, is unimportant with respect to the present
inquiry. It shows the intention of the testator, and the sense in
which he used the word. It shows that he distinguished between
possession and title.
The Court is of opinion that were the paper which is supposed to
have been executed in 1803 to be considered as constituting singly
the will of Richard Barnes, and were it to be admitted that an
estate tail did not vest in J.T.M., still the conditions annexed to
the estate devised to his oldest heir male are subsequent, and not
precedent, and consequently the contingency on which the devise is
to take effect is not too remote. This opinion renders it
unnecessary to decide the questions, so elaborately discussed at
the bar, whether the last will revoked those which preceded it, and
whether an estate tail is vested in J.T.M. It would be improper to
decide those questions at this time, because persons may be
interested in them who are not now before the Court.
Decree affirmed.
