In an action of ejectment to recover land in Kentucky, the law
of real estate in Kentucky is the law of this Court in deciding the
rights of the parties.
It seems that the rigid rules of the common law do not require
that the husband shall have had actual seizin of the lands of the
wife to entitle himself to a tenancy by curtesy in waste, or what
is sometimes styled "wild lands."
If a right: of entry on lands exists, it ought to be sufficient
to sustain the tenure acquired by the husband where no adverse
possession exists.
At present it is fully settled in equity that the husband shall
have curtesy of trust as well as of legal estates, of an equity of
redemption, of a contingent use, or money to be laid out in
lands.
Under the law of the State of Kentucky and the decisions of its
courts upon it, a will with two witnesses is sufficient to pass
real estate, and the copy of such a will, duly proved and recorded
in another state, is good evidence of the execution of the
will.
It is a settled rule in Kentucky that although more than one
witness is required to subscribe a will disposing of lands, the
evidence of one may be sufficient to prove it.
The lessee of Richard B. Mason commenced an action of ejectment
in the Circuit Court for the District of Kentucky against John
Davis and others tenants in possession for the recovery of eight
thousand acres of land, claiming to recover the same under a right
of entry under and by virtue of a grant from the State of Virginia
to George Mason of Fairfax, dated 19 March, 1817.
William Mason and others conveyed by deed their interest in and
to the land in contest, they being children of the patentee, to
George Mason of Lexington, the eldest son of George Mason the
patentee. George Mason the grantee and the father of the lessor
died the ___ day of December, 1796, having first made his last will
and testament, in a codicil to which, made on 3 November, 1796, he
devised to the child of which his wife was then enceinte his
Kentucky lands, "if the child should be born alive, and arrive at
the age of twenty-one years, or married, whichever may first
happen." Richard B. Mason, the lessor of the plaintiff, is, by the
evidence in the cause, the posthumous child referred to in the
codicil. This will was fully proved and admitted to record
according to the laws of Kentucky, and was said to vest the title
in Richard B. Mason.
At the trial of the cause in the circuit court, the plaintiffs
in error requested the court, by instructions to the jury,
Page 26 U. S. 504
1st. To exclude the depositions of Lund Washington and George
Graham on the alleged ground that they were not taken and certified
according to law.
2d. To exclude what the defendants designated as "the third
codicil" annexed to the will of George Mason which it was said was
not proved and certified according to law.
3d. That the plaintiff could not recover unless he could show
that the land sued for was entered after George Mason the elder
made his will, and not patented at his death.
4th. That if from the evidence they believe that the daughters
of the patentee were dead before the commencement of this suit,
they should find for the defendants, as the deed from the husbands
did not pass the interest of the femes, nor had the husbands a
right by curtesy to the lands, as they never had other or further
possession of the lands than that given by deed.
The court refused to give the several instructions prayed for,
and a bill of exceptions was tendered upon which the case was
brought before this Court. The facts of the case which appeared
upon the record in connection with the matters contained in the
exceptions are stated in the opinion of the Court.
The defendants in error insisted
1st. That the court should have excluded the third codicil. It
was not, upon proof, ordered to be recorded by the County Court of
Fairfax County. It is not certified as having been proved and
ordered, or admitted to record. It was not proved upon the trial by
any admissible and competent proof to have been executed by George
Mason.
2d. That there was no competent proof upon the trial that the
land in contest passed by conveyance to George Mason. It does not
appear that they were not patented before the date of the will of
George Mason and otherwise disposed of by him in his will. The
plaintiff should have proved that the lands were acquired by the
said George Mason after his will, and not having done so, the court
should have given the instructions asked for on that point by
defendants.
3d. The court erred in stating to the jury that the deed
conveyed to George Mason the curtesy right of the husbands of the
feme coverts, daughters of George Mason, Sr.
4th. The court erred in refusing to give the instructions asked
for by defendants upon the other points stated in the bill of
exceptions.
Page 26 U. S. 505
MR. JUSTICE JOHNSON delivered the opinion of the Court:
The plaintiffs here were defendants below to an action of
ejectment brought to recover eight thousand acres of land lying in
the State of Kentucky.
The law of real estates in Kentucky, therefore, is the law of
this Court in deciding on the rights of the parties. The plaintiffs
below derive title under 1st, a patent to George Mason of Gunston
issued in 1787; 2d, a deed of bargain and sale from seven out of
nine legal representatives of the patentee, their brother, to
George Mason of Lexington, executed in 1794; 3d, a codicil to the
will of George Mason of Lexington, devising the premises to the
lessor of the plaintiffs. Judgment was rendered for plaintiffs to
recover eight-ninths of the premises. The defendants below relied
on their possession, affecting to claim through the patent to the
elder Mason, but adducing no evidence to connect themselves with
it. The questions to be here decided are brought up by a bill of
exceptions taken by the defendants below, and they will be
considered as they regard the deduction of title, in the order in
which they have been stated above.
The first question in this order relates to the deed executed by
the representatives of Mason the elder to Mason the younger, under
whose will the lessor of the plaintiffs makes title. No exception
was taken to the proof upon which this deed went to the jury. The
exceptions go to the nature and extent of the estate which passed
under it. And first it was insisted that it could pass nothing
unless the plaintiffs should show that the land sued for was
entered after George Mason senior made his will, and not patented
at his death, on the ground that otherwise it passed under his
will, and did not descend to these donors.
But it is obvious that this instruction was properly refused,
since the fact nowhere appears in the record that the elder Mason
ever made a will competent in law to transfer real estate. The
deed, it is true, purports to carry into effect his intentions
towards his children, but
non constat whether that
intention had ever been signified otherwise than by parol or by an
informal will. If a will had ever been executed with the
formalities necessary to defeat the heir at law, the defendants
should have availed themselves of it by proof.
The next instruction prayed for by defendants and rejected by
the court, was
"That if from the evidence the jury believed that the daughters
of the patentee were dead before the suit was brought, that then it
ought to find for defendants as to the undivided interest of such
daughters, and that the deed did not pass their interest."
The court instructed the
Page 26 U. S. 506
jury that the deed did not pass the interest of the daughters,
but passed the interest of their husbands, who were tenants by
curtesy, although they had never had other or further possession of
the land than what they acquired by deed.
To understand this part of the bill of exceptions, it is
necessary to notice that from the record it appears that among the
parties of the first part to the deed to G. Mason the younger were
four daughters of G. Mason the elder and their husbands; that the
daughters had formally executed a release of inheritance under a
commission issued from a court in Virginia, but because the states
were then separated, as a judicial proceeding, it had no validity
as to lands in Kentucky, and the lessor of the plaintiffs was
compelled to stand upon the interest conveyed to him by the deeds
of the husbands as tenants by the curtesy.
In order to prove the pedigree of the donors, the marriage,
birth of issue &c., and of the sons-in-law of the elder Mason
the testimony of two witnesses was introduced by plaintiffs, taken
under the act of Congress. To the introduction of this testimony an
objection was made and overruled, and this constituted another
ground of exception, which however has been very properly waived by
the counsel in argument here. It appears that the requisitions of
the act have been well complied with.
This testimony, besides establishing the pedigree, marriage, and
birth of issue, &c., of the husbands and their wives and
identity of the lessor of the plaintiffs as devisees of G. Mason
the younger, also goes to prove the death of some if not of all the
daughters, and the exception is intended to raise the question
whether in the absence of evidence of actual seizin, the husbands
had good estates as tenants by the curtesy, in the portions of the
land belonging to their respective wives; if they had not, then by
the death of their wives, their estates were determined. To repel
this objection to the vesting of the estate by the curtesy,
evidence is introduced into the bill of exceptions to prove
that
"the adverse possession of the premises, relied on by the
defendants did not commence until after the execution of the deed
and after the death of George Mason -- in other words, that the
land was waste, or as is sometimes styled, wild lands,"
at the time of executing the deed and at all times before and
down to the time of the devise, from George Mason, Jr., to the
lessors of the plaintiff took effect.
It is believed that the rigid rules of the common law have never
been applied to a wife's estate in lands of this description. In
the State of New York, 8 John. 271, these rules have been solemnly
repelled, and we know of no adjudged case in any of the states in
which they have been recognized as
Page 26 U. S. 507
applicable. It would indeed be idle to compel an heir or
purchaser to find his way through pathless deserts into lands still
overrun by the aborigines in order to "break a twig," or "turn a
sod," or "read a deed" before he could acquire a legal freehold. It
may be very safely asserted that had a similar state of things
existed in England when the conqueror introduced this tenure, the
necessity of actual seizin as an incident to the husband's right
would never have found its way across the channel.
It is true that Perkins and Littleton and other authors of high
antiquity, and great authority lay down the necessity of actual
seizin in very strong terms, and exemplify it by cases which
strikingly illustrate the doctrine. But even they do not represent
it as so unbending as to be uncontrolled by reason.
The distinction is taken between things which lie in livery and
things which lie in grant, and with regard to the latter the seizin
in law is enough, because they admit of no other, and as Lord Coke
observes "the books say it would be unreasonable the husband should
suffer, for what no industry of his could prevent," and further
"that the true reason is that the wife has those inheritances
which lie in grant, and not in livery, when the right first
descends upon her, for she hath a thing in grant when she has a
right to it, and nobody else interposes to prevent it."
And in another place he says "a husband shall be tenant by
curtesy, in respect of his wife's seizin in law, where it was
impossible for him to get an actual seizin," for "the favor which
the law shows to the husband that has issue by his wife
shall
not be lost without some default in him." So when describing
what is livery of seizin and defining the distinction between
livery and deed and livery in law, he says of the latter "if the
feoffee claims the land, as near as he dares to approach it, for
fear of death or battery, such entry in law shall execute the
livery in law."
And as a proof that even in his time, the common law had begun
to untrammel itself of the rigorous rule that livery of seizin or
entry was indispensable to vesting a freehold, the fact may be
cited that livery of seizin was held unnecessary to a fine, devise,
surrender, release, or confirmation to lessee for years. The mode
of conveyance by lease and release and some other modes, it is well
known, arose out of an effort to disembarrass the transfer of
titles of an idle form which had survived the feudal system.
As it relates to the tenure by curtesy, the necessity of entry
grew out of the rule which invariably existed that an entry must be
made in order to vest a freehold, Co.Lit. 51, and out of that
member of the definition of the tenure by curtesy which requires
that it should be inheritable by the issue. When a descent was
cast, the entry of the mother was necessary, or the
Page 26 U. S. 508
heir made title direct from the grandfather, or other person
last seized.
But in Kentucky, we understand, the livery of seizin is unheard
of. Freeholds are acquired by patent or by deed or by descent,
without any further ceremonies, and in tracing pedigree, the proof
of entry, as successive descents are cast, is never considered as
necessary to a recovery or in any mode affecting the course of
descent.
If a
right of entry therefore exists, it ought by
analogy to be sufficient to sustain the tenure acquired by the
husband where no adverse possession exists, as it is laid down in
the books relative to a seizin in law "he has the thing if he has a
right to have it." Such was not the ancient law, but the reason of
it has ceased. It has been shown that in the most remote periods,
exceptions had been introduced on the same ground, and in the most
modern, the rule has been relaxed upon the same consideration. We
ought not to be behind the British courts in the liberality of our
views on the subject of this tenure. A husband, formerly, could not
have curtesy of an use; that is, where his wife was
cestui que
use, Perkins' Curtesy, fo. 89, and this continued to be the
law, down to the time of Baron Gilbert, Law of Uses and Trusts 239,
at present it is fully settled in equity that the husband shall
have curtesy of a trust as well as of a legal estate, 2 Vern. 536;
1 P.W. 108; Atk. 606, of an equity of redemption, a contingent use,
or money to be laid out in lands.
The case made out in the bill of exceptions is one in which
there could not possibly have been any default in the husbands,
since the disseizin by defendants did not take place until after
the death of George Mason, Jr., and of consequence, after the
transfer of title by the husbands and after the devise took effect
in favor of the plaintiff's lessor.
These points being disposed of, it only remains to consider the
questions raised upon the introduction of the will of George Mason,
Jr., or rather of the codicil, under which the lessor of the
plaintiffs makes title.
Under a law of the State of Kentucky and the decision of its
courts upon it, a will with two witnesses is sufficient to pass
real estate, and the copy of such a will, duly proved and recorded
in another state, is good evidence of the execution of the
will.
The objection here is that it does not appear from the
exemplified copy that this codicil was duly proved, because the
probate does not go to that codicil, but to another, and secondly
because it appears to have been admitted to record on the testimony
of a single witness.
Page 26 U. S. 509
The probate purports "that the two codicils were proved by the
oath of Daniel McCarty." From the exemplification it appears that
at three several dates, the testator added to his will what he
calls codicils, but as there is no signature to the first, we are
satisfied that the first and second were well considered as making
but one, and therefore that the probate, although purporting to go
to two codicils only, was well considered as going to this, which
but for the want of the signature to the first would have been the
third codicil. What is decisive on this subject is that the first
two codicils have no subscribing witness distinct from the last,
and the name of McCarty, the witness sworn, is subscribed to the
second, or as the defendants contend it should be considered, to
the third codicil.
With regard to the second exception to the sufficiency of the
proof of this codicil, it can only be necessary to resort to
adjudged cases as they seem conclusive to this point.
There were two witnesses to this codicil, to-wit, Thompson Mason
and McCarty. McCarty only was sworn, and the probate upon which it
was ordered to be recorded imports that the two codicils were
proved by the oath of Daniel McCarty. In the case of
Harper v.
Wilson, decided in the Court of Appeals of the State of
Kentucky in 1820, in which the right to lands was in controversy,
the probate was in these words, "this will was produced in court,
proved by the oath of Sarah Harper, a subscribing witness thereto,
and ordered to be recorded." There was another subscribing witness
to the will, and exception was taken to the sufficiency of the
proof. The language of the court in that case was
"As to the proof of the execution of the will, it need only be
remarked that its admission to record is sufficient to show that
the witness by whom it was proven in that court established every
fact essential to its due execution, and it is a settled rule that
although more than one witness is required to subscribe a will
disposing of lands, the evidence of one may be sufficient to prove
it."
2 Marshall 467. The same doctrine has been since fully
recognized in the case of
Turner v. Turner, 1 Litt. 103,
adjudged in the same court in 1822, and the identity of the
certificate and facts in this case, with those in the case of
Harper v. Wilson, leaves nothing for this Court to
deliberate upon.
There is spread upon the record a considerable body of testimony
taken by the court by which the will had been previously admitted
to record, and which upon the face of it appears to have been taken
in order to remove all doubt on the sufficiency of the will and
authenticity of the attestations to it. But as it does not appear
to have been followed up by any order
Page 26 U. S. 510
of that court, it was not taken into view in the bill of
exceptions, and made no part of the evidence in the court below. It
therefore only required this remark in order to prevent any
misapprehension on this point.
We are of opinion that there was no error in the judgment below
and that it be
Affirmed with costs.
