1. The well settled principle that aliens may take land by deed
or devise, and hold against anyone but the sovereign until office
found, exists in Rhode Island as elsewhere, not being affected by
that statute which allows them to hold land "provided" they
previously obtain a license from the probate court.
2. Although equity will, in some cases, interfere to assert and
protect future rights -- as
ex. gr. to protect the estate
of a remainderman from waste by the tenant for life, or to cut down
an estate claimed to be a fee to a life interest only, where the
language, rightly construed, gives but an interest for life, or
will, at the request of trustees asking protection under a will,
and to have a construction of the will and the direction of the
court as to the disposition of the property, yet it will not decree
in thesi as to the future rights of parties not before the
court or
in esse.
3.
Langdale v. Briggs, 39 Eng.Law and Equity Reps. 194,
followed and approved; distinguished, also, from
Lorillard v.
Coster and
Hawley v. James, 5 Paige 172, 442.
4. A "cross-bill" being an auxiliary bill simply, must be a bill
touching matters in question in the original bill. If its purpose
be different from that of the original bill, it is not a
cross-bill, even although the matters presented in it have a
connection with the same general subject. As an original bill it
will not attach to the controversy unless it be filed under such
circumstances of citizenship &c., as give jurisdiction to
original bills, herein differing from a cross-bill, which sometimes
may so attach.
Halsey devised real estate in Rhode Island to trustees there, in
trust for the benefit of his natural daughter, Maria
Page 68 U. S. 6
De Valle, a married woman, during her life, for her separate
use; and upon her decease the trustees were directed to convey in
fee one-half of the estate to the eldest son of the said daughter
living at her decease, if of age, and one-half part to her other
children living at her decease, and in default of male issue to her
daughters equally. Mrs. De Valle, who was born in 1823, was a
native and resident of Buenos Ayres, and had five children born
there. After a certain time she came to Rhode Island, and had one
child born
there.
The trustees were directed not to convey the real estate to his
grandchildren, unless they should, within five years after being
duly informed of his decease, have their permanent residence in the
United States, and adopt and use the name of Halsey.
In case his daughter should die without issue living, or with
issue who should neglect or refuse to comply with the conditions,
the trustees were directed to pay two legacies out of the estate,
and convey the residue to a certain Cross, the complainant, if then
living, and if he should adopt and use the name of Halsey, or if
said complainant should not then be living, or if he should refuse
to adopt the name of Halsey, then to a nephew of Cross, upon
condition that
he should adopt the name of Halsey.
Cross now filed his bill in the Circuit Court of the United
States for
Rhode Island against the trustees and the
beneficiaries of the trust, setting forth that the trusts in favor
of Mrs. De Valle and her children had failed by reason of her and
their alienage and incapacity to hold real estate in Rhode Island,
and that the trust for the benefit of the complainant was hastened
in enjoyment by such failure, claiming that the devise over to him
took effect upon the probate of the will, or, that it took effect
in favor of the heirs at law, or of the state of Rhode Island as
sovereign, and praying that the estate should be conveyed to him by
the trustees, or to the heirs at law, or to the state.
A
cross-bill, or bill purporting to be so, was also
filed in the
same court by heirs at law of Halsey against
this complainant,
Page 68 U. S. 7
Cross, the trustees, and other parties in interest -- the
parties in both bills being the same, but being partially reversed
-- for the purpose of more distinctly asserting and putting in
issue the rights of the heirs at law, as against Mrs. De Valle,
Cross, and those other devisees, and so of having the limitations
on Mrs. De Valle's life estate declared void, as tending to a
perpetuity, and generally of having the rights of the heirs at law
declared and protected by the court in its exercise of equitable
jurisdiction. The complainants were citizens either of
Massachusetts, or of
Wisconsin, or of
Ohio, or of
New York. The defendants were all,
with one exception, either citizens of
Rhode Island or
aliens commorant there. The excepted defendant, Cross,
complainant in the original bill, was a citizen of
Louisiana, and not
commorant in Rhode Island.
On the subject of alienage, it is necessary to mention that no
special enactment had been made in Rhode Island, giving to aliens
more ability to hold real estate than they had by the common law.
On the contrary, rather, by a statute in force at Halsey's death,
it had been enacted as follows: [
Footnote 1]
"Courts of Probate shall have power to grant petitions of aliens
for leave to purchase,
hold and dispose of real estate
within their respective towns,
provided the alien
petitioning shall, at the time of his petition, be resident within
this state, and shall have made declaration, according to law, of
his intention to become a naturalized citizen of the United
States."
On demurrer the circuit court dismissed the bill, and dismissed
also the cross-bill. On appeal here, along with other questions
argued -- including the one whether the remainders were void as
tending to perpetuities -- were the following, the only ones
considered by the court:
1. Was the equitable life estate given by the will to Mrs. De
Valle void in consequence of her alienage, so that persons who have
interests in remainder have a right to be hastened in the enjoyment
of the estate?
Page 68 U. S. 8
2. If not, did the court err in dismissing the cross-bill, and
refusing to declare the future rights of the parties?
Page 68 U. S. 12
MR. JUSTICE GRIER delivered the opinion of the Court:
The bill alleges that the trusts declared in the will are all
void, because of the alienage of Mrs. De Valle and her children,
and prays that the trustees may be ordered to convey
Page 68 U. S. 13
to the complainant as one of these numerous contingent
remaindermen who is not an alien, or that the estate be conveyed to
the heirs at law of the testator. As it is not alleged that the
complainant is one of these heirs, it is not easy to apprehend on
what grounds he claims as an alternative
remedy that the
court should decree in favor of those who claim adversely to
himself. Perhaps it was to favor the attempt to give jurisdiction
to the court to declare the future rights of the parties by
converting an original into a cross-bill.
That an alien may take by deed or devise, and hold against
anyone but the sovereign until office found, is a familiar
principle of law, which it requires no citation of authorities to
establish. Nor is it affected by the fact that a statute of Rhode
Island will permit aliens to take a license to purchase, which will
protect them even as against the state, nor by the fact that a
chancellor may not entertain a bill by an alien to enforce a trust
which, if conveyed to him, might immediately escheat to the
Crown.
Now, as the court rightly decided that Mrs. De Valle took an
equitable life estate by the will, defeasible only by action of the
sovereign, Cross was in no situation to call upon the court to
declare the fate of these numerous contingent remainders.
1. For if the remainders were void because of remoteness and
tending to a perpetuity, his own remainder fell with the
others.
2. And if declared to be valid, not only the six children of
Mrs. De Valle, who are parties to the suit, but possibly and before
her death there might be six more, not now
in esse, who
would be entitled to come in before him.
3. The bill demands no such
declaration of future
rights, nor does it suggest how it could be done, or any
sufficient reason why the court should pass upon the rights of
persons not
in esse.
4. The bill charges no fault to the devisees except alienage,
and before any of the contingencies happen the party entitled to
take may be a citizen and capable of taking and holding the estate.
In fact, one of the children of defendant was
Page 68 U. S. 14
born in Rhode Island, and therefore is as capable of taking as
Cross.
The decree of the court was final and complete as to the case
made by the complainant's bill. If the decree had been against Mrs.
De Valle, and she had been held incapable of taking, then the heirs
might well say, that in such a case the estate should be conveyed
to them, and not to Cross, and have their cross-bill for that
purpose. But the decree being in favor of Mrs. De Valle, and the
bill dismissed, the cross-bill must have the same fate with the
original. A cross-bill "is a mere auxiliary suit, and a dependency
of the original."
"It may be brought by a defendant against the plaintiff in the
same suit, or against other defendants, or against both, but it
must be touching the matters in question in the bill, as where a
discovery is necessary, or as where the original bill is brought
for a specific performance of a contract, which the defendant at
the same time insists ought to be delivered up and cancelled, or
where the matter of defense arises after the cause is at issue,
where in cases at law the defense is by plea
puis darrein
continuance."
The bill filed by the heirs is for an entirely different purpose
from that of Cross. It called upon the court to decree on the
future rights of their co-defendants and others not
in
esse, and decree the limitations on the life estate to be void
as tending to a perpetuity. This would be introducing an entirely
new controversy, not at all necessary to be decided in order to
have a final decree on the case presented by the original bill.
As an original bill the court might properly refuse to consider
it. First, on account of the parties, and secondly, on account of
the subject matter.
The bill is filed in Rhode Island. All the complainants are
citizens of states other than Rhode Island or Louisiana, while one
of the defendants, Cross, is a citizen of the state last named, and
not commorant in Rhode Island. It was admitted that this objection
was conclusive, if the bill was an original. The second objection
is equally conclusive, whether it be called a cross-bill or an
original. A chancellor will not maintain a bill
merely to
declare future rights. The
Page 68 U. S. 15
Scotch tribunals pass on such questions by
"declarator," but the English courts have never assumed
such power. [
Footnote 2] In
Langdale v. Briggs, [
Footnote 3] Lord Justice Turner remarks:
"As long as I have known this Court, now for no inconsiderable
period, I have always considered it to be settled that the court
does not declare future rights, but leaves them to be determined
when they may come into possession. In all cases within my
experience, where there have been tenancies for life with
remainders over, the course has been to provide for the interests
of the tenants for life, reserving liberty to apply upon their
death."
A remainderman may have a decree to protect the estate from
waste, and have it so secured by the trustee as to protect his
estate in expectancy. The court will interfere under all needful
circumstances to protect his rights, but such cases do not come
within the category of mere declaratory decrees as to future
rights.
There is also a class of cases in which recommendations or
requests in a will to a devisee or legatee have been construed as
cutting down an absolute fee into an estate for life, with an
equitable remainder to the person indicated by the testator in his
request. In such cases the court will entertain a bill during the
life of the first taker to have the right of the claimant in
remainder established. Nor do these cases infringe upon the
doctrine we have stated as to mere declaratory decrees concerning
future contingent executory estates.
But there is a class of cases which are exceptions to this rule,
and being
exceptional, only tend to prove the rule. The
New York cases of
Lorillard v. Coster, and
Hawley v.
James, [
Footnote 4] cited
by the counsel of the heirs at law, are of this character. There
the bills were filed by the executors or trustees for their
protection, and that they might have a construction of the will,
and the direction of the court as to the disposition of the
property. In such cases, from necessity, and in order to protect
the trustee, the court are compelled to settle questions as to the
validity and effect of contingent limitations
Page 68 U. S. 16
in a will, even to persons not
in esse, in order to
make a final decree and give proper instructions in relation to the
execution of the trusts. [
Footnote
5] It is this necessity alone which compels a court to make
such cases exceptions to the general rule. But in the present case,
no such necessity exists. The court is not called upon to make a
scheme of the trusts, nor could they anticipate the situation of
the parties in the suit, or those who may be in existence at the
death of Mrs. De Valle. The court has no power to decree
in
thesi, as to the future rights of parties not before the court
or
in esse.
Decree affirmed with costs.
[
Footnote 1]
Revised Statutes of R.I., 1857, page 351, ? 21.
[
Footnote 2]
Grove v. Bastard, 2 Phillips 621.
[
Footnote 3]
39 English Law & Equity 214.
[
Footnote 4]
5 Paige 172, 442.
[
Footnote 5]
See Bowers v. Smith, 10 Paige 200.
