USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. II > Part 11
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Nay in some Cases tho' the Son actually enters the Sister shall not inherit if this possession is afterw'ds defeated by legal title as where the Wid'o of the fa'r recovers Dower ag'st him If the elder Son dies in the life of Ten't in Dower his Sister shall not inherit but the Bro'r of the half blood as heir to the fa'r because the elder Son never had a rightful pos'sion 1. Inst. 15.
If the fa'r makes a Lease for Life or Gift in tail & dies And the eldest Son dies in the life of Ten't for life or in tail the Bro. of the half blood shall inherit because the Ten't had the Freehold & the elder Bro'r only a Fee simple expectant Ibid.
So here the elder Bro. was in possession it is true but of what why of an Estate tail but he had only a fee simple expectant Vid. 2. Dam. 558-9.
Another Case put by Coke cannot be distinguished from this A Gift is made to a man & his wife & the heirs of their two bodies Rem'r to the heirs of the husband They have issue a Son The Wife dies Husband marries again & has issue another Son & dies The eldest Son enters & dies without issue The second Son tho' of the half blood shall inherit for the eldest Son was not actually seised of the fee simple which was expect- ant but only of the Estate tail for the rule says he is possessio-
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fratris &c. but here the elder Brother was not pos'sed of the fee simple but of the Estate tail
This Case is exactly ours the Son here upon the death of his fa'r was Ten't in tail with the Rev'n in fee expectant he died without issue and it was adj'd that the younger Brother of the half Blood as heir to the fa'r should inherit & not the heir of the elder Bro'r
For the Plt. it was argued by Needler & Lewis to this purpose. Upon the death of S. Orrill the Donor the Rev'n expectant descended to her Son Orrill the Donee who was her heir at the time . This Descent must exclude the Deft. who cannot claim as heir to Orrill the Son being only of the half blood but upon his death the Rev'n must descend to his heir who is the Plt. Upon the Descent of the Rev'n to Orrill the Son he was seised of it & might have aliened or devised it There was not indeed an actual pos'sion which cannot be by any possibility of an Estate in Expectancy But if he could dispose of it surely it ought to descend to his heir Suppose he had actually devised or aliened [107] it Could the Deft. then have claimed ag'st such disposition It is not pretended The descent to his heir is the disposition of the Law & must work as strongly as the act of the party
The rule possessio fratris &c. relied on by the Deft. can extend only to Cases where an actual possession can be had It would be unreasonable to carry it to Cases where pos'sion cannot be had which would be inconvenient & create confusion The cases for the Deft. came not up to this The last cited out of Cokes Inst. was governed by the Rem'r in the Deed And a Rem'r is different from a Rev'n
The Donor never intended the Deft. should take anything in the Land He was not born when the Deed was made Upon the Descent of this Rev'n to Orrill the Son it vested in him absolutely to all intents & purposes Otherwise it would be in abeiance which the Law will not suffer .And this was much relied on .... The Deft. is neither heir to the Donee nor was so to the Donor when the Reversion happened In what right then can he claim
To which it was replied
A great deal of pains has been taken to prove a point which. nobody denies that a Rev'n expectant upon the determination of an Estate tail may be aliened or devised If Orrill the Son
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had disposed of the Rev'n in this Case after the descent upon him the present question would not have been made which seems indeed to be strangely misunderstood on the other side for it does not depend upon the reasonableness or unreason- ableness of the thing nor upon the power Orrill had to dispose which is admitted but upon certain fixed & settled rules of Law which govern descents If the reason of the thing was to govern abstracted from those rules I should be glad to hear a good & solid one assigned why the half blood should not inherit Yet it is upon that rule or principle that the Plt. can have any pretence of title And it is upon another rule viz. possessio fratris &c. that the Defts. Title depends
Every one who has a fee simple either in pos'sion or reversion has a power to dispose but if he does not do it The Inheritance must go according to the rules of Law which govern descents
Vid. Cro. Car. 411. 412.
To say the rule possessio fratris &c. extends only to Cases where pos'sion can be had is a flat contradiction of the plainest & most positive Authority & some of the best in the Law In Ratcliff's Case it is expressly sayed that if the Inheritance be such of which an actual possession cannot be gained the half blood shall come in And as to any inconvenience or confusion that may be the consequence it wants pointing out for I cannot conceive any
It is sayed the Case cited out of the Inst. is not parrallel because the Rem'r there was created by Deed It is true the Rem'r to the [108] husband is created by the Deed but then upon his death the Rem'r descended to his Son who took it by descent & not by Purchase And so after his father's death he was Ten't in tail with the Rem'r in fee expectant Where then is the difference betw. that Case & this. Here the Rem'r descended to him from his Mother In the Case cited the Son was Ten't in tail with a Rem'r in fee expectant which Rem'r descended to him from his father I know no difference betw. a Rev'n & a Rem'r in fee but in the manner of the creation A Rev'n is where the Owner does not part with his whole Estate Then it is sayed to revert or come back to him after the deter- mination of the particular Estate A Rem'r is where the Owner parts with his whole interest giving a particular Estate to one & the fee to another which is called a Rem'r And such Rem'r
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in fee will descend in the same manner as a Rev'n in fee. There is no kind of diff. betw. them as to the business of descent
The disposition of the Law is doubtless as strong as the dis- position of the party but we say the Law disposes in our favour which is the point to be determined
The Donor's Intention in the Deed is quite out of the Case We are contending about the Descent of the Rev'n & claim nothing under the Deed or that is disposed of by the Deed
It's no good consequence that because the Rev'n descended to Orrill upon the death of his Mother which we admit that therefore it must descend from him to his Heir The Cases cited prove the contrary & clearly shew that a Rev'n expectant does not descend in the same course an Estate in pos'sion does There are other instances of this in the law If there be father & Son & the Son purchase land & make a lease for life & dies the reversion descends to his Uncle who dies the father cannot be heir to the Uncle of this reversion because he was never actually seised 1. Inst. 11. 6. And as to the Argum't that the fee would be in Abeiance if it did not vest absolutely in Orrill the Son Every Estate in expectancy may be sayed to be in Abeiance (Vid. Plunket & Holme 1 Lev.) for the word is derived from the French bayer to expect 1. Inst. 342. b. And there is no incon- venience that a Rev'n expectant upon an Estate of Freehold should be in Abeiance for the true reason why the Law will not suffer the fee to be in Abeiance (which I admit it will not except in some instances ex necessitate) is because there would want a Ten't to the Freehold Ag'st whom a precipe might be brought But this cannot happen where the fee is expectant on the determination of an Estate tail because there is a Ten't of the Freehold viz. The Ten't in tail The rule in truth is only that the Freehold shall not be in Abeiance for there are many instances [109] where the fee may As in the Case of a Lease for life Rem'r to the right heirs of I. S. The fee simple is in Abeiance during the life of I. S. 1. Inst. 342. b. So if Ten't in tail grants all his Estate The Grantee has only an Estate for life of Ten't in tail And the fee or Inheritance of the tail is in Abeiance during the life of Ten't in tail Lit. S. 650.
Upon the whole tho' we are neither heir to the Donee nor was so to the Dornor when the Reversion descended from her Yet in as much as the Rev'n was only expectant by the rules of Law in Cases of Descent we are intitled to this Rev'n because we are
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now heir to the Donor & there never was nor could be such pos'sion as the Law requires to make the Sister that is the Plt. take as heir to her Brother
Judgm't fr Deft. by the Opinion of Lee, Tayloe, Grymes & Carter
Randolph, Custis & Robinson Fr Plt.
EDWARDS VS. BRIDGER
This was an Appeal in an Action of Debt from the County Court The Plt. had brought a former Action In which Judgm't was given ag'st him but it was not entered quod Querens nil capiat per billam This former Judgm't was pleaded in bar to the present Action There was a Demurrer to the Plea & Judgm't in the County Court ag'st the Plt. But the Judgm't was reversed here & the Plt. had Judgmt. for his debt
The Court remembered a Case of this kind sev'l years ago where they had given the like Judgm't But note in the Case of Palmer & Word Oct. 1738 (which see postea Page 268) this same point was insisted on but not regarded by the Court
CURLE US SWENEY Ejectment
The Plt. being seised of a Lot of Land in the Town of Hampton abutting upon the river Hampton & so described in the Grant from the Feoffees of the Town Land to the Plts. Ancestor The Deft. in the Plts. Infancy upon a suggestion that he had by Industry gained some Land out of the River obtained a Grant from the Crown of a small parcel of Land to be made out of the River before this Lot & builds a House upon Posts directly before the Lot under which House the Water ebbs & flows So that [110] the Ground it stands upon is between high & low Water Mark The Grant from the Crown of which the Plts. Lot is parcel is bounded by the River or abutting upon it & the River is navigable
The Plt. brings this Ejectm't to recover the House a'fs'd built by the Deft. before his Lot
The Q. is properly this when the King Grants Land bounded by or abutting upon the Sea or a Navigable river where the Water ebbs & flows Whether the Grantee has not a right to the Land betw. high & low Water Mark Or to any Land that may be gained out of the River
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All Lands here are held mediately or immediately of the Crown And so they are in England And therefore must have been first granted by the Prince to the Subject Now there are numberless Grants from the Crown in England bounded by the Sea River &c but no one I believe ever saw a Grant of Land betw. the high & low Water Mark Yet such Land may be parcel of the Mannor of a Subject 5. Co. 107. Sr. Hen Constable from whence I think it follows that by the Grant of Land abut- ting upon or bounded by a river the Grantee has a right to the Land or Soil betw. the high & low Water Mark
I conceive too that if the Water leaves the Land or the Grantee . by Industry gains Land out of the Water it belongs to him & not to the Crown
It has indeed been a question Where the Salt Water has left a great quantity of Land upon the Shore whether the prince shall have it by his Prerogative or the Owner of the Land adjoining It is made a Quære in Dier 326. b. & he refers to sev'l Authors But he cites a Case 43. E. 3. of the Abbott of Ramsey who was sued on behalf of the King for 40. a. of Marsh The Abbot pleaded that he held such a Mannor next the Sea where there was a Marsh which was sometimes lessen'd by the flux & increased by the reflux And the title was found for the Abbott And the Reporter says P. 17. Eliz. in such a Case in the Excheq'r about Sandwick a Verdict was solemnly given ag'st the Queen
But there is a Case in the Margin of the Book of the Corpora- tion of Rumney adj'd S. Eliz. which is more express It is thus If the Sea marks are gone so that it cannot be known whether there ever was Land there the Land gained from the Sea belongs to the King but if the Water covers the Land at the flowing & leaves it at the ebbing so that the Sea Marks are known if such Land is gained from the Sea it belongs to the Owner
In this Case the Water ebbs & flows upon the Land claimed by the Deft. But if it was actually gained out of the Water by Industry it belongs to the Owner of the Land. adjoining who is the Plt. It is plain then the King could not grant this Land which by Law belonged to the Subject & which he in effect had granted before The Defts. Grant is unusual & the first of the kind in this Country or I believe in any other subject to the Crown of England I might add further that this Grant was obtained in the [111] Lessor's Infancy And if Grants of this sort are encouraged No man who has Lands upon Navigable rivers
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can be secure of the greatest advantage attending them viz. a Landing prospect &c.
For the Deft. It was not attempted to support the Grant from the Crown but it was insisted that the Deed from the Feoffees. of the Town to the Plts. Ancestor did not take in the Land where the House stood for that the number of Chains mentioned in the Deed did not reach so far Which was admitted to be true
But it was answered
That the Deed was bounded by the River The Town was laid out upon the River And the Kings Grant out of which the Town Land was taken was abutting upon the River By which the Plt. had a right to the Land left by the River if any was really left but that in this Case there was none left for the Soil upon which the house stood was that upon which the Water ebbed & flowed
And it was further urged to shew the inconvenience of allowing the Deft's pretensions that by such Practises as the Deft. had used there might not in time be a Landing place left to Hampton Town
Judgm't Fr Plt. Fr. tot. Cur.
COLEMAN & Ux'r vs DICKENSON In Canc.
Ja's Alderson & Ann his wife by Deed dated 10 July 1712 reciting that Ann at her Marr. was pos'sed of 3 Slaves And that by the Law they were real Estate barg & sold the Slaves to one Hunter for 60 years if the said Ja's & the Negro's sho'd so long live In trust And to the use of the said Ja's & Ann for their lives & to the use of the Surv'r if the Negro's sho'd so long live With this proviso that if Ann sho'd die before Ja's it sho'd be lawful for her by Will to dispose of the Negro's after his death And with this further proviso that if the Negro's had any Increase during the term that they sho'd be taken care of till they were fit to be removed from their parents
The husband died first The wife who had made a Will before his death republished it afterw-ds And by this Will she has taken upon her to dispose not only of the 3 Negro's mentioned in the Deed but also their Increase to the Plt. Eliza.
The Q. is whether as the husband died first the wife had power by this Deed or otherwise to dispose of the Negro's or their Increase
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When this Deed was made it was the gen'l Opinion that a Womans Slaves did not vest in her husband by the marr. This was the construction of the Act of 1705 by which Slaves were first made a real Estate It will [112] however be allowed that this was a mistaken Opinion & a wrong Construction of the Act. The Explanatory Act of 1727. having declared that " where any " Slaves have been or shall be conveied given or bequeathed "or have or shall descend to any feme covert the absolute "property is thereby vested in the husband"
After repeating these words I may venter to take it for granted that the Slaves of Ann Alderson vested in her husband by the marriage And it will scarce be pretended I presume that the husband's mistake as to his right which appears in the recital of the Deed did at all lessen or destroy that right
From these premises these two conclusions follow 1. That the Wife can have no pretence of right but what she can derive from the Gift or disposition of her husband And 2. that as the husband had the absolute property in these Slaves So much of that property in them & their Increase as was not disposed of by the Deed now before us remained in the husband And upon his Death must go to his Representatives
The business then is to see how far the property of these Slaves or their Increase is disposed of by this Deed
It is scarce worth observing that this Deed is to be considered merely as the Act of the husband It is well known a feme Covert cannot make a Deed in any Case Except where she is im- powered by some particular Law or Agreem't so to do But as the wife here had really no Interest in the thing conveied her joining or not joining in the Deed cannot differ the Case
The Deed then I conceive ought to be considered thus A hus- band conveys his Slaves to Trustees for 60 Years if he sho'd so long live To the Use of himself & his wife & the Surv'r for life With power to the wife if she died first to dispose by Will after his death I say nothing here of the second proviso which regards the Increase That I shall consider by & by
What is there more in this Deed than a limitation to the hus- band & wife for life with a power to the wife to dispose upon the contingency of her dying in her husbands life time
If this contingency never happened Can she have a right to . dispose by virtue of this power Certainly no and that is truly all the question in the Case
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There is surely some difference betw. an absolute power & a limited one or a power that is to arise upon some future con- tingency If a man give his Ex'ors a power to raise a sum of money out of his Estate in case he leaves a Dau'ter This power cannot be executed if he leaves no Dau'ter because it is to arise upon that Contingency & not otherwise So here the power given to the wife is not a power of disposing at all Events but only upon the contingency of her dying in her husbands life time
The words of the Deed are not only plain to this purpose but it was apparently the intention of the Parties for under the mistaken notion they were that the Slaves did not vest in the husband they [113] concluded that if the wife su vived she would by Law have a power to dispose And therefore there could be no necessity to provide for that but only that she might dis- pose during the coverture if she died first.
Thus neither from the words of the Deed nor the intention of the parties is there the least ground to infer that an absolute power of disposing was designed to the wife but only a power upon a contingency which not happening She had no power of disposing by virtue of this Deed And if she had none by the Deed she had none at all As I hope I have demonstrated
Let us consider a little further the nature of this Deed. It is a Conv. to a Trustee for 60 years if the husband so long lived. This Trust & term then were to continue no longer than the life of the husband And so upon his death they both expired & determined And consequently the power which was to be exe- cuted during the Term must cease and be void Neither the Trust nor the Term nor the power given to the wife from the frame & nature of this Deed could possibly subsist after the husbands death
As to the mistaken notion of the parties with respect to the right to those Negroes As that mistake could not alter or destroy the husbands right So neither can it be any Argum't to give this Deed a different construction or operation from what it would have had if the husband had known it perhaps if he had he never would have executed this Deed at all
If therefore we regard the operation of this Deed in point of Law Or if we regard the intention of the parties in making It is plain the wife had no power of disposing but upon the con- tingency of her dying in her husbands lifetime And therefore her disposition to the Plt. is void
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Equity will often supply a defective excon of power But I never read or heard that a Court of Equity would create new or different powers from those created by the P'ties Or extend or enlarge them beyond what the words of the Deed or the intention of the P'ties would carry them Yet this is what must be con- tended for to support the Wife's disposition in this Case The power created by the Deed is upon a certain contingency which never happened And yet they will have it that the wife may dis- pose by virtue of that power. What is this but setting up a different power in the wife from that given her by the Deed As to the Increase of the three Slaves mentioned in the Deed we have been speaking of which are the other six Slaves claimed by the Plt. under the Will of Ann Alderson I really can't even conjecture what may be sayed in support of the Plts. title to them
The Bill (whether designedly or not I can't tell) does not mention those six Slaves as the Increase of the three tho' I daresay they will be [114] granted to be such but only sets forth that Ann Alderson devised the three Slaves in the Deed & six others without shewing her title to them This is one of the Causes of Demurrer that it is not suggested she had any right to the Increase or to dispose of them
I have already observed And I hope it will be granted that so much of the property of the three Slaves & their Increase as is not disposed of by the Deed remained in the husband the whole property vesting in him by the marriage
Now it is plain from the whole tenor of the Deed as well as a particular provision it that the Increase were never intended to be within the Trust thereby created The term is limited for 60 years if Jas. Alderson & the 3 Negros sho'd so long live So that if the three Negroes had died the whole Trust had deter- mined
The proviso which gives the wife a power of disposing upon the contingency mentioned takes notice only of the 3 Slaves without saying anything of the Increase All which is sufficient to shew that they were never intended to be comprized within the Trust at all
But there is a second proviso which puts the matter beyond all doubt By this there is an express provision concerning the . Increase that they shall be allowed to remain with their Parents till they were fit to be removed
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So that whatever the determination may be with respect to the wife's right of disposing the 3 Negro's I conceive the matter as to the Increase will admit of no doubt or question
On the other side it was urged that the limitation of the Trust being to the use of the husband & wife for life & to the use of the Surv'r that the wife surviving was well intitled to the Slaves mentioned in the Deed And that the property of the Increase must follow that of the Parents
And so it was decreed by the Court
BUCKNER VS. CHEW & al. In Canc.
The Case was shortly this Chew the Defts. father in 1707 sold & conveied to the Plts. fa'r two parcels of Land cont'g by estimation 2520a's be the same more or less And in the Deed of Conveiance were the usual Covenants in the case of purchase
Great part of the Land was recovered from the Plt. by an elder title
The Bill suggested that Chew after the Conveiance to the Plts. [115] fa'r gave to the Defts. (some of them his Sons & others married to his Dau'ters) considerable Estates & afterw'ds died Insolvent And the End of the Bill was to have a discovery of the Estates given to the Defts. And that the same might be subjected to satisfie the Plt. the value of the Land he had lost
The Defts. by their Answ'rs insisted that the Estate given to them by their fa'r was so given before the Plt. was evicted & so not done with intent to defraud the Plt. And that the Conveiance from Chew being of 2520 a's more or less the Plt. could have no right to a remedy for the deficiency nor unless evicted out of the whole
Two of the' Defts. J. C. one of the Sons & Johnston who married one of the dau'ters also pretended by their Answ'rs that the Estate given to them was in consideration of Marriage of which some proofs were taken There were also Some proofs concerning the value of the Plts. loss & of the Estate given the Defts.
Barradall Fr. Plt. The points in this Case are two 1. Conv. being more or less whether we can have remedy for deficiency. 2. Estate given to Defts. before eviction whether subject to Plt.s Demand
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