Is Barnitz's Lessee v. Casey still good law?

Opinion · Supreme Court of the United States

Barnitz's Lessee v. Casey

Barnitz's Lessee v. Casey, 11 U.S. (7 Cranch) 456 (1813)

Type: Opinion
Court: Supreme Court of the United States
Jurisdiction: Federal
Date: 1813-03-11
Topic: bankruptcy

The Court having taken time since last term to advise, Story, J. (after stating the facts of the case,) delivered the opinion of the Court as follows : It is true, that the general rule is, that an heir shall not take by devise, when he may take the same estate in the land by descent. 1 BoU,. Mr. 626.1. SO. Hob. 30. 1 Salk. 242. 1 Bl.

Citator

UpLaw has not yet analyzed Barnitz's Lessee v. Casey. The absence of a flag is not a finding that it is good law.

Cited by: 44 opinions

Headnotes

Real Property Law — Wills — Devise to Heir as Purchase A devise to an heir of an estate that differs in quality from what the heir would have taken by descent passes to the devisee by purchase, not by descent. 11 U.S. at 466
Real Property Law — Descent and Distribution — Statutory Construction A statute of descents that provides for estates descended on the part of the father, estates descended on the part of the mother, and estates vested in the intestate by purchase and not derived from or through either ancestor does not, by its terms or its terms' legal import, reach a descent from brother to brother or from child to parent; such a descent is a casus omissus governed by the common law. 11 U.S. at 468-470
Real Property Law — Descent and Distribution — Collateral Descent of Purchased Estate Where an intestate's purchased estate passes from brother to brother, the descent is immediate and not through the common parents, so it is neither a descent on the part of the father nor on the part of the mother within the statute of descents. 11 U.S. at 468-470
Real Property Law — Executory Devises — Remoteness An executory devise is not too remote if the contingency on which it depends may happen within a life or lives in being, or 21 years and a few months after; a limitation over upon a devisee's dying under age and without issue must occur within 21 years at all events and is therefore valid. 11 U.S. at 470
Real Property Law — Executory Devises — Transmissibility to Heirs At common law, contingent remainders and executory devises are transmissible to the heirs of the person to whom they are limited even if that person dies before the contingency occurs; the interest does not vest absolutely in the first heir so as to pass to that heir's own heir at law, but devolves from heir to heir and vests absolutely only in the person who can make himself heir to the original devisee at the time the contingency happens and the devise falls into possession. 11 U.S. at 470
Real Property Law — Executory Devises — Effect of Intervening Estate on Heir It does not alter the legal result that the person holding the preceding estate is also the heir of the executory devisee; the executory interest is not merged in the preceding estate but awaits the contingency and then vests absolutely in the then heir of the executory devisee. 11 U.S. at 471
Real Property Law — Descent and Distribution — Effect of Statute on Contingent Interests A statutory provision that no right in the inheritance shall vest in any person unless that person is in being and capable in law to take as heir at the time of the intestate's death operates to limit the natural capacity to take as heir where the estate is then capable of vesting in possession; it does not make heirs of persons who would not answer the description of absolute heirs at common law, nor convert a contingent interest into a vested absolute interest, and it is not limited in application to posthumous children or to cases where a nearer heir is subsequently born. 11 U.S. at 471
Civil Procedure — Ejectment — Tenants in Common A tenant in common cannot in general maintain an action of ejectment against a co-tenant absent proof of an actual ouster. 11 U.S. at 472

BARNITZ'S LESSEE v. CASEY,11 U.S. 456(1813)

BARNITZ'S LESSEEv. ROBERT CASEY.

FEBRUARY TERM, 1813.

Present. . . . . All the Judges.

ERROR to the Circuit Court for the district of Maryland, in an ejectment brought by the lessee of Barnitz against Casey, to try the title of Barnitz to certain real estate in Baltimore.

The facts of the case were stated by STORY,J. in delivering the opinion of the Court, as follows:

On or about the 6th of Feb. 1780, Daniel Barnitz died seized of the premises in the declaration mentioned, having, by his will, devised the same to his wife,Catharine Barnitz, in fee, and leaving issue, by his said wife, an only child and heir,Elizabeth Barnitz, who intermarried with oneCharlesM`Connell, by whom she had an only child,John M`Connell; after whose birth, and sometime in 1781,Charles M`Connelldied. Afterwards, his widow,Elizabeth, intermarried with oneJohn Hammond, by whom she had one child only,John BarnitzHammond, and died on the 22d of April, 1788. After her death,John Hammondintermarried withElizabeth Anderson, and died on the 7th of April, 1805, leaving issue by the last marriage,Jane B. HammondandHenry Hammond, his heirs at law, who are now alive, under whom the Defendant in ejectment claims. On the 7th of April, 1794,Catharine Barnitzdied seized of the premises,Page 457having first duly made her last will and testament. By that will she devised to the saidJohn M`Connell, in fee, two certain parcels of land. She then devised another parcel of land, including her mansion-house to the saidJohn Barnitz Hammond, to the intent and uses following, viz. subject, (as to the rents thereof) to certain trusts for the maintenance and education of the saidJohn Barnitz Hammond, and for the payment of certain specific debts of the testatrix, "to the "use ofJohn Hammond, the father, for and during "the minority of the saidJohn B.Hammond, if he "shall so long live, provided the saidJohnHammond"shall maintain, clothe and educate the saidJohn B. "Hammond, out of the rents thereof during his minority; "and from and immediately after the saidJohn B. "Hammondshall arrive to the age of 21 years, or the "death of the saidJohnHammond, his father, which "shall first happen," then to the saidJohn B. Hammondin fee. The testatrix then provides, "and if it "should hereafter happen that the saidJohn M`Connell"should die before he shall arrive to the age of 21 years, "and without issue, then I give, devise, and bequeath "all the estate of the saidJohn M`Connell, which is "hereby devised to him, to go immediately to the said "John B. Hammond, his heirs and assigns forever. "And if it should hereafter happen that the saidJohn"B. Hammondshould die, before he shall arrive to the "age of 21 years, and without issue, then and in such "case, after the payment of my debts as above mentioned, "I give, bequeath, and devise," c. (the same land and mansion-house before devised toJohn B. Hammond) "to the saidJohn Hammond, his heirs and assigns forever; "and also all the residue of estate herein before "or after devised to the saidJohn B.Hammond, and "not hereby otherwise disposed of, I then, and in such "case, give and devise the same to the saidJohn"M`Connell, to hold to him, his heirs and assigns forever, "from and immediately after the death of the said "John B.Hammondas aforesaid; and in case of the "death of both of my grandsons, under age and without "issue as aforesaid, then I give, devise, and bequeath "all that part of my estate which I have herein "before given to the saidJohn M`Connell, toCharles"Barnitz, of," c. "to hold to him, his heirs and assigns "forever."Page 458

The testatrix then provides for the payment of her debts, by a sale, if necessary, of some of her lots of land, on or near church-hill, in Baltimore, and then proceeds, "And I give and devise all the rest "and residue of the said lots on or near church-hill "aforesaid, and all my estate therein (subject nevertheless "to the devises aforesaid) to my said grandsons "John M'ConnellandJohn B. Hammond, their heirs "and assigns forever, to be equally divided between "them, share and share alike, as tenants in common, "and not as joint tenants." After some intermediate bequests, the testatrix devises "all the rest, residue, "and remainder of her estate, real and personal, to the "saidJohn M'ConnellandJohn B. Hammond, their heirs "and assigns forever, to be equally divided between "them, share and share alike."John M'Connellattained his full age of 21 years, married, had issue, and afterwards on the 7th of April, 1802, died without leaving any surviving issue. AndJohn B. Hammonddied on the 12th of February, 1808, under the age of 21 years, and without issue.

The lessors of the Plaintiff are the children and heirs at law ofCharles Barnitz, who was the only brother ofDanielBarnitz, the testator. And upon the defect of lineal heirs, the said lessors claim as next heirs, in blood, ofJohn M'Connell, on the part of his motherElizabeth Barnitz, the daughter ofDaniel Barnitz. It is admitted that the inheritable blood is extinct on the part ofCharles M'Connell, the father ofJohnM'Connell.

At the death ofJohn B. Hammond, the property consisted of four descriptions; which it may be proper to enumerate.

1. The land specifically devised toJohn M'Connell, with a limitation over toJohn B. Hammond.

2. The land specifically devised toJohn B. Hammond, with a limitation over in fee to his father.

3. The moiety of the church-hill lots, and the residuary estate devised toJohn M'Connell, in fee.Page 459

4. The moiety of the church-hill lots, and the residuary estate devised toJohn B. Hammondin fee, with a limitation over toJohn M`Connell.

At the time of the death of Catharine Barnitz, (as she survived her daughter) her two grandsons, M'Connell and Hammond, were her heirs at law.

HARPER,for Plaintiff in error.

1. As to the devise toJohn M`Connell, with limitation over, in case of his death under age, and without issue, toJ.B.Hammond. This was a fee simple in M`Connell, with a conditional limitation, and not an estate tail. 1.Fearne on ContingentRemainders, 9, 10,Dublin ed. 1795.id. 409.Powell onDevises, 261. 7T.R. 589.Shears v. Jeffrey. Plowd. 408. 3Co. 10.Carthew, 175.Dyer, 127.

UponJ. M`Connell'sarrival at full age he had an absolute estate in fee, because the condition never could happen which was to defeat his estate.

As he took by purchase, and not by descent, and as at the time of his death he left neither child, nor brother or sister of the whole blood, the estate descended, according to the statute of descents in Maryland, to his brother of thehalf blood, John B.Hammond.

J.B. Hammond took itby descent, through his mother, and therefore the estatedescended to him "on the part of hismother,"within the meaning of the statute.

He certainly took bydescent, and not bypurchase;and thecommune vinculum, which connected him with his brother, must be traced through his mother.

The statute was intended to prevent escheatspro defectusanguinis, and to provide for all cases.

The legislature meant to comprehend all cases in three classes.

1. Where the estate haddescendedto the intestate,on thepart of the father.

2. Where it haddescended, on the part of the mother;andPage 460

3. Where it had vested in the intestateby purchase, and not derived from or through any of his ancestors.

The Court will not suppose that the legislature has omitted to provide for the case where the estate has descended from a brother to a brother, but will rather place the present case in the second class.

The legislature did not mean to limit the 2d class to cases where the estate had descendedfromthe mother, because it provides, that if there be no child or descendant of the intestate, the estate shall gotothe mother: And it would be absurd to say, that an estate which had descendedfromthe mother, should descend againtothe mother. So if the estate had descended from the mother's father directly to the mother's son it would be an estate which had descended to the son on the part of his mother, and yet it had not descended either from or through his mother, for theestatehad never vested in her. The statute must mean every case where the blood must be traced through the mother; every case where the mother is a link of the chain which connects the intestate with the person from whom the estate descended to him.

This estate, therefore, must be understood, as having descended toJ.B. Hammond, on the part of his mother;and therefore, inasmuch as at his death, he left neither child nor descendant, nor mother, nor brother or sister of the blood of the mother, nor descendant of such brother or sister, nor grandfather on the part of the mother, nor descendant of such grandfather, nor father of such grandfather, and inasmuch as the lessors of the Plaintiff are the descendants of the father of such grandfather, the estate must, by the provisions of the statute, descend to them.

2d. The devise toJohn M`Connell, in fee, of the moiety of the church-hill lots, and of the general residuum, vested in him a fee simple estate from the beginning. He took by purchase under the will. It descended to J.B. Hammond by the same rule of descent as in the former case, and by the same construction of the statute has descended from him to the Plaintiffs.

3d. The third case under this will, is that of the specific devise toJ.B. Hammond, with limitation over, inPage 461case of his death under age and without issue, toJohnM`Connell.J.B. Hammonddied under age and without issue, so that the fee devised to him was defeated, and would have vested immediately inJohn M`Connell, if he had been alive, but he died in the life time ofJ.B. Hammond. In whom then did it vest? By the rules of the common law,John M`Connellhad such an interest in the devise, as was descendible to his heirs. Who were his heirs? Not they who were such at the time of his death, but they who answered the description of his heirs at the time of the death of J.B. Hammond. 2Fearne, 529.id. 535. 2Wilson, 29.Goodright v. Searle.

John M`Connell, if he had been alive at the time of the death of J.B. Hammond, would have taken the fee bypurchase, and the lessors of the Plaintiff were the only persons who could at that time entitle themselves as his heirs, there being no heirs of the paternal line then living.

MARTINandPINKNEY,Attorney General, contra.

The executory devises were void, because the contingency is the dying "without issue" indefinitely, and not limiting it to the case of dying withoutleavingissue alive at the time of his death. 1Fearne, 411. 2Fearne, 74. 144-5, 154. 1Sid. 148,Cotterson v. Right. 4Bac. Ab. 251. (Gwillim's Ed.) 2Fearne, 187, 358. 1P. Wms. 198,Nichols v. Hooper. 2Fearne, 245. 2Fearne, 206. 159. 154. 160. 2H. Bl. 358.

The limitations over being void, each took an absolute fee simple in the lands devised to him.

Upon the death ofJohn M`Connell, the estate descended, according to the provisions of the statute, to J.B. Hammond, who took, not by way of descent at common law, but by force of the statute. The preamble of the statute shows that the legislature meant to abolish the law of descents altogether.

The expression "on the part of the mother," means,from orthroughthe mother. Now this estate never came to J.B. Hammond from or through his mother. UnderPage 462the 3d branch of the statute, every estate which comes to an intestate, "and not derived from or through either "of hisancestors,"is supposed to have come bypurchase, and is to descend accordingly. This estate was not derived to the intestate, J.B. Hammond, from or through either of his ancestors, and therefore is to descendas ifit came to him by purchase. This construction makes the statute provide for all cases, whereas the construction insisted upon by the Plaintiffs, leaves he cases where the estate has descended or passed by force of the statute from brother to brother of the whole blood, or from son to father, or from husband to wife, or from wife to husband, wholly unprovided for; for these are not cases of purchase, nor of descent from ancestors.

If, however, the case of Hammond becasus omissus, then the estate may descend at common law through the line of his father.

One argument of the Plaintiff's counsel was built upon the absurdity of supposing that the statute directed an state to descendtothe mother, which had already descendedfromher. But the statute only directs it to descend to the mother, by way of illustration, so as to lead to the heir.

But if the limitations over were good, thenJohn M`Connelldied seized of an hereditament, a descendible interest, which went to his heir. Who was his heir? This same J.B. Hammond, so that either way the absolute estate in fee vested in him as a purchaser, and descended to his heirs. Again, the 3d section of the statute declares, "that no right in the inheritance shall "accrue to or vest in any person, unless such person is "in being, and capable in law to takeas heirat the time "of the intestate's death." Now these Plaintiffs were not "capable in law to take as heirs" to John M`Connell "at the time of his death." So that they are prohibited by the statute from taking the benefit of this executory devise, even if they could do so by the common law. Under the statuteJ. M`Connellhad, at his death, an inheritable interest in the land devised to J.B. Hammond, with limitation over. The statute makes no difference between vested and contingent interests; they all descend alike.Page 463

But there is a fatal objection to the Plaintiff's recovery in this case. The lessors of the Plaintiff are tenants in common with the Defendants; and one tenant in common cannot maintain ejectment against another, without proof ofactual ouster. Suchousteris not proved.

HARPER,in reply.

The Defendants have confessed lease, entry and ouster, and therefore, an actual ouster need not be proved.

The whole question is as to the meaning of the words "descend on the part of the mother."

There are only two modes of acquiring property, viz. by purchase and by descent; by the act of the party, or by act of law.

Descents are either lineal or collateral. Lineal is from the ancestor in the direct descending line. Collateral, is where you first ascend to the common ancestor, and then descend until you find the heir.

The construction of the statute adopted by the Defendants, allows only one kind of descent — lineal. The statute uses the word "descent"generally, comprehending both kinds. It saysfromorthrougheither of his ancestors."From"applies tolinealdescent; "through" tocollateral. If the statute includes collateral descents, there is an end of the question. If a man takes an estate by reason of his mother, he takesthroughhis mother. If a man takes as great grandson from I.S. theestatehas not passed through the father or grandfather, yet he takes through them. So in tracing a collateral descent, theestatedoes not go through the intermediate links, yet the heir claims through them.

As to the executory devises. The contingency was not too remote nor indefinite. It must be determined within 21 years. If the contingency had been simplydying without issue, there would be weight in the objection; but it is dyingunder age, and without issue; so that if he came of age,orhad issue, the estate became absolute. Here are not two conditions, but two facts making one condition.Page 464

The Plaintiffs do not takeas heirs, but aspurchasersunder the will by the description of their persons; if they answer the description of heirs at the time the contingency happens on which the executory devise takes effect, they must take. A possibility is not descendible. They take as purchasers. This is an answer also to the objection raised upon the 3d section of the statute. They do not claimas heirs, and therefore are not within the statute. The statute refers to their natural capacity to take. It alludes to the disability of alienage, attaint, c. and was intended to exclude posthumous children in cases of collateral descent.

Present. . . . MARSHALL,Ch. J. WASHINGTON, DUVALLandSTORY,J.

The Court having taken time since last term to advise,

STORY,J. (after stating the facts of the case,) delivered the opinion of the Court as follows:

It is true, that the general rule is, that an heir shall not take bydevise, when he may take the same estate in the land bydescent. 1Roll. Abr. 626.l. 30.Hob. 30. 1Salk. 242. 1Bl. Rep. 22.

But it is not denied that all the estates which each of the grandsons derived under the will, were estates by purchase. Admitting the executory devises over to be good, there could be no doubt as to any part of the estates; for the estates are of a quality different from what he parties would have taken in the course of descent.

It has been argued by the Plaintiff's counsel, upon the foregoing facts, that as to the whole estate immediately devised to John M`Connell, the lessors of the Plaintiff are entitled to recover, in the events which have happened, as his heirsexparte materna;and that as to the estate devised to him upon the contingency of the death of John B. Hammond under age and without issue, the lessors of the Plaintiff are entitled to recover as the heirs at law of John M`Connell, at the time when the contingency happened, although not heirs at the time of his death.Page 465

The decision of these points depends upon the true construction of the statute of descents of Maryland, and the application thereto of the principles of the common law.

This statute of descents, (1786, ch. 45,) after reciting that the law of descents which originated with the feudal system and military tenures, is contrary to justice, and ought to be abolished, enacts, "That if any person seized of an estate," c. "shall die intestate thereof, such lands," c. "shall descend to the kindred, male and female, of such person, in the following order, to wit: First, to the child or children, and their descendants, if any, equally, and if no child or descendant,andthe estate descended to the intestate on the part of the father, then to the father, and if no father living, then to the brothers and sisters of the intestate of the blood of the father, and their descendants equally, and if no brother or sister as aforesaid, or descendant from such brother or sister, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather and their descendants, in equal degree equally, and if no descendant of such grandfather, then to the father of such grandfather, and if none such living, then to the descendants of the father of such grandfather in equal degree, and so on, passing to the next lineal male paternal ancestor, and if none such, to his descendants in equal degree, without end: And if no paternal ancestor, or descendant from such ancestor, then to the mother of the intestate, and if no mother living, to her descendants in equal degree equally, and if no mother living, or descendants from such mother, then to the maternal ancestors and their descendants in the same manner as is above directed as to the paternal ancestors and their descendants.And if the estatedescended to the intestate on the part of the mother, and the intestate shall die without any child or descendant as aforesaid, then the estate shall go to the mother, and if no mother living, then to the brothers and sisters of the intestate of the blood of the mother, and their descendants in equal degree equally, and if no such brother or sister, or descendant of such brother or sister, then to the grandfather on the part of the mother, and if no such grandfather living, then to his descendants in equal degree equally, and if no such descendantPage 466of such grandfather, then to the father of such grandfather, and if none such living, then to his descendants in equal degree, and so on, passing to the next mail maternal ancestor, and if none such living, to his descendants in equal degree, and if no such maternal ancestor, or descendant from any maternal ancestor, then to the father of the intestate, and if no father living, to his descendants in equal degree equally, and if no father living, or descendant from the father, then to the paternal ancestors and their descendants, in the same manner as is above directed as to the maternal ancestors."

"And if the estate is or shall be vested in the intestate bypurchase, and not derived from or through either of hisancestors, and there be no child or descendant of such intestate, then the estate shall descend to the brothers and sisters of such intestate of the whole blood, and their descendants in equal degree equally, and if no brother or sister of the whole blood, or descendant from such brother or sister, then to the brothers and sisters of the half blood and their descendants, in equal degree equally, and if no brother or sister of the whole or half blood, or any descendant from such brother or sister, then to the father, and if no father living, then to the mother, and if no mother living, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather, in equal degree equally, and if no such grandfather, or any descendant from him, then to the grandfather on the part of the mother, and if no such grandfather, then to his descendants in equal degree equally, and so on without end, alternating the next male paternal ancestor and his descendants, and the next male maternal ancestor and his descendants; and giving preference to the paternal ancestor and his descendants; and if there be no descendants or kindred of the intestate as aforesaid to take the estate, then the same shall go to the husband or wife, as the case may be; and if the husband or wife be dead, then to his or her kindred in the like course as if such husband or wife had survived the intestate, and then had died entitled to the estate by purchase; and if the intestate has had more husbands or wives than one, and all shall die before such intestate, then the estate shall be equally divided among the kindred of the several husband or wives in equal degree equally."Page 467

Three classes of cases are here in terms provided for.

1. "Estates descended to the intestate on the part of "the father."

2. "Estates descended to the intestate on the part of "the mother."

3. "Estates vested in the intestate by purchase and "not derived from or through either of his ancestors."

The descent of an estate of purchase, from brother to brother, and from a son to a parent, where the brother or the parent is thepropositus, is not directly within the language of the statute. For, by the common law, a descent from brother to brother is held to be an immediate descent, and notfromorthroughthe parents; and the express provision of the statute of Maryland as to estates of purchase, necessarily involves the same conclusion; and the same may be declared of a descent from a child to a parent under the same statute.

It has been argued that the legislature intended to form a complete scheme of descents; and that the Court ought not to construe any case to be acasus omissus, if by any reasonable construction the words can be extended to embrace it. Both parties accede to this argument, but they apply it in a very different manner. The Plaintiffs contend that the descent from brother to brother was meant to be included in the first and second classes of descents, as the parents were the common link of connexion from and through whom the consanguinity was to be sought; that therefore the descent, in such case, isex-partepaterna, ormaterna, as the father or mother happens to be thecommune vinculum. And the Plaintiffs rely on the words"andnot derived from or through either of his ancestors,"in the clause embracing the third class, as distinctly showing that the legislature deemed every case ofdescentsto be completely within the preceding classes. On the other hand, the Defendants contend that whatever might be the legislative supposition, it is impossible to support the position, that a descent from brother to brother, or from child to parent, is a descentex-partepaternaormaterna,Page 468It is therefore, either acasus omissus, or the words "and not derivedfromorthrougheither of his ancestors" are to be considered not as qualifying and limiting the preceding words, but as either constituting a fourth class of cases, embracing all such as are not included in the three preceding classes; or as explaining estates by purchase to include all cases which are not paternal or maternal descents.

There are certainly intrinsic difficulties in admitting either of these constructions. If the legislature have proceeded on a mistake, it would be dangerous to declare that a Court of law were bound to enlarge the natural import of words in order to supply deficiencies occasioned by that mistake. It would be still more dangerous to admit that because the legislature have expressed an intention to form a scheme of descents, the Court were bound to bring every case within the specified classes. In the present case, equal violence would be done to the ordinary use of the terms employed by adopting the construction contended for by either party.

It is not a descentfromorthroughthe paternal or maternal line, in the sense of the common law. Nor is it apurchase.

The words "and not derived from or through either of hisancestors" are manifestly used as explanatory of the legal import of purchase. They are the exact words which the common law selects to distinguish the estate of a purchaser from the estate of an heir.

It is obvious that the legislature use the wordsdescentandpurchasein their technical and legal sense. They have also expressly provided for the case of a descent from brother to brother, passing by the parents; and of a parent from a child, when there are no brothers or sisters. These descents must therefore be direct and immediate; and the former case is so deemed also at the common law. It is therefore in our judgment perfectly clear, that a descent from brother to brother is not within the statute, and of course is acasus omissus, to be regulated by the common law.

To apply this to the present case. By the arrival of John M`Connell at the age of 21 years, all the estatesPage 469devised to himimmediatelybecame absolute estates in fee simple. On his death they passed to his half brother, John B. Hammond; and upon his death they passed to the heirs at law of the latter. The lessors of the Plaintiff have therefore made no sufficient title thereto.

Let us now consider the second question: whether the lessors of the Plaintiff have any title to the estates which were devised over to John M`Connell upon the contingency of John B. Hammond's dying under age and without issue.

It has been argued by the Defendant's counsel that this executory devise is void because the contingency is too remote.

It is the acknowledged rule, that an executory devise is not too remote if the contingency may happen within a life or lives in being, or 21 years and a few months after.

In the present case the contingency must have happened within 21 years at all events. For if John B. Hammond attained his full age the estate vested absolutely. To have defeated the estate over, it was sufficient either that he attained his full age, or died under age leaving issue. The authorities are conclusive on this point. 1Wils. 140, 270. 2Burr873. 1Saund. 174. 5Bos. and Pul. 38. 12East. 288. 2Str. 1175. There is no validity therefore in this objection.

In the next place it will be necessary to consider what is the nature of an executory devise as to its transmissibility to heirs, where the devisee dies before the happening of the contingency.

And it seems very clear that at common law, contingent remainders and executory devises are transmissible to the heirs of the party to whom they are limited, if he chance to die before the contingency happens.Pollexfen54. 1Rep. 99.Cas. Temp.Talb. 117. In such case, however, it does not vest absolutely in the first heir so as upon his death to carry it to his heir at law, who is not heir at law of the first devisee, but it devolves from heir to heir, and vests absolutely in him only who can make himself heir to the first devisee atPage 470the time when the contingency happens, and the executory devise falls into possession.

This rule is adopted in analogy to that rule of descent which requires that a person who claims a fee simple by descent from one who was first purchaser of the reversion or remainder expectant on a freehold estate, must make himself heir of such purchaser at the time when that reversion or remainder falls into possession.Co. Lit. 11.(b.)14,(a.)3Rep. 42. Nor does it vary the legal result that the person to whom the preceding estate is devised, happens to be the heir of the executory devisee, for though on the death of the latter the executory devise devolves upon him, yet it is not merged in the preceding estate, but expects the regular happening of the contingency and then vests absolutely in the then heir of the executory devisee. The case ofGoodright v. Searle, 2Wils. 29, is decisive on this point and indeed runs on all fours with the present.

But it is contended that the statute of descents of Maryland has changed the rule of the common law in this respect; and has made the death of the intestate the point of time from which the descent and heirship are in every case to be traced. The third section, which is relied on for this purpose, enacts as follows: "That "no right in the inheritance shall accrue to or vest in "any person, other than to children of the intestate "and their descendants, unless such person is in being, "and capable in law to take as heir at the time of the "intestate's death; but any child or descendant of the "intestate, born after the death of the intestate, shall "have the same right of inheritance as if born before "the death of the intestate."

In our judgment, the conclusion drawn from this clause is not correct. The object of the section is to limit the naturalcapacityto take, as heirs, to persons in being at the time of the death of the intestate, where the estate is then capable of vesting in possession; and not to make persons heirs, who, if in being at the time, would not, by the common law, answer the description of absolute heirs, or to give a vested absolute interest, where the common law had given only a possible contingent interest. The legislature had in view cases ofPage 471posthumous children, and cases where a descent to an heir had been defeated by the subsequent birth of a nearer heir. The argument of the Defendants, on this point, ought not, therefore, to prevail. No question has been made as to the land specifiedly devised to John B. Hammond in fee with a limitation over to his father in fee. As that limitation over was a good executory devise, and, in the events which happened, took effect, it is very clear that the lessors of the Plaintiff cannot claim title thereto. This is indeed conceded on all sides.

The result of this opinion accordingly is, that the lessors of the Plaintiff are entitled, as heirs of John M`Connell, at the happening of the contingency, on the death of John B. Hammond, under age and without issue, to one moiety of the Church-hill lands, and the residuary estates as tenants in common with the heirs of John B. Hammond; but they are not entitled to any portion of the lands of which John M`Connell had an absolute vested fee at the time of his decease.

As, however, a tenant in common cannot in general maintain an action of ejectment against his co-tenant, and there are no facts found in this case to prove an actual ouster and to take it out of the general rule, the consequence is that the judgment, in the opinion of a majority of the Court, must be affirmed with costs.