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limitation. The same doctrine was held in the case of Crickmere v. Paterson, Croke Eliz. 146. and Fox v. Carline, Croke Eliz. 454. and in Boraston's case. 3 Coke, 21. it was said that the inapt word paying, should be construed so as to serve as well either the purposes of a condition or a limitation. In the several cases cited, the general principle which we have contended for throughout is not abandoned, but is modified and adapted to a different state of things. In devises the testator is disposing of his whole interest, and the reversion, by virtue of which he has the benefit of a condition in a grant, goes to the devisee; and the devisee has the right of entry for the breach, and pro hac vice represents the testator as there would be a manisest absurdity in permitting the condition to descend to the heir. It seems that the privileges of the devisee are analogous to those of a grantor upon the breach of condition, for in the case of Wheeler v. Walker, 2 Conn. Rep. 196. in which case the devisee was permitted to enter for a breach of condition, it was conceded, that where land was devised to one he paying a certain sun to an individual, to whom the estate was to go over, on failure, he might claim performance of the trust, or enter at his election. It seeins when the estate is not limited over on breach of condition, that if the heir is not devisee he shall enter for the breach of condition, for in Curtis v. Wolverton, Cro. Jac. 56, de ise was by a person 10 his second son, upon condition to pay his four daughters £20 each at their full age. It was decided that the heir should enter for the breach of condition, for it should be expounded according to the common law when it was not necessary to expound it otherwise. In various cases cited in Mary Portington's case, 10 Coke 35, it was a question, what was the consequence of a breach of condition on which a particular estate by devise was rendered determinable with remainder over; and it was supposed by some that the remainder destroyed the condition ; by others that the entry of the heir for the breach destroyed the estate in remainder; and in other cases, see Fearne's Con. Rem. p. 193, 6th edition, it was said that as devises did not take effect by livery, therefore the entry was not to have the effect to destroy the estate as in conveyances at common law, where the entry was to countervail the livery, but that the heir entered to hold the particular estate, until the remainder took effect. This was in cases where the words used to determine the particular estate operated by way of condition, whether properly words of condition or not. The latter opinion seems conformable to the principles which we have stated as applicable to devises ; but Mr. Fearne says, that the question itself has long ceased, because it is now decided that the subsequent estate shall always rest on the breach of the condition. See Fonnerau v. Fonnerau, ubi supra. Jones v. Westcomb, 1 Eq. Ca. Abr. 245. but we conceive that there are certain cases as that mentioned in Plowden, p. 413. where the subsequent estate is not to vest until the regular expiration of the particular estate ; as when an estate is devised to A for ten years, on condition that the devisee pay to the heir at law a certain sum, remainder over. After the ten years, it is manifest that it is the devisor's intent that the heir shall enter for the breach of condition, and hold until the expiration of the ten years. To conclude, it appears that conditions are construed as limitations, for the sake of giving effect to the intention of the testator; but that conditions which are strictly speaking such, receive the same construction as in conveyances at common law. They do not determine the estate but at the election of the party for whose benefit they are intended. Conditions have the same effect in conveyances to uses and trusts as at common law, where such is the intent. A condition may be annexed to an estate by way of use, as when a seoffment is to A on condition of payment of a certain sum at a time specified to the feoffor. Shephard's Touchstone, p. 126. The question, however, seldom arises in conveyances of this character, from the peculiar nature of use and the rules which have been adopted by courts of equity, by virtue of clauses of revocation and shifting uses and trusts, give within certain restrictions, the feoffors or the feoffees to uses an entire control, (analogous to that of the right of entry, on condition broken,) over the estates of cestui qui use.
The Statute of 32 Henry 8. Cap. 34. varies the common law doctrine materially. By this statute the grantee of the reversion may enter for all breaches of condition inherent, and not merely collateral, in the same manner as the grantor before the assignment, might have done.
The Revised Statutes of the State of New York, Part 2, Chap. I. Sect. 27. contain the following provisions: “A remainder may be limited on a contingency, which in case it should happen will operate to abridge or determine the precedent estate, and every such remainder shall be construed a conditional limitation, and shall have the same effect as such a limitation will have by law.” It becomes an important inquiry what is the effect and operation of this statute. We consider it as merely declaratory of the common law, wbich undoubtedly is (Preston on Estates, p. 54.) that a remainder, whether termed such or a contingent limitation, or improperly as in this statute a conditional limitation, shall take effect on the happening of a contingent event, which puts an end to the precedent estate; as where a gift is to A till his return from Rome; and from and after his return to B. Chancellor Kent, however, in his Commentaries, Vol. 4. p. 128. in note, 2d edition, thinks that the object of this provision was to make valid remainders, as conditional limitations, after a particular estate determinable upon condition. We conceive such could not have been the intention of the framers of this statute, because it would be repugnant to the intention of the parties. Conditions, if we are right in the view which we have taken of them have a fixed legal construction. If a grant is to A for life, provided he go to Rome in two years; and that otherwise the estate shall cease ; the construction is the same as if the estate had been granted to A on the like condition, and that otherwise the estate should cease or have continuance at the option of the grantor. An atteinpt to give efficacy to a conditional limitation after such a precedent estate would be absurd.
This construction would render valid remainders after a condition which had been discharged, waived or relieved by courts, as in the above case from 2 Vern. and would enforce the destruction of the particular estate, by a compulsive forfeiture, even against the will of the parties. We cannot believe that such was the intention of the revisers of the statutes. It could not have been their design to change the intention of the parties by making the estate void which by their contract is only voidable, and if it was the intention to cause the subsequent estate to vest when the grantor should
elect to enter, we apprehend that so remarkable a provision would have been couched in terms of less ambiguity. In conclusion, we will observe, that if such was the design ; the general object to give effect to estates of freehold commencing in futuro would have been more appropriately effected by continuing conveyances to use, which create various and important modifications of interest in real property, unknown to the conveyances at common law, and which in the State of New York have by the late revision been abolished.
S. F. D.
ART. V.-THE AMERICAN JURIST AND LAW MAGAZINE,
NO XIX. – FOR JULY, 1833. The editors of this very clever magazine, need be under no apprehension that we are about to commit them to the tender mercies of a reviewer's scalping knife. We have adopted the preceding title in order to introduce an inquiry into the justice and propriety of certain angry strictures which appeared in the July number, on the Supreme Court of Pennsylvania and the reports of its decisions. We can imagine no other cause for the writers anger, than the fact of which he complains—that the pretensions of a very able lawyer, whom by the way he has presented in the attitude of a candidate for the vacant chiefship,' were overlooked, though pressed on the executive by the bar of Philadelphia almost to a man. Will the court or the country never be forgiven for that ? The complaint which the reviewer makes against the present incumbent, is not that he was a rival candidate — the fact is notorious that he was not - but that he neglected to reject the appointment when tendered to him, in order, like the judges who were associated with Lord Mansfield, to enjoy the advantages of shining by a reflected light. By the way, the reviewer seems not to be at all aware, that the pretensions even of Lord Mansfield, were as seriously questioned, in his day, as are those of the judges who at present compose the Supreme Court of Pennsylvania, and that an inquiry was moved in the House of Commons — we speak but from memory-into bis conduct and fitness. Yet the reputation of that eminent judge
survives the enmities of the times. Allowing bim, however, a clear title to his fame, it is preposterous to say the men who were joined with him, borrowed a particle of their fane from his superiority, or that the meanest of them were inferior to him in a knowledge of the principles and maxims of the common law which alone was the law of his court. That he was inferior to all of them in a just estimate of the sanctity of precedent, and the danger to be apprehended from innovation, was manifested by the disorders which bis disregard of the legal usages of the kingdom introduced into the law — disorders which continued to agitate the profession till the law was restored to its former footing. He was, however, a genius, and the confusion which he made in the established parts of the law, was perhaps compensated by the order which he introduced into other parts of it, which were then in their infancy. He has justly been called the Justinian of the Commercial Code.
With the character and motives of the reviewer we have to do no further than as they may influence the estimate to be made of the justice of two accusations; and had these accusations been confined to the limits of the State where all the parties concerned are known, instead of having been put forth in a journal whose respectability otherwise might give them currency abroad, the public would not have been troubled with the present notice. Even were they well founded, it is to say the least, in bad taste for bim to expose the nakedness of the courts of his own State to the gaze of strangers, in order to gratify a querulous disposition or avenge himself of those whom he is pleased to consider his enemies. But we deny them to be well founded, and for this we put ourselves on the proof that he has himself adduced. The charges are principally a disregard of the statute law — disregard of precedent — and disregard of their own opinions and the opinions of each other; to sustain which, particular decisions, and passages in the opinions of the judges, have been culled from the reports, and it is to be presumed that the strongest and best for the purpose were selected.
In support of the first, the case of Joseph Walker's estate, 3 Rawle, 243 is adduced — and it is the only one adduced as an example of the palpable violation of a statute; and as