Mr Justice Thompson
delivered the opinion of the court.
This caáe.comes up from the circuit court for the southern district of New York, upon several points, oil a division of opinion certified by that court. In the examination of these points^ I shall pursue the order in which they have been discussed at the bar.
I. "Whether the devise in the will of Robert Richard Randall, of the lands in question, is a valid devise, so as to divest the heir at law of his legal estate, or to affect the lands in his hands with a trust.".
This question arises upon the residuary clause in the will} in which the testator declares: that as to and concerning all. the rest, residue, and remainder of my estate, both real and personal, I,¡give, devise and bequeath the same unto the chancellor of the state of New York, the mayor and recorder /of'the city of New York, &c. (naming several other persons by their official description only) to have and to hold all and singular the' said rest, residue and remainder of my said real and personal estate, unto them, and their respective successors in office, for ever, to, for amd upon, the uses, trusts, intents and. purposes, and subject to the directions and appointments hereinafter mentioned and declared concerning lh,e same, that is to say : out of the rents, issues and profits of the said rest, residue and remainder of my said real and--personal, estate, to erect and build upon some eligible part of the land upon, which I now reside, an .asylum, or marine hospital, to be called " the Sailor's Snug Harbour," for the'purpose of supporting aged, decrepid, and worn-out sailors, &c. And after giving directions as to the manage-me'ht of the fund by his trustees, aii'd declaring that it is his intention, that the-institution erected by his will should be .perpetual, and that the above mentioned officers for the time being} and their suogessors, should for ever continue to be the governors thereof, and have-the superintendence of the sama, lie then add¡s,. " and it is my will and desire, that if it cannot legally be done, according to my. above intention, 'by them, without an aet of the legislature, it is my will and desire, that they will as soon as possible apply for an act of the legislature to incorporate them for the.purposes above specified. And I do hereby declare it to be my will and intention, that the said rest, residue and remainder of my said real and personal estate, should be at all events applied for the uses and purposes above set forth,and that it is my desire all courts of law and equity will so construe this my sard will as to have the said estate appropriated to the above uses, and that the same should in no. case, for want of legal, form or otherwise, be so construed as that my relations, or any other persons, should heir, possess or enjoy my .property, except in the manner, and for the uses herein above specified."
The legislature of the state of .New York, within a few years after the death of the testator, on the application of the trustees, who are also named as executors in the will, passed a law, constituting the persons holding the offices designated in the will, and their successors in office, a body corporate, by the name and style of " the Trustees of the Sailor's Snug Harbour in the city of New York," anddeclaring that they and their successors, by the name and , style aforesaid, shall be capable in law of holding and disposing of the said real and personal estate, devised and bequeathed as aforesaid, according to the intentions of the aforesaid will. And that the same is hereby declared to be vested in them and their successors in office for the .purposes therein expressed.
If, after such a plain and unequivocal declaration of the testator with respect to the disposition, of his property, so cautiously guarding against, and providing for every supposed difficulty that might arise, any technical objection shall now be interposed to defeat his purpose, it will form an exception to what we find so universally laid down in all our books, as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. But no such difficulty in my judgment is here presented. If the intention of the testator cannot be Parried into effect, precisely in-the mode at first contemplated by him, consistently with the rules of law, he has provided an alternatiye, which, with the aid of the act of the legislature, must remove all difficulty.
The case of the Baptist Association vs. Hart's executors, 4 Wheat. 27, is supposed to have a strong bearing upon the present. This is however distinguishable in many important particulars from that. The bequest there was, " to the Baptist Association that for ordinary meets at Philadelphia." This association not being incorporated, was considered incapable of taking the trust as a society. It whs a devise in presentí, to take effect immediately on the death of the testator, and the individuals composing it were numerous and uncertain, and there was no executory bequest over, to the association if it should become incorporated. The court therefore considered the bequest gone for uncertainty as to the devisees, and the property vested in the next of kin, or was disposed of by some other provision in the will. If the testator in that case had bequeathed the property to the Baptist Association on' its becoming thereafter, and within a reasonable time incorporated, could there be a doubt but .that 'the subsequent incorporation would have conferred on the association the capacity of taking and managing the fund.
In the case, now before the eourt, there is no uncertainty with respect to the individuals who were to execute the trust. The designation of the trustees by their official character, is equivalent to naming them by their proper names. Each office referred to was filled by a single individual, and the naming of them by their official distinction was a mere designado personas. They are appointed executors by the same description,and no objection could lie to their qualifying and acting as such. The trust was not to be executed by them in their official characters, but in their private and individual capacities. But admitting that if the devise in the present case had been to the officers named in the will and their successors, to execute the trust, and no other contingent provision made, it would fall within the case of the Baptist Association vs. Hart's executors.
The subsequent provisions in the will must remove all difficulty on this ground. If the first mode pointed out by the testator for carrying into execution his will and inten tion, with respect to this fund, cannot legally take effect, it must be rejected, and the will stand as if it had never been inserted ; and the devise would then be to a corporation, to be created by the legislature, composed of the several officers designated in the will as trustees, to take the estate and. execute the trust.
And what objection can there be to this as a valid executory devise, which is such a disposition of lands, that thereby no estate vests at the death of the devisor, but only on some future contingency 1 By an executory devise, a freehold may be made to commence in futuro, and needs no particular estates to support it. The future estate is to arise upon some specified contingency, and the fee simple is left to-'descend to the heir at law until such contingency happens. A common case put in the books to illustrate the rule is : if one devises land to a feme sole and her heirs upon her marriage. This would be a freehold commencing in futuro, without any particular estate to support it, and would be void in a deed, though good by executory devise, 2 Black. Com. 175. This contingency must happen within a reasonable time, and the utmost length of time the law air. lows for this is, that of a life or lives in being and twenty-one years afterwards. The devise in this case does not purport to be a present devise to a corporation not in being, but a devise to take effect in futuro upon the corporation being created. The contingency was not too remote. The incorporation was to be procured, according to the directions in •the will, as soon as possible, on .its being ascertained that the trust- could not legally be carried into effect in the mode first designated by the testator. It is a devise to take effect upon condition that the legislature should pass a law incorporating the trustees named in the will. Every executory devise is upon some condition or contingency, and takes effecConly upon the happening of such contingency or the performance of such condition. As in the case put of a devise to a feme sole upon her marriage. The devise depends on the condition of her afterwards marrying.
The doctrine sanctioned by the court in Porter's case, 1 Coke's Rep. 24, admits the validity of a devise to a future in corporation. In answer to the argument that the devise of a charitable use was void under the statute 23 Hen. 8, it was said, that admitting this, yet the condition was not void in that case. For the testator devised that his wife shall have his lands and tenements, upon condition that she, by the advice of learned counsel, in convenient time after his death, shall assure all his lands and tenements for the maintenance and continuance of the said free school, and alms men and alms women for ever. So that although the said uses were prohibited by the statute, yet. the testator hath devised, that counsel learned'should advise, how the said lands and tenements should be assured, for the uses aforesaid, and that may be advised lawfully: viz. To make a corporation of them by the king's letters patent, and afterwards, by license, to assure the lands and tenements to them. So if a man devise that his executors shall, by the advice of learred counsel, convey his lands to any corporation, spiritual or temporal, this is not against any act of parliament, because it may lawfully be done by license, &c. and so doubtless'was the intent of the testator, for he would have the lands assured for the maintenance of the free school, and poor, for ever, which cannot be done without'incorporation and license, as aforesaid; so the condition is not against law: quod fuit concessum per curiam.
The devise in that case could det take effect without the incorporation. This was the condition upon which its validity depénded. And the incorporation was to be procured after th.e death of the testator. The devise then, as also in the case now before the court, does not purport to be a present devise, but to take effect upon some future event. And this distinguishes the present case from that of the Baptist Association vs. Hart's executors, in another important circumstance. There it was a present devise, here it is a future devise. A devise to the first son of A. he having no son at that time, is void; because it is by way of a present devise, and the devisee is not in esse. But a devise to the first son of A. when he shall have one, is good; for that is only a future devise, and valid as an executory devise. 1 Salk. 226, 229.
The'cases in the books are very strong to show,'that for the purpose of carrying into effect.the intention of the tes tatór, any mode pointed out by him will be sanctioned, if consistent with the rules of law, although some may fail. In Thellusson vs. Woodford, 4 Ves. Jun. 325, Buller, Justice, sitting with the lord chancellor, refers to, and adopts with approbation, the rule laid down by lord Talbot in Hopkins vs. Hopkins: that in such cases, (on wills,) the method of the courts is not to set aside the intent because it cannot take effect so fully as the testator desired, but to let it work as far as it can. Most executory devises, he says, are without any freehold to support them; the number of contingencies is not material, if they are to happen within the limits allowed by law. That it was never held that executory devises are to be governed by the rules of law, as to common law conveyances. The only question is, whether the.contingencies are to happen within a reasonable time or not. The master of the rolls in that case says, (p. 329,) he knows of only one general rule of construction, equally for courts of equity and courts of law, applicable to willsi The intention of the testator is to be sought for, and the will carried- into effect, provided it can be done consistent with thq rules of law. And he adds another rule, which has become an established rule of construction. That if the court can see a general intention, consistent with the rules of law, but the testator has attempted- to carry it into effect in a way that is not permitted, the court is to give effect to the general intention, though the particular mode shall fail. 1 Peere Wms, 332. 2 Brown's Ch. 51.
The language of Lord Mansfield in the case of Chapman vs. Brown, 3 Burr. 1634, is very strong to show how far courts will' go to carry into effect the intention of the testator. To attain the intent, he says, words of limitation shall operate as words of purchase; implication shall supply verbal omissions. The letter shall give way, every inaccuracy of-grammar, every impropriety of terms, shall be corrected by the general meaning, if that be clear and manifest.
In Bartlet vs. King, 12 Mass. Rep. 543, the supreme judicial court of Massachusetts adopt the rule laid down in Thellusson vs. Woodford, that the court is bound to carry the will into effect if. they can see a general intention con sistent with the rules of law, even if the particular mode or manner pointed out by the testator is illegal. And the court refer with approbation to what is laid down by Powell in his Treatise on Devises, 421', that a devise is never construed .absolutely void for uncertainty, but from necessity: if it be possible to reduce it to certainty it is good. . So also in Finlay vs. Riddle, 3 Bihn. Rep. 162, in the supreme court of Pennsylvania,"the rule is recognized, that the general intent must be carried into effect, even if it is at the expense of the particular intent.
A rule so reasonable and just in itself, and in such perfect harmony with the whole doctrine of the law in relation to the construction of wills, cannot but receive the approbation and sanction of all courts of justice; and a stronger case calling for the application of that rule can scarcely be imagined than the one now before the court. The general intent of the testator, that this fund should be applied to the maintenance and support of aged, decrepid and worn out sailors, cannot be mistaken. And he seems to have anticipated that some difficulty might arise, about its being legally done in the particular mode pointed out by him. And to guard against a failure of his purpose on that account, he directs application to be. made to the legislature for an incorporation, to take and execute the trust according to his will; declaring his will and intention to be, that his estate should at all events be' applied to the uses and purposes aforesaid; and desiring all courts of law and equity.so to construe.his will, as to have his estate applied to such uses. And fo make it still more secure,' if possible, he finally directs that his will should in no case, for want of legal form or otherwise, be so construed, as that his relations, or any other persons, should heir, possess or enjoy his property, except in the manner and for the uses specified in his' will..
The will looks theréfore to three alternatives:
1. That the officers named in the will as trustees, should take thé estate and execute the trust.
2. If that could not iegíMy be done, then ha directs his* trustees to procure an act of incorporation, and vests the .estate in it fpr the purpose of executing the trust.
3. If both these should fail, his heirs, or whosoever should possess and enjoy the property, are charged with the trust:'
" That this trust is fastened upon the land cannot admit of a doubt. Wherever a person by will gives property, and points put the object, the property, and the way in which it. shall go, á trust is created; unless he shows clearly, that bis desire expressed is to be controlled by the trustee, and that he shall have an option to defeat it. 2 Ves. Jun. 335.
It has been urged by the demandant's counsel, that these lands cannot be charged with the trust in the hands of the heir, because the will directs that they, shall, not be possessed or enjoyed, except in the rhanner and for the uses specified. That the manner and the use must concur in order to charge the trust on the land. But I apprehend this is a mistaken application of the term manner,as here used. It does not refer to the persons who were to'execute the trust. But to the mode or manner in which it was to be carried into effect, viz. by erecting upon some eligible part of the land an asylum, or marine hospital, to be called the Sailor's Snug Harbour. And, the uses were, "for the purpose of maintaining and supporting aged, decrepid arid worn out. sailors." Whoever therefore takes the land, takes it charged with these uses or trusts, which are to be executed in the manner above mentioned. And if so,-there can be no objection to the act of incorporation, and the vesting the title therein declared. It does not interfere with any vested rights in the heir.. He- has no beneficial interest in the land. And the law only transfers the execution of the trust from him to the corporation, and thereby carrying into effect the clear and manifest intention of the testator. But being of opinion that the legal estate passed under the will, I have not deemed it necessary to pursue the question of trust, and have simply referred to it, as being embraced in the point submitted to this court.
If this is to be considered a devise to a corporation, it will not come within the prohibitions in the statute of wills, 1 Revised Laws, 3G4. For this act of incorporation is, pro tanto, a repeal of that statute.
Taking this devise therefore in either of the points of view in whicn it has been considered, the answer to the question put must be, that it is valid, so as to divest the heir of his legal estate, or at all events, to affect the lands in his'hands with the trust'declared in the will.
If this view of the devise in the will of Robert Richard Randall be correct, it puts an end to the right and claim of the demandant, and might render'it unnecessary to examine the other points which have been certified to this court, had the questions come up on a. special verdict or bill of exceptions. But coming up on a certificate of a division of opinion, it has been the usual course of this court to express an opinion upon all the points..
It is not however deemed necessary to go into a very extended examination of the other questions, as the opinion of the court upon the one already considered, is conclusive against the right of recovery in this action.
II. The second general question is, whether John Inglis, the demandant, was. or-was not capable of taking lands in the state of New York by descent.
This question is presented under several aspects, for the purpose, of meeting what at present from the evidence appears a little uncertain, as to the time of the birth of John Inglis. This question as here presented, does not call upon the court for an opinion upon the broad doctrine of allegiance and the right of expatriation, under a settled and unchanged state of society and government. But to decide what are the rights of the individuals composing that society, and living under the protection of tliat government, when a revolution occurs; a dismemberment takes place; new governments are formed; and new relations between the government and the people are esiáblished.
If John Inglis, according to tlfe first supposition under this point, was born before' the 4th of July' 1776, he is an alien; unless his remaining in New York during the war changed his character and made him an American citizen.' It is universally admitted, both in the English courts and in those of our own country, that all persons born within.the colonies of North America, whilst subject to the crown of Great Britain, were natural born British subjects, and it must necessarily follow, that that character was changed by the separation of the colonies from the parent state, and the acknowledgement Of their independence.
The rule as to the point of time at which the American unté nati ceased to be British subjects, differs in this country and in England, as established by the courts of justice in the respective countries. The English rule is to take the date of the treaty of peace in 1783. Our rule is to take the daté of the declaration of independence. And in the application of the rule to different cases, some difference in opinion may arise. The settled doctrine of this country is, that a person born here, who left the country before the declaration of independence, and never returned here, became thereby an alien, and incapable of taking lands subsequently by descent in this country. The right to inherit depends upon the existing state of allegiance at the time of descent cast. The descent cast in this case being long after the treaty of peace, the difficulty which has arisen in some cases, where ]he. title was acquired between the declaration of independence and the •treaty, of peace, does not arise here-. Prima facie, and as a general rule; the character in which the American ante nati are to be considered, will depend upon, and be determined by the situation of the party and the élection made at the date of the declaration of independence, according to our rule; or the treaty of peace according to the British rule. But this general rule must necessarily be controlled by special circumstances attending particular cases. ' And if the right of election is at all admitted, it must be determined, in most cases, by what took place during.the struggle, and between the declaration of independence and the treaty of peace. To say that the election must have been made before, or immediately at the declaration of independence, would render the right nugatory.
The doctrine of perpetual allegiance'is not applied by the British courts to the American ante nati. This is fully shown by the late case of Doe vs. Acklam, 2 Barn. & Cresw. 779. Chief Justice Abbott says, " James Ludlow, the father of Frances May, the lessor of the plaintiff, was undoubtedly born a subject of Croat Britain. He was born in a cart of America which was at the time of his birth a British colony, and parcel of the dominions of the crown of Great Britain; but upon the fact found, we are of opinion that he was not a subject of the crown of Great Britain at the time of the birth of his daughter. She was born after the independence of the colonies was recognised by the crown of Great Britain, after the colonies had become United States, and their inhabitants generally citizens of those states. And her father by his continued residence in those states manifestly became a citizen of them." He considered the treaty of peace as a release, from their allegiance, of all British subjects who remained there. A declaration, says he, that a state shall be free, sovereign and independent, is a declaration, that the people composing the state shall no longer be considered as subjects of the sovereign by whom such a declaration is. made. And this court, in the case of Blight's Lessee vs. Rochester, 7 Wheat. 544, adopted the same rule with respect to the right of British subjects here. That although born before the revolution, they are equally incapable with those born subsequent to that event of inheriting or transmitting the inheritance of lands in this country. The British doctrine therefore is, that the American ante nati, by remaining in America after the treaty of peace, lost their character of British subjects. And our doctrine is, that by withdrawing from this country, and adhering to the British government they lost, or, perhaps more properly speaking, never acquired the character of American citizens.
This right of election must necessarily exist, in all revolutions like ours, and is. so well established by adjudged cases, that it is entirely unnecessary to enter into an examination of the authorities. The only difficulty that can arise is, to determine the time when the election should have been made. Vattel, B. 1, ch. 3, sec. 33. 1 Dall. 58. 2 Dall. 234. 20 Johns. 332. 2 Mass. 179, 236, 244, note. 2 Pickering, 394. 2 Kent's Com. 49.
I am not aware of anylcase in the American courts where this right of election has been denied, except that of Ainsley vs. Martin, 9 Mass; 454. Chief Justice Parsons does there seem to recognise, and apply the doctrine of perpetual alie giance, in its fullest extent. He then declares that a person born in Massachusetts, and who, before the 4th of July 1776, withdrew into the British dominions, and never since returned into the United States, was not an alien, that his allegiance to the king'of Great-Britain was founded on his birth, within his dominions, and that that allegiance accrued to the commonwealth of Massachusetts, as his lawful successor. But he adds what may take the present case even out of his rule: " It not being'alleged," says he, " that the demandant has been expatriated, by virtue of any statute or a.ny judgment of law." But the doctrine. laid down in this caséis certainly not that which prevailed in the supreme judicial court of Massachusetts, both before and since that decision, as will appear by the cases above referred to of Gardner vs Ward, and Kilham vs. Ward, 2 Mass, and of George Phipps, 2 Pickering, 394, note.
John Inglis, if born before the declaration of independence, must have been very young at that time, and incapable ofniaking.an election for himself; but he must, after such a lapse of time, be taken to have adopted and ratified the choice made for him by his father, and still to retain the character of a British subject, and never Ip have become an American citizen, if his father was so to be considered. He was taken 'from this country by his father before the treaty of peace, and has continued ever since to reside within the. British dominions without signifying any dissent to the election made for him; and this ratification, as to all his rights, must relate back, and have the' same effect and operation, as ifvthe election had been made by himself at that time.
How then is his father Charles' Inglis to be considered "? Was he an American citizen ? He was here at the tipie of the declaration of independence, and prima facie may be deemed to have become thereby an American citizen. But this prima facie presumption may be' rebutted; otherwise there is no force or meaning in the right of election. It surely cannot be said, that nothing short of actually removing from the country before the declaration of independence will be received as evidence of the election ; and every act -thatuould:be~dope to signify the choice that had been made, except actually withdrawing from the country, was done by Charles Inglis. He resided in the city of New.York at the declaration of independence, and remained there'until he removed to England, a short time before the evacuátion of the city by the British in November 1783; New York during the whole of that time, except from July to September 1776, being in possession, and under the government and control of the British, he taking a. part'and acting with the British ; and was, according to the strong language of the witness, as much a royalist as he himself was, and that no man could be more so. Was Charles Inglis under these circumstances to be considered an American citizen? If.being here at the declaration of independence necessarily made him such, under all possible circumstances he was an American citizen. But I apprehend this would be carrying the'rule to ap extent that never can be sanctioned in a court of justice, and would certainly be going beyond any case as yet decided.
The facts disclosed in this case, then, lead irresistibly to the conclusion that it was the fixed determination of Charles Inglis the father, at the declaration of independence, to adhere to his native allegiance. And John Inglis the son must be deemed to have followed the condition of his father, and the character of a British subject attached to and-fastened on him also, which he has never attempted to throw off by any act disaffirming the choice made for him by his father.
The case of M'Ilvaine vs. Coxe's Lessee, 4 Cranch, 211, which has been relied upon, will not reach this case. The court in .that case recognized fully the right of election, but considered that Mr Coxe had lost that right by remaining in the state of New Jersey, not only after she had declared herself a sovereign state, but after she had passed laws by which she pronounced him to be a member of, and in allegiance to the new government; that by the act of the 4th of. October 1776 he became a member of the new society, entitled to the protection of its government. Hé continued to reside in New Jersey after the passage of this law, and until some time in the year 1777, thereby making his election to become a member of the new government; and. the doctrine of aller giaiiee became applicable to his case, which rests on the ground of a mutual compact between the government and the citizen or subject, which it is said cannot -be dissolved by either party without the concurrence of the .other. It is the tie which binds the governed to their gpvernment, in return for the protection which the government affoj-ds them. New Jersey, in October 1776, was in a condition to extend that protection, which Coxe tacitly accepted by remaining there. But that was not the situation of the city of New York; it was in the possession of the British. The government of the state of New York did not extend to it in point of fact.
The resolutions of the convention of New York of the 16th of July 1776, have been relied upon as asserting a claim to the allegiance of all. persons residing within the state. But it may well be doubted whether these resolutions reached the case of Charles Inglis. The language is, " that all persons. abiding- within the state of New York, and deriving protection from the laws of the same, owe. allegiance to the said laws, and are members of the state." Charles Inglis was. not, within the reasonable interpretation of this resolution, abiding in the - state and owing protection to the laws of the same. He was 'ithin the British lines, and undér the protection of the British army, manifesting a full determination'to continue a British subject. But if it should be ad-' mitted that the state of New York had a right to claim the allegiance of Charles Inglis, and did assert that eight by the resolution, referred to, still the case of M'ilvaine vs. Coxe does not.apply.
It cannot, I-presume, be denied, but that allegiance may be dissolved by the- mutual consent of the government and its citizens or subjects.. The government may release the governed from their allegiance. This is even the British doctrine in .the case of Doe vs. Acklam, before referred to. The act of attainder passed by the legislature of the state of New Y^rk, by which Charles Inglis.is declared to be for ever, banished from the state, and adjudged guilty of treason if ever afterwards,he should be-found there,-must he considered a release of his allegiánée, if ever he owed any to the-state. 1 Greenleaf's Ed. L. N. Y. 26.
From the view of the general question referred to in this court, the answers to the specific inquiries will, in my judgment, be as follows.
1. If the demandant was bom before the 4th of July 1776, he was born a British subject; and no subsequent act on his part, or on the part of the state of, New York, has occurred to change that cháracter; he of course continued an alien, and disabled from taking the land in question by inheritance.
2. If born after the. 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a réasonable time after the termination of his minority; which never having been done, he remains a British subject, and disabled from inheriting the land in question.
3. If born after the British took possession of New York, and before the evacuation on the 25th of November 1783, he was, under the circumstances .stated in the case, born a British subject, under the protection of the British government, and not under that of the state of- New York, and of course owing no allegiance to the state of New York. And even if the resolutions of the convention of the 16th of July 1776 should be considered as asserting a rightful claim to the allegiance of the demandant and his father, this claim was revoked by the act of 1779, and would be deemed a release and discharge of such allegiance, on the part of the state, and which Saving been impliedly assented to, by the demandant, by withdrawing with his father 'from the state of New York to the British dominions, and remaining there ever since, worked a voluntary dissolution, by the assent of the government and the demandant, of whatever allegiance antecedently existed, and the demandant at the time of the descent cast was an alien, and incapable of taking lands in New Fork by inheritance.
4t When, Charles Inglis, the father, and John Inglis, his son, withdrew from New York to the British dominions, they had the right of electing to become and remain British subjects. And if the grand assize shall find, that in pointof fact they had made such election, then the demandant at the time of the descent cast was an alien, and could not inherit real estate in New York.
III.. The next question is, whether the will of Catherine Brewer-ton was sufficient to pass her right-and interest in the premises in question, so as to defeat the demandant in any respect; the premises being at the daté of the will, and ever since, held adversely by the tenants in the suit.
Mrs Brewerton-was the sister of Robert Richard Randall, and if the devise in his will is void and cannot take effect, she, as one of his heirs at law, would be entitled to a moiety of thé lands in question. She died in the year 1815, having shortly before made her last will and testament, duly'exeeuted and attested to pass -real estatq. By this will she devised and bequeathed all her real and personal estate, whatsoévér and wheresoever, in law and equity, in. possession, reversion, remainder, or expectancy (except some specific legacies) untp-. her executors, - upon certain trusts therein mentioned. If this will was therefore operative, so as to pass her right to her brother's estate,, it will defeat the demandant's right to recover, asfo one moiety of the premises in question.
The objection taken to the operation of this, will is,, that the premises were at the date thereof,, and ever since'have been held adversely by the tenants in. the suit.-
Thé validity of this objection must depend upon the construction of the statute of wills in the state of New York. By that statute (1 N. Y. Rev. Laws, 364, sec. 1.) it- is declared,- that , any person having any estate of inheritance, either in severalty, in coparcenary, or in common, in any lands, tenements', or hereditaments, may.at his own free will and pleasure, give or devise the same, or any of them; or any rent or profit out of the same or out of any part thereof, to.any person pr persons, (except bodies public and corporate) by his last will and testament, or any other act by him lawfully executed.
This'being a question depending upon- the construction of. a state statute, .with respect to the title to real property, it has been the uijiform course of this court, to apply the same rule that we find applied by the. state tribunals in like cases. 1 Peters, 371. This statute upon the point now under consideration has received a construction by the supreme court of the state pf New York, in the case of Jackson vs. Varick, 7 Cowen, 238. The question arose tipon the validity of a devise in the will of Medcef Eden, the younger. The objection was, that .at the time of the devise, and of the death of the testator, the premises in question were., and had been for several years before in the adverse possession of the defendant, and that he and those under whom he claimed entered originally, without the consent- of the devisor or any one from whom he claimed. The court say, the facts present the question whether the owner in fee can devise land, which, at the time of the devise and his death, is in the adverse possession of another. That is, whether a person having a right of entry in fee simple, shall be said to have an estate of inheritance in lands, tenements or hereditaments in the language of Pur statute of wills.
It is unnecessary to pursue the course of reasoning which conducted the. court -to the. conclusión to which it came. The result of the opinion was,, that under the comprehensive words used in the act, a right of entry, as well as an estate in the actual seisin and possession of the devisor, was devi'sáble; and that an estate that would descend to the heir is transmissible equally by will. The judge who delivered the opinión adverted to some cases that had arisen in the same court', wherein a'contrary doctrine would seem to have been recognized, but-came to the conclusion, that no decision had been made upon the point.
In the case of. Wilkes vs. Lion, 2 Cowen, 355, decided in the court óf errors, in New, York; one of the points relied upon by the counsel for the plaintiff in error, was, that this same will of Medcef Eden, the younger, was .inoperative as to the premises then in question; they being lands of which he was not seised at the time.of his death. I do not find that any direct opinion was given upon this point; but the objection must have been overruled, or the court could not have pome to.thé conclusion it did. .
Jt is said, however, by the demandant's counsel} that these cases do not apply to the oríé now before the court ; but' only such estate as. would descend to the heir of the devisor, and that the premises in question here would not descend to the heirs of Mrs Brewerton for want of actual seisin. According to the rule laid down in Watkins on Descents, 23,-that where the ancestor takés by purchase, he may be capable of transmitting-the property so taken to his own heirs; without any actual possession in himself; but if the ancestor himself takes by descent, it is absolutely necessary, in, order to make him the stock or terminus, frorn; whom the descent should how run, and so enable him to transmit such fiereditáments to his own heirs, that he acquire an actual seisin of such as are corporeal, or what is equivalent thereto, in such as are incorporeal.
It is very evident, however,'that the court could not have intended to apply this rule to the construction of the statute of wills- For they say, in terms, that the question is, whether a person having a right of entry in lands has an estate of inheritance devisable, according to the provisions of the statute. But under the common law rule referred to, a personhaving only á right of entry, would not be accounted an ancestor from whom the inheritance would be.derived. 2 Black. Com. 209. Such a construction would be in n greki measure defeating' the whole operation of the act.
The demandant in this case states in his count, that upon the death of Robert R. Randall, the right to the land descended to -Paul R. Randall and Catherine Brewerton,in moieties. So that, by his own showing, she had a right of entry, which, according to the express terms of the decisions in Jackson and Varick, was devisable.
The answer to this question must accordingly be, ihat the Will of Catherine Brewerton was sufficient to pass her right and interest in the premises in question, notwithstanding .the adverse possession held by the tenants in this suit, at the date of the will.
IV. The fourth point stated is, whether the proceedings against Paul.Richard Randall, as an absent debtor, passed bis right or interest in the lands .in question to,' and vested the .same in, the trustees appointed under the said proceedings, or either of them, so as to defeat the demandant in any-respect.
Paul R. Randall, as stated in the case, died some time in the year 1820. He and his sister Mrs Brewertdn were the heirs at"law to the. estate of their brother Robert Richard. Randall. If therefore the will of Mrs Brewerton operated to pass her right, .Paul R. Randall would be entitled to the other moiety. If her will did not operate, then he would be entitled to the whole of his brother's estate.
It does not appear from the case that any objections were made .to the regularity©! the proceedings against Paul R. Randall, under the absconding debtor act; and indeed the question, as stated for the opinion of this court, necessarily implies that no such objection existed. The question is, whether his'ri'ight in the land passed to, and became vested in the trustees.
As this, is the construction of a state law, this court will be governéd very much by the decisions of the state tribunals, in relation to it. The question is, whether a right of entry passes under the. provisions of the absconding, debtor act of the state of New York, 1 Rev. Laws, 157. By the first section of the act, the. warrant issued to the sheriff commands him to attach, and safely keep, all the estate, retd and personal,, of the debtor. The tenth section authorises the trustees to take into their hands all the estate of the debtor,, whether attached as aforesaid or afterwards discovered by them; and that the said trustees, from their appointment, shall be.deemed vested with all the estate of- sacjh debtor, and shall be capable to gue for and recover the same. Arid the- trustees' are required to sell ¿11 the estate, real and personal, of the debtor, as shall come to their hands, and execute deeds and bills of sale, which shall be as valid as if made by the debtor himself.
These are. the only parts of the act which have, a material bearing upon this point. And the first question that would seem to arise is, whether the' térm estate, as here used, will extend to. the interest which the debtor has in lands held adversely.. An estate in lands, tenements, and hereditaments, signifies such interest as a person has therein, and is, the con dition or circumstance in which the owner stands with regard to his property. Coke, sec. 345. a. 2 Black. Com. 103.
The language of the act is broad, enough to include a right of entry and there can be no reason to believe that such was not the intention of the legislature.
The doctrine of the court of common pleas in England; in the case of Smith vs. Coffin, 2 H. Black. 461, has a strong bearing upon this question. The language of this absconding debtor act, with respect to the estate of the debtor to which .it shall extend, is as broad as that of the English bankrupt laws, and the same policy is involved in the construction. In the case r.eférred to, tfie court say, the plain spirit.of the bankrupt Jaw is, • that every beneficial' interest which the bankrupt has, shall be disposed of for the benefit of his creditors. On general principles, rights of action are notassigna-. ble, but that- is a rule founded on the policy of the comm.on •law, which ¡S'averse to encouraging litigation. But the policy of the bankrupt law requires that the right of action should be assignable, and transferred to. assignees, as much as any other species of property. Its policy is, that every right, belonging in any shape to the bankrupt, should pass to the assignees.
The estate of the debtor, under the New York statute, becomes vested in the trustees, by the mere act and operation of law, without any assignment-
The courts in New York have given a literal construction to this act, whenever it has,come under consideration, so as to reach all the property of the absconding debtor.. In the matter of Smith, an absconding debtor, 16 Johns. 107, .the broad rule is laid down that an attachment under this act is analogous to an execution. And in the case of Handy vs. Dobbin, 12 Johns. 220, when the proceeding was under another statute, 1 Rev. Laws, 398, very analogous to ' the one under consideration, the court say, there can be no doubt that the constable, under the attachment, could take any goods and chattels which could be levied on by execution. The authority in both cases is the same. And in Jackson vs. Varick, 7 Cowen, 244, it is laid down as a rule admitting-off no doubt, that a right of entry may be taken and sold under an execution.
It is s.aid, however, that this right of entry does not pass, because, by the tenth, section of the act, it is declared, that the deeds given by the trustees shall be as valid as if made by the debtor, and that the debtor could not make a valid deed of lands held at the time .adversely.
This objection does not -apply to the case .: the question does not arise upon the operation of a .deed given :by the trustees. The point is, whether the trustees themselves had any interest in these lands: not whether they would give a valid deed for them, before reducing the right to possession. If it should be admitted that they could not, it would not.affect the presept, question. The right is vested' in the trustees by operation of law, the act, declaring that the estate shall 'be deemed vested in them on their appointment, and,that they shall be capable to sue for and recover the same; implying thereby that.a suit may be necessary to reduce the estate of. possession.
Again, it is said, that after such a lapse of time, it is to" be presumed that all the-debts of Paul R. Randall have been paid, and the trust of course satisfied; and that the estate thereupon became revested in Paul R. Randall.
This-objection admits of-several answers. It does not appear properly to -•arise-under the point stated.. But the question intended to be put would seem to be, whether the right, being a mere right of entry* passed, and became vested in the trustees. If it. did so^vest, it could not be revested, except by a reconveyance, or by operation of law, resulting from a-performance of the trust, by paying off all the debts of the absent debtor. And whether these debts have been satisfied, is a proper subject of inquiry for the grand assize. There is not enough before this dourt to enable it to decide that point. It is a question of fact, and not of law. If it was-'admitted that all the debts have been satisfied,- the effect of such satisfaction would -be a question of law. The evidence might probably warrant the grand assize in presuming payment; but even that may not be perfectly clear: The order of. the court upon the trustees to pay to the agent or attorney of Paul R. Randall five thousand five hundred dollars, out of the money remaining in their hands, does not purport to consider this sum as the surplus after payment of all the debts. . It was to be paid out of the moneys remaining in the hands of the trustees, thepeby fully implying, that their trust was hot closed.. And if the fact of payment and satisfaction of the debts.is left at all doubtful, this court cannot say, as matter of law, that the interest in the land became revested in Paul R. Randall. It must'depend upon the finding of- the grand assize!
It is objected, however, that the defence set up, - and embraced in the two last questions, is inadmissible. That in a writ of right, the tenant cannot, under the mise joined, set up title, out of himself, and in a third person.. That if is a question of mere right between the demandant and the tenant. And it has been supposed, that this is the doctriné of this court in the case of Green vs. Liter, 8 Cranch, 229. If any thing that fell from the court in that case will give countenance to such a doctrine, it is done away by the explanation given.by the court in Green vs. Watkins, 7 Wheat. 31.; and. it is there laid down, that the tenant may give in evidence, the title of a third person, for the purpose of disproving the demandant's seisin. That a writ of right; does bring into controversy the mere right of the parties to the suit, and if so, it, by consequence, authorises either party to establish by evidence, that the other has no right whatever in the demanded premises; or that his mere right is inferior to that set up against him. And this is the rulé recognized in .the supreme court of New York. In the case of Ten Eyck vs. Waterberry, 7 Cowen, 52, the court say, that in a writ of right, the mise puts the seisin in issue, as the plea of not guilty in ejectment puts in issue the title, and that under the mise any thing may be given in evidence, except collateral warranty,. The same rule is laid down by the supreme judicial court of Massachusetts, in the case of Poor vs. Robinson, 10 Mass. Rep. 131; and such appears to be the well settled rule in the English courts. Booth, 98, 115, 112. 3 Wilson, 420. 2 W. Black. Rep. 292. 2 Saund. 45 f. note 4. Stearns on Real Actions, 227, 228, 372.
The answer to this question will accordingly be in the affirmative, unless the -grand assize shall find that the trusts have been fully performed; and if so, the interest.iu the land will by operation of law become. revested in Paul R. Randall,
V. Another point submitted to this court is, whether, inasmuch as the count in.the cause is for the entire -right in the premises, the. demandant can recover a less quantity than the entirety.
This is rather matter of form, without involving materially the merits of the case. And as .the action itself has becpme almost obsolete, it cannot be very important how the point is settled. I have not therefore pursued the question tó.see how it would stand upon British authority. The leaning of the courts in that country is against the action, and against even, allowing almost any amendments, holding parties -to the most strict and rigid rules of pleading; and it may be that .the .pnglish .courts would consider, that the recovery must be according to the count. But whatever the rule may be there, I think it-is in a great measure a matter of practice, and that we are at liberty .to adopt oür rule on this subjeGt. -And no prejudice can arise to the tenant by allowing the demandant to have judgment for ánd recover according to the right which, upon the trial, he' shall establish in the demanded premises. The cases referred to, showing that a demandant may abridge his plaint, do not apply to a writ of right. . This is confined to the action of assize, and authorised by statute 21 Hen, 8, ch. 3. This statute has. been adopted in New York, 1 Rev. Laws, 88, but does not help the case.. But independent of any statutory provision, I see no good reason why the. demandant should not be allowed to recover according to the interest provéd, if less than that which he has demanded.
It is the settled practice in the supreme judicial court in Massachusetts, in á writ of entry, to allow the demandant.to recover an undivided part ot the demanded premises. The technical .objection, that the verdict and judgment do not agree with the count, is deemed unimportant; the title being the same as to duration and quality, and differing only in the degree of interest between a sQle tenancy and a tenancy in common; The tenant cannot be prejudiced by allowing this. He is presumed to know his own title, an,d might have dis claimed. The courts in that state consider, that with respect to the right to renew a part of the land claimed, there is no distinction between a writ of entry and an action of ejectment. 2 Pick. 387. 3 Pick. 52. Nor is it perceived that any well founded distinction, in this respect, can be made, be-: tween the action of ejectment and a writ of right.
The opinion of the court upon this point is, that under a count for the entire right, a demandant may recover a less quantity than'the entirety.