U.S. Supreme Court
Jackson v. Chew, 25 U.S. 12 Wheat. 153 153 (1827)
Jackson v. Chew
25 U.S. (12 Wheat.) 153
E. being seized of certain lands in the State of New York, devised the same by his last will and testament to his son Joseph in fee, and other lands to his son Medcef in fee, and added:
"It is my will and I do order and appoint that if either of my said sons should depart this life without lawful issue, his share or part shall go to the survivor, and in case of both their deaths without lawful issue, then I give all the property to my brother John E. and my sister Hannah J. and their heirs."
Joseph, one of the sons, died without lawful issue in 1812, leaving his brother Medcef surviving, who afterwards died without issue. Held that Joseph took an estate in fee defeasible in the event of his dying without issue in the lifetime of his brother, that the limitation over was good as an executory devise, and on the death of Joseph vested in his surviving brother Medcef.
This Court adopts the local law of real property, as ascertained by the decisions of the state courts, whether those decisions are grounded on the construction of the statutes of the state or form a part of the unwritten law of the state.
The court therefore considered it unnecessary to examine the question arising upon the above devise as a question of general law or to review and attempt to reconcile the cases in the English courts upon similar clauses in wills, the construction of this clause having been long settled by a uniform series of adjudications in New York, and having become a fixed rule of property in that state.
The question presented by the special verdict in this case, arose upon the will of Medcef Eden the elder, bearing date 29 August, 1798, by which will the testator devised to his son Joseph certain portions of his real and personal property, among which were the premises in question in this cause, "to have and to hold the same to him, his heirs, executors, and administrators forever." In like manner he devised to his son Medcef, his heirs and assigns, certain other portions of his property, and after making some other provisions, added the following clause:
"Item. It is
my will, and I do order and appoint that if either of my said sons should depart this life without lawful issue, his share or part shall go to the survivor. And in case of both their deaths without lawful issue, then I give all the property aforesaid to my brother, John Eden, of Loftus, in Cleveland, in Yorkshire, and my sister, Hannah Johnson of Whitby, in Yorkshire, and their heirs."
And the question was what estate Joseph Eden (under whom the lessor of the plaintiff claimed) took in the premises in question. The testator died soon after making his will, leaving his two sons, Joseph and Medcef, living. Joseph died in August, 1812, without issue, leaving his brother Medcef alive. The lessor of the plaintiff claimed title derived from Joseph Eden, under the sale of the premises in question, by virtue of a judgment and execution against him and sundry conveyances thereafter made of such title as set out in the special verdict. The defendant claimed under a title derived from Medcef Eden under the above mentioned clause in his father's will, he having survived his brother. If Joseph Eden took an estate tail, it was, by operation of the statute of the State of New York abolishing entails, converted into a fee simple absolute, and the subsequent limitation became inoperative. That statute, passed 23 February, 1786, declares
"That in all cases where any person would, if this act had not been passed, at any time hereafter become seized in fee tail of any lands by virtue of any devise before made or hereafter to be made, such person, instead of becoming seized thereof in fee tail, shall be deemed and adjudged to become seized thereof in fee simple absolute."
So that if Joseph would have taken an estate tail under the will if the act of 1786 had not been passed, by operation of the statute he became seized of an estate in fee simple absolute, which was liable to be sold on the judgment against him, and the title under which the lessor claimed would be complete. But if Joseph took an estate in fee, defeasible in the event of his dying without issue in the lifetime of his brother (which event happened), then Joseph's interest in the land became extinct on his death and the limitation over to his brother Medcef was chanroblesvirtualawlibrary
good as an executory devise, and the defendant would consequently be entitled to judgment.
A judgment was entered upon the special verdict in the court below for the defendant pro forma by consent of parties for the purpose of bringing the cause before this Court. chanroblesvirtualawlibrary