GOODALE v. GAWTHORNE. CHANCERY. 1854. [Reported 2 Sm. & G. 375.] THIS was the petition of Elizabeth Goodale, and of Mrs. Moss late Goodale, and her husband, praying that the sum of £273 28. 10d. Consols, and £35 cash, might be divided into thirds, and two thirds thereof paid to the petitioners. John Goodale, who was possessed of certain real estate in the county of Derby, died, on the 1st of April, as to the real estate now in question, intestate. At his death, his widow was enceinte of a son, who was born on the 29th of October, 1848. At the death of John Goodale, his sisters, the petitioners, were his presumptive co-heiresses at law. A suit was instituted on the 18th of November, 1848, to administer the devisee of the undivided share devised. It is clear, therefore, that an heir may take by descent, as tenant in common with a devisee, an undivided part of the estate which his ancestor was solely seised of; and it appears to me to be immaterial, whether the share he so takes is expressly devised to him, or left unnoticed, by the will; for, if expressly devised, he takes it in common, and, if not noticed, he takes it in the same manner; and a devise to two or more as tenants in common, is in effect a devise of one undivided part to one, and of another undivided part to the other; so that under such a devise to an heir and another as tenants in common, the heir takes as if one undivided moiety were devised to the other, and the residue to himself; that is, in the same manner as if no disposition at all of such residue had been expressed in the will; in which case he would have taken by descent; and therefore, the same estate being devised to him in such residue as he would have taken by descent, I think, the general rule, respecting devises to an heir, extends to it. "It has indeed been held, that a devise to the heir and another makes the heir a purchaser; but that seems to be on account of the joint tenancy and benefit of survivorship to the stranger. And it appears, that under a devise to two co-heirs, they take as joint-tenants by the will, and not by descent; and so in a devise to them in common, they take as tenants in common, and not by descent. But, it is evident, under either of these tenures, they take every part of the land devised in a different manner than by descent; whereas, in the case of a devise to the heir and another, as tenants in common, the heir seems to take the part devised to him, just in the same manner as if it had been left to descend to him. I therefore, upon this consideration of the point, am of opinion, that the devise being to the two sons, as tenants in common, was no obstacle to the eldest taking his moiety by descent; and consequently, that if the lands were settled on his mother in fee, so as to descend from her to him, in default of appointment, he took his moiety by descent, and not by the will or settlement; and, in that case, his heir ex parte materna will be entitled to his said moiety."— Fearne, Post. Works, 128-132. In Ellis v. Page, 7 Cush. 161 (1851), land was devised to trustees on certain trusts, and on failure of these trusts in trust to convey the land to the testator's heirs-at-law. The trusts failed, and it was held that the heirs took by descent, and not by devise, and that therefore, under a Massachusetts Statute, the land could be sold to pay legacies. The decision, it is submitted, is unsound: (1) because the devise of the legal estate to the trustees broke the descent, Davis v. Kirk, supra; (2) because even if the devise had been to the heirs directly, the doctrine of Biederman v. Seymour, ante, is good sense and good law. the estate of John Goodale; and on the 12th of January, 1850, it was referred to the Master, to inquire and state what proportions of the rents and profits of the real estates of John Goodale, deceased, had been received by the trustees between the death of John Goodale and the birth of the posthumous son. On the 11th of February, 1850, Master Dowdeswell certified that the sum of £261 3s. 10d. had been so received and paid into court. On the 11th of June, 1851, the widow of John Goodale elected to take an annuity secured by a bond of John Goodale, and her dower, instead of an annuity and legacy given by the will. The question now raised was, whether the petitioners were entitled to two thirds of the fund in court, which arose from rents accruing between the death of the ancestor and the birth of the posthumous heir. Mr. Wigram and Mr. E. Webster, for the petitioners. Mr. Goodeve and Mr. Selwyn, appeared for other parties. THE VICE-CHANCELLOR. [SIR JOHN STUART.] The right of the sisters is admitted by counsel very properly to depend on their having been actually seised of the estate as heirs. The seisin being in them from the death of the ancestor up to the birth of the posthumous son, they were heirs in contemplation of law so long as the posthumous heir was unborn. Lord Coke, in his Commentary, 11 b, says that the descent cast upon the presumptive heir until the posthumous heir is born, does not confer an absolute heirship, but only one of a qualified kind. His words are (the case being that of an uncle), "True it is that the uncle in this case is heir, but not absolutely heir." It is certain that on the birth of the posthumous child, there was an end to the qualified seisin and to all right of entry on the part of the sisters, who had the qualified heirship until the birth of the posthumous child. The law is settled, that, if during the period of this qualified heirship and seisin in the sisters they had entered and had received the rents, as they might have done, an action of account would not lie against them, and they would be entitled to retain what they had received, and which they had lawfully acquired. If, however, they did not obtain possession of such rents, but the rents had remained unreceived by them, their seisin being gone on the birth of the posthumous child before they had received the fruits of their seisin viz. the rents, the right to the rents in such case is in the absolute heir, who has a right to enter and distrain for them. That is what I infer from the principle as stated by Lord Coke; and the law, as settled in the case of Doe v. Clarke, 2 H. Bl. 399, considers an infant en ventre sa mere as born for all purposes which are for his benefit. Then, it is said, they might bring an action for the rent, but no authority has been cited in support of that proposition; and I apprehend that it would be impossible for them to maintain an action. for the rent which the absolute heir had a right to recover by entry and VOL. IV. 3 distress, as the proper owner of the freehold. Therefore there must be a declaration that the sisters are not entitled to the rents, which are the property of the posthumous son. Costs of all parties out of the fund. RICHARDS v. RICHARDS. CHANCERY. 1860. [Reported H. R. V. Johns. 754.] VICE-CHANCELLOR SIR W. PAGE WOOD.1 A singular point arises. in this case. The question is whether the qualified heir (if I may use that term to describe the person who is heir between the death of an intestate and the birth of a posthumous heir) is entitled to rents which are not actually received before the birth of the posthumous heir. Such questions are not of frequent occurrence, and it is singular that the point should have arisen so recently as it has done in another branch of the court. The ancestor in this case, Edward Priest Richards, who was entitled to certain estates in tail under a settlement, and to others in fee, died on the 12th of November, 1856. His posthumous child was born on the 23d of June, 1857. There were some peculiar circumstances with reference to a portion of the rents, but they do not affect the general question. All that it is necessary to say is, that there was certain property of the deceased held, as it appears, by tenants from year to year, so that no entry could have been made by Mrs. Treherne, and the question is, Who is entitled to the rents which accrued before the birth of the plaintiff? There is a very small amount of authority on the subject. There are certain expressions to be found in the old cases which perhaps afford some ground for the argument that the right of the qualified heir is limited to the rents actually received. The case in the Year Book of 9 Henry 6, the exact words of which are given in Watkins on Descent (page 185, note), was to this effect: A man, having issue a daughter, died, leaving his wife enceinte with a son; and the question was, whether the posthumous child could recover from the daughter the intervening rents; and the decision was "that the son should not have an account or any other remedy for the intermediate rents, because the entry of the qualified heir was lawful until the son was born." It is not specified there that the rents had been actually received, but the judgment denies the right of the posthumous heir to an account or to any other remedy. Then, in Goodtitle v. Newman [3 Wils. 516], Lord Chief Justice De Grey paraphrases the passage from the Year Book thus: " If a man has 1 Only the opinion which relates to the question of posthumous heirship is here given. issue a daughter and dies, his wife being enciente, the daughter may lawfully enter, and if she die her heir may enter and take the profits for the time and afterwards if the wife, being enciente by the ancestor paramount, is delivered of a son, the son may enter notwithstanding that the heir of his sister is in by descent; but he shall not have an action of account, or any remedy for the issues in the mean time before his birth, because that the entry was congeable until he was born." It is not disputed that the posthumous heir has no remedy to recover the rents actually received before his birth; but in order to determine this case it is necessary to look into the principle on which the doctrine has been established that the qualified heir is entitled to take possession of the profits. The principle, which is very clearly stated by Watkins (page 185, note), in his comments on the case in the Year Book, seems to me to be the true one. He says, "When we consider that the daughter and her heir were justly entitled to the freehold till the son was born, it seems to follow of necessity that they were justly entitled also to the profits to enable them to discharge the services of the lands. While they were in possession of the feud they were certainly subject to the services, and the person discharging the services by right was certainly entitled to the profits." That, I apprehend, is the real principle of the cases. The doctrine is of the strictest common law character. A Statute was passed to meet the case of posthumous children entitled in remainder. But the common law rule was, that some one must come in as heir immediately on the death, in order that there might be no vacancy of the freehold. During the period, therefore, that the posthumous heir was not in existence to perform the duties of tenant, the person on whom the law threw the burden was in consequence held entitled to that which flowed from the burden, namely, the enjoyment of the rents and profits. That principle is clearly independent of any question whether the rents. are actually received before the birth or not, and one can easily see why the Legislature, when dealing with the subject, did not alter the law in this respect. Until the modern change in the law of descent, a qualified heir might have remained in possession of an estate for many years. If a son, being the purchaser of an estate, died in his father's life-time without having any brothers or sisters, he would have been succeeded by collaterals, and after an interval, possibly of many years, a sister might be born who would displace them, and she in her turn might be supplanted by a brother. It would have been singular in such a case to say that the successive takers should have no right to rents which had accrued during their respective tenancies, but which remained outstanding at their determination. The principle, therefore, I take to be that the qualified heir is entitled to the rents which accrue before the birth of the posthumous heir, whether actually received before that time or not. Goodale v. Gawthorne, 2 Sm. & Giff. 375, seems to be the other way, but the report is very singular. Goodale is stated to have died intestate as to certain estates, and one would have supposed that the legal estate descended. But the report goes on to say that there was a reference to the Master to inquire what rents had been received by the trustees between the death of J. Goodale and the birth of the posthumous son. Now, it does not appear what trustees there were; but of course if the legal estate was in trustees, the whole doctrine as to the rights of the qualified heir was at an end, because it depends entirely upon strict legal principles, and had no other end than to keep the feud always full. I have assumed, that, in the present case, the lands were occupied by tenants under leases or from year to year, because, unless there was an estate for years outstanding, the qualified heir must have entered, in order to acquire any right to the rents; but as the contrary is not suggested, I presume, that, so far as any question of entry is concerned, she had duly entitled herself to them. There are several authorities bearing incidentally on this subject, and the Vice-Chancellor, in his judgment in Goodale v. Gawthorne, refers to Doe v. Clarke, 2 H. Bl. 399, for the principle that an infant en ventre sa mere is considered as born for all purposes which are for his benefit. This clearly cannot be so for all purposes, otherwise no question as to intermediate rents could ever have arisen, and it is difficult to see how the right of entry and distress could relate back to a time anterior to the birth. The law certainly is, that the qualified heir is entitled, at any rate, to all the rents actually received, and consistently with this it cannot be said that the heirship relates back for all purposes. Do the tenants owe a double duty? On the contrary, just as the qualified heir owes the duty to the lord, so the tenants owe their duty to the qualified heir. The tenant cannot owe a duty to the unborn heir, whom the law does not recognize as the person to perform the services incident to the estate, and therefore not as the person to enjoy the benefits of heirship. The case of Basset v. Basset [3 Atk. 203], which was relied on, really seems to be in favor of the infant. Lord Hardwicke held that case to be within the meaning of the Statute, the estate being by way of remainder, though not to a person in the position expressly contemplated by the Statute; but he distinctly notices that the Statute says nothing about descent, and lays down in the very same case the doctrine, that, in the case of estates descended, the qualified heir is entitled to the intermediate rents. The present case comes within the second branch of that decision, and I shall make a declaration that all the rents which accrued during the period of suspense became the property of the qualified heir.1 Mr. Fredling, for the plaintiff. Mr. C. T. Simpson, for the widow and administratrix of E. Priest Richards. Mr. Cotton, for Mrs. Treherne. 1 See In re Mowlem, L. R. 18 Eq. 9. |