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his case fully and sufficiently represented in the court tive engine in motion without an engineer, or launch below. The profession, on reading it, would not es a ship without a pilot or rudder. teem it a safe or valuable precedent.
The error of Judge Doe's position, as I understand In the later case of State v. Hoyt, 46 Conn. 330, that | it, and in fact of the whole New Hampshire court, court qualified its rulings by holding that proof of the lies in the assumption that the question of sanity or insanity of a person accused of crime is a matter of insanity is one purely of fact. I admit it is largely so, defense wholly, and the burden of proving it rests on but no question of judicial contestation can ever bethe accused.
come solely a questiou of fact. Law pervades every The case of State v. Pike, 49 N. H. 399; 8. C., 6 Am. | human transaction, every question of status, every inRep. 533, was decided in 1870. The defeuse relied on | quiry of right and wrong, as vital force pervades every was dipsomania-an inordinate craving of alcoholic fibre, every corpuscle, of the living animal. The legal stimulants. The defendant was convicted of murder | element may be agreed between the contestants, and in the first degree. The chief questions discussed on hence may not be visible; still it is there, and denies error arose on the refusal of the court to give the fol and determines what the issue is, and how the suit is lowing instruction to the jury: "The defendant re to be maintained or defeated. quested the court to instruct the jury that the sanity It is my opinion that the inquiry of insanity, liko
the mental capacity of the defendant to commit any most others in judicial administration, is a mixed crimo obarged in the indictment-is a fact to be question of law and fact. Of law, as to the extent proved by the State beyond all reasonable doubt; and measure of mental disorder which absolves from that there is no legal presumption of sanity which legal accountability; of law, necessarily, in detercan have any weight with the jury as a matter of law; mining the pertinency of testimony offered in proof that there is no legal presumption of sanity which or disproof of the alleged mental disorder. Like most, is a substitute for evidence, or which, as a matter of | if not all, other courts whose utterances on these law, affects the burden of proof in criminal cases." An questions have fallen under my observation, this offer had been made in the court below to prove by court stands unmistakably committed to this docnon-expert witnesses their naked opinion that the ac | trive. Hence we have held that what is called emocused was insane when he committed the homicide. tional or moral insanity is not a disease of the intelThis testimony had been rejected, and it was claimed lect, but sheer depravity-a surrender of the higher that in this ruling there was error. The majority | teachings of conscience to baser and debased passions, opiuion of the court was delivered by Smith, J., af instincts and appetites. This we hold, the intelleotfirming the judgment, in which all the jug- | ual faculties remaining sound, is no defense to a crimtices, except Justice Doe, appear to have con inal acousation. Hence we have held (and I under. curred. Then follows a most elaborate opinion by stand my brothers as asserting it in this case) that to Justice Doo, which I can but regard as a dissenting excuse conduct otherwise criminal, on the plea of inopinion, although not so expressed in the book. It sanity, the mind proper, as distinguished from tho covers thirty-six pages, discloses much thought, read emotions, must be diseased, and the act charged must ing and research, and is expressed in a bright, incisive have been conected with that disease as effect with and combativo style. He first devoted many pages to cause. Hence we have held, and so decide in this prove that all witnesses-non-experts as well as ex case, that on the trial of such issue in the primary perts-should be allowed alike to testify to their opiu court the presiding judge is within proper bounds ions of a prisoner's insanity. In this he opposed the when he determines what testimony is and what is views of his brother justices, and he stands opposed not pertinent to the issue. to our uniform rulings, which I need not cite. He It will be observed that the cases I have collated also declared in terms that “there was error in the and considered were decisions made by courts which refusal of the court to instruct the jury that there is hold that moral insanity is a defense to a criminal no legal presumption of sanity; and also in the in | prosecution. I think this fact should be considered struction that every person of mature age is presumed in weighing their value as authority. The phrases, to be saune until there is evidence tending to show in "sudden impulse" and “overpowering or subverting sanity.” In this be also stood opposed to his brother | the will," are frequently encountered in the opinions judges. He did more. He antagonized every author- delivered in those cases. Impulse is emotional rather ity I have ever seen or heard of on the subject. And than intellectual. It is a sudden emotional influenco as I understand his position, he took the ground that brought to bear on the will as an intellectual faculty, there are no legal tests on the subject of sanity or in- | and as a rule not the offspring of the reasoning faculsanity; that the judges can give no direction for de- / ties. It is rather the antithesis of a formed judge termining such issue, and that it is solely and purely ment. It differs from the cognitive knowing faculty, a question of fact, to be determined by the jury on and not infrequently so dominates the latter as to acthe sworn testimony before them. The presiding quire for the time the mastery of the will. The will, judge must give no instructions or directions as to the the executive faculty of the mind, cannot with proconstituents or classifications of mental disorders, nor | priety be said to be subverted. To be subverted or as to the dividing live which separates accountable overturned is to cease to have purpose-to cease te sanity from irresponsible insanity. To allow him to act, for without the function of the will there can be do so would be to receive unsworn testimony from a no physical action. The will retains all its power, but non-expert witness. The result of this is that the for the time ceases to act in harmony with the knowljudge must sit quietly by in his supposed ignorance, edge-possessing faculty. It is perverted, but not subas a silent looker on, while the forensic battle is waged verted. I am speaking in common parlance, and embetween opposing counsel, with their expert opinion ploying language in its popular sense. When the will testimony before the jury, as the solo triers and ar is perverted by a disease of the brain or intellectual biters of the facts. Who is to determine the perti. faculties, then any act caused thereby is blameless in nency of the evidence offered ? Not the presiding the sight of the law. On the other hand, if there be judge, for not knowing what constitutes insanity, he no disease of the intellectul faculties, and the act can not know what facts and circumstances tend to done, though by a perverted will, is nevertheless the prove its existence. Can there be judicial adminis. | offspring of moral depravity, debauched appetite, tration without a presiding umpire to determine the blunted sense of right, or other kindred prompting of disputes of opposing litigants? As well put a locomo- a wicked heart, then for such an aot there is a moral
and legal accountability in the amplest sense of those such persons, which is an argument of their confidence terms. The murderer, the assassin, the burglar, the in such crime.” On the other hand, if the great,the noincendiary, can truthfully plead that their wills have ble and the learned, two or three centuries ago,slaughtceased to be the executors of their intellectual ered men and women indiscriminately as the imputed promptings. Criminal passion or appetite has ob possessors of this demoniacal power, and under all the tained mastery over their higher and purer intellect forms of law and for the public welfare, is it right to wal endowments, and perverted their wills to its baser make an example of one ignorant, superstitious uses. I have indulged in these reflections, because I woman, if she destroyed one life, as the only means, think the expressions, “sudden impulse" and "sub- to her benighted vision, of saving her own? Of course version of the will," are inaccurate and misleading, this is stated on the hypothesis that she really believed at least under our jurisprudence.
r husband possessed and was exercising this danKeeping myself reasonably abreast with advanced gerous power. thought, and with the later and better understanding Let us pursue this line of thought a little further. of mental disorders, I am willing to disclaim as un In the world are very many religious faiths, each pertenable one of the tests of legal accountability de haps asserting a divine or supernatural inspiration. clared by the judges in the McNaghten case. This was Take three of the most prominent, the Christian, the a case of partial insanity, called “mental delusion." Mohammedan and the Buddhist, each numbering its There can be no difference, in a legal point of view, be adherents by the hundred millions. With each of tween delusion, illusion and hallucination. In that case these faiths the profession of the other two are mere it was said that the delusion would be a defense only superstitions or hallucinations. Are the invocations when the supposed facta, if real, would have justified to Allah and to the Enlightened One any more an the act done. This rule is too exacting. At the head of illusion to our comprehension than Christian worship this opinion I have presented my views of the ques is to theirs ? Our faith, we maintain, is founded alike tions discussed in the form of syllabi.
on Divine revelation and the inherent evidences of In the present case the wife and daughter were tried its purity aud truth. Is their mental delusion a speand convicted of the murder of the husband and cies of partial insanity? And if in the zeal of the refather. The homicide was perpetrated with a gun in ligion of Mohammed, propagation by the sword is bethe hands of the daughter, at the alleged insti lieved to be a duty, is such act to be excused on the gation of the wife. The defense interposed for score of mental illusion? What of the believers in the daughter was idiocy. The wife's defense was in spiritualistic materializations, mind-reading, and the sanity, in the form of mental delusion. The delusion many other isms which live their brief day, and are or hallucination was her alleged belief in a superuatu not without a following? Are the believers in such ral power and influence the husband had and exer
supernatural power mentally diseased ? Such inquiries cised over her, by which he could bring sickness and
may be amusing, if not interesting, to the visionary even death upon her. That by the exercise of this and speculative. They can only bewilder, when appower, he had brought on her protracted sickness, and plied to the actual transaction of business life. Judishe feared and believed he would ultimately destroy | cial administration is too real to enter upon such her life. Of course this fear and belief could only be doubtful and dangerous speculations. In the languago gathered from her owl conduot, and expressions of of Judge Curtis: “It searches after those practical belief and fear. If this delusion proceeded from men rules which may be administered without inhumanity tal disorder or defective mental organism, it is qucg for the security of civil society, by protecting it from tionable it the case does not fall directly within the crime. It inquires, not into the peculiar constitution rule declared in the McNaghten case. If the wife be of mind of the accused, or what weakness, or even dislieved her husband possessed supernatural power over orders, he was afflicted with, but solely whether he was her, by which through unseen influences he could capable of having, and did have, a criminal intent." bring upon her disease, and even death; that he had I hold we should take our steps cautiously inadopting exerted that power, and caused her to be sick for a the theories of psychological enthusiasts, lest we diggreat length of time, and she believed, intended ulti
arm retributive justice of all its restraining energy. mately to take her life-in what manner could she rid This is a dissenting opinion, and I wish to be underherself of such impending peril? She could not flee stood as intimating no opinion, either one way or the away from it if she would, for the power being super other, on the sufficiency or insufficiency of the asnatural, it could pursue her whithersoever she fled. serted insanity relied on in this case. It being, under Supposing her delusion to be a fact, how could she the opinion of my brothers, a question of fact for the save her own life by any preventive nieasures short of jury, I will leave it to them, without any attempt to taking his ?
bias them by any thing I may say. I regret the ne. Was her alleged delusion insanity? Was it, if it ex
cessity I have felt resting upon me of differing with isted, a disease of the reasoning faculty? What say
| my brotbers in this case. I regret what I conceived psychological experts on this subject? It is believed
to be a duty to express my views so much at length. that the delusion claimed for her is a very common su On a question of less importance, I would not have perstition with the grossly ignorant, particularly done so. I have feared however, and still fear, that among the colored population. Less than three centu the effect of their ruling will be to let in many of the ries ago the whole English-speaking people labored evils which result from allowing the defense of emo. under this delusion or superstition, and called it witch tional insanity. I acquit them of all intention to craft. So firmly did they believe it that they made alter the rule of this court on that subject. Still I the practice of it a capital felony. Many unfortunates think the line cannot be too clearly and sharply drawn to whom this dark art was imputed paid the penalty wbich separates the pitiable, unfortunate victims of by the most torturing of all known methods of inflict- diseased mental faculties from the recklessly deing the death sentence. Wero our ancestors, from the praved, whose chief evidence of insanity is found in king on his throne to the laboring peasant, all insane? the causeless atrocity of their crimes. Human life Even the great and good Sir Matthew Hale was a be
has become all too cheap; and while we spread the liever in witchcraft. He said that there were such
mantle of mercy over the criminally irresponsible, the creatures as witches he made no doubt at all; for lawless should be made to feel that the way of the first, the Scriptures bad affirmed so much; secondly, transgressor is hard. The terror of the law may thus the wisdom of all nations had provided laws against become a minister of peace.
WILL-EXECUTORY DEVISE-CONDITIONAL permitted to sell and convey the Woodstock premises ESTATE.
on such terms as to the court may seem meet and
proper. The decree of the Probate Court did not setVERMONT SUPREME COURT, SEPT. 21, 1887. tle the question involved. The question arising then
in the case is what estate the orator, Charles E. Ran. RANDALL V. JOSSELYN.
dall, took in the devised premises under the will of A will provided that “when my son has attained the age of
In determining this question the whole will must be twenty-one, or at my decease, if thereafter, he is to have
considered, and all the clauses construed together. In the management and control of said property, which I
no other way can the intention of the testatrix be asgive to him and heirs absolutely, provided he has chil.
certained. In construing the will, the mind and indren or their descendants who can inherit said property,
tention of the testatrix, if it can be discovered, must or the avails of the same, from him at the time of his de
prevail, unless that intention is in conflict with some cease; but in the event of his death without children, or their descendants who can inherit from him. I then will
fundamental principle of law, which ought not to be
disregarded to meet the wish or caprice of the testaand direct that all my said property go to my nephew * * * and his heirs, or to his children and their de
trix. There is a devise or gift to the orator as first
taken, and a limitation over to the defendant, Jossescendants, in the event of his death before the death of
lyn, or his children and their descendants. Effect my said son." Held, that this was an executory devise, and that the son took a conditional estate only, subject to
must be given to both, if consistent with the rules of be defeated by his death without children or their de
law, if such was clearly the intent of the testatrix. It scendants surviving him.
is contended by the orator that the will gives him, as
first taker, power to dispose of the whole estate, and DILL for construction of a will. The opinion states
that this power is inconsistent with, and therefore D the case.
destructive of, the limitation over, and that as the William E. Johnson, for orator.
limitation cannot be carried into effect, he takes the
whole estate in absolute fee-simple. There is no French & Southgate, for defendant.
doubt of the rule that where there is an absolute power WALKER, J. The testatrix, Sarah S. Randall, de- of dispostion given by the will to the first taker, the vised and bequeathed all her estate, real and personal, limitation over upon his dying without children, etc., to her son, Charles E. Randall, who was her only child is void as being inconsistent with the absolute estate. and heir, subject to the following conditions and limi The power of disposal vests the whole estate in the tations : “ In the event of my decease before my son first taker. 4 Kent Comm. 261. But we think the shall have attained the age of twenty-one years, I orator's contention is not supported by the language leave the care and management of my property, for of the will. The construction contended for would the benefit of my son, to my executor hereinafter defeat the intention of the testatrix. The will, in the named, until my son shall have attained the age of event of the decease of the testatrix before her son twenty-one years. My said executor is hereby author attained the age of twenty-one years, leaves the care ized before my son arrives at such age, with the con and management of her whole estate to the executor sent of my son, to change any of my property into during the son's minority, and gives the executor money or other property, for the benefit of my son, if | power during that time to change any of her property my executor and my son deem it best to do so. When into noney or other property for the benefit of the son, my son has attained the age of twenty-one years, or if both deem it best to do so. When the son reaches the at my decease, if thereafter, he is to have the control age of majority,or at her decease, if thereafter, he is to and management of said property, which I give to have the control and management of her property, him and heirs absolutely, provided he has children which she “ gives to him and heirs absolutely, proor their descendants who can inherit said property, or vided he has children, or their descendants, who can the avails of the same, from him at the time of his de inberit said property, or the avails of the same, from cease; but in the event of the death of my said son him at the time of his decease.". without having any child or children or their descend No clause of the will gives the property to the son ants who can inherit from him, I then will and direct except upon the express proviso and limitation therein that all my said property, or the avails of the same, if stated. It gives him the fee conditionally. In the changed into other property or into money, go to and event of his decease, without issue living, bis interest become the property of my nephew, Lloyd Norris in the estate is defeated, and the whole goes over to Josselyn, my sister's only child, and his heirs, or to his child or children, and their descendants, in the solutely in the son, unless be leaves issue at his deevent of his death before the death of my said son." cease who can inherit it from him. The “control and
The will was duly probated. On the settlement of management” of the property, which the will gives the executor's administration account there was left him, manifestly does not include power of disposal. belonging to the estate of the testatrix certain per- | It gives him the use, possession, superintendence and sonal property, a piece of land in Wisconsin, and a direction of the property, and the power of exercising dwelling-house, outbuildings and land adjoining in a general restraint over the same until the happening Woodstock, Vermont, which were occupied by the of the event that will determine who takes the proptestatrix as her homestead at the time of her decease. erty in fee-simple absolute. The language of the will All the residue of her estate was, on the 2d day of shows that the testatrix did not intend that her propAugust, 1882, decreed by the Probate Court to the ora erty should vest absolutely in her son on his attaintor, une said Charles E. Randall, pursuant to the terms ing the age of majority, with power of disposal. In and provisions of said will, and he being then of full direct and clear language, she makes the estate given age, received possession of the whole estate from the to him a conditional one, and contingent during his executor. He now desires to sell and convey the real life, subject to be defeated by his death without chilestate situated in Woodstock aforesaid, if he has au- | dren or their descendants surviving him. thority under the will to convey a good and perfect The will does not authorize or contemplate any title to the same in fee, and brings this bill in chan- change in her property after the son attains the age of cery for the purpose of having the court letermine | majority. In the devise over the language is: “I will what right and interest he has in the real estate in and direct that all my said property, or the avails of Woodstock under the will, and prays that he may be the same, if changed into other property or money, go to and become the property of my nephew,” etc. The of inheritance descendible to an indefinite failure of phrase, “ or the avails of the same,” in the devise to issue, which would constitute an estate in fee-tail the son, and the phrase, “ or the avails of the same, if which under our statute would be a life-estate in the cbanged into other property or money,'' in the limita first taker, with remainder in lee-simple to the person tion over, when read in conuection with the words to whom the estate tail on his death would first pass, "my property" and "all my said property," and con for the limitation is not upon an indefinite failure of strued with other parts of the will, we think, do not issue, but is expressly confined to a failure of issue at iudicate or imply a power of disposal in the son. They the time of the death of the first taker. The limitaclearly have reference to changes made in her prop tion cannot operate as a limitation of remainder after erty by the executor under the authority given him a life-estate, for it is not an estate immediately exby the will, which she intended should be subject to pectant on the natural determination of a particular the devise over, and treated the same as property left estate of freehold limited in the will. The limitation by her. No express authority to dispose of her prop is a devise over to the defendant or his children and erty is given to the orator, and none is fairly implied their descendants in derogation of, or in substitution from the language of the will. The limitation over is for a preceding estate in fee-simple in the son, the not of such estate as the son, as first taker, shall have, fee-simple given to the son being subject to be deas in Ide v. Ide, 5 Mass. 500; nor of such property as the feated in favor of the devisees over, on the simple son or first taker shall die possessed of, as in Attorney condition of his having no issue at its decease to whom General v. Hall, Fitzg. 314, and in Jackson v. Bull, 10 | it can descend. It is a strict executory devise. 2 Johns. 19, which word were held to imply an absolute Jarm. Wills, 485; 2 Redf. Wills, 645. This construcpower of alienation, and consequently an absolute tion of the will will carry out the intention of the tegownership, destructive of the limitation; but the lim tatrix. The condition of the devise over is valid, and itation here is of "all my said property, or the avails within the rule as to perpetuities, for the event unof the same, if changed into other property.” The der which the fee passes away from the collateral testatrix evidently intended that her son should suc heirs of the son must happen, if at all, at the decease ceed to the inheritance, if he had issue at his decease of the first devisee. to take it from him; otherwise that the nephew or his The rule is well settled that where the devise over issue should succeed to it, so that the estate should depends upon a definite failure of issue at the decease descend in the line of her blood, rather than in the of the first devisee, an estate in fue-simple with an line of her husband,
executory devise is created. This view of the testatrix's meaning or intention, The doctrine is very clearly explained by Kirkpatderived from the provisions of the whole will, is rick, C. J., in Den v. Taylor, 5 N. J. L. 413, where the strengthened from the situation of the testatrix in testator devised all his lands to his nephew, Stephen respect to her son and sister's descendants. The son Shepherd, his heirs and assigns, forever, with the limwas her only child and heir, and would have inherited | itation in “case he should die before he arrives to lawher whole estate absolutely if she had left no | ful age, or have lawful issue, then and in that case will; and it is not probable that she would have over” to his nephew, John Sheppard, and his wieces, attempted by will to limit and qualify his inter Hannah and Louisa Sheppard. The court held that est in her estate, and give it over to her sister's de the devise gave Stephen an estate in fee, with a limiscendants, on the happening of the specified contin tation to John, Hannah and Louisa, by way of execugency, if she had intended that the whole should vest tory devise, and not an estate in fee-tail, with a rein him absolutely on her decease. The general intent mainder over. and controlling idea of the will is to vest the estate in In Den v. Snitcher, 14 N. J. L. 53, the words of the the son only upon the condition and limitations ex limitation following the gift to the testator's son of pressly stated therein. To read it otherwise would be the plantation were: “If he shall die without issue, reading it contrary to its primary signification, and then at his decease the plantation shall be divided;" defeat, rather than effectuate, the intention of the tes the one-half part being given over in trust for the tatrix.
benefit of the monthly meeting of Friends. The court The defendant insists that the orator takes under held that an executory devise, because the limitation the will simply a life estate, with a vested remainder over was on a definite failure of issue, the devise over in the defendant and his cbildren, subject to be de taking effect at the decease of the first devisee. feated on the orator leaving children or their desceud In Den v. Allaire, 20 N. J. L. 6, it was held that ants at his death. We think this contention is erro where the limitation over is to take effect upon a defi. neous. By the terms of the will, if the son shall leave nite failure of issue, the previous estate is a fee simple no children or their descendants who can inherit from subject to be defeated upon the happening of the him, at his decease, then the defendant or his de event specified in the limitation. scendants will take the estate, given in the first in In Hatfield v. Sneden, 54 N. Y. 280, where the testastance to the son, from the testatrix under the will, trix devised and gave ber whole estate to her daughter not as a remainder, but in substitution for the preced. Elizabeth and her heirs and assigns forever, providing estate. If the son leaves children or their descend ing her son, who was supposed to be lost, did not reants, they will take the estate given to him, not as a turn, but if he should return, then the caughter and remainder under the will, but by descent from him, son to share the same equally, and providing further out of the fee devised to him, which has not been de tbat if the son did not return, and the daughter should feated by the prescribed event. The language of the have no children living at her decease, her whole esprimary devise does not in terms limit the estate to a tate should go to Jacob Hatfield and bis heirs and as
the son, but it in terms gives to him the signs forever, it was held that the daughter took the fee on the specified condition, on the ocourrence of l estate in fee. limited by the executory devise over to which the fee is to cease and go over, and vest Hatfield, which would defeat the daughter's fee on in the devises over, if there then be any to l the happening of the specified event. To the same ele take, and if there be none, then the devise fect are Richardson v. Noyes, 2 Mass. 56; Moffat v. over will become inoperative, and the conditional Strong, 10 Johns. 12; Den v. Schenck, 8 N. J. L. 29; fee will become absolute in the son. 2 Jarm. Wills, Serdel v. Wills, 20 id. 223; Pells v. Brown, Cro. Jac. 489; 2 Redf. Wills, 647; Drummond v. Drummond, 26 590; Roe v. Jeffery, 7 Term R. 589; Popham v. BanN. J. Eq. 234; Jackson v. Staats, 11 Johns. 337. Nor field, 1 Salk. 236; 4 Kent Com. 268 et seq. is the testatrix's language consistent with an estate The essential quality of an executory devise is that it cannot be affected by the owner of the precedent | ator takes under the will a qualified or conditional fee estate. 2 Jarm. Wills, 495. It is well settled that a in the land in question subject to be defeated on his valid executory deed of real or personal estate cannot dying without children or their descendants, if any of be defeated at the will or pleasure of the first taker. the devisees over be then living to take the land, to It cannot be barred by any method of alienation. whom the same would in that event pass in absolute Pells v. Brown, Cro. Jac. 590; Wankford v. Wankford, fee-simple; and that waiting the bappening of this 1 Salk. 299; Moffat v. Strong, 10 Johns. 12; Jackson v. contingency, the orator has no power to convey the Bull, id. 19.
land, and give good title in fee thereto. The first taker has nothing more than the use of the The decree of the Court of Chancery, so far as it is property, and any conveyance of the real property by | in accordance with these views, is affirmed, and rehim would be inoperative and void as against the de versed so far as it hoids that the orator has power unvisee over, if the contingency happens which will vest der the will to convey the land in question, and give the fee in him. If the first taker could legally exer good title thereto; and authorizes him to convey the cise acts of ownership over the property it would be same on giving the defendaut a bond, with ample suruseless for the law to recognize and guard such de ety to account for the avails thereof. As this bill was vises. Such a devise and the power of disposal are re filed by the devisee against a devisee over for the purpugnant, and cannot both exist under the same de pose of determining a construction of the will, neither vise.
party is allowed costs. Where the right to alienate the fee is not given to The cause is remanded to the Court of Chancery, the first taker by the instrument creating the estate, with a mandate to enter upon a decree in accordance the Court of Chancery cannot by its decree authorize with the views herein expressed. a conveyance of the estate by him, which will give good title thereto in fee to the purchaser, without the consent of all the devisees over in whom the title may ABSTRACTS OF VARIOUS RECENT DEultimately best absolutely. While the instrument
CISIONS. stands as the foundation of the estate, it is controlling upon the court. Chancery may perhaps, in a case call ACTION-ASSUMPSIT-MONEY HAD AND RECEIVED.ing for such intervention, require the first taker of | In order to maintain assumpsit for money had and property limited by an executory devise to give se received, there need be no privity between the parties, curity before taking the property from the executor, nor any promise to pay, other than that arising and and may restrain a contemplated sale of it; but it will implied from the fact that the defendant has mouey not intervene to authorize a sale without the full con. in his hands belonging to the plaintiff that he has no sent of all persons who may have a contingent inter right conscientiously to retain. It is said that assumpest therein. As in every executory devise, the whole sit for money had and received will not lie, for that estate passes out of the devisor in the first instance (2 there is no privity between the State and the village, Washb. Real Prop. 314, 345; 2 Pow. Dev. 241), if the as the latter received from third persons, and has repersons were all living who might take under the ex- tained the money in good faith, under an adverse ecutory devise, and capable of contracting a convey- claim of right and ownership. But in order to mainance of the estate joined in by the first taker, and all tain this action there need be no privity between the the possible devisees over would give a good title in parties, nor any promise to pay, other than what arises fee to the purchaser. So on a bill brought for that and is implied from the fact that the defendant has purpose, in which all the possible devisees over are money in bis hands belonging to the plaintiff that he made parties, where the consent of all such possible has no right conscientiously to retain. In such case the devisees over to such a decree is shown by the plead equitable principle on which the action is founded imings, the Court of Chancery may doubtless by its de plies the promise. When the fact is found that the creo authorize the conveyance of the estate by the defendant has the plaintiff's money, if he can show first taker upon the conditions of the consent, or other neither legal por equitable ground for keeping it, the equitable conditions, which would give a good title to law creates the privity and the promise. Brand the purchaser against thə devisees over.
v. Williams, 29 Minu. 238; Knapp v. Hobbs, 50 N. H. In the devise in question, on the bappening of the 476; Bank v. Smith, 5 Conn. 75; Mason v. Waite, 17 contingency, the estate vests ultimately in the de- Mass. 560; Hall v. Marston, id. 574; Vaughan v. Matfendant, Josselyn, if he survives the orator; but if he | thews, 13 Q. B. 190, note; Walker v. Conant (Mich.), does not, then in the defendants' children, and their | 31 N. W. Rep. 786. Lord Mansfield says in Moses v. descendants living at the orator's decease. It cannot Macferlan, 2 Burr. 1005, that “if the defendant be now be determined in whom of the devisees over the under an obligation from the ties of natural justico estate will ultimately vest. The person who will take to refund, the law implies the debt, and gives may be yet unborn. The defendant's children and this action, founded in the equity of the plaintiff's their descendants are not parties to the proceeding, case, as if it were upon a contract," or, as the Roman nor have they in any way consented to the convey law puts it, “ quasi ex contractu.” Though as to its ance of their contingent interest. Their contingent | merits this case has always been doubted, and rarely rights are in no way affected by the defendant's an followed, Corey v. Gale, 13 Vt. 644; Phillips v. Hunswer, consenting that the orator may be authorized to ter, 2 H. Bl. 414, it does not seem to have been criticonvey the fee on furnishing security to him to ac cised on this point; and in Cary v. Curtis, 3 How. 236, count for the avails. A conveyance of their contin the Supreme Court of the United States adopts its gent interest under such circumstances, under a de language as one of the principles on which the action cree of the court, would be inoperative, and give no for money had and received is maintainable. Howard title to the purchaser against them, should the fee ul v. Wood, 2 Show. 24; Freem. 473, 478, was indebitatus timately vest in them, or either of them. We hold assumpsit for the fees and profits of the office of that the testatrix intended to provide for the defend stewardships of a court-leet and court-baron, brought aut or his children and their descendants on the con by a grantee of the reversion of the office for uinetytingency of her son dying without children, or their nine years, against a stranger who took the fees and descendants, who could inherit from him, and that profits thereof to himself. It was objected that the the de vise over to him or them, on the happening of action would lie only when there is a quasi contract the contingency, will take effect as an executory de or an agreement between the parties; as when another vise, if there be any of them to take; and that the or- pays money to J. S, to my use, then J. S. agrees by