
11 U.S. 456 (1812)
7 Cranch 456
BARNITZ'S LESSEE
v.
ROBERT CASEY.
Supreme Court of United States.
March 10, 1812.
March 11, 1813.
Present ... . . All the Judges.
Present ... . MARSHALL, Ch. J. WASHINGTON, DUVALL and STORY, J.
*459 HARPER, for Plaintiff in error.
MARTIN and PINKNEY, Attorney General, contra.
*464 The Court having taken time since last term to advise,
STORY, J. (after stating the facts of the case,) delivered the opinion of the Court as follows:
It is true, that the general rule is, that an heir shall not take by devise, when he may take the same estate in the land by descent. 1 Roll. Abr. 626. l. 30. Hob. 30. 1 Salk. 242. 1 Bl. Rep. 22.
But it is not denied that all the estates which each of the grandsons derived under the will, were estates by purchase. Admitting the executory devises over to be good, there could be no doubt as to any part of the estates; for the estates are of a quality different from what he parties would have taken in the course of descent.
It has been argued by the Plaintiff's counsel, upon the foregoing facts, that as to the whole estate immediately devised to John M`Connell, the lessors of the Plaintiff are entitled to recover, in the events which have happened, as his heirs ex parte materna; and that as to the estate devised to him upon the contingency of the death of John B. Hammond under age and without issue, the lessors of the Plaintiff are entitled to recover as the heirs at law of John M`Connell, at the time when the contingency happened, although not heirs at the time of his death.
*465 The decision of these points depends upon the true construction of the statute of descents of Maryland, and the application thereto of the principles of the common law.
This statute of descents, (1786, ch. 45,) after reciting that the law of descents which originated with the feudal system and military tenures, is contrary to justice, and ought to be abolished, enacts, "That if any person seized of an estate," &c. "shall die intestate thereof, such lands," &c. "shall descend to the kindred, male and female, of such person, in the following order, to wit: First, to the child or children, and their descendants, if any, equally, and if no child or descendant, and the estate descended to the intestate on the part of the father, then to the father, and if no father living, then to the brothers and sisters of the intestate of the blood of the father, and their descendants equally, and if no brother or sister as aforesaid, or descendant from such brother or sister, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather and their descendants, in equal degree equally, and if no descendant of such grandfather, then to the father of such grandfather, and if none such living, then to the descendants of the father of such grandfather in equal degree, and so on, passing to the next lineal male paternal ancestor, and if none such, to his descendants in equal degree, without end: And if no paternal ancestor, or descendant from such ancestor, then to the mother of the intestate, and if no mother living, to her descendants in equal degree equally, and if no mother living, or descendants from such mother, then to the maternal ancestors and their descendants in the same manner as is above directed as to the paternal ancestors and their descendants. And if the estate descended to the intestate on the part of the mother, and the intestate shall die without any child or descendant as aforesaid, then the estate shall go to the mother, and if no mother living, then to the brothers and sisters of the intestate of the blood of the mother, and their descendants in equal degree equally, and if no such brother or sister, or descendant of such brother or sister, then to the grandfather on the part of the mother, and if no such grandfather living, then to his descendants in equal degree equally, and if no such descendant *466 of such grandfather, then to the father of such grandfather, and if none such living, then to his descendants in equal degree, and so on, passing to the next mail maternal ancestor, and if none such living, to his descendants in equal degree, and if no such maternal ancestor, or descendant from any maternal ancestor, then to the father of the intestate, and if no father living, to his descendants in equal degree equally, and if no father living, or descendant from the father, then to the paternal ancestors and their descendants, in the same manner as is above directed as to the maternal ancestors."
"And if the estate is or shall be vested in the intestate by purchase, and not derived from or through either of his ancestors, and there be no child or descendant of such intestate, then the estate shall descend to the brothers and sisters of such intestate of the whole blood, and their descendants in equal degree equally, and if no brother or sister of the whole blood, or descendant from such brother or sister, then to the brothers and sisters of the half blood and their descendants, in equal degree equally, and if no brother or sister of the whole or half blood, or any descendant from such brother or sister, then to the father, and if no father living, then to the mother, and if no mother living, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather, in equal degree equally, and if no such grandfather, or any descendant from him, then to the grandfather on the part of the mother, and if no such grandfather, then to his descendants in equal degree equally, and so on without end, alternating the next male paternal ancestor and his descendants, and the next male maternal ancestor and his descendants; and giving preference to the paternal ancestor and his descendants; and if there be no descendants or kindred of the intestate as aforesaid to take the estate, then the same shall go to the husband or wife, as the case may be; and if the husband or wife be dead, then to his or her kindred in the like course as if such husband or wife had survived the intestate, and then had died entitled to the estate by purchase; and if the intestate has had more husbands or wives than one, and all shall die before such intestate, then the estate shall be equally divided among the kindred of the several husband or wives in equal degree equally."
*467 Three classes of cases are here in terms provided for.
1. "Estates descended to the intestate on the part of "the father."
2. "Estates descended to the intestate on the part of "the mother."
3. "Estates vested in the intestate by purchase and "not derived from or through either of his ancestors."
The descent of an estate of purchase, from brother to brother, and from a son to a parent, where the brother or the parent is the propositus, is not directly within the language of the statute. For, by the common law, a descent from brother to brother is held to be an immediate descent, and not from or through the parents; and the express provision of the statute of Maryland as to estates of purchase, necessarily involves the same conclusion; and the same may be declared of a descent from a child to a parent under the same statute.
It has been argued that the legislature intended to form a complete scheme of descents; and that the Court ought not to construe any case to be a casus omissus, if by any reasonable construction the words can be extended to embrace it. Both parties accede to this argument, but they apply it in a very different manner. The Plaintiffs contend that the descent from brother to brother was meant to be included in the first and second classes of descents, as the parents were the common link of connexion from and through whom the consanguinity was to be sought; that therefore the descent, in such case, is ex-parte paterna, or materna, as the father or mother happens to be the commune vinculum. And the Plaintiffs rely on the words "and not derived from or through either of his ancestors," in the clause embracing the third class, as distinctly showing that the legislature deemed every case of descents to be completely within the preceding classes. On the other hand, the Defendants contend that whatever might be the legislative supposition, it is impossible to support the position, that a descent from brother to brother, or from child to parent, is a descent ex-parte paterna or materna, *468 It is therefore, either a casus omissus, or the words "and not derived from or through either of his ancestors" are to be considered not as qualifying and limiting the preceding words, but as either constituting a fourth class of cases, embracing all such as are not included in the three preceding classes; or as explaining estates by purchase to include all cases which are not paternal or maternal descents.
There are certainly intrinsic difficulties in admitting either of these constructions. If the legislature have proceeded on a mistake, it would be dangerous to declare that a Court of law were bound to enlarge the natural import of words in order to supply deficiencies occasioned by that mistake. It would be still more dangerous to admit that because the legislature have expressed an intention to form a scheme of descents, the Court were bound to bring every case within the specified classes. In the present case, equal violence would be done to the ordinary use of the terms employed by adopting the construction contended for by either party.
It is not a descent from or through the paternal or maternal line, in the sense of the common law. Nor is it a purchase.
The words "and not derived from or through either of his ancestors" are manifestly used as explanatory of the legal import of purchase. They are the exact words which the common law selects to distinguish the estate of a purchaser from the estate of an heir.
It is obvious that the legislature use the words descent and purchase in their technical and legal sense. They have also expressly provided for the case of a descent from brother to brother, passing by the parents; and of a parent from a child, when there are no brothers or sisters. These descents must therefore be direct and immediate; and the former case is so deemed also at the common law. It is therefore in our judgment perfectly clear, that a descent from brother to brother is not within the statute, and of course is a casus omissus, to be regulated by the common law.
To apply this to the present case. By the arrival of John M`Connell at the age of 21 years, all the estates *469 devised to him immediately became absolute estates in fee simple. On his death they passed to his half brother, John B. Hammond; and upon his death they passed to the heirs at law of the latter. The lessors of the Plaintiff have therefore made no sufficient title thereto.
Let us now consider the second question: whether the lessors of the Plaintiff have any title to the estates which were devised over to John M`Connell upon the contingency of John B. Hammond's dying under age and without issue.
It has been argued by the Defendant's counsel that this executory devise is void because the contingency is too remote.
It is the acknowledged rule, that an executory devise is not too remote if the contingency may happen within a life or lives in being, or 21 years and a few months after.
In the present case the contingency must have happened within 21 years at all events. For if John B. Hammond attained his full age the estate vested absolutely. To have defeated the estate over, it was sufficient either that he attained his full age, or died under age leaving issue. The authorities are conclusive on this point. 1 Wils. 140, 270. 2 Burr 873. 1 Saund. 174. 5 Bos. and Pul. 38. 12 East. 288. 2 Str. 1175. There is no validity therefore in this objection.
In the next place it will be necessary to consider what is the nature of an executory devise as to its transmissibility to heirs, where the devisee dies before the happening of the contingency.
And it seems very clear that at common law, contingent remainders and executory devises are transmissible to the heirs of the party to whom they are limited, if he chance to die before the contingency happens. Pollexfen 54. 1 Rep. 99. Cas. Temp. Talb. 117. In such case, however, it does not vest absolutely in the first heir so as upon his death to carry it to his heir at law, who is not heir at law of the first devisee, but it devolves from heir to heir, and vests absolutely in him only who can make himself heir to the first devisee at *470 the time when the contingency happens, and the executory devise falls into possession.
This rule is adopted in analogy to that rule of descent which requires that a person who claims a fee simple by descent from one who was first purchaser of the reversion or remainder expectant on a freehold estate, must make himself heir of such purchaser at the time when that reversion or remainder falls into possession. Co. Lit. 11. (b.) 14, (a.) 3 Rep. 42. Nor does it vary the legal result that the person to whom the preceding estate is devised, happens to be the heir of the executory devisee, for though on the death of the latter the executory devise devolves upon him, yet it is not merged in the preceding estate, but expects the regular happening of the contingency and then vests absolutely in the then heir of the executory devisee. The case of Goodright v. Searle, 2 Wils. 29, is decisive on this point and indeed runs on all fours with the present.
But it is contended that the statute of descents of Maryland has changed the rule of the common law in this respect; and has made the death of the intestate the point of time from which the descent and heirship are in every case to be traced. The third section, which is relied on for this purpose, enacts as follows: "That "no right in the inheritance shall accrue to or vest in "any person, other than to children of the intestate "and their descendants, unless such person is in being, "and capable in law to take as heir at the time of the "intestate's death; but any child or descendant of the "intestate, born after the death of the intestate, shall "have the same right of inheritance as if born before "the death of the intestate."
In our judgment, the conclusion drawn from this clause is not correct. The object of the section is to limit the natural capacity to take, as heirs, to persons in being at the time of the death of the intestate, where the estate is then capable of vesting in possession; and not to make persons heirs, who, if in being at the time, would not, by the common law, answer the description of absolute heirs, or to give a vested absolute interest, where the common law had given only a possible contingent interest. The legislature had in view cases of *471 posthumous children, and cases where a descent to an heir had been defeated by the subsequent birth of a nearer heir. The argument of the Defendants, on this point, ought not, therefore, to prevail. No question has been made as to the land specifiedly devised to John B. Hammond in fee with a limitation over to his father in fee. As that limitation over was a good executory devise, and, in the events which happened, took effect, it is very clear that the lessors of the Plaintiff cannot claim title thereto. This is indeed conceded on all sides.
The result of this opinion accordingly is, that the lessors of the Plaintiff are entitled, as heirs of John M`Connell, at the happening of the contingency, on the death of John B. Hammond, under age and without issue, to one moiety of the Church-hill lands, and the residuary estates as tenants in common with the heirs of John B. Hammond; but they are not entitled to any portion of the lands of which John M`Connell had an absolute vested fee at the time of his decease.
As, however, a tenant in common cannot in general maintain an action of ejectment against his co-tenant, and there are no facts found in this case to prove an actual ouster and to take it out of the general rule, the consequence is that the judgment, in the opinion of a majority of the Court, must be affirmed with costs.
