Webster v. Cooper. Harton, 7 D. & E. 652; Gregory v. Henderson, 4 Taunt. 772; Cursham v. Newland, 2 Mog. & Scott, 113; Tompkins v. Willon, 2 Barn. & Ald. 84; Brewster v. Striker, 2 Comstock's Rep. 19, and note, 581-2. 2d. The purposes for which the legal estate was originally devised to the trustees, still continue to exist, viz., to preserve the remainders; viz., to "same trustees" for George Barrington in tail and his issue male and his issue female. In same manner to Richard Barrington and issue- same manner to William Barrington and issue; then to testator's granddaughter, Louisa Barrington and her fourth son and daughters, then to Rose Hening May and her issue; the words "same trustees" prior to each devise in remainder. On failure of all these to the use of the ministers and wardens of Westmoreland. 2 Jar. on Wills, 200, 202, 203-228. It was the intention of the testator that the legal estate should remain in the trustees until all the remainders should be executed. It is so expressed in the will. 3d. It is agreed that the persons named in said will, or devises in remainder, after the failure of issue of Elizabeth Vassal, or their lineal descendants, are now living. 4th. Trustees must hold the legal estate, as long as any of the remainders are outstanding; repetition of devise to same trustees to preserve six now unexecuted remainders, Jar. 222. 5th. Necessary that the trustees should hold the legal estate for other purposes, viz., out of the rents and profits &c., they were to purchase negroes, cattle and stock, and other utensils. They were to appoint agents, attorneys, and managers. 2 Barn. & Ald. 84; Id. 554; 2 Jar. 223-5; 6 Barn. & Cress. 420; Morton v. Barrett, 22 Maine Rep. 257. Testator recommends that trustees should appoint his son Richard manager, at their discretion. They are to approve marriage jointures — assumes that money will pass through their hands—they may deduct and retain; discretion as to time of paying £10,000 — gives L. Falmouth 100 guineas for a ring; the other £50 cash for same purpose. Record, 29. 6th. The imbecility of testator's son Richard and the infancy of his granddaughter Elizabeth is a sufficient reason why he should devise the legal estate to trustees; still less, could he anticipate, with any certainty, the existence of unborn sons of his granddaughter. All the estates were over 3000 miles distant. Not named in the will in what State in New England his lands were situate. Trustees most competent to look them up. The cestui que trusts most incompetent. 7th. Another object of testator in giving the legal estate to trustees, would be to prevent cestui que trusts from docking the entailment and defeating subsequent remainders by common Webster v. Cooper. recovery, without the legal estate, they could make no legal tenant to the precipe. 8th. It is competent for defendant to urge and maintain this objection. And to show the legal title in others, and thereby disprove plaintiff's seisin. Cutler v. Lincoln, 3 Cush. Rep. 128. Tenant may give in evidence, title of a third person, without claiming under said third person for the purpose of disproving plaintiff's seisin in a writ of entry. Jack. on Real Actions, 157; Stearns on Real Actions, 365, 380-9; Hall v. Stevens, 9 Met. Rep. 418. 9th. In this case, defendant has no need of invoking that principle; for plaintiff himself introduces the will, by which it is seen that the legal title is in other persons than the plaintiff. 10th. The acquiescence of Lady Holland, the mother of plaintiff, in the open, exclusive, and adverse possession of defendant, and those under whom he claims from the time of her divorce from her first husband, till her decease, (a period of about fifty years) tends to prove that neither she nor her second husband ever claimed the legal estate to be in her. No error in four first assignments. See brief, 2d point. 1. If the court should decide that there is error in the tenth assignment, and that the legal estate is not in the trustees, it is then contended that there is no error in withholding the instructions from the 5th and 9th requests; for if the legal estate was in the cestui que trusts, Elizabeth, mother of plaintiff, took an estate tail, and not for life only, and she is barred by the Statute of Limitations of Massachusetts and Maine, and so is the plaintiff. Shelly's case, 1 Coke, R. 93; 2 Jar. 241 to 249; Doug. 321, 324; Soule v. Soule, 5 Mass. R. 61; 19 Ves. 175; Malcom v. Malcom, 3 Cush. 472. 2. Plaintiff takes, by limitation under the will, an estate tail. Co. R. lib. 6, fol. 17, Wyld's case; Robinson v. Robinson, 1 Burr. R. 38; 2 Jar. 271, 272, 287; Chandler v. Smith, 7 D. & E. 532; Pearson v. Vickers, 5 East, R. 548; Jesson v. Wright, 2 Bligh, R. 258; Coulson v. Coulson, 2 Strange, R. 1125; Brook v. Astley, 3 Burr. R. 1570; 4 Barn. & Cress. 610; 1 Barn. & Ald. R. 944; Parkman v. Bowdoin, 1 Sumn. R. 359; Fearne on Remain. 118, 124; 4 Kent's Com. 214 to 232. 3. Sons, at time of will unborn, words of limitation. Wharton v. Graham, 2 W. Black. R. 1083; 1 Vent. 231, cited by Hale, C. J., in King v. Snelling; Byfield's case, 1 East, R. 229; Doe dem Cook v. Cooper, 2 Barn. & Cress. 524; 2 Barn. & Adol. R. 87; 4 Id. 43; 5 Id. 421; 2 Jar. 394 to 470; 4 Barn. & Cress. 610; 1 Moore, 682, pl. 939; Sondy's case, 9 Co. R. 127; Inman v. Barnes, 2 Gall. 315; 15 Ves. R. 546. Rule in Shelly's case in force in Massachusetts till March 8th, Webster. Cooper. 1792, 14 years after probate of this will. Davis v. Hayden, 9 Mass. 514; 4 Pick. 206; 15 Pick. 104; 7 Met. R. 172; Id. 425; Jones v. Morgan, 1 Brown, C. C. 206, Lord Thurlow. Plaintiff sues as tenant in tail. Shoemaker v. Sheely, 2 Den. 485. Mr. Justice CURTIS delivered the opinion of the court. Henry Webster, an alien, and subject of Great Britain, brought his writ of entry in the Circuit Court of the United States for the District of Maine, to recover possession of a parcel of land described in the count. He claims title under a will of Florentius Vassall. At the trial, the parties agreed on the following facts: "It is agreed, by the parties, that the following statement of facts is true, namely, that the demanded premises belonged to the proprietors of the Kennebec Purchase, and were by them duly granted and assigned to Florentius Vassall, one of the proprietors in fee, in the year 1756, being included in the grant recorded in the records of the proprietary. "That Florentius Vassall made his will September 20th, 1777, and died at London, 1778, seised of the lands in question, they then being unoccupied wild lands. The will was afterwards duly proved in the Prerogative Court of Canterbury, September 14, 1778, a copy of which will, with its exemplifications, has been duly filed and recorded in the Probate Office for the county of Kennebec; which will was offered in evidence, as copied, and makes a part of this case. (C.) "Richard Vassall, named in the will, died about 1795, leaving only one child, Elizabeth Vassall, who married Sir Godfrey Webster, deceased, about the first day of January, 1793, by whom she had issue, two sons, namely, Sir Godfrey Vassall Webster, who died in the lifetime of said Elizabeth, without issue, and Henry Webster, the demandant. Said Elizabeth, afterwards, namely, in January, 1796, was legally divorced from her husband, the said Sir Godfrey Webster, and on the first day of July, 1797, she was legally joined in marriage with Richard Henry Fox, afterwards Lord Holland, by whom she had issue, one son, Henry Edward Fox, who is now living. All charges upon the land devised have been satisfied, and they are not now subject to any life estate, estate for years, or outstanding terms, under the will. Said Lord Holland died on the 1841; said Lady Holland died in the fall of the year 1845. The persous named in said will as devisees in remainder, after the failure of the issue of said Elizabeth, or their lineal descendants, are now living in England, as is the said Henry Edward Fox, son of said Elizabeth. That said. Florentius Vassall, was, at the time of said grant, a resident in Boston, State of Massachu Webster v. Cooper. setts; that he, on or before the year 1775, left his said residence, went to England, and never returned; and that neither he, nor any of the devisees named in said will, have ever resided within the limits of the United States since that time. The premises demanded, being the matter in dispute, are of greater value than two thousand dollars. "The tenant, and those from whom he legally derives title to said demanded premises, have been in the quiet, undisturbed, open, notorious, and exclusive possession and occupation of said premises for and during the term of fifty years next preceding the commencement of this action, he and they claiming to hold the same adversely to any claim of said demandant, or any other person, as his and their own property in fee-simple." These facts, together with the will of Florentius Vassall, made the case. By this will the testator devised three plantations in Jamaica, and all his lands in New England, (which included the demanded premises,) to Lord Falmouth, Lord Barrington, and Mr. Charles Spooner, and their heirs, to the uses, upon the trusts, and for the intents and purposes, and with and subject to the powers and provisos therein expressed. The will then proceeds to declare, in respect to all the lands in New England, as follows: To the use of my son, Richard Vassall, for and during his life, and from and after the determination of that estate by forfeiture, or otherwise, during his life, to the use of the three trustees during the life of Richard Vassall, in trust to preserve the contingent uses and estates thereinafter mentioned, and for that purpose to make entries and bring actions as occasion shall require, but nevertheless to permit Richard Vassall to take the rents of the premises to his own use during his life. The testator then declares the remainder, after the death of Richard, to be to the use of the son and sons of Richard, to be equally divided between them, share and share alike, as tenants in common, and not as joint tenants, and to the several and respective heirs male of the bodies of such sons, with cross remainders among them; and in default of such issue male of Richard, subject to a term of years, which it is agreed is not outstanding, to the use of Elizabeth Vassall, the daughter of Richard, for her life, with remainder as before stated to the trustees for the life of Elizabeth to preserve contingent remainders, in case of forfeiture of her life estate; and then foliows the provision under which the demandant claims title, which is therefore given in the words of the will. "And from and immediately after the decease of the said Elizabeth Vassall, to the one or all and every the son and sons of the said Elizabeth Vassall, to be begotter to be divided between or amongst such sons, if more than one, share and, share alike, and they to take Webster v. Cooper. as tenants in common, and not as joint tenants, and the severa and respective heirs male of the body and bodies of all anc every such son and sons issuing." Then follow remainders to the other daughters of Richard, as tenants in common in tail general, with cross remainders; remainder to the daughters of Elizabeth Vassall, as tenants in common in tail general, with cross remainders, with successive remainders to George and Richard, and William Barrington, testator's grandsons, for life; remainder to their sons, as tenants in common in tail male; remainder to testator's granddaughter, Louisa Barrington, for life, and her sons in common in tail male; remainder to her daughters, as tenants in common in tail general; remainder to testator's daughter, Elizabeth Barrington, for life; remainder to her other sons "in tail male successively;" remainder to her future daughters, as tenants in common in tail; remainder to testator's nephew May, for life; remainder to his sons in common in tail male; remainder to his daughters in common in tail; remainder to the minister and wardens of Westmoreland, &c. These are the most material provisions of the will of these lands, and are sufficient to show its general structure, in reference to the questions which have been made concerning its legal effect. The first of these question is, whether, by force of the will, the demandant took any, and if any, what legal estate in these lands on the decease of his mother, Elizabeth Vassall. It is insisted, by the tenant's counsel, that the trustees took the legal estate in fee simple, and that the estates limited to Richard Vassall for life, and to the others, by way of remainder, were only equitable estates, and consequently the demandant cannot maintain this action. But whether we look to the evident intent of the testator, or to the settled technical meaning of the language he has employed, we think it clearly appears that the life estate of Richard Vassall and the contingent remainders limited thereon were legal estates, and that the trustees did not hold the fee-simple under this will. The instrument was drawn in England, evidently by a skilful draughtsman, and is in strict conformity with well-known precedents. It employs technical language with accuracy, and all the various provisions of the will, though numerous and complicated, compared with the usually simple testamentary dispositions of property in this country, are capable of being clearly understood and fully executed. The substance of the devises of these lands, may be stated to be: to the trustees and their heirs to the use of Richard for life, remainder, for his life in case of forfeiture, to the trustees to preserve contingent remainders; remainder to the sons of Richard, if any, as tenants in common |