In April, 1815, William Brown, of Massachusetts, made his will
by which he made sundry bequests to his youngest son, Samuel. One
of them was of the rent or improvement of the store and wharf
privilege of the Stoddard property, during
his natural life, and the premises to descend to his heirs.
After two other similar bequests, the will then gave to Samuel,
absolutely, a share in certain property when turned into money.
In May, 1816, the testator made a codicil, revoking that part of
the will wherein any part of the estate was devised or bequeathed
to Samuel, and in lieu thereof bequeathing to him only the income,
interest, or rent. At his decease, it was to go to the legal
heirs.
Under the circumstances of this will and codicil, the revoking
part applied only to such share of the estate as was given to
Samuel, absolutely, leaving in the Stoddard property a life estate
in Samuel, with a remainder to his heirs, which remainder was
protected by the laws of Massachusetts until Samuel's death.
At the death of Samuel, the title to the property became vested
in fee simple in the two children of Samuel.
One of these children had a right to bring a real action by a
writ of right for his undivided moiety of the property.
The writ of right was abolished by Massachusetts, in 1840, but
was previously adopted as a process by the acts of Congress of 1789
and 1792. Its repeal by Massachusetts did not repeal it as a
process in the circuit court of the United States.
A judgment of
non pros given by a state court in a case
between the same parties, for the same property, was not a
sufficient plea in bar to prevent a recovery under the writ of
right, nor was the agreement of the plaintiff to submit his case to
that
Page 57 U. S. 355
court upon a statement of facts sufficient to prevent his
recovery in the circuit court.
This consequences of a nonsuit examined.
Brown, who was a citizen of Vermont, brought a writ of right to
recover an undivided moiety of certain property in Boston. He was
one of the two sons of Samuel Brown and the grandson of William
Brown, the testator, the construction of whose will and codicil was
the principal point in controversy.
As to part of the demanded premises there was a joinder of the
mise. As to another part of the premises, a plea of nontenure on
which issue was joined. The verdict on the joinder of the mise was
for the plaintiff, the now defendant in error.
Upon the issue on the plea of nontenure, the verdict was for the
tenant, now plaintiff in error.
Before pleading, the tenant submitted a motion that the writ be
quashed because writs of right were by the one hundred and first
chapter of the Revised statutes of Massachusetts abolished.
This motion was disallowed.
At the trial, the demandant put in evidence the will of William
Brown, dated 26 April, 1815, and a codicil thereto, dated 30 May,
1816, upon which his claim of title rests.
The substance of the said will and codicil was as follows, the
demandant, Brown, claiming under the devise to Samuel L. Brown, his
father.
"Item: For my youngest child and son, Samuel Livermore Brown,
who was born of my last wife, Elizabeth Livermore, I make the
following arrangement of property in my estate for him:"
"The property of my first wife has been in some measure mingled
in common stock; the property which might otherwise have descended
to me by my last wife, Elizabeth, was, after her decease, conveyed
by her father by deed and by a brother by will to her only
surviving child, the said Samuel, which was perfectly consistent
with my approbation, and the property, being in land, is sufficient
for several farms, and if the said Samuel should quit seafaring
pursuits, which he has selected for his employment, and turn his
attention to agricultural pursuits, he will not need any addition
to his acres, but it may be necessary and convenient to have some
annual income to aid him in his labor; therefore I give and
bequeath to my son, Samuel L. Brown, the rent or improvement of my
store and
Page 57 U. S. 356
wharf privilege situate on the northerly side of the town dock
in Boston, he to receive the rent annually or quarterly if the same
should be leased or let during his natural life, and the premises
to descend to his heirs, this being the estate I purchased of Mr.
Stoddard -- reference to the records will give the bounds. Also, I
do hereby direct my son William to vest one thousand dollars in
bank stock or the stocks of this state or the United States, the
interest of which, as it arises, to be paid by him to the said
Samuel during his life and the stock to descend to the heirs of the
said Samuel. This is to be advanced by the said William as some
consideration for the difference in the value of the two
stores."
The will then went on to create a fund which was to be divided
into four equal parts, one of which was for Samuel, and then
proceeded thus:
"But I do hereby direct my executor, hereafter named, to vest
one-half of the said Samuel's fourth part of this property in the
stock of some approved bank in Boston, or in the stocks of this
state or the United States, or in real estate, the dividend or rent
to [be] paid by him to the said Samuel as it may arise, and the
principal or premises to descend to his heirs, and the other half
of this fourth part to be paid to the said Samuel in money, when
collected, to stock his farm, or for other purposes."
This will was executed on the 26th of April, 1815.
On the 30th of May, 1816, the testator added the following
codicil:
"Whereas my son Samuel has sold his two farms which were left to
him, one by his late grandfather Livermore, by deed, and the other
by his uncle George Livermore, by will, and whereas it appears he
has relinquished every intention to agricultural pursuits, and is
now absent at sea, with a view to qualify himself for a seafaring
life, and, under these circumstances, considering it to be more for
his interest and happiness, I do hereby repeal and revoke the part
of my will wherein any part of my estate, real or personal, is
devised or bequeathed to my son, Samuel, therein named, and in lieu
thereof do bequeath to my son, the said Samuel, only the income,
interest, or rent of said real or personal estate, as the case may
be, so that no more than the income, interest, or rent of any
portion of my real or personal estate, and not the principal of
said personal or fee of said real estate may come to the said
Samuel, my son, which, at his decease, it is my will that the said
real and personal estate shall then go to the legal heirs."
The demandant, George L. Brown, was at the date of his writ, a
citizen of the State of Vermont, and made actual entry on the land
demanded in his writ, January twenty-ninth, eighteen
Page 57 U. S. 357
hundred and fifty-one, claiming an undivided moiety thereof in
fee simple against the defendant as in no way entitled to said
land.
The demandant maintained that under and by virtue of the said
will and codicil of William Brown, he was entitled, at the death of
his father, Samuel Livermore Brown, to one undivided moiety of the
demanded premises in fee simple absolute.
The tenant produced the record of a judgment in a writ of entry,
brought by the defendant in error against the plaintiff in error in
the Supreme Judicial Court of Massachusetts, embracing the premises
now demanded, and submitted to that court on an agreement of facts,
in which suit judgment of nonsuit was directed by the court, and
this agreement of facts and judgment the tenant offered in evidence
as a bar or estoppel to the demandant, so far as the premises were
identical with those claimed in this writ of right, and moved the
court so to instruct the jury.
The tenant put in the deeds of William Brown, Zebiah C. Tilden,
Sally Brown, and Samuel Livermore Brown, dated May 5, 1824, who
were the only children and sole heirs at law of William Brown, the
testator, and he maintained that the aforenamed grantors were
enabled by virtue of the will and codicil to pass, and by these
deeds did pass, all the title to the demanded premises which the
testator had at the time of his death.
The counsel for the defendant then prayed the court to instruct
the jury
"1st. That this action cannot be maintained, because writs of
right to recover land situate in the State of Massachusetts have
been abolished by its laws."
"2d. That this action is barred by the judgment of the Supreme
Judicial Court of Massachusetts, which was rendered in a case
between the same parties and upon the same cause of action; if that
judgment be not a bar to this action, the demandant is estopped by
his agreement to submit in that case from prosecuting this
action."
"3d. That the demandant takes nothing under the will of William
Brown, and that he has no title to the demanded premises or any
part thereof."
"4th. That the rights and title of the demandant, and those
under whom he claims, in and to the demanded premises, or any part
thereof, have been barred by the statute of limitations of
Massachusetts."
"5th. That on the pleadings and facts in this case, all of which
herein before appear, the demandant cannot maintain this
action."
But the Honorable Court did refuse then and there to give the
said instructions to the jury, in the terms and manner in which the
same were prayed, but did instruct the jury as follows:
Page 57 U. S. 358
That the demandant was entitled to a verdict for that part of
the demanded premises as to which the tenants had pleaded the
general issue, and that as to that part of the demanded premises to
which the tenants had put in pleas of nontenure, their verdict
should be for the tenants.
Whereupon the counsel for the defendant did then and there
except to the aforesaid refusals and to the instructions and charge
of the Honorable Court; and thereupon the jury returned a verdict
for the said demandant, in words following to-wit, (finding for the
demandant on the joinder of the mise and for the tenant on the plea
of nontenure).
Page 57 U. S. 363
MR. JUSTICE WAYNE delivered the opinion of the Court.
This cause has been brought to this Court from the Circuit Court
of the United States for the District of Massachusetts, by a writ
of error.
The action is a writ of right. The demandant declares that he
has been deforced by the tenant, Fitz Henry Homer, of certain
premises claimed by him as his right and inheritance, of which he
was seised in fee within twenty years before the commencement of
his suit, at the May term of the circuit court, A.D. 1851. A motion
was made at a subsequent term to quash the writ, upon the ground
that the remedy by a writ of right had been abolished by the
Revised statutes of Massachusetts, c. 101, § 51. The court
denied the motion. Then the defendant, Fitz Henry Homer, who is
tenant of a part of the land demanded, tendered the general issue
on a joinder of the mise, on the mere right of the demandant, as to
that of part of the land of which the defendant is tenant, with
pleas of general nontenure as to a part of the demanded premises,
and of special nontenure as to the residue. His tender was allowed,
and such pleas were filed, upon which the counsel of the demandant
joined issue. Subsequently the defendant asked leave to amend his
pleas, by striking out the pleas of the general issue and general
nontenure, as the same had been pleaded, which was permitted, and
he filed a plea of joinder of the mise on the mere right, with
pleas of nontenure. The demandant joined issue on the first plea,
and filed a replication averring that, from anything alleged, he
was not precluded from having his action against the defendant,
because, at the time of suing out his writ, the tenant was tenant
of the freehold, as has been supposed in the writ, of all the
residue of the demanded premises, and he prayed that the same might
be inquired of by the country. Issue having been taken upon the
replication, the cause was tried. At the trial, the demandant put
in evidence the will of William Brown, dated the 26 April, 1815,
with a codicil dated 30 May, 1816, upon which he rested his title.
The tenant produced the record of a judgment in a writ of entry,
brought by the defendant in error against the plaintiff in error,
in the Supreme Judicial Court of Massachusetts, embracing the
premises here demanded, and which had been submitted to that court
on an agreement of facts, in which a judgment of nonsuit was
directed by the court; and this agreement of facts and judgment the
tenant offered in evidence as a bar or estoppel to the demandant,
so far as the premises were identical with those claimed in this
writ of right, and moved the court so to instruct the jury. The
tenant then put in the deeds of William Brown, Zebiah C. Tilden,
Sally Brown, and Samuel Livermore Brown
Page 57 U. S. 364
dated May 5, 1824, who were the only children and sole heirs at
law of William Brown, the testator, maintaining that the grantors
were enabled, by virtue of the will and codicil, to pass all the
title to the demanded premises which the testator had at the time
of his death.
The tenant further moved the court to instruct the jury that the
action could not be maintained, because writs of right to recover
land in the State of Massachusetts had been abolished by its
laws.
Also, to instruct the jury that the demandant took nothing under
the will and codicil of William Brown, and that on the pleadings
and facts in the case the demandant could not maintain this action.
Another instruction was asked -- namely that the rights and title
of the demandant, and those under whom he claims to the demanded
premises, or any part thereof, have been barred by the statute of
limitations of Massachusetts. But the counsel for the tenant, now
the plaintiff in error in this Court, stated in his argument that
his other prayers for instruction were not relied upon. The court
refused to give either of the instructions just recited and
instructed the jury that the demandant was entitled to a verdict
for that part of the demanded premises as to which the tenant had
pleaded the general issue, and as to that part of the demanded
premises to which the tenant had put in pleas of nontenure, that
their verdict should be for the tenant. The counsel for the
defendant excepted to the refusals and to the instructions which
the court gave, and the jury returned a verdict for the
demandant,
"That on the first issue, being the general issue, the jury find
that the said George L. Brown hath more mere right to have an
undivided moiety of so much of the demanded premises as is thus
described northerly by Clinton Street, sixteen feet; easterly by
the center of a brick wall, dividing the premises from land
formerly of D. Packer, deceased, fifteen feet eight inches;
southwardly by land, formerly of Savage, now of Homer, the
defendant, twenty-three feet, with the appurtenances to him and his
heirs, as he hath above demanded the same than the said Homer has
to hold the same as he now holds it, as the said Brown by his
aforesaid writ hath above supposed; and that the demandant was
seised of the same, as by him in his writ alleged. On the second
and third issues, being upon the pleas of general and special
nontenure, the jury find that the said Fitz Henry Homer was not at
the date of the writ, has not been since, and is not now, seised as
of freehold of any part of the land therein described, as the said
Brown by his aforesaid writ hath above supposed."
We think that the remedy by a writ of right for the recovery
Page 57 U. S. 365
of corporeal hereditaments in fee simple, may still be resorted
to in the Circuit Court of the United States for the District of
Massachusetts, though the same has been abolished in the courts of
that state, and that the court did not err in instructing the jury
accordingly. Such a remedy existed in the courts of Massachusetts
until the year 1840, and it became, by the Judiciary acts of 1789
and 1792, a remedy in the circuit court for that district; any
subsequent legislation of the state abolishing it in its courts
does not extend to the courts of the United States, because it is a
matter of process which is exclusively regulated by the acts of
Congress.
Wayman v.
Southard, 10 Wheat. 1. It is as process alone,
however, that it continues in the courts of the United States,
subject to the limitation prescribed by the Revised statutes of
Massachusetts as to the time within which such a remedy may be
prosecuted in its courts.
The second instruction asked was also properly refused. A
judgment of nonsuit is only given after the appearance of the
defendant, when, from any delay or other fault of the plaintiff
against the rules of law in any subsequent stage of the case, he
has not followed the remedy which he has chosen to assert his claim
as he ought to do. For such delinquency or mistake he may be
nonpros'd, and is liable to pay the costs. But as nothing
positive can be implied from the plaintiff's error as to the
subject matter of his suit, he may reassert it by the same remedy
in another suit, if it be appropriate to his cause of action, or by
any other which is so, if the first was not. Blackstone 295; 1
Pick. 371; 2 Mass. 113.
It is not, however, only for a nonappearance, or for delays or
defaults that a nonsuit may be entered. The plaintiff in such
particulars may be altogether regular, and the pleadings may be
completed to an issue for a trial by the jury; yet the parties may
concur to take it from the jury with the view to submit the law of
the case to the court upon an agreed statement of facts with an
agreement that the plaintiff shall be
nonpros'd, if the
facts stated are insufficient to maintain the right which he
claims. The court in such a case will order a nonsuit if it shall
think the law of it against the plaintiff, but it will declare it
to be done in conformity with the agreement of the parties, and its
effect upon the plaintiff will be preciary the same and no more
than if he had been
nonpros'd for a nonappearance when
called to prosecute his suit, or for one of those delays from which
it may be adjudged that he is indifferent. The Supreme Court of
Massachusetts, in deciding the cause submitted to it, did so in
conformity to an agreement between the parties, but its judgment
cannot be pleaded as a bar to the suit, though in giving it an
opinion was expressed upon the merit of the
Page 57 U. S. 366
demandant's claim under the will of his grandfather, William
Brown.
The court was also asked to instruct the jury that the demandant
was estopped from prosecuting this action by his agreement in his
previous suit to submit it upon a statement of facts. In every view
which can be taken of an estoppel, that agreement cannot be such
here, because the demandant does not make in this case any denial
of a fact admitted by him in that case. He rests his title here to
the demanded premises upon the same proofs which were then agreed
by him to be facts. This he has a right to do. His agreement only
estopped him from denying that he had submitted himself to be
nonsuited, or that he was not liable to its consequences.
We come now to the third prayer for an instruction which the
court denied. It was that the demandant takes nothing under the
will of William Brown, and that he has no title to the demanded
premises or any part thereof. The land sued for is a part of what
the testator designates in his will, the estate bought from Mr.
Stoddard. He bequeaths the rent or improvement of the store upon
it, with the wharf privilege, to his son, Samuel L. Brown, during
his natural life, "and the premises to descend to his heirs." It is
here said that this bequest and devise was revoked by the testator
in the codicil to his will. Care must be taken in the application
of the codicil to the will, but in our opinion the testator's
intention may be satisfactorily shown from the language which he
uses in the codicil, and from its direct connection with one of the
bequests in the will to Samuel. The latter will be more readily
seen by a recital of all the testator's bequests to Samuel, before
we make the application of the codicil to that to which we have
referred. The first bequest is that already stated of the rent or
improvement of the store and wharf privilege of the Stoddard
property. He then directs his son William, as some consideration
for the difference in the value of the devise to him over that of
his bequest to Samuel, to vest one thousand dollars in stock, the
interest of which is to be paid to Samuel during his life and the
principal to descend to his heirs. The third bequest to Samuel is
one-fourth part of a mass of real and personal estate as it is
mentioned in the will, and all of his other property not before or
hereafter disposed of, as the same may be turned into money, with
this direction to his executor, to vest one-half of one-fourth of
it in stock or real estate, "the dividend or rent of which is to be
paid to Samuel as it may arise, and the principal or premises to
descend to his heirs." The testator then bequeaths to Samuel the
other half of that fourth in money when collected to stock his farm
or for other purposes. The
Page 57 U. S. 367
difference between this last and the other bequests to Samuel
being that he had in all of the others only a life interest, and in
this an unqualified and absolute right. Now the question is what
qualifications have been made by the testator's codicil of his
bequests in the will to Samuel and his heirs, and whether the
codicil does not relate exclusively to that bequest of money left
to Samuel to stock his farm and for other purposes? That must be
determined by the language of the codicil. If that is sufficient to
indicate the testator's meaning, we are not permitted to search out
of it for an inference of his intention. If it bears directly upon
one of his bequests to Samuel in such a way as to change it from an
absolute gift into a life interest, in conformity with the
prevalent intention of the testator manifested throughout the body
of his will, to leave to Samuel only a life interest in any part of
his estate, except as to that bequest of the one-half of one-fourth
already mentioned to stock his farm and for other purposes, no
other application of the codicil can be made to any other bequest
in the testator's will.
We learn from the codicil that Samuel had sold his farm between
the date of the will and that of the codicil, for the stocking of
which the testator had given to him a sum of money. And then the
testator states his inducement for making the codicil to be
Samuel's apparent relinquishment "of every intention to
agricultural pursuits," and that being absent at sea to qualify
himself for a seafaring life, he considers it to be more for his
interest and happiness to repeal and revoke "the part of my will
wherein any part of my estate, real or personal, is devised or
bequeathed to my son Samuel therein named," and in lieu thereof to
bequeath to him only the income, interest, or rent of the real or
personal estate during his life. Now excepting the unqualified
bequest of the money to stock his farm, the testator had not, in
either of his other bequests, left to Samuel any more than the
income, interest, or rent of any part of his real or personal
estate, declaring that the property or stock from which such rent
or income might arise, should go to his heirs. With such
corresponding intentions, both in the will and in the codicil, in
regard to Samuel, the codicil cannot be considered as a revocation
of the former interest given to Samuel for his life, and afterwards
to his heirs, unless the testator has used language showing an
express intention to exclude Samuel's heirs from that which had
been given to him for his life, and afterwards without any
limitation to them. That the testator has not done. The only words
in the codicil which have been urged in the argument to show that
the testator meant to do so, is his uncertain declaration at the
end of it, that it was his will that the real and personal estate
our of which Samuel was
Page 57 U. S. 368
to have the income during his life, should at his death go to
the legal heirs. It was said that these word -- the legal heirs --
in connection with those immediately preceding, "so that no more
than the income, interest, or rent of any portion of his real or
personal, and not the fee of said real, may come to the said
Samuel," meant nothing unless they related to the devise of the
Stoddard estate and to the testator's own heirs, because in that
devise it had been provided already that the fee should go to the
heirs of Samuel.
Without yielding to such a conclusion, it is sufficient for us
to say that the testator had provided that other real estate might
be bought out of one-half of one-fourth of the proceeds of the
property left to the executor in trust to be sold for the benefit
of his four children, the rent of which was given to Samuel with a
devise of it after his death to his heirs, and that he had given to
Samuel absolutely the other half of that fourth, which last he
meant by his codicil to revoke and to place upon the same footing
with the rest of his estate, the interest or rent of which he
bequeathed to Samuel for his life. We have been brought to this
conclusion by the language of the testator in his will and codicil.
His recital of the causes which induced him to make the codicil,
shows that he had a particular part of his will in view, and not
all those parts of it in which he had provided for Samuel, singly
in connection with Samuel, and that it was a consequence of those
circumstances (the sale by Samuel) of his farm and his intention to
follow a seafaring life which made him consider it to be more for
his interest and happiness to revoke that bequest only in which he
had given absolutely a sum of money to his son to stock his farm.
The words of revocation are:
"I do hereby repeal and revoke the part of my will wherein any
part of my estate, real or personal, is bequeathed to my son, the
said Samuel, and in lieu thereof do bequeath to my son, the said
Samuel, only the income, interest, or rent of said real or personal
estate, as the case may be."
It is only by changing the words "the part of my will" into the
"parts" of my will that the codicil can be made to bear upon all of
those parts of the will in which Samuel had been made for his life
the object of that arrangement for him of which his father speaks
in that clause of the will which contains the Stoddard bequest. We
think, from the language used by the testator, that he has
bequeathed and devised to the heirs of Samuel all of the property
in which their father was given a life interest, that the codicil
revokes only that clause of the will which contains a bequest of
money absolutely to Samuel, and puts it upon the same footing with
his other bequests to Samuel, both as respects Samuel and his
heirs. The instruction asked by the tenant
Page 57 U. S. 369
was therefore, in our opinion, rightly refused by the court, and
we shall direct its judgment in the suit to be
Affirmed.
Order
This cause came on to be heard on the transcript of the record,
from the Circuit Court of the United States for the District of
Massachusetts, and was argued by counsel. On consideration whereof
it is now here ordered and adjudged by this Court that the judgment
of the said circuit court in this cause be, and the same is hereby
affirmed, with costs.
