Wilson agt. Wilson.

There is, obviously, a wide difference between the interest devised to Elizabeth Park by this codicil, and that which was considered in the court of errors in Jackson agt. Waldron. Here the vesting of an estate in fee depended upon nothing but the contingency of the death of Thomas M. Wilson without male issue, and the persons in whom it was to vest were designated and ascertained. In the Eden will, on the contrary, the person who was to take was not ascertainable until the contingency happened. In other words, it depended upon the double contingency of the death of one of the brothers without issue, and the survivorship of the other. It was upon this very point that Senator TRACY held that the interest of Medcef Eden was a naked possibility not coupled with an interest. The whole point really decided in Jackson agt. Waldron was that a devise to two, and if either dies without issue, his share to the survivor, gave to each only a bare possibility in the lands devised to the other during his life, and that such a right was not interest, and was not assignable or releaseable. The cases and text writers cited both by the CHANCELLOR and Senator TRACY, clearly make the distinction between such a right and a devise upon a like contingency to a definite and certain person. It is agreed that the latter are coupled with an interest, and it is well settled that they are devisable. This was determined in the case of Roe agt. Jones, (1 H. Bl., 30; S. C., in error in K. B., 3 T. R., 88.) It cannot be doubted that the right or interest of Elizabeth Park in these lands was devisable. We have held that it was releasable, and passed to Thomas M. Wilson by the release proved in this case before he made the mortgage in question. And it will be seen that as it was a possibility coupled with an interest as being created by a devise to a designated person, and upon a single contingency, not remote or dependant upon the volition of another; the estate of Mrs. Park was a different one from that of Medcef Eden, and her

Wilson agt. Wilson.

release was valid under the distinction by which his was declared void.

But the question now is whether this contingent interest, or possibility coupled with an interest, could be bound or charged by a mortgage-that is, substantially, whether it was assignable and this is a question not decided in any of the cases to which I have referred.

Senator TRACY asserts it to be the doctrine of the older cases, that a contingent interest, though devisable is not assignable, and that the more recent decisions do not trench upon that rule. The remark was not necessary in the decision of the cause, and I think with deference was hardly correct. The opinion or impression may no doubt be traced in a great degree to Lampet's case, (10 Rep. 46.) Lord COKE does say it was resolved in that case that an executory interest is a term which was devised for life to one, and then for the residue to another, was not assignable to a stranger. But what was adjudged in the case was that this interest in the latter was releasable to the tenant for life. Executory devises had then but just been introduced into the law, and they were regarded by the elder lawyers with a strictness which has since been relaxed. Without adverting to the whole series of decisions, it will be sufficient to cite a few of the more recent. In the case of Jones agt. Roe, (3 T. R., 88, 93,) Lord KENYON seems to have considered that it had come to be settled by degrees that such interests were descendible, releasable, and assignable, and that the only question remaining was if they were devisable, which he expresses a determination to put at rest. So the other judges gave their opinion seriatim-thought that the case turned upon the statute of wills, and upon the question whether the language of the statute was broad enough to include the interest or estate in question. I think the modern authorities and the text-books will sustain the proposition, that devisable and assignable are convertible terms in reference to contingent interests, and I see no

Wilson agt. Wilson.

reason why they should not. In order to show that such contingent rights were devisable, it was only necessary to establish that they were interests, and not merely possibilities. But when this was established it certainly proved that the devisee had something in the land, and if he had an actual definite, although contingent interest, he could convey by the same rule by which he could devise it, unless he was forbidden to do so by the statutes of champerty. I have no doubt that such a case is entirely excluded from the purview of all, even the older and more stringent statutes of champerty. Waiving the question whether a mortgage is forbidden by these statutes, the sale of a contingent interest to arise after a determinable fee is not such a sale of a pretended right or title as the statutes of champerty aim to prevent; such pretended titles are where one person claims land of which another is in possession, holding adversely. It is plain that there was no such adverse possession here. I perceive no difference between vested and contingent remainders, or executory devises, in respect to champerty. In either case there is no possession by the remainderman or executory devisee, and in neither is there any possession adverse to him. In Grant agt. Townsend, (2 Hill, 554,) it was held that a remainderman could convey while the tenant for life was in possession. That was a vested remainder, but the principle would have been the same if it had been contingent.

I am of the opinion that Mrs. Park could have made a valid mortgage upon her interest, and that her assignee, Thomas M. Wilson, was equally competent. It follows that the mortgage which was made by the latter was a lien, not only on his own estate under the codicil in all the lands described which determined at his death, but also upon the fee in one-third of those lands which his children took as heirs to their father, through the release of Mrs. Park. This being so, it seems to me that there is no occasion or opportunity to invoke the law of estoppel against the plain

Wilson agt. Wilson.

tiff as assignor of this mortgage. The doctrine upon which his liability for the mortgage was made out in the court below, rested upon his having assigned as valid an instrument which had become wholly invalid and ineffectual, by the death of the mortgagor, and which by its terms, covered land of which the assignor had become the owner. But that was not the fact; James Wilson still held this mortgage against the original share or estate of Elizabeth Park. It was a valid lien upon the fee to that extent, and I see nothing by which it can be said that James Wilson has guaranteed that it was a lien upon anything more, or that he should be estopped from denying that it was not. If James Wilson had been compelled to pay this mortgage, I apprehend he could have come round, either in this action or in a proper suit, upon the heirs of Thomas M. Wilson for compensation to the extent of the value of the share of Elizabeth Park, because they took this as heirs to their father, and not as purchasers, or as heirs to Thomas Wilson, sen. But in the present aspect of the case, I think the mortgage in question should be paid out of the share devised to Elizabeth Park, and now held by the daughters of Thomas M. Wilson by virtue of her release in the land described in the mortgage. If the process of this court should prove insufficient for the purpose, the holder of the mortgage should be at liberty to apply for any proper relief against the heirs of Thomas M. Wilson, who are liable for the debt of their father, not only to the extent of the land expressly mortgaged, but the value of the interest in all the land devised which passed by the release of Elizabeth Park, and comes to them as heirs of Thomas M. Wilson.

The conclusions at which I have thus arrived, dispose of the questions which were discussed as to the equities between James Wilson and Thomas M. Wilson's children.

There was another point raised in behalf of the defendant, Mary L. Wilson, and others, that they should be paid the expenditures made by their father in permanent improve

Munson agt. Howell.

ments. It is sufficient to say that I do not find in the papers any evidence of these improvements, and we are not called upon to lay down any rule with respect to them.

My opinion, therefore, is, that there should be a modification in relation to the mortgage of Thomas M. Wilson in conformity with this opinion, and that, in other respects, the judgment should be affirmed. But my brethren do not concur in this view of the effect of the assignment by James Wilson. They consider him bound to make the mortgage good out of his own share of this property, in consequence of his assignment, upon a similar principle to that which was acted upon by the referee, although applied to a different state of facts. In their view of the case, James Wilson, having assigned, without qualification, a mortgage which described the premises generally, or the estate of the mortgagee as if he owned the whole, is not at liberty to assert that he, the assignor, is the owner of a share of the lands not subject to the mortgage; I am not able, as I have said, to concur in this view of this part of the case, or in consequences which are deduced from it. Upon these other points presented by the case, the court are unanimous, and it being the opinion of a majority of the court that this portion of the judgment is also correct, the whole judgment is affirmed.

The costs of all the parties on appeal will be paid out of the fund.

SUPREME COURT.

JAMES L. MUNSON agt. THOMAS M. HOWELL and others, Administrators, &c.

Where a claim against exccutors or administrators is referred under the statute, the defendants, (executors or administrators,) where they succeed, are entitled to costs against the plaintiff, as in an action. (Agreeing with Linn agt. Clow, 14 How. Pr. R., 508; and Boyd agt. Bigelow, id. 511.)