Webster v. Cooper. in tail, with cross remainders; remainder to Richard's daughter Elizabeth for life; remainder to trustees to preserve contingent remainders during her life; remainder to the sons of Elizabeth in tail, the demandant being the elder of her two sons. A devise to the trustees and their heirs to the uses mentioned, carries the legal estate to the cestuis que use, unless the will has imposed on the trustees some duty, the performance of which requires the legal estate to be vested in them. And in that case they would take an estate exactly commensurate with the exigencies of their trust. Morrant v. Gough, 7 B. & C. 206; Kenrick v. Lord Beauclerck, 3 B. & P. 178; 10 Bythewood on Con. 214; Jarm. on Wills, 198-9; Nielson v. Lagow, 12 How. 110, 111; 1 Greenl. Cruise, 346-7, note. The testator has not imposed on the trustees any duties, connected with these lands, which in any way interfere with the existence of legal estates in the different beneficiaries named in the will. On the contrary, the sole duties to be performed by them, in reference to these lands, are to take the life estates, in case of forfeiture, and hold them, so that the future remaindermen may not be deprived of the legal estates limited to them by way of contingent remainders, which require the preservation of the particular estates to support them. Whether the trustees took and held any legal estate in either of the plantations in Jamaica, it is not necessary to determine. It was argued that they did, because they have some duties to perform concerning two of them, and that the testator employs the same language in devising these two plantations to the trustees, as he does in devising the lands in New England. But it by no means follows that the same words devising to trustees two parcels of land, must necessarily vest the legal estates in both parcels in the trustees, because they take a legal estate in one of those parcels. They may take a legal estate in one, because subsequent parts of the will require them to do acts in reference to it, which can be done only by the holder of the legal estate, and then the law assigns to them such an estate as the due execution of their trust demands; while at the same time, by force of the statute of uses, or of wills, the other land, as to which no duties are required of the trustees, goes to the cestuis que use. So far as this will operates on the lands in New England, there is nothing to prevent the usual and settled operation of a devise to uses, which is, to vest the legal estate in the cestuis que use; and it is placed beyond all doubt that it was not intended the trustees should hold the fee, because there are express limitations of life estates to them to preserve contingent remainders, which would be wholly inoperative if they took the Webster v. Cooper. fee, and is sufficient of itself to control any doubtful intent, according to Doe v. Hicks, 7 T. R. 433; Curtis v. Price, 12 Ves. 100. Our conclusion is that the legal estates in the New England lands, were to go to the beneficiaries named in the will. It is further urged by the tenant's counsel, that the legal effect of the devise to Elizabeth Vassall for life, remainder to her sons, as tenants in common, share and share alike, and to the heirs. of their bodies, gave an estate tail to Elizabeth Vassall, under the rule in Shelly's case, which was in force in Massachusetts, within whose limits these lands lay at the time this will took effect. There is no doubt this rule made part of the law of Massachusetts until the 8th of March, 1792, when it was abolished by statute, so far as it respects wills. Bowers v. Porter, 4 Pick. 198; Steel v. Cook, 1 Met. 282. But in our opinion, the rule in Shelly's case is not applicable to this devise. That rule is, that when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either immediately or mediately, to his heirs in fee or in tail, that the words heirs, &c., are words of limitation, and not of purchase. Here the life estate is limited to Elizabeth Vassall, and the remainder to her sons as tenants in common, share and share alike, and the heirs of their bodies. The fee tail is not limited to the heirs in tail of the first taker. The heir in tail was this demandant; and the remainder is not limited to him, but to him and his brother, as tenants in common. It is not a question, therefore, whether the same persons shall take by descent or purchase, which alone is the matter determined by the rule in Shelly's case; for the two sons could not take an estate tail from their mother as tenants in common. They must take as purchasers, or not take at all; and there is no rule of law which forbids such a devise, nor can the rule in Shelly's case be applied to it. On the contrary, it is well settled that a limitation by way of remainder to the sons of the first taker, as tenants in common, manifests the intent of the testator that the ancestor should not take an estate in fee or in tail, and that the sons may and do take as purchasers. Doe v. Burnsall, 6 T. R. 30; Burnsall v. Davy, 1 B. & P. 215; Gilman v. Elvy, 4 East, 313, Doe v. Collins, 4 T. R. 294; 4 Greenl. Cruise, 389. Our opinion is, that upon the decease of his mother, this demandant took, as a purchaser, an estate tail in one moiety of these lands, as a tenant in common with his brother. It was objected that the devise to him was upon the condition that as soon as he should come into the actual possession of the lands devised, he should take and use the surname of Vas Webster v. Cooper. sall; but it is enough to say that he does not appear to have yet come into such actual possession, and that if this condition subsequent were broken, only the person to whom the lands are devised over can by an entra take advantage of it. Taylor v. Mason, 9 Wheat. 325; Finley v. King, 3 Pet. 347. Under the Revised Statutes of Maine, c. 145, § 13, the demandant may recover according to his title, provided he has a right of entry; and this raises the only remaining question, whether he has such a right, or whether it is barred by an act of the Legislature of Maine, passed on the eleventh day of August, 1848, which is as follows: An act, in addition to the one hundred and forty-seventh chapter of the Revised Statutes. Sec. 1. No real or mixed action for the recovery of any lands in this State shall be commenced or maintained against any person in possession of such lands, where such person, or those under whom he claims, have been in actual possession for more than forty years, and claiming to hold the same in his or their own right, and which possession shall have been adverse, open, peaceable, notorious, and exclusive. Sec. 2. This act shall take effect at the end of one day, from and after its approval by the governor. This action was commenced on the fourteenth of April, 1846, and, consequently, had been pending upwards of two years, when the above act was passed. The inquiry is, what is its effect upon this action, and the title of the demandant? That it was intended to be retrospective, and to bar a recovery in actions then pending, upon proof of such seisin by the tenant as the act describes, is plainly indicated. Under the constitution of the State of Maine, can it so operate ? To determine this question, it is necessary to take into view the legal rights of the demandant and tenant, when this act was passed, and the change in those rights attempted by the act. The demandant, on the decease of his mother, in 1845, became constructively seised of an estate tail, and had a right of entry into these lands. The actual seisin of the tenant and those under whom he claims, though adverse to all persons having estates in possession under the will of Florentius Vassall, for a period of time sufficient to bar their right of entry, did not become adverse as against the demandant, until he acquired an estate in possession, by the decease of his mother; and, consequently, when he brought this action, he was lawfully entitled to one moiety of the land, as tenant in tail, having an estate of inheritance which he could convey by deed, and upon which, being disseised, he could maintain a writ of entry. In other words, Webster v. Cooper. the land was his property, and, as such, he had a right to recover and hold it. Rev. Stat. c. 147, § 3. The effect of the act is, to make the seisin of the tenant, and of those under whom he claims, adverse as against the demandant, during the time he had no right of possession, and thus to deprive him of his right of entry, and destroy his estate in the land. The actual operation of this law upon the demandant's title, would have been expressed in words, if it had been said in the statute that, whereas, up to that time an actual wrongful seisin had been by law adverse only against those having estates in possession, and so, those coming in by way of remainder, were well entitled to the land, however long that actual wrongful seisin might have been continued; yet, thereafter, those who have come in by way of remainder, shall not be deemed entitled to the land, because such actual seisin shall be taken to be adverse as against them, and they shall not be allowed to maintain an action for the recovery of the land to which they had lawful title when the action was brought. It is only by giving this construction to the law, that it can be made to operate at all, on the demandant's title. It requires a possession for forty years, "adverse, open, peaceable, notorious, and exclusive." Adverse to whom? Exclusive of whom? If adverse to, and exclusive of, the demandant, who came into the title by way of remainder, less than three years before the act was passed, then, according to the law of the State existing down to the passage of the act, no actual wrongful seisin could be adverse to him until he had an estate in the land entitling him to its possession. But we cannot suppose this law meant to enact merely, that forty years' exclusive and actual seisin should bar an action by one having title to the possession during the whole of that period, because, by the Revised Statutes, (c. 147, § 1,) twenty years was sufficient; and, therefore, we are forced to conclude, that the intention of the legislature was, to make an actual seisin, for forty years, sufficient to destroy a title which had become vested, by way of remainder, before the act was passed, and which was a valid title by the then existing law. Under the constitution of the State of Maine, as expounded by the highest court of that State, is it in the power of the legislature to pass a retrospective law, thus operating to destroy an estate in lands? We think this case not distinguishable from the case of the Proprietors of the Kennebec Purchase v. Laboree et al. 2 Greenl. Rep. 275. That was a writ of entry to recover a tract of land. The principal question was, whether an act of the legislature concerning disseisin, was valid in its retrospective operation. Prior to the passage of this act an entry under a Webster v. Cooper. deed, duly registered, which described a tract of land by metes and bounds, and actual possession of a part of that tract, operated, by the law of Maine, as a disseisin of the true owner of the whole tract described in the deed. But an entry, without such a deed, gave seisin, as against the owner, only of so much of the land as was actually occupied; and this occupation was required to be equivalent to what is figuratively described in the common law as pedis possessio; that is, open, notorious, and exclusive, such as at once to give notice to all, of the nature and extent of the possession and claim, and show the exercise of the exclusive dominion over the land, and the appropriation of it to the use and benefit of the possessor. This being the state of the law when the action was brought, a law was passed, one section of which was in these words: "Be it further enacted; that, in any writ or action which has been, or may hereafter be brought, for the recovery of any lands, &c., it shall not be necessary for limiting the demandant and barring his right of recovery, that the premises defended shall have been surrounded by fences, or rendered inaccessible by other obstructions; but it shall be sufficient if the possession, occupancy, and improvement thereof, by the defendant, or those under whom he claims, shall have been open, notorious, and exclusive, comporting with the ordinary managements of similar estates in the possession and occupancy of those who have title thereunto, or satisfactorily indicative of such exercise of ownership as is usual in the improvement of a farm by its owner; and no part of the premises demanded and defended shall be excluded from the operation of the aforesaid limitation, because, such part may be woodland or without cultivation." The Supreme Court of Maine held, chat so far as this act attempted to change the law of disseisin in respect to titles existing when it was passed, the act was inoperative and void, because in conflict with the constitution of that State. The opinion of the court, delivered by Mellen, Chief Justice, contains an elaborate and searching analysis of the subject, and it is evident, that learned court considered it with all the care demanded by a question of so much delicacy and importance, and brought to its adjudication sound principles of constitutional jurisprudence The principles of this decision have been recog-. nized in subsequent cases, (Oriental Bank v. Freeze, 18 Maine Rep. 109; Austin v. Stevens, 24 Maine Rep. 520; Preston v. Drew, 5 Law Reporter, 189,) and we are not aware that it has ever been questioned, or denied to be a just exposition of the constitutional law of that State. The result of the decision is, that the constitution of the State has secured to every citizen the right of "acquiring, possessing, and enjoying property;" |