
    Grout and wife vs. Townsend.
    Where a testator by will, after devising lands to his wife during widowhood devised the samedands to R. his daughter and the heirs of her hody forever from and after the decease or, re-marriage of his wife, with a limitation over to the children of one
    . N. in case R. died without issue,; held that a remainder in fee tail was attempted to be devised to R., which the statute abolishing entails changed into a remainder in fee simple.
    The acknowledgment of consideration in a deed of lands cannot be contradicted, in a case free from fraud, for the purpose of defeating the conveyance.
    So held where the conveyance was by a feme covert, acknowledged according .to the statute.
    
      One seized of a determinable fee, (e. g. an estate in fee subject to be defeated by the happening of an event upon which an executory devise is limited,) may convey the estate, and the grantee will take it accompanied by the same determinable quality which belonged to it in the hands of his grantor. Per Porter, Senator.
    
    On error from the supreme court. The plaintiffs in error brought ejectment in the supreme court against Townsend, and upon the trial the jury found a special verdict, upon which that court gave judgment for the defendant; and the plaintiffs thereupon brought error to this court. For the facts found by the verdict and the opinion of the court below see, 2 Hill, 554.
    S. Stevens, for the plaintiffs in error.
    
      M. T. Reynolds, for the defendant in error.
   Porter, Senator.

The terms of the devise in favor of the testator’s daughter Rachel, the wife of J. Knickerbaclcer, are such as are appropriate to create an estate tail as to a moiety of the residue of the testator’s real estate, if it were now possible so to •limit an estate in lands. But as such an estate cannot now exist, it is insisted on behalf of the plaintiffs that the will ought to be so construed as to give the testator’s daughter only an estate for life, with remainder to her children. If this were so, the children would take as purchasers and not as the heirs of their mother, and their title would not be prejudiced by the conveyance of the daughter. This, it is argued, would effectuate the intention of the testator, who clearly indicated the children of his daughter as the ultimate objects of his bounty, and did not intend that their mother should be enabled to defeat their estate. It is undoubtedly a cardinal principle in the construction of wills that the intention of the testator must control; subject however to the qualification that such intention be conformable to the rules of law. Here it is manifest that he intended to create an estate tail; and in that particular mode he did unquestionably intend that the enjoyment of this property should be secured to the children of his daughter after the death of their mother, who by force of the entailment would have held the premises for her life. The statute has not only frustrated the intention thus to limit the estate; but in such cases it has prescribed ás a substitute a limitation of its own, by declaring that where any person would, independently of the act, become seized in fee tail of any lands by virtue of any devise, &e. such person, “instead of becoming seized thereof in fee tail, shall be deemed and adjudged to be seized thereof in fee simple absolute.” (1 R. L. 52, § 1; 1 R. S. 722, § 3.) There is therefore no escape from the conclusion that the testator’s daughter, Mrs. Knickerbacker, took an estate in fee simple, to commence in possession at the termination of the estate devised to her mother.

But the counsel for the plaintiffs insists that the devise of the moiety of the residue to Mrs. Knickerbacker was, during the widowhood of the testator’s wife a contingent remainder; and consequently that nothing passed by the deed executed by her and her husband to Bleecker in 1809, Mrs. Visscher, the first tenant for life, being then living and unmarried. I am satisfied however, that the remainder was a vested and not a contingent one. .A remainder is vested where the interest is fixed, although it may be uncertain whether it will ever take effect in possession, It is the present capacity of taking effect in possession if the possession were to become vacant, that distinguishes a vested from a contingent remainder. (Kent's Com. 4th ed. 403. The-rule was well settled at common law, and it is now made a provision of the revised statutes. (1 R. S. 723, § 13.) Mrs. Knickerbacker immediately upon the death of the testator had a fixed interest in the premises. Until she joined in the convey anee to Bleecker, she had at all times a capacity to take upon the happening of the death or re-marriage of Mrs. Visscher. It. follows, that her estate was a vested remainder.

The next question which was discussed on the argument relates to the quality of the fee devised to Mrs. Knickerbacker in the premises in question. Assuming that the devise over to. the children of Nicholas Visscher, in the event mentioned in the will, was valid as an executory devise, the estate of Mrs. K. was determinable upon the happening of that event. It was however an estate which she could convey, and vest in her grantee. “ A qualified base or determinable fee is an interest which may continue for ever, but the estate is liable to be determined without the aid of a conveyance by some act or event circumscribing its continuance or extent.” (4 Kent's Com. 9.) The same writer says that estates in fee which are liable to be defeated by executory devise are determinable fees, and that if the owner of such an estate conveys in fee the determinable quality of the estate follows the transfer; and' this, he says, is founded upon the sound maxim of the common law, that nemo potest vlus juris in alium transferre quam ipse habet. (Id. 9, 10.) The estate of Mrs. Knickerbacker was therefore one which could be aliened: and as she died leaving issue, the condition annexed to the fee is destroyed, and her grantee acquired an absolute estate in the premises.

v But the limitation over to the children of Nicholas Yisscher was itself void. It was to take effect upon the indefinite failure of issue of Mrs. Knickerbacker; and if estates tail were legal, would have been a remainder limited upon an estate tail in Mrs. K. In determining that she took an estate in fee simple by force of the statute abolishing entails, it follows of course that remainders limited to take effect upon the failure of issue in tail are void. (Lyon v. Burtis, 20 John. 483; Wilkes v. Lyon, 2 Cowen, 333.)

Mrs. Knickerbacker, being seized in fee simple (subject to the life estate of Mrs. Yisscher) joined with her husband in a deed of bargain and sale to Bleecker in fee, which she acknowledged in the manner required of a feme covert to pass her title to land. This conveyance is expressed to be in consideration of fifty dollars; but it is found by the special verdict that no consideration was paid, and for this reason the plaintiffs’ counsel insists that the deed is void. The cases relied on to sustain this position are those in which no consideration whatever was mentioned in the deed ; and they depend upon a different principle. The question here is whether the plaintiffs are at liberty to contradict the admission of consideration contained in -the deed itself, for the purpose of defeating the estate attempted to be conveyed. I apprehend that there is no authority for such a position, and that it would be unheard of to allow a grantor to avoid his own conveyance and thus to defeat the title which he had conveyed in all the forms of law, by proving that the consideration which he had acknowledged had not in fact been paid ; unless in connection with such proof he offered to shew fraud in the transaction. In Morse v. Shattuck, (4 N. Hamp. 429,) Richardson, C. J., says, “ It is perfectly well settled that a consideration expressed in a deed cannot be disproved for the purpose of defeating the conveyance, unless it be on the ground of fraud. The same doctrine is contained in Belden v. Seymour, (8 Conn. 304,) and in McCrea v. Purmort, (16 Wend. 473,) Cowen, J., in delivering the opinion of the court, said, “A party is estopped by his deed. He is not permitted to contradict it. So far as a deed is intended to pass a right, or to be the exclusive evidence of a contract, it concludes the parties to it.” The fact that the conveyance was by a married woman makes no difference. She was competent to convey her land in the manner prescribed by law, and can no more impeach her conveyance than any other person, and she and her heirs are as much concluded by it as though she were a feme sole. It is true she is incompetent to make a contract by way of covenant in a deed or otherwise, but that principle has no application to this case. There is no attempt here to affect her title by force of any covenant, but only to sustain her conveyance executed ,in due form of law.

Having therefore shewn an absolute title to the premises in question in Mrs. Knickerbacker, and a valid conveyance in fee from her, it follows that the plaintiff, Mrs. Grout, cannot claim as devisee under the will because the whole estate was given to her mother, nor as heir of her mother because she conveyed her whole title in her lifetime. The judgment of the supreme court should be affirmed.

Senator Clark also delivered a written opinion in favor of affirmance, and

On the question being put, “ Shall this judgment be reversed ?” all the members of the court present who had heard the argument, to wit, The President, and Senators Backus, Beers, Bocicee, Burnham, Chamberlain, Clark, Deyo, Emmons, Folsom, Hand, Jones, Lester, Lott, Porter, Sedgwick, Smith, Talcott, Varney and Wright, (20) voted in favor of affirmance.

Judgment affirmed. 
      
       See the authorities referred to by Beardsley, J. in Vanderheyden v. Crandall (ante, pp. 9—18.)
     
      
       See also Hurn v. Soper, (6 Har. & John. 276.)
     