
    Cross v. De Valle.
    L The well-settled principle, that aliens may take land by deed or devise, and hold against any one but the sovereign until office found, exists in Rhode Island as elsewhere; not being affected by that statute which allows them to hold land “provided” they previously obtain a license from the Probate Court.
    2. Although equity will, in some cases, interfere to assert and protect future rights, — as Ex. Or. to protect the estate of a remainder-man from waste by the tenant for life, or to cut down an estate claimed to be a fee to a life interest only, where the language, rightly construed, gives but an interest for life; or will, at the request of trustees asking protection under a will, and to have a construction of the will and the direction of the court as to the disposition of the property, — yet it will not decree in thesi as to the future rights of parties not before the court or in esse.
    
    8. Langdale v. Briggs (39 Eng. Law and Equity Reps. 194), followed and approved; distinguished, also, from Lorillard v. Coster, and Hawley v. James (5 Paige, 172, 442).
    4 A “cross-bill” being an auxiliary bill simply, must be a bill touching matters in question in the original bill. If its purpose be different from that of the original bill, it is not a cross-bill even although the matters presented in it have a connection with the same general subject. As an original bill it will not attach to the controversy unless it be filed under such circumstances of citizenship, &c., as give jurisdiction to original bills; herein differing from a cross-bill, which sometimes may so attach.
    Halsey devised real estate in Rhode Island to trustees there, in trust for the benefit of his natural daughter, Maria De Valle, a married woman, during her life, for her separate use; and upon her decease the trustees were directed to convey in fee one-half of the estate to the eldest son of the said daughter living at her decease, if of age, and one-half part to her other children living at her decease, and in default of male issue to her daughters equally. Mrs. De Valle, who was born in 1828, was a native and resident of Buenos Ayres, and . had five children born there. After a certain time she came to Rhode Island, and had one child born there.
    
    The trustees were directed not to convey the real estate to his grandchildren, unless they should, within five years after being duly informed of his decease, have their permanent residence in the United States, and adopt and use the name of Halsey.
    In case his daughter should die without issue living, or with issue who should neglect or refuse to comply with the conditions, the trustees were directed to pay two legacies out of the estate, and convey the residue to a certain Cross, the complainant, if then living, and if he should adopt and use the name of Halsey; or if said complainant should not then be living, or if he should refuse to adopt the name of Halsey, then to a nephew of Cross, upon condition that he should adopt the name of Halsey.
    Cross now filed his bill in the Circuit Court of the United States for Rhode Island against the trustees and the beneficiaries of the trust, setting forth that the trusts in favor of Mrs. De Valle and her children had failed by reason of her and their alienage and incapacity to hold real estate in Rhode Island, and that the trust for the benefit of the complainant was hastened in enjoyment by such failure; claiming that the devise over to him took effect upon the probate of the will, or, that it took effect in favor of the heirs at law, or of the State of Rhode Island as sovereign, and praying that the estate should be conveyed to him by the trustees, or to the heirs at law, or to the State.
    
      A cross-bill, or bill purporting to be so, was also filed in the same court by heirs- at law of Halsey against this complainant, Cross, tire trustees, and other parties in interest, — the parties in both bills being the same, but being partially reversed, — for the purpose of more distinctly asserting and putting in issue the rights of the heirs at law, as against Mrs. De Valle, Cross, and those other devisees, and so of having the limitations on Mrs. De Valle’s life-estate declared void, as tending to a perpetuity: and generally of having the rights of the heirs at law declared and protected by the court in its exercise of equitable jurisdiction. The complainants were citizens either of Massachusetts, or of Wisconsin, or of Ohio, or of New York. The defendants were all, with one exception, either citizens of Rhode Island, or aliens commorant there. The excepted defendant, Cross, complainant in the original bill, was a citizen of Louisiana, and not commorant in Rhode Island.
    On the subject of alienage, it is necessary to mention that no special enactment had been made in Rhode Island, giving to aliens more ability to hold real estate than they had by the common law. On the contrary, rather, by a statute in force at Halsey’s death, it had been enacted as follows :
    
    “ Courts of Probate shall have power to grant petitions of aliens for leave to purchase, hold and dispose of real estate within their respective towns, provided the alien petitioning shall, at the time of his petition, be resident within this State, and shall have made declaration, according to law, of his intention to become a naturalized citizen of the United States.”
    On demurrer the Circuit Court dismissed the bill, and dismissed also the cross-bill. On appeal here, along with other questions argued — including the one whether the remainders were void as tending to perpetuities — were the following, the ' only ones considered by the court:
    1. "Was the equitable life-estate given by the will to Mrs. De Valle void in consequence of her alienage, so that persons who have interests in remainder have a right to be hastened in the enjoyment of the estate?
    
      2. If not, did the court err in dismissing the cross-bill, and refusing to declare the future rights of the parties ?
    
      Mr. Jenkes in support of the Will:
    
    1. Unless there be something special in the law of Rhode Island, alienage is no sufficient cause to declare the life-estate, ipso facto, void; however voidable the estate maybe by the sovereign power, if such power is brought into action. This is familiar law. But Rhode Island herself interposes not. The statute relied on does but give the means by which an alien can acquire real estate, so that even the commonwealth has no rights of office found against it.
    2. The application to declare future rights is made by what is called a cross-bill. But the bill is no proper cross-bill. It brings up new matter not touched on by the original parties. The bill of Mr. Cross asked nothing about future rights, nor did it seek to avoid anything as tending to perpetuity. This so-called cross-bill is, therefore, an original bill; and being so there was no jurisdiction. Cross was a citizen of Louisiana; all the defendants, therefore, were not citizens of Rhode Island, while all the complainants were citizens of States other than Rhode Island. Each of the complainants, therefore, could not, under the Judiciary Act, sue each of the defendants. †But supposing that bill rightly brought as respects form,—
    8. Will this court decree, as asked by the heirs, on future rights ? If it will not, it is unimportant whether the limitations over are void for remoteness or not. The question proposed was deeply considered so lately as 1856, in an English case, in the Court of Appeals in Chancery; a case which is in point, and wffiich we believe this court will follow. Lord Justice Turner there said, that long as he had known the court, he had always considered it to be settled that it did not declare' future rights, but would leave them to be determined when they came into possession. He added, that in all eases within his experience, where there had been tenancies for life with the remainder over, the course had been to provide for the interests of the tenants for life, reserving liberty to apply upon their deaths. Various considerations were urged before him in support of the proposition, which will be pressed by the other side, here, and among them the convenience and advantage it would be to parties to have their futiire rights ascertained and declared. To all arguments of this kind the judge replied, in effect, that the question was not one of discretion, but deeply affected the law of the court; that the course and practice in such eases constituted the law of the court; and added: “ I cannot agree to break through that law upon any mere ground of convenience. If the law is productive of inconvenience, it is for the legislature to alter it.” In Jackson v. Turnley,
      
       the Vice-Chancellor would not entertain a suit for the purpose of declaring that a person who claims to have a right which may arise hereafter has no such right.
    
      Messrs. Curtis and Curry on the other side:
    
    1. The Rhode Island statute shows the only mode by which an. alien can hold land in that State.. He may hold it, “ provided”-he gets previous license. It declares, in effect, that without license from the Courts of Probate no one can hold it at all. It gives an increased severity to the already hard rule of the common law, never previously modified in the least in Rhode Island. On the contrary, as opposite counsel will admit, before its enactment, aliens were obliged always to have recourse by petition to the General Assembly for the privilege of taking or holding, or disposing of real property in that State. Will this court, by its decision of this cause, uphold our local immemorial law, or disregard it, and make another law for us ?
    2. If the second bill was an original one, the objection to the jurisdiction would be well taken as respects Cross. But it is a true cross-bill; a bill by some of the defendants to a former bill, touching the same matters and still depending, against the other defendants and the plaintiff to the former bill, which plaintiff is the party on account of whose citizenship the objection is made that it cannot stand as an original bill. All the parties to both bills are the same, only that they are partially reversed. The subject-matter is the same; but the plaintiffs in the cross-bill assert rights to the property different from those allowed to them in the original bill, claiming an affirmative decree upon those rights, which the forms of pleading might deny to them as defendants to the former suit. The jurisdiction of the court having once attached to the controversy and the parties, it is coextensive, by the settled law of the court, with all the equities of the cause for every purpose properly arising in its progress, and especially as regards the original mover.
    3. The general preventive power of equity; its capacity to treat vested estates in remainder as present interests to be protected; its habit of declaring a scheme of trusts, and so of deciding whether limitations over tend, or do not tend, to perpetuities, are all supposed to be shut off from exercise in a case apparently one for their application, by Langdale v. Briggs, decided in an English court. "We believe that case to have been wrongly decided even upon English authorities. It is notoriously not in accordance with Scotch ones. Turner, L. J., though he said that during the hearing he had been surprised at the length to which the argument had been carried in favor of that view which we now take, yet adds: “ But having looked into the cases since the argument, I feel bound now to say that I have been not less surprised to find how little authority is to be found upon the subject.” He consoles himself by remarking, that “ authority, however, is not wholly wanting;” and makes good his assertion by citing a book of no more modern and no more full character than “ Equity Cases Abridged.” His lordship also declared: “ I am far from thinking that, to some extent, the legislature might not usefully interpose and provide some remedy for the ascertainment of future rights.” Certainly, when a case decided in the face of expressions like these is pressed upon an American tribunal of supreme authority in limitation of its powers, we may pause before we adopt it.
    
      Now, in the United States we have the New York cases of Lorillard v. Coster, and Hawley v. James.
      
       In the former, the trustees of Lorillard, who had left property to be divided among collateral relatives, brought their bill to have the trusts of the will established, and for guidance by the court. Among other provisions in the will was one requiring the trustees to convert all the residue of the testator’s property into real estate in New York; the income to be paid in equal parts to such of the nephews and nieces as should from time to time be living; and two years after the death of the last of them the property remaining was to be divided among their surviving children and grandchildren per stirpes. The heirs at law, who were parties defendant to the bill, contended that the limitations, after the death of the nephews and nieces, were void, and that they were entitled to the remainder. The complainants contended that this question was not ripe for settlement, because the life-estates were pending, and because the proper parties were not yet all in esse. But the court held that the heirs at law were entitled to a settlement of the question, giving as a reason that the trustees could only be authorized to invest the property as required by the will, so far as the trusts were valid, and if the ultimate limitations were void, the investment must be made in such a way as to secure the rights of all parties. It was said that the trustees must be regarded as representing the parties not in esse. The other ease, Hawley v. James, gave rise to a similar question, which received a similar decision.
    It is impossible to reconcile these decisions with the views of Lord Justice Turner. Moreover, the reason given by him for the rule he lays down is insufficient. The difficulty in the way of equitable jurisdiction, in such cases, is not that the court cannot deal with future rights. A right in remainder is not & future right It is a present right to a future enjoyment. It is recognized at Law and in Equity as an estate, and is protected as such just as an estate in possession. Even in Langdale v. Briggs, so much relied on, Turner, L. J., says that the appellant whose rights he refused to declare, might bring his bill for a receiver, if the mortgages upon the estates were not kept down. †Of course the court would have to begin, in such a case, by deciding that he had an interest in the estates.
    
      Davis v. Angel, decided by the Master of the Bolls, and on appeal by the Lord Chancellor, so lately as 1862, would indicate. that the opinion of Lord Justice Turner is not law in Westminster Hall. It was a bill by a remainder-man to have his rights declared. It was held that he could not maintain the bill, because he had no vested interest, and it was contingent if he would ever acquire any. And the Lord Chancellor says, that if the complainant had had any vested interest, however future and remote it might he, it would have been sufficient.
    In the case at bar, the property was devised to trustees, and if the limitations of the equitable estates are void for remoteness, — as we think they are, — the heirs at law have present vested interests by way of resulting trusts; and the trustees are accountable to them now, as the owners of those interests, as entitled to have their rights admitted by the trustees, and all investments so made as to protect those interests, and so as to enable the trustees to pass over the property to the heirs at law, on the termination of the life-estate, if that be valid. It is one of the duties of trustees to admit the existence of the trust; a duty not dependent on the right of the cestuis que trust to present possession. A vested interest in remainder is a subject of sale, and the denial of the trust throws a cloud upon that title, which the trustee cannot properly do. These trustees deny the title of the heirs as cestuis que trust under this will. And for this reason, if there were no others, equity may entertain this bill.
    
      
       Revised Statutes of R. I., 1857, page 351, § 21.
    
    
      
       Connelly v. Taylor, 2 Peters, 564; Moffat v. Soley, 2 Paine, 103; Kitchen v. Strawbridge, 4 Washington, 84.
    
    
      
       Langdale v. Briggs, 39 English Law and Equity, 194.
    
    
      
       21 English Law and Equity, 13.
    
    
      
       5 Paige, 172, 442.
    
    
      
       P. 219.
    
    
      
       8 Jurist U. S. 709, and on appeal, 8 Id. N. S. 1024.
    
   Mr. Justice GrRIEB

delivered the opinion of the court:

The bill alleges that the trusts declared in the will are all void, because of the alienage of Mrs. De Valle and her children, and prays that the trustees may be ordered to convey to the complainant as one of these numerous contingent remainder-men who is not an alien; or that the estate he conveyed to the heirs at law of the testator. As it is not alleged that the complainant is one of these heirs, it is not easy to apprehend on what grounds he claims as an alternar tive remedy that the court- should decree in favor of those who claim adversely to himself. Perhaps it was to favor the attempt to give jurisdiction to the court to declare the future rights of the parties by converting an original into a cross-bill.

That an alien may take by deed or devise, and hold against any one but the sovereign until office found, is a familiar principle of law, which it requires no citation of authorities to establish. Nor is it affected by the fact that a statute of Rhode Island will permit aliens to take a license to purchase, which will protect them even as against the State; nor by the fact that a chancellor may not entertain a bill by an alien to enforce a trust, which, if conveyed to him, might immediately escheat to the crown.

Now, as the court rightly decided that Mrs. De Yalle took an equitable life-estate by the will, defeasible only by action of the sovereign, Cross was in no situation to call upon the court to declare the fate of these numerous contingent remainders.

For if the remainders were void because of remoteness and tending to a perpetuity, his own remainder fell with the others.

And if declared to be valid, not only the six children of Mrs. De Yalle, who are parties to the suit, but possibly and before her death there might be six more, not now in esse, who would be entitled to come in before him.

The bill demands no such declaration of future rights, nor does it suggest how it could be done, or any sufficient reason why the court should pass upon the rights of persons not in esse.

The bill charges no fault to the devisees except alienage, and before any of the contingencies happen the party entitled to take may be a citizen and capable of taking and holding the estate. In fact, one of the children of defendant was born in Rhode Island, and therefore is as capable of talcing as Cross.

The decree of the court was final and complete as to the ease made by the complainant’s bill. If the decree had been against Mrs. De Valle, and she had been held incapable of taking, then the heirs might well say, that in such a case the estate should be conveyed to them, and not to Cross, and have their cross-bill for that purpose. But the decree being in favor of Mrs. De Valle, and the bill dismissed, the cross-bill must have the same fate with the original. A cross-bill “ is a mere auxiliary suit, and a dependency of the original.” “ It may be brought by a defendant against the plaintiff in the same suit, or against other defendants, or against both, but it must be touching the matters in question in the bill; as where a discovery is necessary, or as where the original bill is brought for a specific performance of a contract, which the defendant at the same time insists ought to be delivered up and cancelled; or where the matter of defence arises after the cause is at issue, where in cases at law the defence is by plea puis darrein continuance.” The bill filed by the heirs is for an entirely different purpose from that of Cross. It called upon the court to decree on the future rights of their co-defendants and others not in esse, and decree the limitations on the life-estate to be void as tending to a perpetuity. This would be introducing an entirely new controversy, not at all necessary to be decided in order to have a final decree on the case presented by the original bill.

As an original bill the court might properly refuse to consider it. First, on account of the parties, and secondly, on account of the subject-matter.

The bill is filed in Rhode Island. All the complainants are citizens of States other than Rhode Island or Louisiana, while one of the defendants, Cross, is a citizen of the State last named, and not commorant in Rhode Island. It was admitted that this objection was conclusive, if the bill was an original. The second objection is equally conclusive, whether it be called a cross-bill or an original. A chancellor will not maintain a bill merely to declare future rights. The Scotch tribunals pass on such questions by “ declarator,” but the English courts have never assumed such power. In Langdale v. Briggs, Lord Justice Turner remarks: “As long as I have known this court, now for no inconsiderable period, I have always considered it to be settled that the court does not declare future rights, but leaves them to be determined when they may come into possession. In all cases within my experience, where there have been tenancies for life with remainders over, the course has been to provide for the interests of the tenants for life, reserving liberty to apply upon their death.”

A remainder-man may have a decree to protect the estate from waste, and have it so secured by the trustee as to protect his estate in expectancy. The court will interfere under all needful circumstances to protect his rights, but such cases do not come within the category of mere declaratory decrees as to future rights.

There is also a class of cases in which recommendations or requests in a will to a devisee or legatee have been construed as cutting down an absolute fee into an estate for life, with an equitable remainder to the person indicated by the testator in his request. In such cases the court will entertain a bill during the life of the first taker to have the right of the claimant in remainder established. Nor do these cases infringe upon the doctrine we have stated as to mere declaratory decrees concerning future contingent executory estates.

But there is a class of cases which are exceptions to this rule, and being exceptional, only tend to prove the rule. The New York cases of Lorillard v. Coster, and Hawley v. James, cited by the counsel of the heirs at law, are of this character. There the bills were filed by the executors or trustees for their protection, and that they might have a construction of the will, and the direction of the court as to the disposition of the property. In such cases, from necessity, and in order to protect the trustee, the court are compelled to settle questions as to the validity and effect of contingent limitations in a will, even to persons not in esse, in order to make a final decree and give proper instructions in relation to the execution of the trusts. It is this necessity alone which compels a court to make such cases exceptions to the general rule. But in the present case no such necessity exists. The court is not called upon to make a scheme of the trusts, nor could they anticipate the situation of the parties in the suit, or those who may be in existence at the death of Mrs. De Valle. The court has no power to decree in ihesi, as to the future rights of parties not before the court or in esse.

Decree affirmed with costs. 
      
       Grove v. Bastard, 2 Bhillips, 621.
     
      
       39 English Law and Equity, 214.
     
      
       5 Baige, 172, 442.
     
      
       See Bowers v. Smith, 10 Paige, 200.
     