
    Ebenezer Williams and Another versus Benjamin Hichborn and Others.
    Under the statute of 1791, c. 60, the guardian of a person non compos may, on being duly licensed therefor, lawfully sell in fee simple the estate tail of his ward during his life, for the payment of his debts, and by such sale the estate tail is extinguished, and the remainders legally barred.
    This was a writ of formedon in remainder, pending in the county of Norfolk, in which the demandants count upon the seisin in fee of Mary Williams, and a devise by her of the demanded * premises to her grandson George Baker, when he [* 190 ] should arrive .at the age of twenty-one years, and to the heirs of his body lawfully begotten ; and in case he should die after his arriving at the age of twenty-one years, and leave the devised premises, but leave no heirs of his body lawfully begotten, than a devise over to Zebediah Williams in fee. The demandants then aver that George Baker, the devisee, having arrived at the age of twenty-one years, entered into the premises, and became seised thereof in fee tail general, by force whereof the said Zebediah became seised of the said remainder in fee ; that upon his decease the said remainder descended to the demandants, and two others, his heirs and only children ; that afterwards the said George Baker died so seised in fee tail, without heirs of his body lawfully begotten , whereupon one moiety of the said premises remained to the demand-ants by form of the gift aforesaid; of which they complain that the tenants have deforced them, and still hold them out.
    At the last term of this Court in Dedham, the cause was submitted to the opinion of the Court upon a statement of facts, by which it is agreed by the parties, that Mary Williams, the grandmother of the demandants, on the 9th day of August, 1756, was seised in fee of the demanded premises, and on the same day made her last will, which was afterwards duly proved, &c., and by which she devised the demanded premises to George Baker, her grandson, “ when he shall arrive to the age of twenty-one years, and the heirs of his body lawfully begotten: ” afterwards is a devise in the following words: “ Item. My will is, that in case my grandson, George Baker, to whom I have given,” Spc., [describing the lands before devised to him,] “when he arrives at the age of twenty-one years, shall not arrive to those years, then the said pieces of land, Sfc., go to my son Zebediah Williams, his heirs and, assigns. Item. My will is, that in case my grandson George Baker die after his arrival to the age of twenty-one years, and leave the said pieces of land, Spc., but leave no heirs of his body lawfully begotten, that then the said pieces of land <Sj'c., go to my son Zebediah Williams, his heirs or as-[*191] signs;” that the said * testatrix died so seised, and the said George Baker, having arrived at the age of twenty-one years, entered under the devise, and never alienated or conveyed away the premises himself; but that in 1788 he became non compos mentis, and George Baker, Sen., his father, was duly appointed his guardian; that in 1802 the said guardian obtained a license from this Court to sell the demanded premises, for the payment of_ the debts of his said ward; that in pursuance of said license, the said guardian sold and conveyed all the right, title, and interest, of his said ward in said demanded premises, by deed of quitclaim, to the tenants, who afterwards entered and took possession thereof, and have ever since continued to possess and enjoy them ; that Zebediah Williams, the remainder man, and father of the demand-ants, died in 1772, intestate, leaving four children his heirs at law ; that neither he in his lifetime, nor the demandants since his death, have ever alienated their interest in the demanded premises under said last will; and that the said George Baker died in 1807, with out leaving any heirs of his body lawfully begotten.
    If, upon these facts, it should be the opinion of the Court that the demandants ought to recover in this action, the tenants agreed to become defaulted, and that judgment should be entered for the demandants accordingly; otherwise the demandants were to become nonsuit, and judgment according to law entered upon such nonsuit.
    The action stood continued nisi for argument; and now, at this term,
    
      B. Whitman, for the tenants,
    observed, that he should make two questions in the case
    
      1. Whether George Baker, the devisee named in the will, took an estate tail or a fee simple.
    2. Whether, if he took an estate tail, his guardian had authority to convey it under a license from this Court.
    As to the first question, Whitman contended that, taking the whole will together, which was the proper way to ascertain the intention of the testator in any particular clause, this devise created a fee simple. He relied principally on the condition of the devise over to Zebediah Williams, in case said George Baker die after his arrival to the age of twenty-one years, and leave said pieces of land, fyc.; from * which it was to be inferred that [*192] the testatrix contemplated a power in him to convey his estate in the land — a power which tenants in tail, at the time this will was made, did not possess, unless by the fictitious process of a common recovery, which was seldom used, and, except to professional men, hardly known in the country. To support this construction, Whitman cited the cases in the margin. 
    
    But if the Court should be of opinion that this was an estate tail, Whitman held the sale by the guardian of the tenant in tail to be good and valid by force of the statute of 1791, c. 60. That statute authorizes a tenant in tail to aliene his estate by deed attended with certain formalities, and expressly makes lands holden in fee tail “ liable and subject to the payment of the debts of tenant in tail, in the same way and manner as other real estates are liable and subject, as well after the decease as in the lifetime of such tenant in tail.” But other real estates were then, as now, liable to be sold by guardians of minors or non compos persons, under license from the courts of common law. If the ward in this case had been of sound mind, he could have conveyed this estate by his deed ; and when a guardian is duly authorized pursuant to law, he has all the powers as to this point which his ward would have. It seems, indeed, to have been the intention of the legislature, in this statute, to put estates in fee tail and fee simple on a footing precisely similar, and to do away every distinction existing between them.
    
      L. Richardson, for the demandants,
    relied that the words of the devise in this will created an estate in fee tail general, with remainder to Zebediah Williams, the father of the demandants, by way of executory devise. And he thought the only points which admitted of argument were, 1. whether this executory devise could be barred by the tenant in tail, without the concurrence of the remainder man, at common law ; and, 2. if it could be so barred, whether it could be also barred by the guardian of the tenant, [* 198 ] who had * become non compos, within the intent of the act of 1791, c. 60, providing a more easy and simple method than was then in use of barring such estates,
    In considering the first point, it is necessary to inquire whether this remainder be a vested one, or not. For if it is, it will follow from the authorities in the books, and particularly the case of Bore-ton vs. Nicholls 6p Al., 
       that it cannot be barred without the concurrence of the remainder man.
    To prove this remainder to be a vested one, may be cited the cases in the margin. 
    
    The second point leads to the inquiry, whether, by the statute of 1791, c. 60, the tenant in tail could by his deed have barred those in remainder. Although by this act the tenant in tail, in general terms, is authorized to bar the entail, and all remainders and reversions expectant upon it, yet it is to be presumed that it was never intended by this act (though it has been sometimes called omnipotent) to enable tenants in tail to bar remainders actually vested. This presumption is fortified by the additional statute, [1804, c. 59,] in which there is a provision for the remainder man’s joining in the deed with the tenant in tail, in order effectually to bar the entail. To give a construction to the statute, which would enable tenants in tail to divest the vested rights of others, without receiving an equivalent, would be going further than has ever been done to support even common recoveries, which are allowed to bar remainder men and reversioners only on account of the ideal recompense in value, which is obtained as a substitute for the former estate, to descend according to the form of the original grant.
    But admitting that the tenant in tail could have alienated the premises in fee, and thus barred those in remainder, yet the case does not show that this has ever been done. For, 1. The deed of the guardian of the tenant in tail is not such a conveyance as is described in the statute, which is effectually to bar the [ * 194] estate tail. It is the deed of the tenant in * tail only that can have that effect. 2. The statute authorizing guardians of persons non compos mentis to sell the estate of their wards for their support, &c., on obtaining license from this Court for that purpose, was made prior to the statute permitting estates tail to be barred by deed. The first statute must be supposed to contemplate the disposition of such estates only as were in the possession of their wards ; not the future possibility of a greater estate, which could at that time be acquired only by suffering a common recovery. It was the life estate of the tenant in tail that the statute intended should stand charged with the payment of his debts ; and it ought not by implication to be extended further.
    There might be strong reasons to induce the legislature to permit the tenant in tail to bar those in remainder, if he chose to do it himself; yet not to delegate that authority to a guardian. This latter might have an interest to dock the entail, when in fact his ward, if of sound mind, would be averse to it; because, for instance, if the estate were changed into money, the course of descent would be altered, and instead of the estate’s going according to the intent of the donor, and the desire of the ward, it would go to the next of kin, who would be frequently, if not always, the guardian himself, as was the case here.
    
      
      
        Cole vs. Rawlinson, 1 Salk. 234.— Loveacres vs. Blight, Cowp. 356. — Doe vs. Halley, 8 Term Rep. 5. — Doe vs. Richards, 3 Term Rep. 359. — Oates vs. Brydon, 3 Bur. 1898. -Lee vs. Stevens & Al., 2 Show. 49. — 2 P. Will. 282. —1 T. Atkins, 415 - Gilbert's L. of Dev. 20, 21, 22, 61, in notis.
      
    
    
      
      
        Cro. Car. 363
    
    
      
      
        Loddington vs. Kime, 1 Salk. 224. — Ld. Raym. 208, S. C. — 2 Roll. Abr. 395, 417. — Doe vs. Holmes, 3 Wils. 237, 241. — Doe vs. Rason, cited 3 Wils. 344. — 3 Term Rep. 484. — 2 W. Black 777. — Fearne on Contingent Remainders, 21, 342, 514.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

This is a formedon in remainder, on the gift of Mary Williams to George Baker in fee tail, remainder to Zebediah Williams, the ancestor of the demandants, in fee, after the death of George Baker without issue.. ,

The parties have submitted the cause to the Court upon a case agreed, on which two questions arise.

The first is, whether the gift to George Baker was in tail, or an executory devise in fee. The gift is a devise by Mary Williams, in hei last will. An estate tail is so clearly created by express words, that there is no room for construction ; and we are satisfied that the devisee, George Baker, took an estate tail, remainder in fee to the ancestor of the demandants.

The second question arises on the effect of the conveyance of the demanded tenements by George Baker, father of the tenant in tail, to the tenants.

*It appears from the case that the tenant in tail had [ * 195 ] become non compos mentis; that his father had been duly appointed his guardian, and had, in due form of law, obtained a license from the Supreme Judicial Court to sell these tenements for the payment of the debts due from the non compos. And it is very properly admitted by the parties, that, pursuant to the statute of 1783, c. 38, § 5, the tenements, if the non compos had been seised of them in fee simple, would have passed to the tenants by the deed of the guardian.

But it is contended by he demandants, that the guardian was not authorized by law to sell the estate tail of his non compos mentis ward for the payment of his debts

The authority of the guardian to sell these lands must depend upon the construction of the statute of 1791, c. 60. By the first section of this statute, tenant in tail may, by a deed for good and valuable consideration, sell his estate tail, to be holden by the purchaser in fee simple. By the second section, it is declared that all estates tail shall be liable and subject to the payment of the debts of the tenant in tail, in the same way and manner other estates are subject and liable, as well after his decease as in his life.

The estates in fee simple of any person non compos mends may lawfully be sold for the payment of his debts by his guardian. In this way and manner, the estates of any person non compos mentis are liable and subject to the payment of his debts in his life; and this second section enacts that estates tail shall be liable and subject to the debts of the tenant in tail, in the same way and manner as his estates in fee simple in his life.

The conclusion is irresistible, that a guardian of a person non compos mentis may, on being duly licensed therefor, lawfully sell in fee simple the estate tail of his ward, during his life, for the payment of his debts, and that the estate tail is by such sale extinguished, and the remainders legally barred.

The demandants must therefore he nonsuit  