Third Estate

“ That the grantor, at the time of the execution of said conveyance, is possessed of an irrevocable possession in fee-simple to the property so conveyed. Second. That the said real estate, at the time of the execution of said conveyance, is free from all incumbrance made or suffered to be made by the grantor, or by any person claiming the same under him. Third. For the greater security of the person, his heirs and assignees, to whom said real estate is conveyed by the grantor and his heirs, suits may be instituted the same as if the conditions were stipulated in the said conveyance.' Comp. ”

“ At law, if there is an express agreement for the payment of the purchase-money, and the delivery of the conveyance of the land by a particular day, and at a particular place, the parties will be bound by it, and time will be of the essence of the contract. But, in equity, the estate bargained and agreed to be sold becomes the property of the purchaser as soon as the agreement is concluded. It will descend to his heirs at his death, or may be devised by him; while the purchase-money vests in the vendor, and forms a part of his personal estate. ”

“ The act provided that the duty 'shall be paid at the time when the successor, or any person in his right or on his behalf, shall become entitled in possession to his succession, or to the receipt of the income and profits thereof.' The act further provided that 'the term 'real estate' should include 'all lands, tenements, and hereditaments, corporeal and incorporeal,' and that the term 'succession' should denote 'the devolution of title to any real estate. ”

“ In a devise of real and personal property, the law makes a distinction as to the two estates, in the construction of devisees; and, when technical language is used, the devisee takes an absolute estate in the personal, and a limited estate, or an estate tail, in the real property. ”

“ At the expiration of the particular estate, the lands are to be 'inherited and equally divided' among the grandchildren, and 'in like manner' the stocks are to be 'equally divided' among them. The real estate and the personal property are clearly to go to the same persons and at the same time. The word 'inherited,' which is applied to the real estate only, implies taking immediately from the testator upon his death, as heirs take immediately from their ancestor upon his death. ”

“ Successor is employed in the act as the correlative to predecessor, and the succession or devolution of the real estate is the subject-matter of the tax or duty, or, in other words, it is the right to become the successor of real estate upon the death of the predecessor, whether the devolution or disposition of the same is effected by will, deed, or laws of descent, from a grantor, testator, ancestor, or other person from whom the interest of the successor has been or shall be derived ”

“ The trust of 1932 was created after the adoption of the Joint Resolution of March 3, 1931, which required inclusion in the gross estate of the value at the date of death of all property to the extent of any interest therein of which a decedent has at any time made a transfer by trust or otherwise under which the transferor retained for life the possession or enjoyment of the income from the property, except in case of a bona fide sale for an adequate and full consideration in money or money's worth. ”

“ The taxpayers on the other hand assert that property is, in contemplation of law, held from the date of acquisition and one deriving property from a decedent's estate through devise, bequest or intestacy acquires the property at the date of death and holds it from that date ”

“ The principle deducible from these authorities seems to be, that, whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seized or possessed of a particular estate in the premises, and which estate the deed purports to convey ”

“ It seems to us manifest that the effect of these proceedings is to permit the heir ab intestato, after such final decision, to receive and collect the estate. If may be that others will establish an interest in the property for which the heir will have to respond, and it is specially provided that, for the purpose of transfer, property shall not be deemed clear until after five years have elapsed. ”

“ It further provides: 'The term 'real property' as used in this compact includes lands, * * * and interests in land, * * * and any and all things and rights usually included within the said term, and includes not only fees simple and absolute, but also any and all lesser interests, such as easements, rights of way, uses, leases, licenses, and all other incorporeal hereditaments and every estate, interest or right, legal or equitable, including terms of years and liens thereon by way of judgments, mortgages, or otherwise, and also claims for damage to real estate.' N.J.S.A. 32:8-4. ”

“ One may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. The successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. ”

“ The power is given the daughter to dispose of this property by her last will and testament, and if this right is not exercised, the property is to pass to her issue in equal shares.
Full power is given the executors to sell or dispose of the estate at their discretion. He directs that if any residue of the estate remain after the devises, trusts and legacies specifically set forth, have been satisfied, that such excess be divided into two equal shares and held as a trust fund for his daughters. ”

“ A distinction formerly prevailed as to the quantum of interest payable on legacies charged on lands, and such as were chargeable on personal property, for it was deemed but fair that [Pg 83] as land never produces a profit equal to the interest on money, so the interest on a legacy charged on such property, should be one per cent. lower than that charged on personalty. But the distinction is now set aside, and whether legacies are charged on realty or personal estate, the established practice is to allow only four per cent. where no other rate of interest is specified by the will. ”

“ Fearne to the effect that a trust or use created by deed will often be held to create an estate in the heirs named which cannot be cut off by the act of the tenant for life, when the same offect would not be given to an estate created by like language in a devise. ”

“ I hereby direct my Executors within six months after my death with the consent and approval of my Daughter to set aside dedicate and designate as Mary’s separate property so much of my estate as is equal in Cash value to the said sum of One Hundred Thousand dollars, one half or more of which shall be productive real estate and the remainder in good income producing Stocks, Bonds and Mortgages and the said property shall be held by my wife as long as she lives, as trustee for Mary, with power to re-invest and change security ”

“ His estate can be neither divided nor alienated—it is not even liable for the personal debts of the deceased owner. On attaining the age of twenty-one he can, if he and his father, or the present owner, agree, make a settlement, "cutting off the entail," and restoring to the owner the power of sale or bequest. But it is very seldom that either party desires this while there is every inducement for the heir to wish to tie up the land to his own heir. It is very easy to see how this has favoured the accumulation of land in a few hands. ”

“ Thus we find these words:
'And said trustees and their successors shall have full power to let and lease said estate, and to do all other legal acts for the well ordering and managing of said estate, under the limitations and restrictions as hereinbefore expressed.'
Now these limitations and restrictions are, that they should not sell, that the estate should not be divided in case part of the society should secede, that they shall lease the estate, but shall not give a lease for more than thirty years. ”

“ Moreover none of the usual precautions are adopted to mark the limits of the different properties, which, in the absence of any reliable land survey, are often very vaguely described in the title deeds.”198 In cases of intestacy real property is divided equally among the children or nearest relatives. When there is a will the testator can only reserve for his disposal a share of the estate equivalent to that which, after an equal division, descends by right to each of the direct heirs. ”

“ At law, it is still real estate; that is, supposing A. Young to be either dead, or his legacy paid. And it deserves to be remarked, that the testator drops these words, when he speaks of what he himself deems personal estate.
Our construction is the only reasonable and practicable one. Heirs, standing alone, is never a word of purchase; and when it is a word of purchase, it always means, that the heir is to take in exclusion of the ancestor. [3] Thus, where an estate is given to the ancestor for life, the heir may take by purchase, so that the estates will not unite. ”

“ The grantor in this deed appears to have been at one time the possessor of great wealth; the deed made an exhibit in this case shows that he was the possessor of an unusual extent of property. It is almost certain, too, from the character and situation of the subject of this conveyance, as well as from other circumstances disclosed by the record, that its owner must have been the proprietor of many other constituents of a large estate, both within and without the city and state of his residence. That a man thus situated should necessarily be engaged in a variety of transactions ”

“ When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow's dower, in the following manner: First. To children, or their descendants, in equal parts. ”

“ In making or having title made to the farm you should have it made so that the trust vested in the executors by father can be discharged and all your interest in the moneys arising from the sales of real estate can be invested in that property in pursuance of the will, otherwise the interest arising out of this property here would have to continue in the possession of the executor as trustee, which is not desirable. ”

“ The lien attaches at the date of the decedent's death, since the gross estate is determined as of that date and the estate tax itself becomes an obligation of the estate at that time without assessment. ”

“ The property and franchises of the prior companies are gone as much as if they had formally surrendered their charters. The new company may doubtless receive by transmission from its constituent companies their property, rights, privileges, and franchises, including any immunity from taxation; but it receives them as an heir receives the estate of his ancestor, or as a grantee receives the estate of his grantor, by inheritance, succession, or purchase. ”

“ In some other cases, when all the interests are legal and not equitable, the owner of the first estate of freehold, representing the whole estate, and identified in interest with all who come after him, sufficiently represents those yet unborn. ”

“ Private acts authorizing tenants for life and trustees to support remainders, to sell real estate devised, and convert the same into personal estate, to be held subject to the same provisions and trusts as the land, are numerous, and have always been sustained, though in opposition to the will of the testator ”

“ It has been expressly ruled, that a mere expectancy, as that of an heir at law to the estate of his ancestor, or the interest which a person may take under the will of another then living, or the share to which such person may become entitled under an appointment or in personal estate, as presumptive next of kin, is assignable in equity. ”

“ An estate in tail may now be limited by the use of the words “in tail” without the words “heirs of the body” formerly necessary. And a settlor generally conveys “as settlor,” by which only a covenant for further assurance is implied under the Conveyancing Act 1881. Personal settlements are most often made upon marriage. The settled property is vested in trustees, either by the settlement itself, or in the case of cash, mortgage debts, stocks or shares, by previous delivery or transfer, upon trusts declared by the instrument. ”

“ Radcliffe, is, that equity will extend the same privilege to the residuary legatee which is allowed to the heir, to pay the debts and legacies, and call for a conveyance of the real estate, or to restrain the trustees from selling more than is necessary to pay the debts and legacies. ”