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Our conclusion is that there is nothing in the decisions
referred to, properly construed, to compel us to occupy the
isolated position of holding that there can be curtesy in a
remainder expectant upon a prior undetermined freehold.

It may be suggested that, if we discard actual seisin and
still require seisin in law, we shall still be opposed to the
great weight of judicial authority. This may be so ; never-
theless, in holding a constructive seisin or seisin in law suflB-
cient we are not without strong support. Lessee of Merritt
V. Home, 5 Ohio St., 307 ; Watlans v. Thornton, 11 id., 867 ;
Wa9S V. Bucknam, 88 Maine, 356 ; Bay v. Cochran, 24 Miss.,
261 ; Stephens 'Y, Home, 25 Mo., 849 ; Stoolfoos v. Jenkins, 8
Serg. & Rawle, 167.

If curtesy was to be favored it would seem natural and
reasonable perhaps, having abolished the common law re-
quirement of actual seisin, to do away with constructive
seisin also as a requisite to support the estate ; but jurists
agree that it is not to be favored. Chancellor Kent says
the extent of the law of curtesy may be justly complained
of. The obvious reason is that it gives to the husband what
would otherwise belong to the heir of the wife. It has no
moral foundation to rest upon, and hence the spirit and ten-
dency of the times is toward its abolition rather than its
extension. The legislature of this state twelve years ago
abolished it as to all subsequent marriages, and several
other states have done the same thing.

We advise the Superior Court to render judgment for the

In this opinion Andrews, C. J., and Beardsley, J., con-


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192 DECEMBER, 1889.

Todd c. Oviatt.

Pabdee, J., (dissenting.) The question is, can there be
a tenancy by the curtesy in a reversion expectant upon a
prior estate for life, that estate having extended beyond the
life of the wife owning the reversion ?

The answer in the negative, given by a majority of the
court, is undoubtedly the law in most, if not in all jurisdic-
tions other than our own.

In B%L9h V. Bradley^ 4 Day, 298, Josiah Woodhouse died,
seised of the premises in question, in 1766. His son Robert
inherited and occupied, and died seised in 1775. His only
child, Mary, born in 1774, inherited ; she intermarried with
James Goldear in 1794, before she arrived at the age of
twenty-one years. She continued a feme covert until her
death in November, 1807, leaving her husband James Gold-
ear living, having had children by him. These died be-
fore their mother. If they had survived her they could
have inherited the premises. James Goldear had never
been in actual possession of the premises. His wife had not
been in possession since her intermarriage with him, for this
reason, that the defendant, before 1788, more than twenty
years prior to the commencement of the action, having pur-
chased the premises for a valuable consideration, went into
possession of the same, and from that time to the time of
trial had held possession adversely to all others. The plaint-
iffs were the heirs at law of ai sister of Josiah Woodhouse,
the original owner. The defendant objected to a recovery
on the ground that Goldear, being now living, was tenant
by the curtesy of the premises, although neither he nor his
wife had ever been in actual possession during coverture ;
and the court directed the jury to find a verdict for the
defendant on that ground solely. The plaintifib moved for
a new trial. The coui*t said substantially as follows : —

*' As to the point respecting the curtesy, there is no ques-
tion but what there must have been by the English law an
actual seisin of the wife of the premises during the coverture,
to entitle the husband to the curtesy. It is said that unneces-
sary departures from the common law of England are not to
be favored ; that by such means everything is rendered un-


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DECEMBER, 1889. 198

Todd V, Ovfatt,

certain. I am fully of opinion that few maxims of our
law are more important than that of stare decisis; but it
must be acknowledged by all that our system of law respect-
ing real property is, in many instances, very different from
the English system. We have in some instances, when we
have adopted the principles of the English law, extended
them to cases which, by the adjudications of the English courts,
have not been supposed to fall within the governing princi-
ple ; in others we have adopted entirely different principles ;
and in all such cases where this has been done, which are
pari ratione with those already settled, if we reject our own
and adopt theirs, we shall mar the symmetry of our law ;
and the preservation of symmetry in our system I also view
as a most important consideration. In England it is not
sufiScient that a man is proprietor of real property, and has
a perfect right to it when he dies, to cause it to descend
to his heirs at law. No, he must be actually seised thereof.
The maxim is seisina facit stipitem; and the person that is
heir to that property will be heir to him that was last seised.
If A should die, who owns Whiteacre, which descended to
him from his father, but has not been actually seised, leaving
a brother of the half-blood, 5, and a sister, C, of the whole
blood, this estate cannot descend to C, his sister and heir;
for 5, being of the half-blood, cannot by their law inherit
to his brother; but yet the same will descend to 5, who
is heir to his father, who was the last seised. Had A been
seised, the estate would have descended to C. The maxim of
seisina fadt stipitem is an unyielding maxim of their law,
and what governs the descent of property. But this is not
our law. It is settled that it shall descend to the heirs of
him who owns the property, whether he was seised or not.
Seisin directs the descent with them ; ownership with us.

" By the English law a devise will not operate upon real
property of which the devisor is disseised. Seisin is an indis-
pensable requisite to give effect to the devise. A devise, by
our law, is good although a man is disseised. Seisin is neces-
sary in their law and nothing but ownership in our law.
We have always considered ownership of real property
Vol. Lvm.— 13


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194 DECEMBER, 1889.

Todd 0. Ovlatt.

sufficient to maintain an action of trespass against every in-
truder ; but by the English law actual possession by entry
is necessaiy. We have always considered ownership as
giving a right to possession of real property, as much so as
ownership of personal property. Ownerehip in the one case
draws after it the possession as much as in the other case ;
and whenever a right of possession is lost, all title and
ownership are lost. So the statute of limitations respecting
lands has always been construed. The statute, in the words
of it, does not take from the original proprietor his title ;
it only tolls his right of entry ; and yet this statute has been
always considered as barring all claims of title, whilst the
same words in the English statute have been considered,
not as having any effect on the title, but only on the right
of entry, and the lands may be recovered by a form of pro-
ceeding proper for such a case. The English law distin-
guishes betwixt a right of possession and a right of property ;
but our law does not. Wherever there is a right to real
property, there is of coui-se a right of possession, and the
statute which takes away the right of possession, takes
away the right of property ; and this is the reason that this
statute has received a construction altogether different from
the construction given to the English statute ; and this is
perfectly analogous to every other case of real property in
this state. Wherever you find a right of property you find a
right of possession, and all the consequences of ownership at-
tending it that you find in England where there is an actual
seisin ; and, on the other hand, where there is no right of pos-
session there is no ownership. So in this case, Mary Goldear
had title to the land, and though not actually seised, her hus-
band acquired the same rights on her death as if she had been
seised. Since seisin is not necessary in case of descent to
the heirs, neither is necessary to pass lands by a devise,
why shoald it be thought necessary to the husband's title
by the curtesy ?

" The decision of the court in this case is no departure
from fixed rules and precedents. The departure from the
English rule respecting the efficacy of seisin has long since


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DECEMBER, 1889. 196

Todd V. Oviatt.

been departed from ; and to adhere to it in this case would
mar the symmetry of our law."

In Kline v. Beehe^ 6 Conn., 494, it is said in the marginal
note that "in this state the husband may be tenant by the
curtesy of land to which the wife had title, but of which she
was not actually seised, during the coverture;" citing
Bmh V. Bradley, 4 Day, 298.

In 4 Kent's Commentaries, (5th ed.), 30, it is said as fol-
lows : " The rule has been carried still further in this coun-
try ; and in one state, where the title by curtesy is in other
respects as in England, it is decided that it was sufficient
for the claim of curtesy that the wife had title to the land,
though she was not actually seised nor deemed to be so.
The law of curtesy in Connecticut is made to symmetrize
with other parts of their system, and in that state owner-
ship without seisin is sufficient to govern the descent or
devise of real estate ; " citing Bu^h v. Bradley, 4 Day, 298,
and Kline v. Beebe, 6 Conn., 494.

A vested remainder expectant upon a life estate is a fixed
present right of property, alienable, devisable, descendible ;
indeed it has all of the incidents of any other kind of pres-
ent interest in real property. Ownership of, that is, the
present right of property in, the reversitm expectant upon
a life estate, stands upon a plane with ownership of the fee.
And upon the cited precedelfts in this court, ownership is
perfect in utter disregard of the question as to possession.
Ownership has displaced and stands for the actual seisin,
the investiture by turf and twig of the common law. It
matters not that the rightful owner in fee is kept from pos-
session by a tort-feasor, or by rightful possession by the life-
tenant. In each case alike there is a valuable vested pres-
ent right of property, susceptible of ownership in the high-
est sense. To such ownership, in both cases, tenancy by
the curtesy is legally incident equally.

In this opinion Cabpekteb, J., concurred.


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196 DECEMBER, 1889.

Benedict v. Chase.

Cornelia M. BBajEDicr and othebs vs. Augustus S.
Chase and another, administrators, and others.

New Haven & Fairfield Cos., Oct T., 1889. Carpenter, Loomis, Beabdb-
LBT, Fbemtice and J. M. Hall, Js.

B died while holden as an endorser upon notes of a corporation of which
he was a stockholder, to the amount of $600,000. The corporation not
being able to pay the notes as they matured, and a presentation of them
against B^a estate rendering it insolvent, the plaintiffs, who were a por-
tion of the heirs of B, the others being minors, with the approval of
the administrators guaranteed bonds of the corporation to the amount
of $144,000, with the proceeds of which the corporation was able to
provide for the notes as they matured. The corporation six years after
failed, and the plaintiffs had to pay $47,000 on the bonds guaranteed by
them. It did not appear that the failure of the corporation had been
caused by any special misfortune, or that there had been anything be-
yond a steady decline In its condition. In an action against the admin-
istrators, claiming a legal liability on their part and an equitable liability
of the estate, it was held —

1. That the administrators were not liable at law.

2. That the peril in which the estate was placed created what the law would

regard as a necessity for the Interposition of the plaintiffs.
8. That by such Interposition, by which the estate was saved from heavy

loss, they acquired an equitable lien on the estate for the money which

they were compelled to pay upon their guaranty of the bonds.
4. That it was not necessary to take any proceedings against the estate in

the probate court, but that the (^Im could be made the subject of a

suit in the Superior Court

[Argued October 25th— decided October 80th, 1889.]

Action for the recovery of money at law and for equitable
relief; brought to the Superior Court in New Haven County.

The plaintiffs were Cornelia M. Benedict, Amelia C. Bene-
dict and Charlotte B. Hill, widow and two of the children of
Charles Benedict, deceased. The defendants were the ad
ministrators of his estate and minor heirs. The complaint
alleged that at the time of his death, on the 30th of Octo-
ber, 1881, the intestate was liable as endorser of a large
amount of notes and other paper of Mitchell, Vance & Co.,
a corporation located in the city of New York, of which he


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DECEMBER, 1889. 197

Benedict v. Chase.

was a large stockholder, to the amount of six hundred thou-
sand dollars, which notes were then maturing, and if pre*
sented and allowed against his estate would have rendered
it wholly insolvent ; and that, for the purpose of relieving
the estate, the plaintiffs, being then all the parties interested
who were of age and legally capable to act, entered into an
agreement with the corporation that they would guarantee
its bonds to the amount of $144,000, the proceeds of which
should be used in taking up the notes, other bonds being
guaranteed by other stockholders, and that the bonds were
issued and guaranteed, and the notes paid with the proceeds;
that the corporation failed in 1887 while a portion of the
bonds guaranteed by the plaintiffs remained unpaid, and
that in consequence thereof they had been compelled to pay
upon them the sum of $47,699, which the administrators,
upon demand made, had refused to pay; and that the estate
of Benedict was being settled as a solvent estate, and that
the time limited for presenting claims against it had long
since expired. Judgment at law was prayed for against the
administrators for the amount so paid, and for equitable

The defendants demurred to the complaint on the ground
that the Superior Court had no original jurisdiction in the
matter, but that it belonged exclusively to th^ probate court
in which the estate was being settled. The demurrer was
overruled and the defendants then filed a denial. Upon the
trial the following facts were found.

Charles Benedict died on the 30th of October, 1881, and
on the 14th day of November, 1881, the defendants A. S.
Chase and Oilman C. Hill were appointed administrators of
his estate by the court of probate for the district of Water-
bury. The estate was represented solvent, and the court
limited six months from and after the 14th day of November
in which to present claims against it.

Benedict died intestate, leaving a widow, Cornelia M.
Benedict, and two daughters, Amelia C. Benedict and Char-
lotte B. Hill, plaintiffs in this action, and minor children of
a deceased daughter, heirs at law to his estate.


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198 DECEMBER, 1889.

Benedict v. Chase.

At the time of his death he was endorser of a large amount
of notes and drafts of Mitchell, Vance & Co., a corporation
located in New York, and had guaranteed Dennis Wilcox,
who had also endorsed notes and drafts of Mitchell, Vance
& Co., against loss. The total amount of the endorsement
and guarantee was $600,000. Mitchell, Vance & Co. at the
decease of Benedict were supposed to be solvent, but could
not meet these notes when they matured without renewals,
and for the purpose of enabling the corporation to renew its
paper without such endorsement and guarantee they entered
into an agreement with the plaintiffs, by which the plaintiffs
were to guarantee bonds to be issued by the corporation to
an amount equal to one half the stock which Benedict at
the time of his death owned and held in the corporation,
which amount of guaranteed bonds was $144,000.

These bonds were used by Mitchell, Vance & Co. in
taking up their obligations which Benedict had endorsed or
guaranteed, which were paid by them upon maturity. These
notes and drafts were paid by the corporation and not by the
plaintiffs, nor were they in any manner assigned or conveyed
to the plaintiffs, nor were they ever presented against Bene-
dict's estate, nor any claim made upon the estate therefor.
The bonds were so guaranteed by the plaintiffs on or before
the Ist of December, 1881. In the summer of 1887 Mitch-
ell, Vance & Co. failed in business, and a receiver was ap-
pointed to settle the affairs of the corporation, and on the
1st day of January, 1888, the plaintiffs were obliged to pay
to the receiver the sum of $47,699, being one half the amount
of the bonds so guaranteed by them still outstanding and
unpaid by the corporation ; the corporation also settling its
debts for fifty cents on the dollar. The plaintiffs in guar-
anteeing the bonds supposed they were acting for the benefit
of the estate, and relieving it from its liability by reason of
the endorsements and guarantees of Benedict in his lifetime,
so that no claim therefor would ever come against the estate ;
believing that Mitchell, Vance & Co. would fully pay and
discharge the bonds so guaranteed by them.

The estate of Benedict is now in process of settlement in


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DECEMBER, 1889. 199

Benedict o. Chase.

the probate court. The plaintififs have presented their claim
and made demand of the administrators for payment thereof.

Benedict at the time of his decease was the largest stock-
holder in the corporation of Mitchell, Vance & Co., and the
plaintiffs in making the guaranty of bonds acted as they
supposed for the benefit of the estate, to preserve the stock
as an asset of value to the estate, as well as to relieve the
estate from liability for the endorsements.

If the notes so endorsed by Benedict had matured as a
claim against his estate, and been presented against it, it
would have subjected the estate to a much larger liability,
and rendered it insolvent if compelled to pay them. The
bonds were so guaranteed with the knowledge and approval
of the administrators, so far as they had any power to ap-
prove it.

Upon these facts the case was reserved for the advice of
this court.

S. W. Kellogg^ for the plaintiffs.

1. The Superior Court had jurisdiction. It was not a
claim against Mr. Benedict personally nor had it any ex-
istence before his death. It came into existence after his
death and was against his estate only, or against the admin-
istrators on their liability, and was therefore a matter with
which the probate court had nothing to do.

2. The plaintififs are entitled to judgment against the ad-
ministrators for money paid for the estate. It was their
duty to take the necessary steps to relieve the estate from
liability. Davis v. Vansands, 45 Conn., 600. This being
80, and the guaranty of the bonds being made with their
approval, it was money paid for their benefit as adminis-
trators. 2 Greenl. Ev., §§ 108, 118, 114; JExall v. Par-
tridge, 8 T. R., 308 ; Bailey v. Bussing, 28 Conn., 465. The
claim could not have been allowed if it had been presented
against the estate as the claim of a creditor. Hawley v.
Bot^ord, 27 Conn., 80 ; Bacon v. Thorp, id., 251.

3. But if the plaintififs are not entitled to a judgment at
law against the administrators, a court of equity will grant


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200 DECEMBER, 1889.

Benedict v. Chase.

them relief. What they did was for the benefit of the whole
estate, with the approval of the administrators, to relieve it
from an overwhelming liability. It is, to say the least, very
ungracious on the part of those representing these minor
heirs to object to the allowance of the sum paid by the
plaintiffs as a charge against the whole estate, for if they
had not taken the action they did there would have been
no estate left for these minor heirs to share in. This moun-
tain load of liability was removed from the estate, by the
heirs legally capable of acting, for the benefit of the whole
estate, and the amount to which the estate will be subjected,
if this claim of the plaintiffs is made a charge against the
whole estate, is less than one twelfth of the amount of the
original liability of which the estate was relieved by their
action. It is not true that courts of equity can never take
action in relation to the settlement of estates before a court
of probate. When there is no remedy at law, and the court
of probate has no power under the law, as in a case like
this, it is the proper function and the duty of a court of
equity to grant relief and do justice between the parties.
It is a golden maxim of our jurisprudence that wherever
there is a wrong there is a remedy. Booth v. Starr^ 5 Day,
419 ; Hawley v. Botsford^ 27 Conn., 80 ; Bacon v. Thorp^ id.,
251 ; Bavis v. VansandSj 45 id., 600.

(7. W. Oillette and G. U. Terry^ for the defendants.

1. The plaintiffs are not entitled to the equitable relief
prayed for, because the Superior Court has no original juris-
diction to grant any such relief, for, as the finding shows,
the estate is still in process of settlement in the probate
court, and all questions relating to the settlement of the
estate, or to the administration account, are exclusively
within the jurisdiction of that court, and can only come to
the Superior Court by way of appeal. Pitkin v. Pitkin^ 7
Conn., 815 ; Bailey v. Strong^ 8 id., 278 ; Beach v. Norton^
9 id., 182.

2. The plaintiffs are not entitled to a judgment at law
against the administrators for the money paid by them upon


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DECEMBER, 1889. 201

Benedict v. Chase.

the guaranteed bonds. The only claim for which the estate
could have been liable was by reason of Mr. Benedict's eii-
ilorsements of the paper of the corporation, and this only in
the event that the corporation had failed to pay, and the
endorser had been properly notified. Had these claims ever
matured they might have been presented as lawful claims
against the estate, and then it would have been the duty of
the administrators to allow or disallow them. But no such
claims were ever presented by the holders of the paper or
any one else. They could not have been, because they were
paid by the corporation with money loaned it by the plaint-
iffs, and the plaintiffs have sustained loss thereby. They
have no remedy against the estate or administrators, because
the endorsed papers never became a liability against the en-
dorsers, and if they had, these plaintiffs never acquii*ed any
title or interest therein, by -assignment or otherwise, and no
claim therefor has ever been presented to the estate.

8. But it is claimed that the plaintiffs were obliged to pay
a portion of the bonds they had guaranteed, which enabled
the corporation to pay their notes endorsed by Mr. Bene-
dict, and thereby relieved the estate from a very large
claim. But it appears that the corporation, at the time of
the decease of Mr. Benedict, was solvent, and only desired
to gain time by way of renewal of their paper, but being
unable to procure his endorsement, desired to obtain some
substitute for it, and there was no thought on the part of
the plaintiffs at the time they guaranteed the bonds that
the corporation would be unable to pay them at maturity.
What particular bearing the knowledge or approval of the
administrators has upon the case it is difficult to understand.
It is entirely immaterial whether they approved or disap-
proved. If it is to be argued that because they did approve
so far as they had any power to do it, they thereby bound
the estate for the payment of any portion of the bonds, then
we claim that they had no such power. Their duties were
to receive claims lawfully presented against the estate and
either allow or disallow them. Rhodes v. Seymour^ 36
Conn., 1. And this claim of the plaintiffs was not present-


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202 DECEMBER, 1889.

Benedict v. Chase.

ed until after the time limited for presenting claims had

Carpenter, J. There are two facts essential to the
plaintiffs' right to recover : Ist, that Benedict's estate was
in peril ; 2d, that it was relieved of that peril by the plaint-
iffis. The finding does not state either fact in so many words.
Are they in effect stated ? If so, we can dispose of the case ;

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