5 R.I. 273 | R.I. | 1858
It is clear that the plaintiff took, under the will of his father, an estate in fee-simple, in the lot contracted to be purchased of him by the defendants, and as thus their only defence to this bill fails, that they must be enforced to perform their contract of purchase. The testator evidently intended that the plaintiff should have only a life estate in this lot. This appears from the express terms limiting the estate — "during his natural life" — in the third clause of the will, devising it to the plaintiff, as well as from the beginning of the seventh clause, in which the testator declares, that "all the before-named gifts and bequests" to his children, including of course that to the plaintiff, "are for life only, and then to go to their several heirs forever, share and share alike, except,c." But then, again, it is equally evident, from the words in which he disposes of the remainder in fee in this lot, "and after him to his heirs forever," and "then to go to their several heirs forever, share and share alike," in the same clauses, that the testator designed that this remainder should vest, not in any particular persons, as purchasers, *276 designated as the heirs of his son, but in the class of persons, to take in succession, who might stand in the relation of heirs to his son at the time of his death — using the word "heirs" as anomen collectivum, for the whole line of the inheritable blood of his son.
No such difficulty from the use of the words "share and share alike" in the seventh clause of the will, arises here, in application to the word "heirs," considering our doctrine of partible inheritances, as was raised, though got over, in application to the words "heirs of the body," in Jesson v.Wright, 2 Bligh. 1, and Doe d. Atkinson v. Featherston, 1 Barn. Ad. 944. The testator, in this clause, speaks, in general, of the gifts and bequests before made to his children, as for life only, and provides, that they are "then to go to their several heirs forever, share and share alike." As these heirs may, by our law, consist of several persons, the words, "share and share alike," are inserted for the purpose of directing that in such case they shall take equally, without at all implying that they are not to take in their character ofheirs.
In such a condition of things, it is too well settled to be disputed, that by the well-known rule in Shelly's case, founded partly perhaps upon feudal reasons, and partly upon the broad common-law policy of rendering estates alienable by, and subject to the debts of, their owners, the particular intent, to create an estate for life, must yield to this more general intent and policy; and the word, "heirs," be construed to extend the estate of, and give a fee to, the proposed tenant for life. Perrin v.Blake, Hargrave, Law Tracts, 489, 551; Doe v. Laming, 2 Burr. 1100; Doe v. Smith, 7 T.R. 531; 4 Kent, Com. 214-229, and cases cited. This rule has been abrogated by our statute of wills (Rev. Stats. ch. 154, § 2) in application to devises of real estate, only in case of "a devise for life to any person and to the children or issue generally of such devisee in fee-simple," in which case the statute declares, that the devise "shall not vest a fee tail estate in the first devisee, but an estate for life only; and the remainder shall, on his decease, vest in his children or issue generally, agreeably to the direction in such will." It is obvious from these words, as well as from the context, *277 that the statute is aimed at the rule only when, in the specified cases put, it had been construed to create an estate in fee tail in the first taker; and that by thus recognizing and repealing it in application to specified cases, it impliedly affirms and ratifies it in application to all others.
Let a decree be entered, that the defendants specifically perform their contract of purchase with the plaintiff as set forth in the bill, upon receiving from him a proper conveyance of the lot therein mentioned, free from all incumbrances; and unless otherwise agreed, let a master be appointed to settle the conveyance and attend to the execution of the decree.
