— Charles Carter’s will contains this clause, • called “clause B” hereinafter, omitting the description of the lands described. “I hereby will and bequeath to my daughter Elizabeth Couch, - * * to have and to hold to her and to the heirs of her body, but should she die without issue surviving, the said tract of land shall go to the heirs at law of the said Elizabeth H. Couch.” The legal effect of the devise by clause B to Mrs. Couch and to the heirs of her body was to create a fee tail, which under our statute (Code 1896, § 1021) was raised to an absolute fee. The devise was clearly the paramount intent of the testator, as expressed in clause B. The succeeding limitation, based upon her death without issue surviving, is pendent upon the superior estate created in Mrs. Couch, and debased it upon the defined contingency happening. The result
The theory of counsel for appellant, that a life estate was the estate devised to Mrs. Couch, cannot be approved, because, and if so, the plainest expression of the creation of a fee tail estate, enhanced by statute into an absolute fee, would be thereby wholly ignored, without anything in the instrument to justify such an interpretation. The limitation, that in default of issue surviving the heirs at law of Mrs. Couch should take, is not only not inconsistent with the view that a debased fee was created by the terms of the whole clause, but is repugnant to an interpretation that would distort a clear creation of an estate in fee tail into a mere life estate. The argument for a construction of clause B creative of a life estate is necessarily predicated upon the provision therein with respect to the death of Mrs. Couch. The provision is referable only to a description of an event, not, abstractly speaking, a limitation of an estate, upon which the existence vel non of the defined contingency shall be ascertained, and upon the ascertainment of the happening of which the heirs at law shall take.
Mrs. Couch died without issue surviving her, but issue was born alive to her. Her husband, William Couch, appellee, continued in the possession of the premises; and the heirs at law instituted this action of ejectment, which he defends upon the idea that under the doctrine of curtesy he is entitled to the possession and enjoyment of the lands during his life. The status being as we have defined it, Adz., that Mrs. Couch took a deter
The court below, therefore, correctly gave the affirmative charge for and at the request of the defendant; and its judgment is affirmed.