Carter v. CouchCarter v. Couch
- Reporters:
- , ,
- Before:
- McClellan
— Charles Carter’s will contains this clause, • called “clause B” hеreinafter, 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 sаid Elizabeth H. Couch.” The legal effect of the devise by clаuse B to Mrs. Couch and to the heirs of her body was to creаte a fee tail, which under our statute (Code 1896, § 1021) was raised to an absolute fee. The devise was clearly the pаramount intent of the testator, as expressed in clause B. The succeeding limitation, based upon her death without issuе surviving, is pendent upon the superior estate creatеd in Mrs. Couch, and debased it upon the defined contingency hаppening. The result *472was the creation of a determinаte fee in the land, which upon the happening of a dеfinite event, viz., her death without issue surviving, invested that fee in the heirs at law of Mrs. Couch. 24 Am. & Eng. Ency. Law, pp. 431, 432, and authorities in notes; 16 Cyc. pp. 602, 603,. and notes; 30 Am. & Eng. Ency. Law, p. 751 et seq;, and notes;
The theory of counsel for appellant, that a life estate was the estate devised to Mrs. Couch, cannot be approved, because, and if sо, the plainest expression of the creation of а 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 viеw that a debased fee was created by the terms of thе 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 сonstruction of clause B creative of a life estаte 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 ascertаinment of the happening of which the heirs at law shall takе.
Mrs. Couch died without issue surviving her, but issue was born alive to her. Her husband, William Couch, appellee, continued in the possessiоn of the premises; and the heirs at law instituted this action of еjectment, which he defends upon the idea that under the dоctrine 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*473mínate fee in the lands in contrоversy, the second question then is: Is the surviving husband entitled to curtesy оut of such estate? The question has been often answerеd in the affirmative, and never in the negative so far as we are now advised, and it will suffice to set down some only of the numerous authorities so holding: Webb v. First Church, 90 Ky. 117, 13 S. W. 362; Hatfield v. Sneden, 54 N. Y. 280; McMaster v. Negley, 152 Pa. 303, 25 Atl. 641; Taliaferro v. Burwell, 4 Call (Va.) 321; 2 Coke’s Litt. p. 241a, note; 12 Cyc. p. 1012; Withers v. Jenkins, 14 S. C. 597.
The court below, therefore, correctly gave the affirmative charge for and at the request of the defendant; and its judgment is affirmed.
Tyson, C. J., and Dowdell and Anderson, JJ., concur.