37 Mass. 514 | Mass. | 1838
delivered the opinion of the Court. The demandants as heirs general of Rhoda Healy, bring this action against Joshua Healy, who is the eldest son and heir in tail of Rhodi Healy deceased. The question is whether Rhoda was tenant in'tail, by force of the deed of her father, Jededial. Marcy, under which she took the estate and held it, to the time of her decease ; and, secondly, if she so died seised as tenant m tail, whether by law the estate descended and vested in the tenant as her heir in tail.
The first question depends entirely upon the construction oi the deed of Jedediah Marcy. He thereby, in consideration of love and affection, granted the land described, to his daughter, Rhoda Healy, wife of Stephen Healy, and to her heirs, born-of her body. These words, by all the rules of construction, constitute an estate tail general to her, unless controlled by other parts of the deed. In the habendum it is, to hold the same to her and her heirs forever. From this it is contended, that the estate is enlarged to a fee, because in the habendum, it is limited to her heirs generally and not to the heirs of her body.
But we think this is not so. In general the habendum refers to the premises, and declares the estate which the grantee shall hold in them ; but it is conceded that the habendum may sometimes enlarge or diminish the grant, when it is so worded as to show a clear intention to do so. But here the habendum is not in terms, to hold the land, but to hold the same, that is, the limited estate in the land before granted, which was an estate tail ; and then the generality of the word “ heirs ” in the habendum may be well construed to be limited to those heirs, u ho by law could take that estate, namely heirs of her body.
But whether this construction can be entirely relied on or not, there is another principle applicable to the case, which is decisive of the present question. When both parts of a deed may well stand together consistently with the rules of law, they shall be construed to have that effect, rather than be held repugnant. Here the intention is clear in the premises, to grant an estate tail. If the limitation to heirs general in the habendum, shows an intent to enlarge it to a fee, it may have
The other clause in the deed, supposed to control the operation of the premises creating an estate tail, is the covenant, in which the grantor covenanted with Rhoda and her heirs as aforesaid, that he was seised, &c. and would warrant and defend to Rhoda and her heirs as aforesaid.
In general the covenánts can only extend to the estate granted, and there must be something very peculiar m their terms to warrant such a construction of them as to enlarge the estate granted in the premises.
But in the present case, the terms of the covenant must he taken distributively, and held to extend to heirs in tail, or heirs general, according as they may severally take interests under the other parts of the deed. If it was solely an estate tail, then heirs as aforesaid must be understood heirs in tail, entitled to take. If an estate tail with a fee simple expectant was granted, then the covenant was to enure according to such construction, when the heirs general should come in. It does not alter the construction and legal effect of the other parts of the deed.
It was suggested in the argument for the demandants, but not much insisted on, that the common law rule, limiting the descent of an estate tail to the eldest male heir, has been abrogated or controlled by the Massachusetts statute of descent.
The statute of descents, St. 1783, c. 36, § 1, is not expressly limited to lands, of which a party shall die seised in fee simple ; but we believe it has always been so construed, as well as the earlier statutes of the Province and Colony, of which that was a revision. The Prov. St. 4 Wm. & Mary, c. 2,
The Court are of opinion, that the tenant took the whole estate as heir in tail to his mother, and that the demandants are not entitled to recover.
