45 Ind. 295 | Ind. | 1873
This was an action by the appellant against the appellee, to compel the specific performance of a contract in writing for the sale and coAveyance in fee simple of certain real estate. The defendant answered that he had only an estate for his life in the real estate, and for that reason asked to be excused from performing his contract, and that it might be rescinded and set aside. The circuit court held that the defendant had but a life estate, and rendered judgment in his favor. This ruling is assigned, in proper form, as. error, in this court. The title of the defendant was derived by virtue of the will of one David M. Hale,
Esther Hale is dead. The parties by counsel. agree that the case turns upon the question whether or not the rule in Shelley’s case is to be applied in this case. Does the devise to Morey for life, then to his lawful issue, and in default of such issue to his heirs in fee, give to Morey the fee simple? The rule in Shelley’s case has frequently been recognized, and in some instances applied, as a rule of the common law in force in this State. Andrews v. Spurlin, 33 Ind. 262; McCray v. Lipp, 35 Ind. 116.
What is the effect of the devise to Morey for life, and after his death to his lawful issue? If the words “lawful issue” are to be regarded as words of purchase, then Morey took only an estate for his life. But if the words “ lawful issue” are to be regarded as words of limitation, he took a fee simple. If the question could be regarded as one of intention, there would be no difficulty in coming to the conclusion that in this case it was intended that Morey should take a life estate only. But such is not the rule, as may be seen by reference to the cases cited as having been decided in this court. As this rule is a rule which we obtain as a part of the common law, it is proper to look to the English courts for cases in which the rule has been applied. In King v. Melling, Vent. 214, the devise was by John Mailing, who had issue, Bernard and John, and'by his will devised to Ber
In Roe, ex dem. Dodson, v. Grew, 2 Wils. 322, a devise of land to George Grew for and during the term of his natural life, and from- and after his decease to the use of the issue male of his body lawfully to be begotten, and the heirs male of the body of such issue, and for want of such issue male, then to George Dodson, his heirs, and assigns forever, was held to create in George Grew ah estate tail.
In Denn, ex dem. Webb, v. Puckey, 5 T. R. 299, the devise was to A. for life without impeachment of waste, and after his decease to the issue male of his body and to the heirs and assigns of such issue male forever, and for default of such issue male to B., etc., it was held that A. took an estate tail.
In Frank v. Stovin, 3 East, 548, the same construction was given to the devise where the word “issue” was used.
In The Attorney General v. Bright, 2 Keen, 57, the testator had given five hundred pounds to S. T, to receive the interest during life, and then to her issue, but in case of her death without issue, the same to be divided between her father’s children by his second wife living at the testator’s death; and it was adjudged that S.T. took an absolute interest in said sum, See, also, Shaw v. Weigh, 2 Stra. 798, and Wiley’s Plea for Testators, part 1, Rule in Shelley’s Case, p. 12. These authorities show that at common law a devise to one for life and after his death to his issue, or issue of his body, created an estate tail. By our statute, estates tail are abolished, and any estate which, according to the.
The judgment is reversed, with costs; and the cause is remanded.
Pettit, J., was absent.