15 Del. Ch. 367 | New York Court of Chancery | 1927
The question which this bill presents is. whether the estate devised by the testatrix to her daughters is a life estate with power to convey in fee only upon the contingency that “both have married,” a contingency not yet satisfied; or whether the estate is one in fee simple in the daughters with the absolute right of conveyance incidental to such an estate. The complainants on their brief insist that the latter is the true construction because of the rule in Shelly's Case. That that rule is embodied in the law of this jurisdiction governing real estate is well settled. Griffith v. Derringer, 5 Har. 284; Wright v. Gooden, 6 Houst. 397; Jones v. Rees, et al., 6 Pennewill, 504, 69 A. 785, 16 L. R. A. (N. S.) 734. The devise here in question is in point of form a devise of a freehold estate for life to the two daughters as tenants in common with remainder over as to the moiety of each to her heirs. Under the rule in Shelly’s Case, each takes a fee simple interest. The annexation of the power to sell and dispose of generally by will cannot affect the application of the rule. Richardson v. Harrison, 16 Q. B. D. 85; Baker v. Scott, 62 Ill. 86; Martling v. Martling, 55 N. J. Eq. 771, 89 A. 203; Cowing v. Dodge, 19 R. I. 605, 35 A. 309; Brown v. Renshaw, 57 Md. 67. The complainants can, therefore, convey a good fee simple title to the defendant. The deed conveying it however should contain such a clause of general warranty as would fortify the purchaser against any possible attempt by the complainants, or either of them, to exercise at a later date the power either of sale or of disposition by will. A deed of this character would effectually extinguish the power. Brown v. Renshaw, supra.
A decree will be entered in accordance with the foregoing. Costs will be decreed against the defendant.
