McFeely's Lessee v. Moore's Heirs

5 Ohio 464 | Ohio | 1832

Judge Lane

delivered the opinion of the court:

The determination of the present question depends upon the rule of construction to be applied to the will. It is assumed by the plaintiff’s counsel that is the manifest intention of the testator to give the devisees an estate for life only; and it is insisted that where the intent sufficiently appears, it is the plain duty of the court to give effect to it, and to hold that no larger estate passes. The defendant’s counsel would apply the rule in Shelley’s case to the interpretation of this will; by the operation of which, he claims an estate in fee in the immediate devisees. The rule is, where the ancestor takes a freehold, and by the same conveyance, whether deed or devise, is limited, either mediately or immediately, to his heirs, the word “ heirs” is a word of limitation, not of purchase, and the fee vests in the ancestor. 1 Rep. 104. The very elaborate discussions upon the authority, effect, and extent of the rule, leaves no room to doubt that the estate’ created by the present will is fairly within its scope.

It is urged, however, that the rule has a feudal origin, and that policy does not require or permit its adoption in a community like ours. But it has been too long established to be abrogated by us. From the earliest period, we find it -a settled rule of the common law. It is found in the Year Books ; it is stated in the Institutes as clear and undisputed; it is recognized in the Abridgments of Fitzherbert and Rolle; it has descended, in the English courts, to the present time, unimpaired, by attempted innovations, and flourishing in full vigor. It has been adopted in the United States. In Connecticut, Maryland, Yirginia, South Carolina, and New Yoi*k, it formed a part of the common law, and it continues to exist, as a rule of property,- except where abolished by statute. If its policy be doubted, let the legislature bo ^called to act; but if we should disregard a rule, which has prevailed so widely and •subsisted so long, it would be an unfaithful interpretation of the law.

Judgment for defendant.