12 Gratt. 135 | Va. | 1855
This case brings again before the court the question, so often discussed here and in England, as to the operation of the rule in Shelley's Case, that where an estate of freehold is limited to a person, and the same instrument contains a limitation, mediate or immediate, to the heirs of his body, or to his heirs, the ancestor takes the whole estate comprised in the terms, either as a fee tail or a fee simple. In this case there is no limitation over on the failure of issue; and the only question arising on the will is, whether the testator, in reference to the devise or bequest to his daughters Mary Murphy and Caroline Brooks, used the words “heirs lawfully begotten” in their legal, primary and proper sense, or whether he used them as descriptive of some other class of objects. In the view I take of this case, the interpretation of the will
When a testator uses a term having a well known legal meaning, he is to be understood as having used it in that sense, unless the context shows that he used it in a different sense. Unless that is apparent, the rule is inflexible; and though the testator may have supposed that the first taker would take an estate for life only, and perhaps so intended as then advised, yet it does not follow if he had been aware of all the consequences of a change in the term used, that he would have made it. The will bequeaths the property to his daughters, to be held by them during their natural lives and no longer, and then to be equally divided between their heirs lawfully begotten. If the words “ during their natural lives and no longer,” and “ then equally divided between their heirs,” are to be construed as modifying the words “heirs lawfully begotten,”-and as describing another class, and to imply children, who were to take as purchasers, then if the daughters had died leaving grand children, they would have been excluded. But giving the term heirs its legal and proper sense, all the descendants of the daughters would be embraced. So that it is at least conjectural, if we are to look to intention alone, in what sense the testator meant to use the term. It therefore would seem that the better plan is to give such words their plain, legal effect, and to reject mere loose expressions, from which to infer an intention that they were used as descriptive of a different class of objects.
The words here relied on as modifying the words “ heirs lawfully begotten,” do not indicate such inten
The devise was to W for life, and after his decease, to the heirs of his body, in such shares and proportions as W by deed, &c. should appoint; and for want of such appointment, to the heirs of the body of W, “ share and share alike as tenants in common.” And if but one “ child,” the whole to such only child; and for want of such issue, to the devisor. The court held that an estate tail vested in W by this devise, reversing the decision in King’s bench, and overruling all that class of cases which had given to such words the
Several cases have occurred since the case of Jesson v. Wright; and though in some instances the principle of that case may not have been followed out, yet the weight of authority is in favor of the rule there enounced. The cases on this subject are reviewed in 2 Jarm. on Wills 271., ch. 37'; and he concludes that the doctrine of Jesson v. Wright has prevailed, and stands on the soundest principles of construction. Hayes on Estates Tail 100, 7 Law Libr. 54, sustains the same proposition. See also to the same effect Powell on Devises 464, ch. 23, 22 Law Libr. 245.
The words in the will under consideration are not so strong as in the case referred to. There the heirs of the body could not take as tenants in common, and the court was compelled to reject the words of modification. In this case the words of modification are not inconsistent with the operative words of the bequest or devise, because the property passing by descent to the heirs, would be equally divided if they all stood in the same degree of relationship.
It is contended, however, that this is no longer an open question in Virginia; and that the precise ques
Warners v. Mason & wife, 5 Munf. 242, turned upon the question whether the limitation over was too remote. The testator devised land to his son during his natural life, and then to his heirs lawfully begotten of his body, “that is, born at the time of his death or nine calendar months thereafter;” and for want of such heirs, then to his nephews, one to set a piice and
Pryor v. Duncan, 6 Gratt. 27, was decided upon the ground, that although the words “ heirs lawfully begotten,” were used in one clause, the whole context showed that the words were not used in their legal and primary sense, but were descriptive of another class of persons fully pointed out in a following clause, as the children of the first taker. He lent the slaves to his daughter during her natural life, and to her heirs, &c. Her interest was to cease, and his executors to take possession, if she concealed or attempted to alienate the slaves; in such case, after her decease they and their increase to be divided among her “ children,” if any living; otherwise to be divided among the testator’s children, (naming them,) and their heirs. Thus showing, from the indifferent use of the words “ heirs” and “ children,” by the restricted power over the property, and by the bequest over if no “ children” living at her.death, that he used the words “ heirs lawfully begotten” in the sense of “ children.”
The last case to which the counsel of the appellant referred is the case of Self v. Tune, 6 Munf. 470. By deed slaves were given to a daughter of the donor and her husband, for and during their natural lives; and after the decease of both, the slaves and their increase “to be equally divided among the heirs of her body:” and in default of such heirs, to return and be equally
The cases of Wilson v. Vansittart, Amb. R. 562 ; Doe ex dem. Long v. Laming, 2 Burr. R. 1100, and cases of that description, where words of that and the like character were held to modify the words “ heirs of the body,” were overruled by Jesson v. Wright, and the cases which have followed it. Powell on Devises 466, 22 Law Libr. 249; 2 Jarm. on Wills 286, ch. 37; where all the cases are collated.
The case of Self v. Tune forms one of a series decided about the same time upon the construction of the rule in Shetteifs Case, and what would amount to a good limitation over. These are the cases of Timberlake v. Graves, 6 Munf. 174; Gresham v. Gresham, Id. 187; James v. McWilliams, Id. 301; Cordle's adm'r v. Cordle, Id. 456; and Didlake v. Hooper, Gilm. 184. The authority of these last cases has been shaken, if not overthrown, by the subsequent cases of Bells v. Gillespie, 5 Rand. 273; Broaddus v. Turner, Id. 308; Griffith v. Thompson, 1 Leigh 321; Callava v. Pope, 3 Leigh 103 ; Deane v. Hansford, 9 Leigh 253; Nowlin v. Winfree, 8 Grratt. 346. Which latter cases have, it is believed, been more in conformity with the English cases and the earlier cases in this court. The precise question decided in Self v. Tune did not arise in any of the latter cases; though the general principles on which the latter cases proceed may not be precisely in conformity with the doctrine of that case.
Moncure and Lee, Js. concurred in the opinion of Allen, J.
Daniel and Samuels, Js. dissented.
Decree affirmed.