18 F. Cas. 859 | U.S. Circuit Court for the District of Rhode Island | 1824
This cause has been very elaborately argued. I have examined all the authorities cited at the bar, and beyond them my own researches have not been inconsiderable. The result of my own judgment, upon the fullest deliberation. 1 will now endeavour to give in as summary a manner as I can.
. The terms of the devise are, “I give and bequeath unto my well beloved son John Shrieve and to his male heir lawfully begotten of his body, and to his heirs and assigns for ever, all my homestead farm &e. to him my said son John Shrieve and to his heir male lawfully begotten of his body as aforesaid, and to him, his heirs and assigns for ever. But if it should so be, that my said son John Shrieve shall depart this life, leaving no male heir lawfully begotten of his body as aforesaid, then the abovesaid homestead with all the privileges &e. shall descend to be my grandson Weaver Osborne’s, his heirs and assigns for ever.” The controversy is between certain devisees claiming under John Shrieve, and. the heirs at law of Weaver Osborne; and the question is, what estate John Shrieve took in the premises by the above devise of his father. If he took an estate for life with remainder to his male heir in fee tail, with remainder over to Weaver Osborne in fee, then in the events, which have happened, the plaintiffs are entitled to recover. If, on the other hand, John Shrieve took an estate tail, then by the recovery suffered by him that estate was docked, and the remainder over in fee to Weaver Osborne was thereby extinguished, and the defendants are entitled to judgment.
My opinion is, that John Shrieve took under the devise an estate in fee tail male, and that Weaver Osborne took a remainder in fee upon the indefinite failure of the issue of John Shrieve. My reasons for this opinion are shortly these. The first clause in the devise gives the premises to “John Shrieve and his male heir” (in the singular). If it had stopped here, it would have given a clear fee tail male to John Shrieve. The case of White v. Collins, Comyn, 289, and Dubber v. Trollope, 2 Amb. 453, are directly in point. In the latter case, which was stronger than the present, the devise was to T. T. for life, and after to his first heir male; and it was held a fee tail male in T. T. Lord Chief Justice Eyre delivered the opinion of the court in a most elaborate argument, in
In the first place, it is clear from this clause, that the testator did not intend the devise to be solely to the son of John Shrieve, then born, in fee, under the description of “heir male,” as descriptio personas, for the estate is intended for the benefit of any person whatsoever, who should be the heir male of John Shrieve. It is not to pass over to Weaver Osborne so long as there shall be any heir male of John Shrieve living. In the next place, the intention is as clear that, upon the failure of issue male, the estate should go to Weaver Osborne. The language of the clause cannot be construed to restrict the failure of issue male to the death of the testator, for that would be a construction against the general current of authority. Words of this nature have never been held, in a devise of freehold estate, to import any thing but an indefinite failure of issue. If then the estate were to be construed a fee simple in the heir male of John Shrieve, it would entirely defeat the devise over to Weaver Osborne, for as an executory devise it would be too remote. The testator’s intention would, in another respect, be also defeated. He obviously intended the devise for the benefit of the heirs male so long as‘there should be any; but if the first heir male could take a fee simple, it would be alienable by him, and the descent of the estate, even if he retained it, would not be in the line of his heirs male, but of his heirs generally. So that to effectuate the purposes of the testator, it is necessary to construe the present devise a fee tail in John Shrieve, which will carry the estate in succession to his heirs male, with a remainder over, upon the indefinite failure of issue, to Weaver Osborne. This conclusion' is not in the slightest degree impugned by the consideration, that the words are “heir male” instead of “heirs male,” for the former, as the cases above cited abundantly show, may be construed words of limitation, as well as the latter. See Fearne, Bern. (Butler’s Ed.) 150, 160, 178, 179; Harg. Note, Co. Litt. 8b, note 45; Blackburn v. Stables, 2 Ves. & B. 367, 371; Wright v. Pearson, 1 Eden, 119, 128. Even the words “issue” and “issue male,” which are more usually words of purchase, have often received in the like connection an interpretation, as words of limitation. Roe v. Grew, 2 Wils. 322; Frank v. Stovin, 3 East, 548; Denn v. Puckey, 5 Term R. 299; Doe v. Applin, 4 Term R. 82; Doe v. Collis, Id. 294; Backhouse v. Wells, 1 Eq. Cas. Abv. 184, pl. 27; King v. Burchell, 1 Eden, 424, 432, and note 433.
If the ease then were entirely new, I should not hesitate to give the construction to the devise, which I have already intimated, as the only one, which will effectuate the general intention of the testator. But the question hardly appears to me to be •open. Where a rule has long prevailed in the construction of devises, or courts of law in a series of adjudications upon the import of mixed clauses, like the present, have adopted a uniform interpretation, a departure from them cannot but have a tendency to shake titles, and deliver the subject over to interminable doubts. The case of Goodright v. Pullyn, 2 Ld. Raym. 1437, is very strongly in point. There the devise was to A. for his life, and after the decease of the said A. unto the heirs male of the body of the said A. lawfully begotten, and his heirs for ever; but if the said A. should happen to die without such heir male (in the singular), then to B. for life, and after his death to the use of the heirs male of the body of the said B. lawfully issuing, and his heirs for ever. It was held, that A. took an estate in fee tail, notwithstanding the express limitation of a life estate to him, and the clause to the heirs male of A. and his heirs for ever, and the explanatory clause, if he should die without heir male (in the singular). Wright v. Pearson, 1 Eden, 119, 1 Amb. 358, — see Fearne, Bern. (Butler’s Ed.) 126, — is to the same effect. There, the devise was to A. for life, remainder to trustees to support contingent remainders, remainder to the use of the heirs male of A. lawfully to be begotten and their heirs; provided that in case A. should die without leaving any issue male of his body living at his death, then and in such case the premises to be subjected to the payment of two legacies of £100 each, &c. and for default of such issue-male of A. then to the use of all and every his (the testator’s) five grand children, or