76 Mass. 581 | Mass. | 1858
By the original will the estate is given to the plaintiff in fee simple. The codicil devises the estate in trust to pay the net income to the plaintiff so long as he shall remain unmarried, and, in the event of his marriage or dying unmarried, to convey it to his legal heirs.
The condition is subsequent, and the restraint upon the marriage of the grandson without limitation as to time or person. It is therefore clearly against the policy of the law, and void, unless there is a valid gift over. Parsons v. Winslow
The trustees-upon the marriage are to convey the legal estate to the heirs of the plaintiff. It is very familiar law that a devise to the heirs of one living is void. Nemo esthceres viventis. Shep. Touchst. 415. 6 Cruise Dig. tit. 38, c. 10, § 37.
There are exceptions to the rule, as well settled perhaps as the rule itself; as where, in the case of a devise, it is plain from the whole will that the testator intended to use the words “ heirs ” or “ legal heirs ” as words of description or purchase. Upon the examination of the will of Mr. Otis we find no manifestation of such purpose. Assuming that there was no inadvertency or mistake in the drafting of this clause, there are no clear indications that the words “ legal heirs ” were to be used in any other than their ordinary legal sense. The result is that the equitable devise over is void. Heard v. Horton, 1 Denio, 165.
Judgment for the plaintiff.
