58 Miss. 644 | Miss. | 1881
delivered the opinion of the court.
By the last will and testament of Richard Boss, who died in Attala County, in this State, in 1847, he devised certain lands and negroes to his four grandchildren for life (he having no living children), with an attempted remainder to their heirs. The provision is that when the two elder of the grandchildren shall become of age there shall be a partial division of the property, and that thereafter these two shall receive the net profits of the portions allotted to them, until the two younger •children shall come of age, at which time there shall be a general and equal division of all the property among the four grandchildren, and “ after such division the land and negroes allotted to each shall be held by them for and during their natural lives, in trust only for the use of the heirs of their bodies.”
If any estate of freehold was by this will conferred upon the first takers, it is quite clear that such takers, by operation of the rule in Shelley’s case, were vested with an estate in fee, whereby the attempted limitation to the heirs of their bodies was defeated; since it is a plain attempt by the same instrument to convey to one or more ^persons a freehold estate, with a limitation over, byway of remainder, of another estate,of the same quality to the heirs of their bodies, as a class of persons to take in perpetuity. It falls, therefore, strictly within the rule in Shelley’s case. 4 Kent’s Comm. 215.
It is argued, however, that no estate whatever was granted to the grandchildren by the will, but that they were mere naked trustees during their lives for their own heirs, and that, taking no estate of freehold, they cannot be vested with an estate in fee. This argument is based upon the words, “ shall be held by them * * * in trust only for the heirs of their bodies,” and it would be plausible if other clauses of the will
In Kepple’s Appeal, 53 Pa. St. 211, a devise of real estate •“ to my son, in trust, and for the use of his heirs-at-law, to have and to hold the same during his natural life, but he shall in nowise sell or dispose of the same during his life,” was held to pass the fee to the son. This case is quite on all fours with the matter in hand, and is in consonance with the current of authority.
Judgment affirmed.