28 Mo. 23 | Mo. | 1859
delivered the opinion of the court.
The controversy in this cause turns on the construction of the fourth clause of the will of Mrs. Elizabeth McCutchen, which is as follows: “ I give and bequeath to my daughter Margaret Dean, a negro girl named Hannah for to be at her disposal during her natural life, then to go to the benefit of her heirs.” The testatrix died in the state of Kentucky in 1842, where she had her domicil, and where her will was executed and duly probated.
The defendants insist that the word “ heirs” in the fourth clause of the will is a word of limitation and not a word of purchase, and that by the rule in Shelly’s case the limitation over was void, and the absolute property in the slave vested in the first taker. Both of the parties concede that as the will only disposes of personal property, it must be interpreted according to the law of the domicil of the testatrix, and we must therefore look to the law of Kentucky for ascertaining the principles which must govern the case.
The rule in Shelly’s case “ that wherever the ancestor takes an estate for life and in the same conveyance a remainder is limited to his heirs or the heirs of his body, he will be vested with the fee and his heirs will take by descent and not by purchase,” has become firmly established in England as a rule of property; and though the policy and reason of
But if the rule in Shelly’s case was ever recognized in Kentucky, it was made subservient to the intention of the parties, and its application was subordinate to the sense in which the word “ heirs” or “ heirs of the body” was used. The court of appeals, in Moore v. Moore, 12 B. Monr. 656, observed, “ that expositions are to be made according to common intendment is agreed by all. To whatever instrument we may be giving a construction, the words which have been employed by their author should be taken in the sense in which he understood them; and, in eases in which technical rules have been applied to particular expressions by the courts, if we are satisfied, after an examination of the instrument, these technical rules will not carry out but defeat the intention of the author, the technical rules must yield to the intention, and such a construction must be given as will effectuate it.” In Prescott v. Prescott’s heirs, 10 B. Monr. 58, it was admitted that the words “ heirs of the body” standing alone were appropriate words of limitation; but it was said that it was “ well settled by numerous decisions that not only ‘heirs of the body’ but the more general word, ‘heirs,’ or the more specific terms, ‘ heirs male, or heirs female of the body or of two bodies,’ may be used and operate as words of purchase.” And in a subsequent case, in the same volume, the words “ heirs of the body” were construed to mean children ; (Jarvis v. Quigby, 10 B. Monr. 106 ;) and a remainder created by these words hold good.
. The revised statutes of Kentucky, of 1852, give effect both to the limitation for life and to the subsequent limitation to the heirs, and the learned Judge further remarks, in White’s case, that “ we may presume that if this court had at any time before the enactment of the revised statutes decided that in case of a grant to one for life, and at his death to his heirs, the whole estate vested in the ancestor and that his alienation had passed it from his heirs, a statute similar to that just referred to would at once have been enacted.”
The question arose again in 1857, in the case of William
We have examined all the Kentucky cases — which are very numerous — that relate to the subject, and we have decided this case on principles drawn from the decisions in that state. We have traced the current from its fountain and have found no difficulty in following it, for it has grown broader and deeper as it flowed, until it has swept away the last vestige of a rule which was only respectable for its antiquity. At first it was admitted that the rule existed; it was next qualified ; it was afterwards doubted, and finally overthrown.
We think that the testatrix in this case intended only to give the slave to her daughter for the term of her life ; for the expression “ during her natural life” clearly imports during her life only, and the adverb “ then” shows not only the period at which Mrs. Dean’s interest was to cease, but the time at which the slave was “ to go to the benefit of her heirs.” As Mrs. Dean only took an interest for life, she could not defeat the remainder by selling the slave, and the expression “ for to be at her disposal during her natural life” did not authorize her to dispose of any greater interest than she had, and was intended, we think, by an unskillful draftsman, only to confer the largest liberty in the use of the slave during her life and to the .extent of her interest. She had only a life estate, and with that interest she could do as she pleased; but her interest ceased at her death, and then the remainder passed to her children or their descendants, who were equally with herself the objects of the testatrix’s bounty. (Broach v. Kitchen, 23 Geo. 515.)
• It may be observed that the rule in Shelly’s case was abro