116 Tenn. 394 | Tenn. | 1906
delivered the opinion of the Court.
The present case involves as its only question the constructions of the concluding clause in the habendum of a deed made by J. M. Blankenship to his wife, M. A. Blankenship, on the 5th of March, 1888, conveying to her certain real estate. The whole of the habendum is as follows : “To have and to hold unto the said M. A. Blankenship during her natural life (or.so long as she may remain a widow in the event I should die before she does), together with all the appurtenances thereunto belonging, with remainder to me in event she should die before I do, and, should she survive me, then at her death or marriage to my heirs at law.”
In 1895 the grantor in this deed made a second deed to his wife, by which he undertook to convey to her the property covered by that deed in fee simple, subject alone to the right upon the part of the grantor to occupy the same and receive the rents thereof during her natural life. After the execution and delivery of this second deed, the husband died leaving surviving him Mrs. M. A. Blankenship and two children, one a son and the other a daughter. The son died, leaving one heir, a boy. The daughter married. Subject to the death of the husband, Mrs. Blankenship made a mortgage on this prop
The heirs of J. M. Blankenship insist that they take as purchasers under the terms of the reservation in the habendum clause of the. deed of 1888, which has been hereinbefore set out.
It will be seen that an estate during her natural life, or as long as she remained a widow, should she survive her husband, was given by that deed to Mrs. Blankenship, this grant covering only a part of the grantor’s fee-simple title. Upon the termination of the life estate, the grantor surviving, as a reversioner he would have been entitled at once to enter upon the possession of the property, or if he was dead at that time, then his heirs, occupying the place of the grantor, could have asserted the same right. The interest which the grantor had after the grant of the life estate to his wife, determinable upon her marrying again should she become his widow, was technically an estate in reversion, remaining in him and
As it is well settled that there are no heirs to a living person, if these defendants take under the clause of the deed which they insist created an estate in them, then they must take as contingent remaindermen. But they cannot take in that character, for upon the authority of many English cases, the earliest of these referred to being one found in Lord Coke’s Report, the rule as stated in the text of volume 24, p. 398, of the American & English Encyclopedia of Law, is as follows: “An exception to contingent remainders is where the remainder is limited to the heirs of the grantor. This exception rests
This rule thus announced is stated by Mr. Washburn in the second volume on Real Property (top page 525) as the well-settled common-law rule. He says, treating of the subject of contingent remainders, that “there are what seems to be exceptions to the fourth clause of such remainders. Prominent among these are limitations coming within the rule in Shelley’s Case. This rule will be more fully explained hereafter, but as showing how far it forms the exception above referred to, it is proper to state that it is accepted as one of the dogmas of common law, that if one makes a limitation to another for life, with a remainder over immediately or mediately to his heirs, or heirs of his body, the heirs do not take remainders at all, but the word “heirs” is regarded as defining or limiting the estate which the first taker has and his heirs take by descent and not by purchase. So, if a man by his will gives an estate to the devisee for life, with a remainder over to his own heirs, they do not, at common law, take as remaindermen by the will, but by descent as reversioners and heirs; that being regarded as the better title.” To the same effect are 4. Kent, p. 506, and Hoover’s Lessee v. Gregory, 10 Yerg., 451.
Prom the earliest period of the judicial history of this State, the rule in Shelley’s Case was recognized and applied by this court, and it required the act of 1851-
The decree of foreclosure pronounced by the chancellor was without error, and the same is in all things confirmed.