158 Iowa 729 | Iowa | 1912
The plaintiffs alleged that their father, Jacob Sagers, died testate in 1903, seised of the land in controversy, and that by a codicil to his will he devised said land to his son, W. L. Sagers, and to the heirs of his own body; that said W. L. Sagers died testate in 1908, and in his will attempted to devise this real estate to his wife, Pauline Sagers, defendant herein, and that, because of such pretended devise, Pauline Sagers claims to be the owner of the real estate; that W. L. Sagers never begot a child, and consequently neither had nor left “heirs of his own body”; that by reason of his death without issue the land upon his death reverted to the living heirs of the original testator, Jacob Sagers, who are the plaintiffs. The defendant demurred to the petition, on the ground that the facts stated therein did not entitle the plaintiffs to the relief demanded. The demurrer was overruled, and judgment was rendered for the plaintiffs; the defendant electing to stand on her demurrer.
The only question presented for' our determination is whether W. L. Sagers took, under the will of his father, an absolute estate in fee simple or only a conditional fee./ The appellant contends that the rule in Shelley’s case applies, and that the will of Jacob Sagers created an estate in fee simple in "W. L. Sagers, and that his devise to his wife, Pauline Sagers, the defendant herein, created an estate in fee simple in her. On the other hand, the appellees contend that the devise to W. L. Sagers created in him an estate in fee simple conditional, and, as he never had “heirs of his own body,” that the estate, upon his death, reverted to the heirs, of the testator, Jacob Sagers. We are of opinion that the will in question does not fall within the rule in Shelley’s case. The devise was to W. L. Sagers and “to the heirs of his own body,” and the rule in Shelley’s case can' only be applied where there is an express or implied life estate with a limitation by way of remainder to the heirs.
In other words, to bring a conveyance or will within that rule, the limitations to heirs must be by way of re
rule in Shelley’s case to assert that it applies to a conveyance to a person and his heirs, or the heirs of his body.” Note in 29 L. R. A. (N. S.) 1008; De Wolf v. Middleton, 18 R. I. 810 (26 Atl. 44, 31 Atl. 271, 31 L. R. A. 146); Doyle v. Andis, 127 Iowa, 36; Pierson v. Lane, 60 Iowa, 60; Kiene v. Gmehle, 85 Iowa, 312; Zavitz v. Preston, 96 Iowa, 52; Wescott v. Binford, 104 Iowa, 645. See note in 7 Am. St. Rep. 428; Miller v. Mowers, 227 Ill. 392 (81 N. E. 420); Johnson v. Buck, 220 Ill. 227 (77 N. E. 163); Berry v. Williamson, 11 B. Mon. (Ky.) 245; 25 Am. & Eng. Enc. Law, 644.
In Wild’s ease, 6 Reports, 17, 10 English Ruling Cases, 773, it was held that where lands are devised to a person and his children, and he has no children at the time of the devise, the parent takes’an estate tail. The reason assigned for the holding is that the intent of the devisor is manifest and certain that the children (or issue) should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that
In Pierson v. Lane, 60 Iowa, 60, cited above, the conveyance was to Minerva Pierson and “the heirs of her body begotten by her present husband. ... To have and to hold the above granted and bargained premises.... unto the said Minerva Pierson and the heirs of her body begotten by said husband.” And it was there held that the rule in Shelley’s case did not apply, and that the grant created a conditional fee under the common lawy1 Under the common law, before the enactment of the statute de donis (13 Edw. I, chapter 1), it was held that such a conveyance created a conditional fee, because, if the grantee died without having the specified heirs, the land reverted to the grantor. As .soon, however, as the specified heirs were born, the estate became absolute, and the grantee could alienate it. This rule was adopted by the court in Pierson v. Lane, and it' was held that, as Minerva Pierson had the requisite heirs, she took an absolute fee, and could alienate the land. In Kepler v. Larson, 131 Iowa, 438, we distinctly said that conditional fees, as they existed before the enactment of the statute de donis, prevailed in this state.
In 4 Kent’s Commentaries a conditional fee is thus defined: “A conditional fee is one which, restrains the fee to some particular heirs, exclusive of others, as to the heirs of a man’s body, or to the heirs male of his body. This-was at the common law construed to be a fee simple, on condition that the grantee had the heirs prescribed. If the grantee,died without such issue, the lands reverted to the grantoA But if he had the specified issue the condition was supposed to be performed, and the estate became absolute,’ so far as to enable the grantee to alien the land and bar not only his own issue, but the possibility of a reverter. By having issue, the condition was performed for three purposes: To alien, to forfeit, and to charge. Even before issue had, the tenant of the fee simple conditional might by feoffment have bound
Blackstone defines a conditional fee as follows: “A conditional fee, at the common law, was a fee restrained to some particular heirs, exclusive of others, . . . as. to the heirs of a man’s body, by which only his lineal descendants were admitted, in exclusion of collateral heirs, or of heirs male of his body, in exclusion both of collaterals and lineal females also. It was called a conditional fee by reason of the condition expressed or implied in the donation of it, that, if the donee died without such particular heirs, the land should revert to the donor. For this was a condition annexed by law to all grants whatsoever, that, on failure of the heirs specified in the grant, the grant should be at an end and the land revert to its ancient proprietor. ”
In Croxall v. Sherrerd 5, Wall. 268 (18 L. Ed. 572), it was said: “Estates tail, under the statute de donis, were, before the passage of the statute, known in the common law as conditional fees. Like estates tail, they were limited to
As we have said, the conditional fee of the common law, as it existed before the enactment of the statute de donis, is a part of the law of this state; and this being true, on the death of W. L. Sagers without the particular heirs specified in the will, the estate reverted to the testator’s heirs, the plaintiffs herein. The judgment of the district court must therefore be Affirmed.