Smith v. Greer

88 Ala. 414 | Ala. | 1889

SOMERYILLE, J.

The errors assigned are based on the action of the chancellor in sustaining the demurrers to the bill. The rulings involve a construction of the fifth item of the last will of Joshua Caldwell, the testator, who died in the year 1854, said will having been executed March 25th, 1852, and probated July 10th, 1854. The equity of the bill, as is admitted, is dependent upon the contention, that Mrs. Syntha Ricks, the testator’s daughter, who was named as the devisee in this clause of the will, took only a life-estate in the property therein described. There is no ground upon which it can be claimed that there is any qualification of the title to the land described in the fifth item. The interest conferred in this part of the property is a fee-simple interest.

And it is equally evident that the words used in reference to the personal property — which is bequeathed to Mrs. Ricks “and the heirs of her body or issue” — are such as would at common law have created an estate-tail, had it been used in reference to land, for there was at common law no estate-tail in a personal chattel. Words intended to create such an estate in personalty vested in the taker the absolute property. 1 Wash. Real Prop. (5th Ed.), .p. 106, §29; Powell v. Glenn, 21 Ala. 458. Estates-tail are conditional fees, being “estates of inheritance, which, instead of descending to heirs generally, go to the heirs of donee’s body, which means his lawful issue, his children, and through them to his grandchildren, in a direct line, so long as his posterity endures in a regular order and course of descent; and upon the deaih of the first owner without issue, the estate determines.” 1 Wash. Real Prop., 99; Tiedemanon Real Prop., § 46. To create an estate-tail, it is only necessary to use words of limitation, or, as sometimes said, of procreation, which indicate an intention to confine the estate to the lineal “descendants,” “isssue” or “seed” of the first grantee. Such words are used in contradistinction to words of purchase, which denote the particular person who is designated to take the estate. The usual form of limitation is to one and “the heirs of his body;” but other words, of similar import, are sufficient. Under all the authorities, the words to one and “i/ie heirs of his body, or issue,” when used in a will, would be words of limitation creating an estate-tail, not words of purchase. The two phrases, indeed, “heirs of the body” and “issue,” are generally regarded as synonymous in signification, although the former is regarded as more strict and technical. — Simmons v. Augustin, 3 Port. 69(1836); Lloyd v. Rambo, 35 Ala. 709; Young v. Kinnebrew, 36 Ala. 97; Ewing v. Standefer, 18 Ala. 400; 1 Brick. Dig. p. 786, §12, and cases cited; 1 Wash. Real Prop. (5th Ed.), *72-*78; Kay v. Scates, 78 Amer. Dec. 399.

Such being the case, the statute, independently of the common-law rule, would convert the fee-tail estate into a fee-simple, under the provisions of the act of 1812, which was codified in section 1300 of the Oode of 1852, and is now embraced in section 1825 of the present Code. This section expressly provides, that “every estate in real or personal property in fee-tail, now or hereafter created, becomes an estate in fee-simple-, and the person in whom such a conditional fee vests, has the same power over the estate as in case of pure and absolute fees.” — Code, 1886, § 1825.

The demurrers to the bill were properly sustained, and tk.Q decree is affirmed.