Walker v. Lewis

90 Va. 578 | Va. | 1894

Lewis, P.

(after stating the case as aforesaid), delivered the opinion of the court.

It is clear, and we do not-understand it to, be, seriously controverted, that Charles Lewis took under the will only a life estate. It is contended, however, in opposition to the decree, that Nicholas Mereweather, by operation of the rule in Shelly’s Case, took a fee tail, converted by the statute into a fee simple. That rule, now abolished in Virginia, is that where an .estate of freehold is limited to a person, and the same'instrument contains a limitation, either mediate or immediate, to his heirs or the heirs of his body, the word heirs is a word of limitation ; so that, if the limitation be to the heirs of his body, he takes a fee tail; if to his heirs general, a fee simple. But clearly, it was not the intention of the testator to give to Nicholas Mereweather anything more than a life estate, and the intention in such a case must govern in the interpretation of the will, unless language is used which brings the case within some inflexible rule of law, as in Moore v. Brooks, 12 Gratt., 135, and Hall v. Smith, 25 Id., 70, in both of which cases words appropriate to create a fee tail were super'added to the gift of a life estate; in the first case the devise being to M. and B. for and during their natural lives, and then to “ their heirs lawfully begotten”; and in the second to M. for life, and then to “ the lawful issue of her body,” &c. The rule in Shelly’s Case was, therefore, held to apply, on the principle, stated by Lord Redesdale in Jesson v. Wright, 2 Bligh, 1, viz: that “ technical words shall have their legal effect, unless from subsequent inconsistent words it is very clear that the testator meant otherwise.”

But here no such technical words are used. The devise is to Nicholas Mereweather “ for and during his life, and after his death to his sons and their heirs forever, equally to be divided among them.” Now, here not only is a life estate given expressly, but the subsequent language is not such as of itself to create a fee tail; for while a testator may use the word son as a word of limitation, it is, in its technical sense, a word.of purchase, and was presumably so used in the present case, there being nothing in the context to 'show the contrary. 3 Lom. Dig., 302; Moon v. Stone, 19 Gratt., 130, 242.

It was forcibly remarked by Judge Lyons, in Smith v. Chapman, 1 H. & M., 240, 302, that since the act of 1776 abolishing entails, he would not suppose a man intended to convey an estate tail unless plain and unequivocal words were used, such as would of themselves create a fee tail without resorting to implication; as a devise “ to A. and the heirs of his body,” or “ to 'A., and if he die without issue,” &c.; and he added that to fulfil the plain and manifest intention of the donor the limitation must be equally plain and express; not au implied limitation by mere construction to enlarge an express estate for life into an estate in fee or fee tail. See, also, 2 Min. Insts. (4th ed.), 465; Taylor v. Cleary, 29 Gratt., 448.

Inasmuch, therefore, as Nicholas Merewether, who was an only son, died without having had a son, the-circuit court rightly held that at his death the remainder over to Robert L'ewis’ descendants took effect. It is contended, however, that the latter devise is void, because the preceding limitations over were void for remoteness. But its validity is not dependent upon the validity of those limitations, and we need not, therefore, stop to inquire as to their validity. The devise to Robert’s sons, etc., was intended as a substitute to take effect in the event of the failure of the former limitations over to take effect, and as such is valid, it being limited to vest in interest within a life or lives in being and twenty-one years and ten months thereafter.

It is a well established rule of the common law that while no remainder can be limited after a limitation in fee, yet two contingent fees, by way of remainder, may be limited as substitutes or alternatives, one for the other, the latter to take effect in case the prior one should fail to vest in interest,- and is immediately avoided if the first does vest in interest. 1 Lom. Dig., 417; 2 Min. Insts. (4th ed.), 395; Cooper v. Hepburn, 15 Gratt., 551, 559. And Redfield, in his work on Wills, in treating of perpetuities, lays it down, on the authority of numerous adjudged cases, that “ alternative limitations maybe so framed as to be good or bad according to the event; and if the contingency which is valid occur, the estate will be held legal, notwithstanding the other alternative be too remote.” 2 Redf. Wills, 573.

The will further provides that “ if one or two of the said sons of my brother Robert should die, leaving no son nor son’s son capable of taking his part of the said land, then the part or parts of those that die without leaving sons or son’s sons capable of taking shall go to the surviving brother or brothers, and after his or their deaths to his or their sons, equally to be divided among them and their heirs forever.”

Whilst this language is not very plain, we are of opinion that the construction put upon it by the circuit court is the correct one. Therefore at the death of John Goin, his “part” went to his only surviving brother, Merewether Warner, for life, and at his death to his “sons, equally to be divided among them.” Merewether Warner, however, died, having had only one son, who survived him and Nicholas Merewether, also, and who, as the circuit court decreed, is entitled to two-thirds of the land, the remaining third going to the children of Fielding Lewis, deceased, the only son of Robert Lewis’ eldest son, Robert Henry, who died in 1825.

Decree aeeirmed.