Andrews v. Lowthrop

Per Curiam. The principal question in this case arises on the third clause of the will of Lucina W. Paine, as follows: “Thirdly, I give and devise to my nephew, John Albert Paine, the other half of my real estate during his natural life, and after his decease to his heirs, their heirs and assigns forever.” The question is, whether said John Albert took under said clause an estate in fee simple, or only an estate' for life. It is admitted that he would have taken a fee simple under the rule in Shelley’s case, if the words “ their heirs and assigns forever ” had not been added to the words “ his heirs.” The question is, then, whether said superadded words take the devise out of the rule in Shelley’s case by showing that “ his heirs” were used, not as words of inheritance or limitation, but to point out particular persons as devisees in remainder, to wit: the persons who at the death of said John Albert would be his heirs. In Manchester & wife v. Durfee, 5 R. I. 549, the testator devised an undivided seventh part of his estate to each of his five daughters, “ the devise to my five daughters to be to them an estate fon life, and to the heirs- of their bodies after them, and to their heirs and assigns of such heirs forever,” and the court held that the daughters took estates in fee tail, the super-added words being ineffectual to take the devise out of the rule in Shelley’s case. This decision is supported by numerous cases that put its correctness in this respect on authority beyond question. 8 Jarman on Wills, cap. xxxvii.; Goodright v. Pullyn, 2 Ld. Raym. 1437; Wright v. Pearson, 1 Amb. 358; Denn ex dem. Geering v. Shenton, 1 Cowp. 410; Measure v. Gee, 5 B. & A. 910; Kinch v. Ward, 2 Sim. & Stu. 409; Osborne v. Shrieve, 3 Mason, 391; Morris v. Ward, 36 N. Y. 587; 3 Greenleaf’s Cruise’s Dig. 346. Are such superadded words to be construed to be equally without effect where the preceding words are “ his heirs ” *61 instead of “ the heirs of his body ” ? We know of no case in which this precise question is answered, but we see no reason why it should not be answered affirmatively. The text-writers do not recognize any distinction between the two phrases in this particular. 3 Greenleaf’s Cruise’s Dig. Tit. xxxviii. cap. xiv. § 17; 4 Kent Comment. *229, *230. Nicholas Van Slyck & Cyrus M. Van Slyck, for complainant. Charles F. Ballou, for respondent. Our decision is, that said John Albert took an estate in fee simple.