McKee v. McKinley

The opinion of the court was delivered by Lowexe, C. J. The plaintiff is entitled to a decree in her favour, if she is in fact seised of a fee simple under the facts of the case; whether she obtains it directly by the will, or indirectly by barring an estate tail granted by the will. We are satisfied that the will gives her an estate in fee simple. According to many cases the trust for her separate use is gone by the death of her husband: 20 State Rep. 302 ; 23 Id. 30 ; 24 Id. 327; 26 Id. 231; 27 Id. 75. For the rest of the case, the principle governs, that a devise to one for life with remainder to his heirs, is a fee simple. This rule is sometimes amplified thus: — If the remainder is to persons standing in the relation of heirs general or special of the tenant for life, the law presumes them to take as heirs, unless it unequivocally appears that individuals, other than persons who are to take simply as heirs, are intended: 28 State Rep. 103; Smith on Executory Interests, §§ 472, 479 ; Fearne 188; 3 Binn. 163 ; 1 Man. & Gr. 429; 1 Bro. C. C. 219; 23 State Rep. 32; 24 Id. 244. Here the devise is to the plaintiff for life, and then to her children or their issue; and in default of these to the testator’s heirs. This is only another way of devising to the plaintiff for life with remainder to her heirs, or to the plaintiff and her heirs, and is the same in principle as the case of Steacy v. Rice, 27 State Rep. 82. The roundabout way which the testator takes to say “ heirs” does not affect the substance: see Bush’s Appeal, ante 85. Her heirs are, first, her descendants, and next, her next of kin on the side of the testator, that is his heirs (Act of 8th April 1833, § 9), and this is just the line of inheritance described by him. Decree at Nisi Prius reversed, and decree to be drawn in favour of the plaintiff. Read, J., dissented. Strong, J., was absent at Nisi Prius.