Moody v. Snell

Judgment was entered .in the Supreme Court, Per Curiam. — It is very clear that under the will of Lockwood Smith, his son, Lockwqocb Smith, Jr., would have taken an estate in fee simple, had it not been for the terms of the devise over. The principal devise was to him and to his lawful heirs : Criswell’s Appeal, 5 Wright 288. The devise over was in these words: “ But in case the said Lockwood should die without any lawful heirs, then the property to revert back and be equally divided among my children who shall survive him, except the one equal'third part of said [362] property, which shall belong to his widow as long as she shall continue as such.” Had the principal devise been for life instead of in fee, the terms of the devise over indicating a definite failure of issue, the estate of Lockwood Smith, Jr.-, would have come to an end at his death without issue. But the words “ lawful heirs ” clearly meant “lawful issue,” as interpreted by the terms over, for the testator’s children, the brothers and sisters of Lockwood, would have been his heirs on leaving no issue, and therefore the testator must have meant lineal descendants, and not collateral, when he used the words “lawful heirs.” This being the case he gave to Lockwood, Jr., an estate tail, which could be barred by deed in the form prescribed by the act for barring entails. This being done, the devise over was cut off. This case falls directly within the decision in Covert v. Robinson, 10 Wright 274. And indeed is stronger, for in the will in that case there were no words of inheritance. Judgment affirmed.