Shoofstall v. Powell

The opinion of the court was delivered by Lewis, J. — The deed of Isaac Powell, after granting an estate to Rachel Mason and “.the heirs of her body,” contained a clause by which it was provided that if “ the said Rachel will have no [21] heirs, or dying intestate,” the land shall revert to the grantor. She died without heirs of her body, but devised the land to the plaintiff in error; and the question is, whether the words “ dying intestate” gave her the power by implication to devise the land. No formal set of words is requisite to create or reserve a power. It may be created by deed or will, and it is sufficient that the intention be clearly declared. Thé creation, execution, and destruction of powers all depend 'on the substantial intention of the parties, and they are construed equitably- and liberally in furtherance of that intention. Doug. 293; 3 East, 441; 11 Johns. 169; 4 Kent, 318. In the case of a will, it seems now to be a settled rule of property, in relation7 to land, that if a devise be made to one in fee, and “if he die without issue,” or “for want of issue,” or “without leaving issue,” then over to another in fee, the estate of the first taker is in tail. 9 W. 450; 7 W. & S. 98; 5 Barr, 463. In these cases the estate tail is created solely by the implication arising from the words “ dying without issue.” The direction given to the estate in case of a “ failure of issue” Sustains the implication that the issue shall inherit as heirs in tail. In like manner the reservation to the grantor in case the grantee should “ die intestate,” sustains the implication of a power to devise. The word “ or,” to effectuate the intention, must be construed to mean “and,” and in this case the clear construction of the reservation is that it was to take effect only upon the grantee’s “dying intestate and without issue.” As she did not die intestate, to permit the grantor to recover would be contrary to the plain terms of his own deed. The judgment on the special verdict ought, therefore, to have been entered in favor of the plaintiff below. This view of the case renders it scarcely necessary to add that the decision of the court on the question of evidence was correct. Judgment reversed, and judgment ordered to be entered on the verdict in favor of the plaintiff in error.