Loring v. Eliot

Hoar, J. The construction of the deed of trust made by Elizabeth Fleet Eliot to her father was settled by this court in the case of Hildreth v. Eliot, 8 Pick. 293, so far as it was necessary to determine the questions which that case presented. It was there held, and we have no doubt correctly, that the trustee took the entire legal estate, and that the equitable estate of Mrs. Hildreth was only for life, so that her children, if she should leave any at her decease, would take a remainder as purchasers. The grant was to the trustee and his heirs forever. It was in trust to sell the whole or any part and apply the proceeds to her support as he should judge necessary; and the estate of the trustee must be coextensive with the trust. The only question which remains to be considered is whether any equitable estate was created in Mrs. Hildreth by force of the provision that, in case of her death leaving no children, the [572] trustee should convey the estate to her heirs at law; and this must depend upon the consideration whether the words “ heirs at law ” in this conveyance are to be construed as words of limitation or of purchase. In Shelley's case, 1 Co. 103, the rule was stated, “ when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, that always in such cases ' the heirs ’ are words of limitation of the estate, and not words of purchase.” This rule was abolished by the St. of 1791, c. 60, § 3, as to wills; but it remained in force as to deeds until the Rev. Sts. c. 59, § 9, terminated its. application to deeds as well as wills. As this deed was executed in 1817, the rule in Shelley's case was therefore in force, and is to be regarded in its construction. The equitable estate of Mrs. Hildreth was, from the time of her marriage, an estate for life, with a contingent remainder in fee to her children, in case she should leave any at her decease; and a farther limitation, which, if made to any person by name, would have been a contingent remainder, collateral to the first remainder in fee, and therefore good in law. 4 Kent Com. (6th ed.) 200.. 2 Doug. 505, note, and cases there cited. But as the second limitation is to her heirs at law, it seems to fall precisely within the rule in Shelley's case, to wit, that the ancestor taking an estate for life, and in the same conveyance an estate being limited mediately (that is to say, with an estate interposed between the two) to the heirs, this remainder shall attach in the ancestor, and shall not be in abeyance. 2 Rol. Ab. 417; Remainder, H. pl. 3. And by an application of the same principle, a conveyance in fee, with a limitation of an ultimate use to the heirs of the grantor, is construed as retaining a reversion in him; “ for the ancestor during his life beareth in his body (in judgment of law) all his heirs.” “ And if the limitation had been to the use of himself for life, and after to the use of another in tail, and after to the use of his own right heirs, the reversion of the fee had been in him, because the use of the fee continued ever in him.” Co. Lit. 22 b. [573] Trusts are subject to the same rules of descent, and are deemed capable of the same limitations, as legal estates. 4 Kent Com. 302. As was said by Lord Mansfield in Burgess v. Wheate, 1 W. Bl. 160, “ whatever would be the rule of law, if it was a legal estate, is applied in equity to a trust estate.” Parker v. Converse, 5 Gray, 339. Newhall v. Wheeler, 7 Mass. 189. But a distinction has prevailed to some extent in regard to the construction of trust estates, especially as to those which are executory, and to those created by marriage settlements; they are to be construed with a much greater deference to the manifest intention, to be deduced from the whole instrument of conveyance, than in construing the like limitations in legal estates. 1 Fearne Cont. Rem. (10th ed.) 90. Neves v. Scott, 9 How. 196. It is therefore proper to inquire, whether there is anything in the objects of this deed of trust, which would lead to the conclusion that it was intended to alter the usual rule of construction, and to use the word “ heirs ” as a word of purchase. The recital preceding the grant to the trustee states that “ whereas she, the said Elizabeth Fleet Eliot, is desirous of securing the said estate, both real and personal, in the event of her marriage, to her sole use and benefit; and for this purpose it hath been agreed that all the estate and property aforesaid shall be granted ” to a trustee, “ to be held in trust for the separate and sole use and benefit of her, the said Elizabeth, and her heirs, (notwithstanding any such coverture,) upon the terms and conditions, for the uses, intents and purposes, under the limitations, and for and during the time, as hereinafter expressed.” The estate for life is limited until the marriage to the sole use and behoof of the said Elizabeth and her heirs, and then “ to the sole use and separate benefit of her, the said Elizabeth, without being liable to the debts, incumbrances or control of any husband she may have during the existence and continuance of said trust.” The income, with such portion of the principal as the trustee shall judge necessary for her convenience and support, is to be paid to her, or to such persons as she shall in writing, without the signature or interference of any [574] husband, appoint. At her death, the trustee is to convey and transfer all that remains to her children, if she shall leave any, to them and their heirs and assigns forever; and in case she should die without issue, to her heirs at law. It would seem to be apparent from these clauses in the deed, that its whole purpose was to secure the estate to the separate use of the wife during her life, free from any control of her husband; and to secure what should remain of it to her children, if she should leave any. So far from anything in the deed showing a purpose to give a different meaning to the word “ heirs ” from its usual legal import as a word of limitation, it is noticeable that in the covenants of the trustee none is inserted for any disposition of the estate beyond the remainder to the children. It has been suggested at the argument that this omission was accidental; but it is an accident which would not. have been likely to occur if the purpose had been to make an express provision for collateral relatives. By limiting the estate in the first instance to the wife for life, with a contingent remainder in fee to the children, if she should leave any, the children would take, if at all, as purchasers ; and therefore, although the husband is entitled to curtesy in his wife’s equitable estate of inheritance, the condition of an estate by the curtesy, that there should be issue of the marriage which could inherit the estate, would not exist. Roberts v. Dixwell, 1 Atk. 607. 1 Fearne Cont. Bern. 90. 1 Cruise Dig. tit. 5, c. 1, § 22. Barker v. Barker, 2 Sim. 249. As far therefore as the protection of the estate of the wife and of the children against the control of the husband, or any incumbrance arising from the coverture, was the object, that object was secured. We are therefore of opinion that Mrs. Hildreth had an equitable reversion, which she could lawfully devise, and that the claimants under her will are entitled to a conveyance from the trustee. Decree accordingly.