Holt v. Pickett

HEAD, J. The view we take of this case renders it necessary to decide only a single controverted question, and that is, whether the rule in Shelley’s caséis applicable to the devise contained in item six of the will of William Plarris, which became operative in 1825, when that rule was of force in this State. The devise in question is in the following language : ‘ ‘I lend to my daughter Sarah during her natural life and at her decease to be equally divided between the heirs of her body, the following land: section 29, township 17, range 18, in Montgomery county, Alabama.” Two reasons are urged, in argument, by counsel for the appellees, why the rule [367] should not be applied : First, it is said that the use of the word lend shows an intention not to create an estate of freehold in the first taken ; and second, the superaddition of the words ‘ ‘to be equally divided between’ ’ preceding the phrase, “the heirs of her body,” divert these words from their technical meaning and show, either that they should be construed as if “children” had been designated, or that the persons, who might be heirs of her body at her death, were to take, not from the ancestor,, but from the testator, as a new stock of descent. We will dispose of these contentions in the ^rder in which we have stated them. 1. The supposed significance cannot be attached to the use of the word lend,. It means nothing more nor less than give, bequeath or devise, as we have heretofore held.— Woodley v. Findlay, 9 Ala 716; Ewing v. Standefer, 18 Ala. 400. In Lloyd v. Rambo, 35 Ala. 709, the synonymous word, “loan” was employed, with like result. Upon the authority of these cases, we must conclude that, by the terms of the will, an estate for life, which is an estate of freehold, was limited to the ancestor and thus the first requirement of the rule satisfied. 2. It is said by counsel for appellees,. who argue against the application of the rule in Shelley’s case to this devise, that “there are cases in which it is held that the words, equally divided, superadded, do not prevent the operation of the rule in Shelley’s case, but such cases are where the limitation was to the heirs and not the heirs of the body.” Counsel do not cite the cases which are supposed to justify this distinction and we have been unable to find any authority for it in the decisions of this court. On the contrary, we find the law to be well settled in Alabama, in other American States, and in England, that the super addition of a provision for equal division or other .words of distributive modification, inconsistent with the course of descent of an estate tail, at the common law, will not change heirs of. the body into words of purchase, and hence will not prevent the aitplication of the rule in Shelley’s case. The text writers of recognized authority state the law in the same way. Thus, Mr. Washburn says : “When an estate is limited to A for life, and after his death to the heirs of his body to share as tenants in common or to be equally divided between them, then it comes within the rule.” [368] 2 Washburn Real Prop. (4th ed), 602. Mr. Jarman in his work on wills, after reviewing the English cases, including the great case of Jesson v. Wright, 2 Bligh 1, says : ‘ ‘The preceding cases present many shades of difference, but they -all concur in establishing the principle, that words of inconsistent modification engrafted on a limitation to heirs of the body are to be rejected. It follows, then, that every decision not strictly reconcilable with this principle may be regarded -as overruled by them.”-2 Jarman Wills, p. 372. In this country, where the rule of primogeniture does not prevail, the provision for equal distribution or division is not rejected .as impossible or repugnant, but it is held insufficient to convert heirs, or heirs of the body into words of purchase, because the superadded words accomplish no more than the law would direct without them. — Ewing v. Standefer, 18 Ala. 400; Moore v. Brooks, (Va.) 12 Grattan, 135, overruling the earlier case of Self v. Tune, 6 Munf. 470; Williams v. Foster, 3 Hill (S. C.) 193; Clarke v. Smith, 49 Md. 106. In Ewing v. Standefer, supra, the bequest was as follows : “Ilend to my.daughter Lydia Standefer during her natural’life, five negroes, viz, Harrance, &c., these five negroes with all their increase, I will to the lawful begotten heirs of Lydia Standefer, to be equally divided among them at her death.’ ’ It will be observed the limitation was to “the lawful begotten heirs” but these words are construed to mean “heirs of the body.”— Good v. Good, 7 Ell. & Bl. 295; Pratt v. Flamer, (Md.) 5 H. & J. 10; Clarke v. Smith, 49 Md. 106; 2 Jarm. Wills, 325. This court expressly decided, that under the influence of the rule in Shelley’s case, the absolute property vested in the first taker. The decision was called in question by the counsel who appeared for the appellee, in the subsequent case of Hamner v. Smith, 22 Ala. 433, but the prior ruling was reaffirmed. These cases have stood unshaken to this day. The principle they announce is a rule of property in this State, and we could not disturb them, even if convinced they were erroneously decided. We do not, however, doubt their correctness. The authorities upon which they were based abundantly sustain them, and they are in accord with the general run of decisions in the American courts, some of which we have already cited. To those above [369] noted, we add the following ; Watts v. Clardy, 2 Fl. 369; Ross v. Toms, 4 Dev. L. 376; Curtis v. Longstreth, 44 Pa. St. 202; Crockett v. Robinson, 46 N. H. 454; Cooper v. Cooper, 6 R. I. 261; Brant v. Gelston, 2 Johns. Cas. 384; Kingsland v. Yapelye, Edw. Ch. 1; Kennedy v. Kennedy, 5 Dutcher, 185. 3. By the terms of the will of William Harris, an estate tail, at the common law, would have been created in his daughter Sarah, and that estate our statute converted into a fee ' simple. Her title, however, was lost prior to her death, by the adverse possession of the complainant and those under whom he claims and no interest descended to her children. As they were not purchasers under their grandfather’s will and as they acquired no estate in the land in controversy by descent from their mother, they had no title upon which to recover in the action of ejectment. To that action, the bill of complaint shows he has a perfect defense, available in the court of law and the bill is, therefore, devoid of equity. The first ground of demurrer was well taken and the injunction was xsroperly dissolved. It is of no consequence that the chancellor rested his dissolution upon the denials of the answer. Let the decree from which the appeal is taken, be in all things affirmed.