Wilmans v. Robinson

Wood, J., (after stating the facts.) The only question is, does the granting clause, “do grant, bargain, sell and convey unto Martha Ann Arundell, and her bodily heirs,” convey to the grantee an estate in fee or in tail? Section 700, Sand. & H. Dig., is as follows: “In cases when by common law any person may hereafter become seized in fee tail of any lands or tenements, by virtue of any ’devise, gift, grant, or other conveyance, such person, instead of being or becoming seized thereof in fee tail, shall be adjudged to be and become seized thereof for his natural life only, and the remainder shall pass in fee simple absolute to the person to whom the estate tail would first pass according to the course of the common law by virtue of such devise, gift, grant or conveyance.” Now, in the language of Mr. Kerr: “A fee tail is simply a conditional fee at the common law, so modified by the statute de donis conditionalibus, known as the Statute of Westminister II, [passed about 1285], that the estate can descend only to certain classes of heirs, which are held not to take a conditional fee simple, but a particular estate, which has been denominated a fee-tail, the donor holding the ultimate fee-simple expectant on the failure of issue; in other words, the reversion. This estate corresponds to the feudurn talliatum of the feudal law,—that is, a fee from which the general heirs ai'e taille or cut off.” 1 Kerr, Real Prop. 452; 1 Cruise, 73; 1 Wash. Real Prop. 99. In the creation of an estate tail, the usual form of limitation was to one and “the heirs of his body.,” This created an estate tail general. Tiedeman, Real Prop.. § 47; 1 Kerr, Real Prop. § 460. By the common law, then, which is a rule of decision in this state, (section 600, Sand. & H. Digest,) Martha Ann Arundell became seized of an estate tail under her deed from Nathaniel C. Williams. Therefore, under the express terms of the statute (section 700, supra), sh took an estate for her natural life only. Clarkson v. Clarkson (Mo.), 28 S. W. 446; Chiles v. Bartleson, 21 Mo. 334; Wood v. Kice, 103 Mo. 329; Reed v. Lane, 26 S. W, (Mo.) 957; Polloch v. Speidel, 17 O. St. 439. In Horsley v. Hilburn, 44 Ark. 458, the deed conveyed “to Marietta Hilburn and the heirs of her body” a tract of land. This court held in that case, under the act of 1837 (sec. 700, Sand. & H. Dig., supra), that “Mrs. Hilburn took nothing but a life estate,” and that upon her death the remainder in fee was vested in her children. See also Myar v. Snow, 49 Ark. 125. It follows that, as Martha Ann Arundell only tookan estate for life, with the remainder in fee to her bodily heirs, who were the appellees, the demurrer to the answer was properly sustained, and the judgment of the court in favor of plaintiffs was correct. This decision in no manner conflicts with Hardage v. Stroope, 58 Ark. 303 The clause upon which the rights of the parties in that case hinged was as follows: “To have and to hold the said land unto the said Tennessee M. Carroll for and during her natural life, and then to the heirs of her body, in fee simple; and if, at her death there are no heirs of her body to take the said land, then and in that case to be divided and distributed according to the laws for descent and distribution in this state.” Judge Battle in that case said: It “is obvious that the deed to Mrs. Carroll created in her no estate in tail.” This certainly is not the ease with the deed under consideration. Again, he said: “The intention that the heirs were to take only in the capacity of heirs is manifest.” That was the conclusion from a consideration of the entire clause, and particularly the concluding portion, showing the bodily heirs took qua heirs, by descent, and not by purchase. Mr. Kerr, in speaking of the rule in Shelly’s case, says it is a “rule of construction, and not of law; simply providing that where an estate of freehold is limited to a person, and the same instrument contains a limitation, either mediate or immediate to his heirs, or the heirs of his body, the word “heirs” is a word of limitation; that is, the ancestor takes the whole estate comprised in the term. If the limitation be to the heirs “of his body,” he takes a fee tail. If to his heirs generally, he takes a fee simple. In this case the limitation is “to her bodily heirs,” ereating an estate tail in the grantee. In Hardage v. Stroope, the effect of the clause was to create a limitation to his heirs in general. At all events, the present case falls clearly within the statute (sec. 700 of Sand. & H. Digest),and must be controlled by it. Let the judgment be affirmed.