Smith v. Hastings

The opinion of the court was delivered, at the circuit session in June, by Redfield, Ch. J. This case was decided in the court below and has been argued chiefly in this court upon the effect of the deed from Daniel Hulett to Diana Smith, that is, upon the question whether it conveyed a fee simple, or only a life estate, to the first grantee. This question seems to involve, to some extent, the rule in Shelly’s case, 1 Coke 93. This question was somewhat examined in a late case, Blake v. Stone, 27 Vt. 475. It was there considered that the rule in Shelly’s case was to be regarded as of no special [243] force in this state, except as one of construction and intention. This was the view taken of the same rule in England by Lord Mansfield and Justice Wilmot, in Doe v. Lansing, 2 Burrows 1100, and by Justice Blackstone in Blake v. Perrin, 4 Burrows 2579. This is that celebrated case so long pending in the King’s Bench and Exchequer Chamber upon the extent of the rule in Shelly’s case, that when the ancestor by any conveyance takes an estate for life, with remainder mediately or immediately to his heirs, in fee or in tail, the estate shall vest absolutely in Jhe first grantee or devisee, and no estate remain which is secured by the deed to the heirs, in other words the term heirs in such case is to be regarded as one of limitation and not of purchase. The court here were so divided that the case was not decided. And the amount of discussion and acrimonious controversy which ensued upon the subject is almost incredible. And Lord Campbell says in his Life .of Lord Mansfield that even to this day nothing will so readily provoke debate among English lawyers, as to start the query whether Perrin v. Blake was rightly decided by the majority of the King’s Bench. But it seems always to have been held in England that where the language of the instrument manifested a clear intention to have the estate pass to the heirs, and that the ancestor should take only a life estate, it should be allowed to have that operation, certainly where this is unquestionably so expressed. It is indeed held in England that all doubts shall in such case be solved against such construction. But this extreme rule of construction in favor of the absolute right of the ancestor to alien the property is obviously a rule of policy merely, and has been supposed to derive its chief support from considerations having' their origin in the feudal tenures of the realm. But here no such considerations can have weight. And as our system of conveyancing is statutory, there is no necessity and no reason in adopting any rule of construction which will tend to carry us one side of the true purpose and intention of the instrument. And this, says Prof. Greenleaf, 2 Cruise 381, and note, “ was deemed by the late lamented Judge Stort to be generally adopted in the United States, where the subject was not regulated by statute.” See also 4 Kent’s Com. 215, 233. [244] Upon tbe mere question of intention upon tbe face of tbe deed in this case it does not seem to us there is much ground of controversy. The granting part expressly limits tbe estate to the natural life of the grantee. The habendum says “to the said Diana during her natural life, and then to her heirs forever .” And there is an express condition in the deed that tbe erections on the premises shall be kept in repair, taxes paid, no waste committed, and that the grantor shall have the privilege of cutting timber at all times and to any extent, and that, upon failure of any of such conditions, the deed shall be void. It would be singular for any one to suppose that it was the purpose of such a deed to convey an absolute fee simple to the first grantee. Very likely some of the English cases may have given that effect, in some cases, to deeds as strongly expressed, perhaps, but not upon the ground of intention, and most of the English cases, where the intention to give only a life estate to the first grantee is no more obvious than it is here, hold that the intention must prevail, and the heirs take as purchasers under the deed. And as we think this deed cannot properly have any other construction in this state, the heirs must be held to take under the deed as purchasers, and will be entitled to hold against the husband. And as the first grantee left children who were evidently intended by the grantor to be described in the deed, under the term heirs, it is needless to speculate as to what would have been the effect of such language in case of failure of children. Judgment reversed and case remanded.