Blake v. Stone

*476 The opinion of the court was delivered, at the circuit session in-September, by Redfield, Ch. J.

The question here arises upon the construction of the deed of Benjamin Burt to Leonard Burt, November 25th, 1830. The conflicting interest is between the grantee and the heirs of Reuben Burt, son of Leonard Burt, he having deceased before Leonard Burt. Reuben Burt conveyed to the defendant Hyde.

If, at the time of the conveyance to Hyde, April 24th, 1845, Leonard Burt was seized of the estate in fee tail, nothing will pass, and upon the decease of Leonard, by the rules of the common law, the estate will go to the heir in tail. But if Leonard took only a life estate, and a remainder in fee simple passed to certain persons, Reuben Burt being one of them, then his conveyance will vest the remainder in his grantee, and will not go to his heirs. There can be no doubt, we think, such was the intention of the original grantor, Benjamin Burt. And as we have a statutory system of conveyance or transmission of the title of real estate, wherein we have more or less explicitly departed from many of the common law provisions upon the subject, it deserves serious consideration in my judgment, whether we should make any distinction between a covenant to convey, a will, or devise, and a deed, in regard to the indispensable necessity of the use of the word heirs, to create a fee simple or fee tail, or whether that word is always to be regarded as one of limitation, and never of purchase, in a deed, without reference to the clearly expressed intention of the parties. The question as it affects deeds, will, probably, ultimately settle down upon the same basis it has at common law, in regard to covenants and devises, as one of intention merely. Justice Wilmot says, in Long v. Laming, 2 Bur. 1100 , “Now it is certain that in some cases, and under “some circumstances, they (the words heir and heirs) may be con- “ strued words of purchase, either upon a will or upon a deed.” And to this effect he cites two cases, Lisle v. Gray, found in Sir Th. Jones, 114; 2 Levinz, 223; Pollex., 582; Th. Raymond, 278; and Walker v. Snowe, in Palmer’s R., 359, and concludes, “ They “ are not to be construed as words of limitation, either upon a will “ or upon a deed, when the manifest intention of the testator or of “ the parties, is declared to be, or clearly appears to be, that they *477 “ shall not he so construed.” This is sufficiently explicit; but however sensible and sound, as a rule of exposition, it has not generally obtained in England, in regard to deeds, but always as to covenants to convey, and wills, and no doubt will, ultimately, everywhere, in regard to deeds, as every one feels the absurdity of any such distinction, between deeds and other instruments.

But it does not seem to us necessary to put this case upon the broad ground of intention merely. The English cases treat this case as an exception. The case of King v. Melling, 1 Ventris, 231, where the devise was to one for life, et non aliter, and this was held sufficient to give only a life estate, in the first grantee. So, too, Archers case, without negative words, but only because the remainder is given over to the heir male in the singular number, regards the heir as taking by purchase and not by inheritance. And Bagshaw v. Spencer, before Lord Hardwick, 2 Atkins, 577; and 1 Vesey, 142, is decided as conveying to the first grantee only a life estate, because the words “ without impeachment of waste,” are used, which have no application to an estate of inheritance. But if such words may determine the extent of the estate, so may others equally indicative of intention. Other cases may be referred to in Judge Reeves’ dissertation upon this subject. Dom. Rel. Appendix, 453.

But the remainder here being given to Leonard .Burt’s heirs, except Charles Burt, it is regarded by the decided cases, sufficient to indicate that the term is used to designate certain persons, and is, therefore, not a word of limitation upon .the estate of the first grantee, but of designation of those who are to take in remainder as purchasers. Clerk v. Day, Cro. Eliz. 313; Minshull v. Minshull, 1 Atk. 412. We are, therefore, satisfied that upon the stated rules of construction of the common law, Leonard Burt took only a life estate, and that the remainder in fee vested immediately in the persons who would become his heirs, if they survived him, excluding Charles Burt, and that consequently Reuben Burt was seized of the remainder in fee, at the time he conveyed to Russell Hyde, and that he, by the conveyance, took the whole estate in remainder, which belonged to his grantor, and thus excluded any interest or estate in the heirs of such grantor. Hyde is consequently entitled to his share, as the court below held. Judgment affirmed.