Doty v. Teller

The opinion of the court was delivered by The Chancellor.

A single question is presented by the error assigned in this case. It is, whether Daniel Wade Teller took a fee or merely an estate for life under the will of Daniel Wade. That will devises the land in question, after the death of the testator’s wife, “ to him and to his heirs entail the same forever.” Its construction must depend upon the force or effect which is to be accorded to the words entail the same.” Without those words the devisees would •clearly take the lands devised in fee. Their natural import, in the connection in which they are used, is to condition or •qualify the fee that is given. The effect designed by them is ■expressed by the word “entail,” the well recognized import of which is to restrain the fee to heirs of the body of the donee to the exclusion of collateral heirs, and to imply a condition that if the donee dies without lineal heirs the land shall revert to the donor. After the enactment of the statute of Westminster the Second (13 Edw. I.), commonly called de :-donis Gonditionalibus, the conditional fee was by judicial construction resolved into a particular estate known as a fee-tail. Den v. Spachius, 1 Harr. 172 .

Lands held by that estate were commonly said to be entailed.

As’the word “heirs” is necessary to the creation of the fee •simple by deed, so the additional word “ body,” or some other *166 word of procreation, was necessary to create a fee-tail by such an instrument. But in wills, where the'cardinal rule of construction is that the testator’s manifest intention shall prevail over all forms of expression, these correct and technical words have never been considered essential.' Any expressions in the will denoting an intention to give the devisee an estate of inheritance descendible to his, or some of his, lineal, but not collateral, heirs, have always been regarded as a sufficient devise of'a fee-tail. 3 Jarm. Wills (R. & T. ed.) 89; 1 Washb. Real Prop. 109; 2 Bl. Com. 115; Den v. Fogg, Pen. 819; Somers v. Pierson, 1 Harr. 181 ; Den v. Cox, 4 Halst. 10; Den v. Fox, 5 Id. 39; Weart v. Cruser, 20 Vroom 475 .

In the devise in question the purpose of the testator is very plainly manifested. He meant to create an estate tail. Being at a loss for the correct and ^technical language to express it, instead of saying “ to Teller and the heirs of his body forever,” he said, “ to Teller and his heirs, entail the same, forever,” specifying the result he wished to reach as plainly as though in giving a fee simple he had so said, in place of using the word “ heirs.” It is not perceived how any other conclusion as to his intention can be reached without rejecting the words “entail the same” as meaningless surplusage. Nothing in the context of the will justifies such a rejection. All other expressions in the instrument are plainly pertinent to the subject matter dealt with and necessary to signify the testamentary purpose, exhibiting a capacity in the testator to clearly and concisely express his intentions.

When the will was drawn estates tail existed in this state, recognized and regulated by the statute of August 26th, 1784 (Pat. L., p. 53), explained by the act of March 23d, 1786. Pat. L., p. 78. They could be created by devise, to exist during the life of the devisee and to descend at his death tp his heirs according to the rules of descent at the common law. But the instant the first descent was cast, that instant the estate was enlarged into a fee simple. Den v. Fogg, Pen. 819; Den v. Fox, 5 Halst. 40; Den v. Spachius , 1 Harr„ 172; Den v. Baldwin, 1 Zab. 395.

*167 By statute of the 13th of June, 1820 (Pamph. L.,p. 178), estates tail were abolished, and it was provided that a devise which, under- the statute 13 Edw. I., would be held to create an estate tail, should vest an estate for life only in the devisee and a fee simple in his children, equally, as tenants in common, the children of a deceased child taking their parent’s interest. Rev., p. 299, § 11. At the death of Daniel Wade, after the latter statute went into effect, the will in question first spake, and hence Daniel Wade Teller took only an estate for life. At his death the defendants in error became entitled to recover possession of the locus in quo.

We find no error, and therefore affirm the judgment below.

For affirmance — The Chancellor, Depue, Dixon, Magie, Reed, Bogert, Brown, Clement, Krueger, Smith. 10.

For reversal — None.