Fulton v. Harman

Alvey, J., delivered the opinion of the Court. In disposing of this case, upon the record as now before us, three questions are presented : 1. Whether George Harman took a fee-simple estate in the land in controversy, under the will of his father, Christian Harman ; and if he did not,— 2. Whether a trustee or trustees should he appointed to sell such land for the benefit of those entitled in remainder under the will; and, 3.

Whether it was proper to grant an injunction to stay destructive trespass on the land until it could he sold foi1 the benefit of those entitled to the proceeds of sale. 1. By the will under consideration, the testator devised to his wife, in lieu of dower, a tract of land containing about three hundred acres, during her life; and also gave to two of the children of his son George certain pecuniary legacies ; and after certain other bequests, he then devised and bequeathed all the rest of his property, real, personal and mixed, to his son' George, during his natural life, and after Lis death the proceeds thereof to he equally divided between all his, George’s, laivful heirs; “first deducting the bequests already made, and when the others become equal then the balance shall he divided between them share and share alike.” George Harman, the son, and Christian Harman, the grandson, of the testator, were appointed executors of' the will ; and, by the last clause of the will, the testator empowered his executors to make public or private sale of any of his remaining real or personal property, to pay the bequests thereinbefore made, The devise or .bequest of all the rest of the testator’s property, real, personal and mixed, included all reversionary interests however remote, which were undisposed of by the previous provisions of the will; and hence the devise to his son George of all the rest of his property included the reversion in the tract of land of three hundred acres previously devised to his wife for life. ²⁶³ But notwithstanding the express terms in which the devise is made to George, that is, that it was for his natural life, it is contended for the appellant that this devise to George was enlarged to an estate in lee, in the land by reason of the remainder being limited to his “lawful heirs ; ” and that, consequently, it is a devise within the rule laid down in Shelley’s Case, 1 Co., 96. That rule is, " where the ancestor takes an estate of freehold by gift or conveyance, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs, in fee or in tail, the word heirs is a word of limitation of the estate, and not a word of purchase.” Here, as has been observed from the recital of the devise, the terms of the will are, as applied to both real and personal property, " and after his death,” that is, the tenant for life, " the proceeds thereof shall be equally divided between all his lawful heirs,” followed by words giving specific direction as to the mode of equalizing the distribution. This would seem to be wholly incompatible with the rule of descent; and unless that rule can apply to govern the succession, it is very clear that the devise is not within the rule of Shelley’s Case; for the first principle of that rule is, that the freehold estate in the ancestor and the remainder limited to his heirs shall unite and become an entire estate in the ancestor, so that, if the ancestor die intestate, his heirs shall take by descent from him, and not as purchasers under the original limitation.

Tud. Lead. Cases, 482. Where the limitation of the remainder is to the í’ssííe or heirs of him to whom the preceding estate for life is limited, if the term issue or heirs is clearly intended as descriptive merely of the persons to take in succession, and thus become the root of a new inheritance, the individuals embraced by such descriptive terms, take as purchasers, and do not, therefore, come within the rule in Shelley’s Case.

When the word heirs is taken as a word of limitation, it is collective, and signifies all the ²⁶⁴ descendants in all generations ; but when it is taken as a word of purchase, it may denote particular persons answering the description at a particular time, and in a special sense, according to circumstances. This is established by numerous authorities, and is plainly enough stated in the cases of Horne vs. Lyeth, 4 H. &J., 431, Lyles vs. Digges, 6 H. & J., 364 , and Ware vs. Richardson, 3 Md., 544 ; in addition to which cases, see Tud. Lead Cas., 493, and 2 Wushb. Real Pro., 559.

In the devise under consideration, as the words “lawful heirs ” are followed by words of partition and distribution inconsistent with the devolution of the estate by inheritance, the estate for life cannot he enlarged to a fee-simple, by force of the terms “lawful heirs ;” but the gift being of the proceeds, to be divided in a manner specially prescribed, the terms of the gift must be construed as clearly indicative of an intent to give a life estate only to the son George, with a gift over to those who may be embraced within the terms “lawful heirs” as purchasers. In the case of Hockley vs. Mawbey, 1 Ves., Jr., 343, 349, Lord' Chancellor Ti-iurlow, in speaking of a devise to a party and his lawful issue, followed by the words, “to be divided among them as he,” the ancestor, “ should think fit,” said : “ The limitation to the son and his issue would be an estate tail; and perhaps the aptest way of describing an estate tail according to the statute ; but it is clear, he did not intend it to go to them as heirs in. tail; for he meant they should take distributively, and according to proportions, to be fixed by the son. It has often been decided in other cases, besides those mentioned at the har, that, where there is a gift in that way, the parties must take as purchasers ;■ for there is no other way for them to take.