Griffith v. Plummer

Miller, J., delivered the opinion of the Court. The decision of this case depends upon the construction of the. following clause of a will, executed in 1836 and admitted to probate in 1839: ⁷⁷ “Item. — I give unto my son Lyde, one hundred and sixty acres, to include the buildings where Benjamin King now lives, in trust, together Avitli nine negroes,” (naming them,) “in trust for his sister Rachel; the one hundred and sixty acres of land for her only use and benefit, and none other person to have any control over it, and after her decease to go to her heirs in fee-tail.” The testator’s daughter Rachel, here named, was, at the date of the will and at his death, a married woman, the Avife of an intemperate and improvident husband, and the sole question presented by the record is, whether she took a life estate or a fee in the land thus devised. The rule in Shelley’s ease, has not been abolished by statute in this State. It still remains a part of pur system of real law, and if the clause of the will now to be construed presents a case falling within its operation, the pretensions of the appellant must be sustained.

But one of the conditions essential to the operation of the rule is, that the estate limited to the ancestor and that limited to the heirs must be of the same quality. They must both be legal or both