Merritt v. Disney

Miller, J., delivered the opinion of the Court. The only question in this case is whether the children of Mrs. Disney, took, after her death, a legal estate in fee in the land conveyed by the deed from Sidney Hall to Hanson P. Rutter, trustee, bearing date the 15th of December, 1852. This deed was executed prior to the Act of 1856, ch. 154, and prior to the adoption of the Code which (Art. 24, sec. 11,) provides that no words of inheritance shall be necessary in any conveyance of real estate to create an estate in fee simple, but every such conveyance shall be construed to pass a fee simple estate, unless a contrary intention shall appear by express terms or be necessarily implied therein. The same provision in effect had been long before made with respect to devises of real estate by will.

Act o/1825, ch. 119. It is true the general rule is that in deeds the conveyance must be to the grantee, “ and his heirs,” in order to pass the fee, and probably but few deeds were ever drawn in this State prior to the Act of 1856, where the design was to convey an absolute estate, in which these-words were omitted. But to this general rule there are some exceptions. Thus in a conveyance to a trustee for the benefit of creditors, with power of sale, a fee will pass without these words, because a sale of ³⁵¹ the fee is necessary in order to execute the trust.

Spessard vs. Rohrer, 9 Gill, 261 . In that case the Court adopted a citation from 4 Kent’s Com., 304, where it is said, “ an assignment or conveyance of an interest in trust will carry a fee without words of limitation, when the intent is manifest.” The rule is not so universal and imperious as to require the Courts in every case where the instrument is a deed and not. a will, to hold that these words must be used in order to pass a fee. If in a particular case it plainly appears from the terms and provisions of the deed itself, the purposes it was designed to subserve, and the circumstances under which it was executed, that the intention was to convey an absolute estate, such an estate, in our opinion, will pass without such words of limitation. Now, in this case the grantor in consideration of the sum of $806, conveys the land to Hanson P. Rutter, his heirs, and assigns, habendum to the said Hanson P. Rutter, his heirs and assigns, “in trust, however, for the sole and separate use and benefit of Eliza Disney, wife of Snowden Disney, who is now in possession thereof, for and during her life, and from and after her death for the use and benefit of her children,” with power to the trustee, upon the written assent of the said Eliza, “ to sell all or any part of said lot of ground and to invest the proceeds as she may direct: the said purchase money being part of a legacy of $1200, given to the said Eliza by the will of Mary Rutter, the deceased mother of said Hanson and Eliza, charged on her moiety of a part of a tract of land called ‘Parish’s Range,’ devised to said Hanson by said will, and which has been invested in the ground hereby conveyed at her request, as is evidenced by her signature heretoand the instrument is signed and sealed not only by the