Stansbury v. Hubner

Irving, J., delivered the opinion of the Court. This is a bill in equity upon a case stated, to procure the specific performance of a contract for the sale of land.The purchaser refused to comply on account of a supposed defect in the vendor’s title. The appellant claims title under the will of her husband, Thomas Stansbury, (the younger,) who was devisee of the property now involved, under the will of Thomas Stansbury, Senior, made in November, 1816. The will of Thomas Stansbury, (the younger,) husband of the appellant, was made 31st March, 1856.

The clause of the will of Thomas Stansbury, Senior, which gives rise to this suit is as follows: “I give and bequeath unto Deborah Stansbury and Anne Powell, my daughters, all that tract of land whereon I now live, called ‘Daniel’s Gift,’ together with ‘Cuss Lot,’ and ‘Tracy’s Park,’ during their natural life, and at their decease, the above three tracts of land mentioned above, I will and give unto my grandson, Thomas Stansbury, son of my son John, excepting the parts hereafter bequeathed to him, and the heirs of his body, so long as they hold and till the same; should he die without heirs of his body, my will and desire is that my grandson, Thomas Taylor should have it, him, his heirs, forever ; and if Thomas should die without an heir, then the aforementioned land to fall unto my grandson James Taylor, to him, his heirs and assigns forever. ’ ’ ²³⁰ The question in the case arises on the construction and. effect of the words “ so long as they hold and till the same" which follow the words “to the heirs of his body." This devise was of an estate tail general to Thomas Stansbury, (Jr.,) and the only contention is as to the operation of the words which follow the limitation of the estate to the heirs of Thomas Stansbury’s body. By regular conveyances in which all parties interested united, this estate tail was, on the 14th of August, .1817, dockéd, and turned into a fee in Thomas Stansbury, (Jr.) The life tenants are all dead, and Thomas Stansbury, (Jr.,) died in 1857, leaving an heir of his body who is now dead; but by his will dated as hereinbefore stated, he gave all his property of every kind to his wife, the appellant, who has continuously held and tilled the same ever since her husband’s death. The contract under which she agreed to sell to the appellees was dated May 28th, 1890. These facts are all a part of the case stated in the record.

There can be no doubt that the testator intended to give the property to his grandson, Thomas Stansbury, and the heirs of his body so long as he had any, for there is no effort to devise over, except on failure of such heirs. The devise over was bad for want of proper restriction of such failure.; and we only advert to it for the purpose of noting the fact that there was no attempt to devise over to take effect because of failure to hold and till the land; but only on failure of heirs of the body. It was a condition subsequent which was