Allen v. Craft.

ALLEN V. CRAFT.

(109 Ind. 476.)

Will-rule in Shelley's case-fee.

A testator devised lands in trust for Matilda, the wife of his son Mark, "and her heirs forever;" directing that she should have the sole use, control, benefit and profits thereof, independent of her husband, and that at her death "the heirs of her body" should control and enjoy the same; provided that if on Mark's death Matilda should survive, the heirs of her body, then living, should receive two-thirds of the profits, and if Matilda should marry again, the heirs of her body then living should manage and control the lands, giving to Matilda one-third of the profits for her life; and that Matilda's issue by any other husband should not take, and that Matilda should not alienate the lands after Mark's death. Held, that Matilda took a fee.

W. B. Biddle and C. H. Truesdell, for appellants.

M. H. Weir, E. E. Weir, J. Bradley, J. H. Bradley, D. J. Wile and F. E. Osborn, for appellees.

ELLIOTT, C. J. The second item of the will of Catharine Allen reads thus:

"Secondly. I devise and bequeath unto John Allen, of Xenia, in Greene county, in the State of Ohio, in trust for Mrs. Matilda Allen, the present wife of my son, Mark Allen, and her heirs forever, the following real estate, to-wit: The south half of section 28, in township 36 north, of range 3 west, situate and lying and being in the county of Laporte, aforesaid. And I hereby direct that the said Matilda shall have the sole use, control, benefit and profits thereof, free and clear of and from her said husband, my son, Mark Allen, and free and clear of all interference on his part in the management thereof, the receipt of profits arising therefrom, and in all matters whatsoever during her natural life, and at and after her death, then the heirs of her body shall in all things control and manage the same and receive the rents and profits arising therefrom. Provided nevertheless that upon the death of my son Mark, if my said laughter, Matilda, should survive him, the heirs of her body then living and in being shall thenceforward be entitled to receive twoVOL. LVIII — 54

thirds of the profits thereof to be equally divided between them, and should the said Matilda marry again, then the heirs of her body then in being shall thenceforward manage and control the said land, still giving to my said daughter one-third of the profits during her natural life, but in no case shall the issue of my daughter Matilda, by any marriage other than with my son Mark, be entitled to inherit any thing under under or by virtue of this will, but I expressly prohibit them therefrom, and in case that my daughter Matilda shall survive her present husband, she shall not after his death alienate the said estate."

The designation of John Allen as trustee is ineffective, inasmuch as no power of control or disposition is vested in him. The estate, whatever its character, devised to Matilda Allen vests directly in her. This is the effect of the statute as the trust is a mere naked one. R. S. 1343, p. 447, § 181; R. S. 1881, § 2981.

The controlling question in the case is as to the nature of the estate devised to Matilda Allen. If the estate devised is a fee, then the judgment below was right; if not, the judgment is wrong and must be reversed.

The contention of appellee's counsel, that if the estate devised would have been an estate tail at common law, it is an estate in feesimple under our statute, must prevail. R. S. 1843, p. 424, § 56; R. S. 1881, § 2958; Tipton v. La Rose, 27 Ind. 484.

There were at common law two kinds of estates tail, general and special. Blackstone thus describes the latter: "Tenant in tail special is where the gift is restrained to certain heirs of the donee's body, and does not go to all of them in general." Bl. Com. 113. In this instance, if the estate devised is an estate tail, it is a special one, for the words of the will restrain the persons who shall take to those begotten by the son of the testatrix and the husband of the donee. The inquiry as to whether the estate tail, conceding that this is the estate created by the devise, is a special or a general one, is important only for the purpose of showing that a limitation to a designated class of heirs does not cut down the estate of the first taker to less than a fee, for the estate is a fee although the limitation may be to a designated class of heirs to the exclusion of all others. It results from this rule of law, that the limitation to the heirs of the body of Matilda Allen, begotten by Mark Allen, does not, in itself, further affect the devise than to make it what at common law would be an estate tail special, but if it be such un

Allen v. Craft.

estate at common law, then by force of our statute, it is an absolute estate in fee, since all estates tail are transformed into fees absolute.

What we have said disposes of the clause limiting the inheritance to the heirs begotton by Mark Allen, considered in itself and apart from the other provisions of the will, and we proceed to analyze and discuss the other provisions of the instrument.

It is firmly established by our decisions, that the rule in Shelley's case is the law of this State. In one case the court declared and enforced this rule, but expressed the hope that it might be changed by legislation, avowing that it was not within the power of the court to change it, much as the court doubted its wisdom and justice. Siceloff v. Redman, 26 Ind. 251, see p. 259. But the rule has been so repeatedly and emphatically declared to be a rule of property, that it is no longer a question as to its binding force upon the courts of the State. Hochstedler v. Hochstedler, 108 Ind. 506; Fountain County, etc., Co. v. Beckleheimer, 102 Ind. 76; s. c., 52 Am. Rep. 645, and auth. cited, p. 77; Shimer v. Mann, 99 Ind. 190; s. c., 50 Am. Rep. 82; Ridgeway v. Lanphear, 99 Ind. 251; Biggs v. McCarty, 86 Ind. 352; s. c., 44 Am. Rep. 320; McCray v. Lipp, 35 Ind. 116; Andrews v. Spurlin, 35 Ind. 262; Doe v. Jackman, 5 Ind. 283.

The clause in the will containing the words "unto Matilda Allen and her heirs forever," if it stood alone, would unquestionably carry the case far within the rule in Shelley's case. Shimer v. Mann, supra and cases cited; Hochstedler v. Hochstedler, supra. The clause cannot however be severed from those with which it is associated, but must be considered in conjunction with them.

We have no doubt that a clause creating an estate in fee may be so modified by other clauses as to cut down the estate to one for life, but to have this effect the modifying clauses must be as clear and decisive as that which creates the estate. Hochstedler v. Hochstedler, supra; Bailey v. Sanger, 108 Ind. 264; Thornhill v. Hall, 2 Cl. & F. 22; Collins v. Collins, 40 Ohio St. 353; Lambe v. Eames, L. R., 10 Eq. Cas. 267; Clarke v. Leupp, 88 N. Y. 228; Roseboom v. Roseboom, 81 N. Y. 356; Freeman v. Coit, 96 N. Y. 63.

If the other words of the will are as strong and clear as those of the clause "unto Matilda Allen and her heirs forever," then it may well be held that the estate is less than a fee. The word "heirs " is, as Mr. Preston says, the "most powerful" that can be employed, and this our cases recognize. Shimer v. Mann, supra, and cases cited. Hochstedler v. Hochstedler, supra.

Allen v. Craft.

Strong as is the words "heirs," it may be read to mean children, if the context decisively shows that it was employed in that sense by the testator. Ridgeway v. Lanphear, supra; Shimer v. Mann, supra; Hadlock v. Gray, 104 Ind. 596. But there must be no doubt as to the intention of the testator to affix to the word "heirs" a meaning different from that assigned it by law. Shimer v. Mann, supra; Jessen v. Wright, 2 Bligh (H. L. Cas.), 1, 56; Doe v. Gallini, 5 B. & Ad. 621; Lees v. Mosly, 1 Y. & Coll. Exch. Cases, 589; Powell v. Board, etc., 49 Penn. St. 46, 53; Den v. Emans, Penn. (N. J.) 967; Robins v. Quinliven, 79 Penn. St. 333.

It appears from these principles, that the words employed in the clause, "unto Matilda Allen and her heirs," must prevail to carry a fee, unless we find equally clear and decisive terms cutting down the estate, and this is not possible unless, as said in one of the cases cited, the intent to employ the "heirs " in a different meaning from that assigned it by law is so plain that nobody can misunderstand it. Our search then must be made with these rules as our guide.

The clause which gives to Matilda Allen the sole control of the estate during life, and after her death "then to the heirs of her body," is but a reiteration of the meaning conveyed by the clause we have already discussed, for in themselves they carry a fee, as the powerful term "heirs" is still employed. Proceeding with our analysis, we come to the clause, " Provided nevertheless that upon the death of my son Mark, if my daughter should survive him, the heirs of her body then living shall thenceforth be entitled to receive two-thirds of the profits thereof, to be equally divided among them, but should the said Matilda marry again then the heirs of her body then in being shall thenceforward manage and control the land, still giving to my daughter one-third of the profits thereof during her natural life, but in no case shall the issue of my daughter by any marriage other than with my son Mark inherit any thing under or by virtue of this will, but I expressly prohibit them therefrom, and in case my daughter Matilda should survive her present husband, she shall not after his death alienate the said estate."

The introductory clause in which the word "heirs" occurs undoubtedly shows, if taken by itself, that the word was not used as signifying "heirs" in the legal sense of the word, but we cannot separate this clause from the other members of the sentence, and considered, as undeniably it must be, in connection with them it must yield. This we say because in the clause blended with it is the

Allen v. Craft.

word “issue,” and this is ordinarily a word of limitation of the same force as the word "heirs.'

In Quackenbos v. Kingsland, 102 N. Y. 128; s. c., 55 Am. Rep. 771, the words of the will were: "I give, devise and bequeath unto my son Daniel Kingsland, and to his heirs; but in case my son Daniel should die without lawful issue, I give and bequeath it to my remaining children," and it was held that Daniel took an estate in

The definition of the word "issue" was tersely stated by Lord ELDON in Sibley v. Perry, 7 Vesey, 522, for he said: "Upon all the cases this word prima facie will take in descendants beyond immediate issue."

In Powell v. Board, etc., 49 Penn. St. 46, it was said: "Undoubtedly in a will the word 'issue' is regarded as primarily a word of limitation, and as synonymous with the technical words 'heirs of the body.' Hence it is presumed that when a testator

devises an estate for life, with a remainder to the issue of the devisee of that estate, he intends the remaindermen to take as heirs of the body by descent from their ancestor rather than as purchasers, themselves the root of a new succession."

To a like effect is the statement in Den v. Emans, Penn. (N. J.) 967, 971, that "the word "issue' in a devise, as a word of limitation, is synonymous to 'heir;' it is nomen collectivum, and takes in the whole generation."

In Robins v. Quinliven, 79 Penn. St 333, these words were used: "The word 'issue' in a will prima facie means 'heirs of the body,' and in the absence of explanatory words showing that it was used in a restricted sense, is to be construed as a word of limitation."

In Carroll v. Burns, 15 Weekly Notes of Cas. 553; s. c., 55 Am. Rep. 778, n., it is said: "The rule is unquestioned that prima facie in a will the word 'issue' means 'heirs of the body,' and will be construed as a word of limitation, unless there be explanatory words showing it was used in a restricted sense."

These decisions, to which many more might be added, do no more than give expression to a long-existing and well-known principle, and the rule affixing to the term "issue" the meaning expressed in these cases, requires that the term, as used in the will before us, should be deemed to mean "heirs," in the sense in which that term is employed in the clause of the will which reads "unto Matilda Allen and her heirs forever." Hawkins Wills, 189.