to the grantee should be rejected, and the deed read as to her only. The evident purpose of the section referred to was to change the rule of the common law, whereby, if a conveyance was made without words of inheritance, an estate for the life of the grantee only was created. It is not necessary that, to create a less estate than the fee, there should be express words of limitation, either under the statute or the common law. It is sufficient for that purpose if it appear, by necessary implication, that a less estate was granted. An estate to "A and the heirs of her body" is the same as an estate to "A for life, remainder to the heirs of her body." A grant to "A and the heirs of her body," by operation of law creates an estate tail in A, remainder in tail. This has been the uniform holding. So it is apparent, if at the common law, by virtue of a conveyance, the grantee would take an estate tail, whether an estate tail general, or an estate tail special, the 13th section of the Conveyance Act would be inoperative, and by virtue of section 6, the grantee would be seized of an estate for life, with remainder in fee to those to whom the estate is immediately limited.57

§ 1449. Statute Regarding Fees Tail Strictly Construed -Where a deed is executed to: "Franklin B. Hoppin and Sarah Hoppin, his wife, for and during their natural lives and for and during the life of the survivor of them, and at the death of the survivor of them to the heirs of the body of said Sarah Hoppin, their heirs and assigns," it was held that Section 6 had no application, because it refers only to cases where, by the common law, any person or persons might hereafter become seized in fee tail, and the foregoing grant was not such a case. The grant was of a life estate, and the remainder is not granted to the heirs of the life tenant, either in tail or in fee simple. The grant is not in fee simple, because it is not granted to the general heirs,

57-Lehndorf v. Cope, 122 Ill. 317; Peterson v. Jackson, 196 Ill. 40.

but to a restricted class; it is not a fee tail, because the heirs to whom the estate is restricted take in fee simple. The construction of the deed is not affected by the rule in Shelley's case, or by section 6 of the Conveyance Act. The words "heirs of the body," as used in the deed, are not words of limitation, denoting the extent and character of the estate granted to the first taker, but are words of purchase, descriptive of the persons who are to take the remainder upon the termination of the life estate.

Section 6 of the Conveyance Act abolishes estates tail, and with them the rule in Shelley's case as applied to such estates. That rule applies in this State only to fees simple. Under the operation of this rule, in such jurisdictions where it is in force as to estates tail, a conveyance to one for life with remainder over to the heirs of his body, and the first taker has an estate in tail which is an estate of inheritance. In this State, however, where the rule is not in force as to estates tail, the conveyance operates according to its terms, and the first taker has a life estate only.58

§ 1450. The Rule in Wild's Case-This rule does not appear to be mentioned either in Washburn on Real Estate or in the Am. & Eng. Encyclopedia of Law. Yet it is a rule of property recognized in Illinois. It is a rule which seems to have been established by a decision in 6 Coke, 16-17.

In that case there was a devise to "Wild and his wife, and after their decease to their children." And it was resolved that according to the rules of the common law, Wild and his wife took a life estate, with remainder to their children for life and not an estate tail as has been contended. In the decision of the case it was said that for as much as by the judgment of the common law, on like words in a conveyance, it would be but an estate for life, the remainder to their children for life, thence it follows that the intent, and not the words, of the devisor, ought to make it an estate tail in 58-Aetna L. I. Co. v. Hoppin, 249

Ill. 406.

this case. Then this intent ought to be manifest and certain and so expressed in the will, and in this case no such intent appears, and therefore this difference was resolved for good law: That if "A" devises his lands to "B" and to his children or issue, and he hath not any issue at the time of the devise, the same is an estate tail for the intent of the devisor is manifest and certain that his children or issue should take; and as immediate devisees they cannot take because they are not in rerum natura, and by the way of remainder they cannot take, for that was not his intent, for the gift was immediate; therefore, such words shall be taken as words of limitation, as much as children or issue of his body. But if a man devises lands to "A” and to his children or issue, and he has issue of his body, there his express intent may take effect according to the rules of the common law and no manifest or certain intent appears in the will to the contrary, and, therefore, in such case they shall have but a joint estate for life.

It would seem that the decision in the Wild's case was controlled by the rules of the common law in regard to life estates, and in the case first put, the judges enlarged what would be only a life estate at common law into an estate tail by construction. Under the common law the courts resorted to a construction to give as large an estate as possible.

But our statute expressly provides that words of inheritance shall not be necessary to carry a fee. (Sec. 13, Ch. 30, R. S.) It is not necessary, therefore, to resort to construction to give a larger estate than the strict rules of the common law would give. The statute gives the larger estate, unless the contrary appears. This being so, the rule in the Wild's case is no longer necessary, for it would cut down the estate, and not enlarge it as it was intended to do. So where under our statute a will gives what will be construed to be a fee simple, to take effect on the death of the testator, the title vests in the devisees (two daughters and

their children), and no children having been born to them the will becomes inoperative as to "their children," and they take an estate in fee.59

§ 1451. Statute Form of Conveyances-The statute has prescribed certain forms for warranty deeds, quitclaim deeds, and mortgages and declared the effect thereof. The nature and character of these forms and the construction which has been given to them by the courts may well be considered here. It may be remarked that these forms are not intended to supplant the old common law forms of convey

ances.

§ 1452. Statutory Form of Warranty Deed-Statute"Deeds for the conveyance of land may be substantially in the following form: The grantor (here insert the name or names and places of residence), for and in consideration of (here insert consideration) in hand paid, conveys and warrants to (here insert the grantee's name or names), the following described real estate (here insert description); situated in the County of in the State of Illinois. · A. D.

Dated this

day of

A. B. (L. S.) 60

§ 1453. Effect of Statutory Deed-Statute-"Every deed. in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple, to the grantee, his heirs or assigns, with covenants on the part of the grantor, (1) that at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were free from all incumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall

59-Davis v. Ripley, 194 Ill. 399; Boehm v. Baldwin, 221 Ill. 59.

60-Sec. 9, Ch. 30, R. S.

be obligatory upon the grantor, his heirs and personal representatives as fully and with like effect as if written at length in such deed.'' 61

A conveyance, in the statutory form of a warranty deed, must by the terms of the statute, be held to contain a covenant that at the time of the making and delivery thereof, the grantor was "lawfully seized of an indefeasible estate in fee simple in and to the premises therein described, and had good right and power to convey the same."

This is more comprehensive than the ordinary covenant of seizin as used in common law conveyancing, and is not satisfied by seizin in fact, or actual possession by the grantor and a delivery of such seizin or possession to the grantee. The statutory covenant of seizin is in legal effect a covenant of title, and though the maker of such covenant puts the covenantee in possession of the premises conveyed, yet, unless by his deed he invests him with an indefeasible title in the premises, his covenant is broken, and the covenantee has the right to at once bring his action for the breach thereof.62

The words "convey and warrant" in a deed of conveyance of land are to be construed and held as a covenant by the grantor that the premises conveyed were at the time of the execution of the conveyances free from all incumbrances.63

§ 1454. Section 9 to Be Read in Connection with Section 13 of the Statute-Merely because a deed is substantially in the form prescribed by section 9 of the conveyance act, however, a fee simple is not necessarily conveyed. That section prescribes the form of a deed, and provides that every deed substantially in that form shall be deemed and held to be a conveyance in fee simple to the grantee; but it must be construed in connection with section 13 of the same chapter, under which, if a less estate be limited by express

61-Sec. 9, Ch. 30, R. S.

63-Dalton v. Taliaferro, 101 Ill. 62-Clapp v. Herdman, 25 Ill. App. App. 592.