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Quick's Executor v. Quick.

should go to Jonathan. He gave $300 to each of the four sons of his deceased daughter, Elizabeth Lewis. He expressly declares that he shall make no bequest to Ellen and William Hoppock, the children of his deceased daughter Sarah, as they were well provided for otherwise. To his son Joseph, he gave a farm, and to his son Charles, $1800. He ordered his executors to sell all his property not otherwise disposed of by that will, and after paying his debts and expenses, to pay the remainder to his two sons, Charles and Jonathan.

The heirs of Ezekiel at his death were his four sons, Richard, Jonathan, Joseph, and Charles, and the four sons of his daughter Elizabeth, and the son and the daughter of his daughter Sarah.

The will of Ezekiel was evidently written under the impression that the will of his father vested in him only a life estate in his homestead farm, with the remainder, after the death of himself and his wife, to the persons who would be his heirs. If he had supposed that Jacob's will gave him the fee, as it is contended that it did, he would have made a different disposition of his property; and by such construction his intention in disposing of his own property among his children will be entirely frustrated. But whatever effect this consideration might have upon the construction of the will of Ezekiel, it can have none upon that of Jacob. It must be construed according to the settled rules of law.

The question on Jacob's will depends' upon the application of the rule known as the rule in Shelley's case. By that rule, when the same instrument which gives an estate for life by express words, in a subsequent part gives the same property, at or after the death of the life tenant, to his heirs, or the heirs of his body, the grantee or donee for life takes an estate of inheritance in fee or fee tail, and his heirs at his death do not take as purchasers, but inherit by virtue of the limitation; and this rule applies even where another estate for lite, as in this case, is interposed between the death of the first tenant for life and the estate to his heirs. This rule, which is in harmony with the theory of the common

Quick's Executor v. Quick.

law with regard to the conveyance and transmission of lands, has been settled as the law of England for centuries, and has been adopted, by repeated decisions, as the law of this state, and is still the law of this state as regards the construction of deeds. But it is one of those artificial rules of construction which gives to the terms used for these provisions an effect different from that suggested by them to any one not versed in these rules, and therefore it was found often to mislead testators, and its application to disappoint their evident intentions, and, as in this case, to mislead the devisees; and it was, therefore, so far as wills are concerned, in effect, abolished in this state by the first section of an act passed June 13th, 1820. Rev. Laus 774. But it was in force at the date of this will, which must be construed by it it, by the decisions in England and this state which control our courts, it applies to this will.

In Kennedy v. Kennedy, 5 Dutcher 185, in construing a devise similar in most respects to this, the rule and its application were carefully considered by the Supreme Court in an opinion delivered by Chief Jus tice Whelpley. The decision in that case, it being the decision of the law court to whom such a question most properly belongs, and the decisions of the English House of Lords in Jesson v. Wright, 2 Bligh 1, and of the English Court of Common Bench in Jordan v. Adams, 6 C. B. 764, which are cited with approbation, and relied on in Kennedy v. Kennedy, must guide this court in the application of the rule.

In Kennedy v. Kennedy, the court held that the rule in Shelley's case is the settled law of this state, and that no discussion of the principles upon which it is founded is necessary. “That it was adopted to give effect to the paramount intent of the testator. The word heirs will yield to a particular intent that the estate shall be only for lite, and that may be from the effect of super-added words, or any expression showing the particular intent of the testator; but that must be clearly intelligible and unequivocal.” In that case the devise was to my son, R. II. Kennedy, and to his

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Quick's Executor r. Quick.

proper benefit and behoof during his natural life, and to his heirs, to be divided among them as the law may direct, after his death.” In that case there was no other provision to affect this devise. The gift to heirs to be divided as the law may direct, is a gift to heirs as heirs, and as the law of inheritance may then be; and this shows no particular intention contrary to the paramount intent of the testator carried into effect by the rule in Shelley's case, or that could interfere with the application of the rule.

In Jesson v. Wright, the devise was to W. for his natural life; after his death, to the heirs of his body, in such shares as he should by deed or will appoint; and for want of such appointment, to the heirs of his body, share and share alike, as tenants in common; and if but one child, the whole to such child. The Court of King's Bench, which first decided this case, held that there were sufficient indications of a contrary intent to take this devise out of the rule in Shelley's case. In the House of Lords, Lord Eldon held that the paramount intention to give the remainder “to the heirs of the body," a technical expression which has a certain settled meaning, was not overruled by any clearly expressed particular intent; that the provisions for holding in such shares as W. should appoint, or as tenants in common, was impossible. There can be but one heir of the body at the same time in England, the next heir only comes into being at his death, and therefore they could never hold as tenants in common, or in shares under an appointment.

Lord Redesdale, in his opinion in that case, held that the words heirs of the body, having a clear settled technical meaning, could not be controlled without some clear expression or necessary implication. That technical words should have their legal effect, unless from subsequent inconsistent vords it is very clear that the testator meant otherwise." That although heirs of the body cannot take as tenants in common, it does not follow that the testator did not intend that heirs of the body should take, because they can not take in the mode prescribed.

Quick's Executor v. Quick.

In Jordan v. Adams, Erle, C. J., in delivering the opinion of the court, says that it is clear that a devise to a man for life, with remainder to the heirs male of his body, does create an estate tail, “ unless a judicial mind sees with reasonable certainty, from other parts of the will, the testator's intention;" and that the court, while aware of the importance of maintaining the doctrine of Jesson v. Wright where it applied, thought, for reasons assigned, that it did not apply in that case.

The terms of the devise in Jacob Quick's will are much the same as those in the case of Kennedy v. Kennedy; in that case the devise was to R. H. K. during his natural life, and to his heirs to be divided among them as the law may direct after his death. In Jacob Quick's will the devise is to Ezekiel during his natural life, at his death to his widow during widowhood and no longer, and at her decease to go to his heirs to be divided among them as the law directs in case of dying intestate. The intervening life estate does not affect the application of the rule, and unless there is a difference of intention clearly indicated by the words “ as the law directs,” from that indicated by the words “as the law may direct,” this case must be governed by the decision in Kennedy v. Kennedy. In that case the words as the law may direct in a devise to heirs as heirs, indicated that the testator intended that they should take as heirs by inheritance, as the law of inheritance should direct at the termination of the life estate. In this case the testator first indicates that his paramount intention was to give it to such persons as should be the heirs of Ezekiel at his death, but he as clearly indicates that he intended to control the division of it among these heirs, and that not by the law as it might stand at the death of Ezekiel, but as it then stood; "as the law directs," means this, in contradistinction to the law as it shall then stand, indicated by the words "as the law may direct.” At the date of this will, 1808, the act of 1780, (Pat. Laus 42,) the first statute to regulate descents passed in this state, was in force. That had abolished the English

Quick's Executor ». Quick.

his son.

law of primogeniture and the exclusion of female descendants, and gave to each female in the same degree from the ancestor, one share to two shares to a male. This remained the law of the state until it was changed by the act of February 5th, 1816, (Pamph. Laws 7,) by which males and females inherited equally. This law of descent was strongly impressed upon and well known to all the freeholders of the state. There was a strong inclination among them towards some preference of male heirs over females, long after the abolition of the exclusive preference and the law of primogeniture, and it was retained for years after the act of 1816, as will be shown by the records of wills in all the counties of the state. The law, as it existed in 1808, was well known to Jacob Quick, and he expressly adopted the division of two shares to a male, and one to a female, as the mode of dividing his property among the children and descendants of

The will would not be more clear if he had used the words of the act of 1780, instead of the words "as the law directs."

No one can doubt but that Jacob intended that Ezekiel should have an estate for life only, without power of alienation, but that intention is overruled by the rule in Shelley's case, which gives construction to the words he has used, whatever may have been his intention, unless he has clearly and by positive words declared an intention capable of being executed, inconsistent with that rule. The English courts have repeatedly held that a devise to the heirs, or heirs of the body of the tenant for life, as tenants in common, or equally to be divided between them, did not prevent the operation of the rule, although it might indicate a different intention on the part of the testator. But this seems placed upon the ground, that as by the law of England, but one heir or heir of the body could exist at one time, the heirs or heirs of the body could never be tenants in common; and that as the words heirs or heirs of the body were technical terms with well settled meanings, they could not be overruled by a subsequent disposition, which could not be

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