shall go to my, not her, nearest heir or heirs," creates an an absolute estate34. It is manifest that where a testator devised to his wife lands which, after her demise were to pass to his son, and after his decease to his son, the son took a life estate with a remainder to his heirs35. Where a will by which the testator, after providing for the payment of his debts, bequeaths the residue of his estate to his wife, "and after her death, or sooner, if she chooses to, to be divided among his children or their heirs, share and share alike," a life estate was conveyed to the widow36. It is construed that a devise of the proceeds of lands when sold, which is absolute and exclusive, with no provisions whereby any other person should in any event have any right or interest therein, and subject, only to a life estate in the widow of the devisor, is in effect a devise of the remainder in fee37. §147. Estate for Life, Limitations, Repugnant and Inconsistent Provisions. Limitations of life estates may be variously effected. Where a testator devised all of his real estate to his wife, to remain to her use and benefit during her widowhood, and at her decease to his and her daughter, to be and to remain to her use and benefit, and where under which instrument the widow entered into possession and after the death of her daughter, who died unmarried and without issue, she conveyed by warranty deed the land, claiming title as such widow, and as mother and sole heir 34. Moran V. Moran, 143 Mich. 322, 106 N. W. 206. 35. Defreese V. Lake, 109 Mich. 415, 67 N. W. 505, 32 L. 36. R. A. 744, 63 Am. St. Rep. 584. of the daughter, the court decided that the daughter took an expectant estate, descendible in the same manner as one in possession38. No other or greater estate will be created where a testator devised to his daughter certain real estate "during her natural life time, and after her death to her heirs and assigns, forever;" to have and to hold the same to her during her natural life, and afterwards to her heirs and assigns, forever39. §148. Statutory Provisions by Which Estates-tail Are Converted Into Other Estates. Estates-tail have been abolished by statute40. Thus where a devise of land was made to one and the "heirs of his body" an estate in fee simple passed11. A devise which is construed as designed to grant to the sister named what at common law would be an estate tail, with remainder over to the minor children named in the event of her dying without issue of her body, under the statute+2, though estates tail are abolished, would be, a valid remainder as a contingent limitation upon a fee, and could vest in possession on the death of the first taker, without issue living at the time of such death13. Under a will containing the following devise: "I give and bequeath to my beloved son, the farm I now reside on, for and during his life-time, with all the appurtenances thereon; and after his decease, then the rights, title and appurtenances of the aforesaid farm are 38. Curtis V. Fowler, 66 Mich. 696, 33 N. W. 804. See C. L. '97 $8817. Expectant estates are descendible, devisable, alienable, in the same manner as estates in possession. 39. Gaukler V. Moran, 66 Mich. 353, 33 N. W. 513. 15. 40. C. L. '97, §8785. See note 41. Rhodes v. Bouldrey, 138 Mich, 144, 101 N. W. 206. 42. See note 38. 43. Goodell V. Hibbard, 32 Mich. 47. to become the property of the said son's male heirs," the son took an estate tail which was changed by statute11 into a fee simple15. §149. The Rule in Shelley's Case. The rule may be stated that an estate, when limited to one for life, and by the same document the inheritance is limited, either immediately or after another estate in feehold, to his heirs or the heirs of his body, vests in him, either in fee simple or in fee tail, in the same manner as if the estate had been given to him and his heirs, or to him and the heirs of his body; and the words "heir" and "heirs of his body" are words of limitation and not of purchase. This ancient common law rule may be said to be in accord with modern jurisprudence, for the reason that it "laid in a principle diametrically opposite to the genius of feudal institutions, namely, a desire to facilitate the alienation of land, and to throw it into the track of commerce one generation sooner by vesting the inheritance in the ancestor," but the rule has been abolished by statute. The statute provides that when a remainder shall be limited to the heirs of the body of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heirs, or heirs of the body of such tenant for life, shall be entitled to take as purchasers, by virtue of the remainder so limited to them46. §150. Remainders. It may be said that there is no particular form of words 44. See note 38. 45. 81. Fraser v. Chene, & Mich. 46. C. L. '97, §8810; Fraser v. required in a will to create a remainder. A remainder is created and treated when a future estate is dependent upon a precedent estate17. Where a testator disposed of a homestead in a certain section of land with a certain number of acres, without having possessed a homestead nor land in this section, and where he bequeathed to his son land in different sections in one of which the homestead stood, with the reservation, "reserving the right of my widow to occupy the homestead during her natural life," a life estate was created in the wife with a remainder to the son18. An estate in remainder vested in the residuary legatees where the bulk of the estate of the testator, consisting of real and personal property, was given to the wife "to use as she shall see fit or so much of the same as she shall need for her support, comfort and maintenance" during her lifetime, while the residue is to be equally divided among three persons or "their legal heirs or representatives in case either should die before final settlement," after her death1o. A devise, giving certain land to the widow of the testator with the provision that "after her decease the said real estate above described I give and bequeath to my son, and after his decease said real estate to belong to his heirs," grants a life estate to the son, with remainder to his heirs50. Again, a devise of the proceeds of lands when sold, which is absolute and exclusive with no provision whereby any other person should in any event have any right or interest therein, and subject only to a Chene, 2 Mich. 81. 47. C. L. '97, §8793. When a future estate is dependent upon a precedent estate, it may be termed a "remainder," and may be created and transferred by that name. 48. Thorn v. Scofield, 143 Mich. 473, 107 N. W. 100. 49. In re Mallary's Estate, 127 Mich. 119, 86 N. W. 541. 50. Defreese V. Lake, 109 Mich. 415, 67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584. life estate in the widow of the devisor, is a devise of the remainder in fee51. §151. Executory Devise and Contingent Remainder. An executory devise is such a limitation of a future estate in lands or chattels (though in the case of chattels personal, it is more properly an executory bequest) as the law admits in the case of a will, though contrary to the rules of limitations in conveyances at common law. The fact of an executory devise being contrary to the rules of limitation in conveyances at common law, gives rise to two rules universally adopted in respect to executory devises in that whenever a future interest is so limited by devise as to fall within the rules laid down for the limitation of contingent remainders, or the estate limited by it is such as can take effect as a contingent remainder, it shall never take effect as an executory devise. Thus an executory devise directing limitations beyond the period allowed by law is void for the whole and not merely for the excess beyond the legal period52; so where a testator provided in his will that each disposal of real estate made by it should only be for the use and benefit of the persons in whose favor it was made, his or her life lasting; that no parcel of the real estate should be sold or alienated in any manner, but after the decease of those several persons to whom shares or parcels of the estate were assigned, said shares should remain for the use and benefit of the descendants of him or her to whom a share had been assigned, their lives lasting, and so on, and in case of demise without 51. Mandelbaum v. McDon. ell, 29 Mich. 78, 18 Am. Rep. 61. 52. St. Amour v. Rivard, 2 Mich. 294. |