The reasoning of the counsel for the plaintiffs in the case at bar is this: First, the testator indicated his general intention thus: "As to all my worldly interest, all my property, all my estate, I dispose of the same," etc. Then, says the counsel, he in fact gives the same; and the counsel relies on these two words in the introductory clause, to bring it down, and connect it with the devise to the testator's wife. But precisely the same words holding the same relation, presented themselves in Goodright v. Barron; yet held they were entirely inefficient, for the purpose now claimed. " The word estate," said Lord Ellenborough," used in the introductory clause, is completely disjoined from the devise in question, and cannot be brought down to join in with the latter clause, without doing violence to the words." I will only add, it is impossible to distinguish the case at bar from the principle of that to which he was speaking, and scarcely from the very words.
The adjudication, we think, accords with the sound rule of construction.
There must be judgment for the defendant.
d. By devise under modern statutes.
(1) All the States except Connecticut and Florida have shifted the presumption by statutory enactment.1
e. The rule in Shelly s Case.
Olds, J , in
126 Indiana, 88. - 1890.
That the rule in Shelley's Case is recognized as law, and a rule of property in this State is too well settled to admit of controversy. Andrews v. Spurlin, 35 Ind. 262; Siceloff v. Redman, 26 Ind. 251; Small v. Howland, 14 Ind. 592; Hull v. Beals, 23 Ind. 25.
In Doe v. Jackson, 5 Ind. 283, the rule is stated as follows: "Where a freehold is limited to one for life, and by the same instrument, the inheritance is limited, either mediately or immediately, to heirs or heirs of his body, the first taker takes the whole estate, either in fee simple or fee tail; and the words ' heirs ' or ' heirs of the body,' are words of limitation, and not of purchase."
In the case of Hochstedler v. Hochstedler, 108 Ind. 506, in construing a will, this court says: " But the word ' heirs,' as Mr. Preston says. ' is a powerful one,' and it must be given its legal force and effect, unless the words of the will clearly assign it a different signification." Again in the same case, it is said: " When an interest or estate is given in one clause of a will in clear and decisive terms, ' such interest or estate cannot be taken away or cut down by raising a doubt upon the extent and meaning and application of a subsequent clause, not by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that interest or estate.'
1 See N. Y. R. P. L. § 210. The common law rule is said still to prevail in the District of Columbia. Dembitz on Land Titles, vol, 1, p. 99. - Ed.
In the case of Shinier v. Mann, 99 Ind. 190, this court says: "The word ' heirs ' written in a deed or will is one of great power, and its force is not impaired by the mere use of negative or restraining words. Fearne expresses this doctrine in very strong words, for he declares that ' the most positive direction, will not defeat the operation of the rule in Shelley's Case." Continuing, the court further say: ' It may be that this statement of the law is some what too strong under the doctrine of later cases, but certainly the law is that mere negative words cannot restrain or impair the force of the word ' heirs.' " 1
2. The Different Kinds of Fees. a. The fee-farm or socage-tenure fee.
1 Wharton (Pa.), 336. - 1836. [Reported herein at p. 86.]
19 New York, 6S. - 1859. [Reported herein at p. 81.]
1 See index under Shelley's Case. The rule in Shelley's Case originally a "rule of law" and property, has become by statute in some States a mere rule of construction or presumption. In some of the States it has been abolished leaving no rule of construction in the cases other than the general one that the intention of the grantor or testator is to be sought as expressed in the instrument. There are several other statutory modification of the rule for which see Jones' Law of Real Property on Conveyancing, §§ 601-610. See also the American note, p. 407 of Hutchins' Williams on Real Property. For the New York rule see §44 N. V. R. P. L. - ED.
b. The modern fee simple absolute.1
c. Qualified or defeasible fees.
(1.) Determinable Fees; Fees upon [Special or Collateral] Limitation.
18 New York, 96. - 1858.
Ejectment. Plaintiff Susan Leonard is the mother and only heir-at-law of Sidney S. Mills. Mills by his last will and testament devised to Benjamin Bailey, " the use of three and one-half acres, lying east of the road opposite the homestead, and being a part of the same, until Gloversville shall be incorporated as a village, and then to the trustees of said village to be by them disposed of for the purpose of establishing a village library, provided an amount of money equal in value shall be raised and invested by said trustees in the purchase of books for said library."
After the death of Mills, Bailey conveyed the premises in question to defendant. The answer alleges that the village has never been incorporated. The court excluded evidence offered by plaintiff to prove the incorporation of the village, and held as matter of law that the devise to Bailey was absolute and in fee simple. Plaintiffs excepted to these rulings. Judgment for defendant. Plaintiff appeals.
Strong, J. - The devise to Bailey is, by the terms of it, " until Gloversville shall be incorporated as a village." These words are part of the devise itself. The use of the land, which imports the land, is given to him until the happening of that event. The event was contingent when the will was made, and at the death of the testator. Had the will stopped here, in respect to a disposition of this land, no one would doubt that the estate of Bailey would have been limited in duration to the contingency mentioned. He would have taken a base or qualified fee; an estate which might have continued forever, but which would have been liable to determination by the occurring of the contingency. The qualification to the devise would have created what is termed in the books a collateral limitation, making the estate determinable upon an event "collateral to the time of its continuance." 4 Kent's Com. 129; Fearne, ed. of 1826, 12 to 15, and notes. Among the instances of collateral limitations are, to a man and his heirs, tenants of the manor of Dale; or to a woman during widowhood; or to C. till the return of B. from Rome; or until B. shall have paid him twenty pounds. 4 Kent, 129; 1 Shep. Touch. 125; 2 Crabb's Law of Real Prop. § 2135; 2 Bl. Com. 155; Fearne, 12, 13, and notes. In respect to such limitations, the rule is, that "the estate will determine as soon as the event arises, and it never can be revived." 4 Kent, 129, and cases cited; Lewis on Perpet. 657; Crabb's Real Prop. § 2135.