The sixth section of the Conveyance act provides, that in cases where, by the common law, any person or persons might, after its passage, become seized in fee tail of any lands, etc., by virtue of any gift, devise, grant or conveyance " hereafter to be made," or by any other means whatsoever, such person or persons, instead of being or becoming seized thereof in fee tail, shall be deemed and adjudged to be and become seized thereof for his natural life only, and the remainder shall pass, in fee simple absolute, to the person or persons to whom the estate tail would, on the death of the first grantee or donee, pass, according to the course of the common law, by virtue of such gift, devise or conveyance. It is apparent, if at common law, by virtue of this conveyance, Mrs. Lehndorf would take an estate tail, whether an estate tail general, or an estate tail special, the thirteenth section would be inoperative, and by virtue of section six she would become seized of an estate for her life, with remainder in fee to those to whom the estate is immediately limited.
Estates tail came into general use upon construction by the courts of the statute de donis conditionalibus, 13 Edw. 1, c. 1, § 1, and while no extended discussion will be necessary, an examination sufficient to determine if this case falls within the rules creating an estate tail, will be proper.
To create an estate in fee simple, at common law, the grant must be to the grantee and his heirs, without limitation, to take from generation to generation, in the regular course of descent. A tenant in fee simple is defined by Blackstone to be, " he that hath lands, tenements or hereditaments, to hold to him and his heirs forever, generally, absolutely, simply, without mentioning what heirs, but referring that to his own pleasure or the disposition of the law." Com. ii, 104. Estates in fee tail were of two kinds. Estates tail general, as where the grant was to one and the heirs of his body generally, so that his issue in general, by each and all marriages, are capable of taking per formam doni; and estates tail special, where the gift or grant was restricted to certain heirs, or class of heirs, of the donee's body. Blackstone's Com. II, 113, 114; 4 Kent's Com. 11; 1 Washburn on Real Prop. 66. In a grant of lands, words of inheritance were necessary, at common law, to the creation of a fee, but in the creation of a fee tail estate more was required. There must also be words of procreation, indicating the body out of which the heirs were to issue, or by whom they were to be begotten. The ordinary formula was to make the gift or grant to the donee, as the grantee was called, " and the heirs of his body," or " her heirs upon her body to be begotten," or "upon her body to be begotten by A; " but there was no especial efficacy in these particular forms of words, and it was requisite, only, that in addition to limitation to " heirs," the description of the heirs should be such that it should appear they were to be the issue of a particular person. Blackstone's Com. 11, 114; 1 Washburn on Real Prop. 72; 2 Preston on Estates, 478, and cases cited; 2 Jarman on Wills, 325.
The necessary words of inheritance are not here wanting to create a fee simple, or fee tail, at common law. The grant is to Mrs. Lehndorf and her heirs, and if the description had stopped here, a fee simple estate would, at common law, have passed by the deed. The grant is not, however, to her and her heirs simpliciter, but to her and her heirs by a particular husband, and by necessary implication excludes the construction that heirs generally were intended. Heirs, generally, would include not only those designated, but children she may have or have had by any other husband, as well as collaterals. Who, under the law, could be her heirs by her present husband except her children by him begotten? If the word " begotten " had been introduced before the preposition "by," so as that it would have read, " her heirs begotten by her present husband," etc., it would have been no more certain that the issue of her body was intended. If it be conceded that equivalent words, which, by necessary implication, describe and designate the particular body out of which the heir should proceed, would suffice to create an estate tail at common law, which seems to be done by the cases and text-writers, then the conclusion seems irresistible that such an estate was here created. "Her heirs by her present husband" could be no other than the issue of her body by him begotten. No other person, or class of persons, would answer the description, and they would and do fill it in every particular.
This precise point was ruled in Wright v. Vernon, 2 Drewry, 439, where it is said: " The effect, therefore, of a limitation 'to the right heirs of Sir Thomas Samwell, by a particular wife, forever,' is precisely the same as that of a limitation to the heirs of his body by that particular wife, forever. The words, 'of his body,' are not in the least degree necessary to this construction of the term ' heirs,' or 'right heirs,' because without their insertion the full and absolute effect of them is involved in the description, 'his right heirs, by Mary, his second wife,' which description limits the meaning of the term ' heirs ' to heirs especial, procreated by himself, as effectually and as necessarily as the words, ' of his body,' could do if they had been added." This was a case, it is true, arising upon a devise, in respect of which much greater latitude of construction is allowable than in the construction of deeds; but that consideration can in no way affect the weight of the authority upon the matter being considered.
It follows, that Mrs. Lehndorf would, at common law,be seized, by virtue of this conveyance, of an estate tail special in the lands conveyed, and therefore, under the statute, would take an estate for her life only, and that, by virtue of the statute cited, the remainder vested in fee in her children by her said husband, in esse at the time of making the deed, subject possibly, however, to be opened to let in after-born children of the same class. If no issue of her body "by her present husband" had been then living, the remainder would have fallen under Fearne's fourth and Blackstone's first definition of a contingent remainder, i. e., when the remainder is limited "to a dubious and uncertain person." But here, at least two of the children who would, under the statute, take the fee simple estate upon the determination of the life estate, were in being when the deed was executed and delivered, and the remainder vested immediately in them in fee, subject to the possible contingency of being divested pro tanto, if opened to let in after-born children answering the same description. The person to whom the remainder is limited is ascertained, the event upon which it is to take effect is certain to happen, and although it may be defeated by the death of such person before the determination of the particular estate, it is a vested remainder. " It is the uncertainty of the right of enjoyment which renders a remainder contingent, - not the uncertainty of its actual enjoyment." 2 Blacks. Com. 169; Fearne on Rem. 149; Kent's Com. 203; 2 Sandf. C. R. 533; Hawley v. James, 5 Paige, 467; Moore v. Lyons, 25 Wend. 144.