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conveyance or devise "to A. and the heirs of his body." As the word "heirs" is necessary in a conveyance to create a fee simple, so it is necessary to create a fee tail, owing to the derivation of this estate from a conditional fee, and consequently a grant to a man and "the issue of his body," to him "and his seed," or to him "and his children," gives an estate for life only.55 The words "of his body" may, however, be supplied by other words of procreation, restraining the general import of the word "heirs" to the lineal descendants of the grantee.56

In a will, as technical words are unnecessary to create a fee simple, so they are unnecessary to create a fee tail, and, accordingly, any words which indicate an intention to create an estate which shall pass to the lineal descendants of the grantee are sufficient.57 Accordingly, a devise "to A. or the heirs of his body," or "to A. and the heir of his body" (in the singular), gives an estate tail to A.;58 and the same effect has been given to a devise to one and "to his heirs lawfully

55 Co. Litt, 20a; 2 Bl. Comm. 115; Challis, Real Prop. 235; 4 Kent, Comm. 6; Adams v. Ross, 30 N. J. Law, 505, Finch's Cas. 483.

An estate tail may be created by a limitation merely "to the heirs of the body of A.," provided A. be dead when the limitation takes effect. The heir then takes as first purchaser, and the estate passes, after the heir's death, to the next heirs of the body of A. as if the limitation had been to "A. and to the heirs of his body." Mandeville's Case, Co. Litt. 26b, 3 Gray's Cas. 399; Vernon v. Wright, 7 H. L. Cas. 35.

56 Co. Litt. 20b; Challis, Real Prop. 236; 4 Cruise's Dig. tit. 32, c. 21, § 12 et seq.; Doe v. Smeddle, 2 Barn. & Ald. 126, 3 Gray's Cas. 399; Nightingale v. Burrell, 15 Pick. (Mass.) 104; Bundy v. Bundy. 38 N. Y. 410; 15 Am. & Eng. Enc. Law, 323.

57 2 Bl. Comm. 115; 2 Jarman, Wills, 1169; 6 Cruise's Dig. tit. 38, c. 12, § 1; Doty v. Teller, 54 N. J. Law, 163, 33 Am. St. Rep. 670; Cuffee v. Milk, 10 Metc. (Mass.) 366; Hall's Lessee v. Vande grift, 3 Bin. (Pa.) 374.

58 1 Leake, 175.

begotten;"" and to a devise to a man and "his male heirs"

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As stated in the preceding paragraph, a deed to A. “and his children" cannot, at common law, convey an estate tail, and the word "children" can have no effect as a word of limitation defining the interest A. is to take, and must take effect, if at all, as a word of purchase, generally giving the children of A. living at the time of the grant a joint interest with A. in the property.61 But in the case of a devise to "A. and his

59 Hall's Lessee v. Vandegrift, 3 Bin. (Pa.) 375; Co. Litt. 20b, Hargrave's note; 1 Leake, 175; 6 Cruise's Dig. tit. 38, c. 12, § 8.

60 Co. Litt. 27a; Denn v. Slater, 5 Term R. 335; Den v. Fogg, 3 N. J. Law, 385; Cooper v. Cooper, 6 R. I. 261.

In a deed, on the other hand, a limitation to "A. and his heirs male" creates a fee simple, since a man "cannot institute a new kind of inheritance not allowed by law." Litt. § 31; Co. Litt. 13a, 27a; Challis, Real Prop. 210.

1 Elphinstone, Interp. Deeds, 318; Moore v. Lee, 105 Ala. 435; Dean v. Long, 122 Ill. 447; Faloon v. Simshauser, 130 Ill. 649; Mels heimer v. Gross, 58 Pa. St. 412; Brenham v. Davidson, 51 Cal. 352; Loyless v. Blackshear, 43 Ga. 327; Bullock v. Caldwell, 81 Ky. 566; Allen v. Hoyt, 5 Metc. (Mass.) 324; Heath v. Heath, 114 N. C. 547; Livingston v. Livingston, 84 Tenn. 448.

In some cases the word "children" in a conveyance "to A. and his children" is construed as a word of purchase giving the children a remainder, and not joint interests with A. Blair v. Osborne, 84 N. C. 417; Wolford v. Morgenthal, 91 Pa. St. 30; Coursey v. Davis, 46 Pa. St. 25, 84 Am. Dec. 519; Hague v. Hague, 161 Pa. St. 643; Beacroft v. Strawn, 67 Ill. 28. But by the weight of authority, such a conveyance, without any indication of an intention to the contrary, gives joint interests to A. and the children then living. See cases in preceding paragraph of note. See, also, 2 Jarman, Wills, 1239; 2 Underhill, Wills, § 583. As to the Kentucky rule, see 1 Dembitz, Land Titles, 184.

Where the children take a joint estate with their parent, only those living at the date of the deed can take, and in order to provide for unborn children it is necessary to create a trust. King v. Rea, 56 Ind. 1, 15; Heath v. Heath. 114 N. C. 547.

Contra, Melli

62

children," as distinct from a deed, while there is a presumption that the word "children" is one of purchase, and not of limitation, this presumption is not conclusive; and if the context shows that the word was used in the sense of heirs of the body, the devise will create an estate tail. An intention that the word shall take effect as a word of limitation, and not as one of purchase, is presumed from the fact that A. has no children at the time of the devise, since otherwise his children would take nothing, and in such case, at common law, A. takes an estate tail, this being the "rule in Wild's Case," frequently referred to."

champ v. Mellichamp, 28 S. C. 125. Compare Dean v. Long, 122 Ill. 447. If, however, the deed is construed as giving a remainder to the children, a child born after the date of the deed, but before the remainder vests, may take with the others. Hague v. Hague, 161 Pa. St. 643, 41 Am. St. Rep. 900; Elmore v. Mustin, 28 Ala. 309; King v. Rea, 56 Ind. 1, 15.

62 2 Jarman, Wills, 1240; 1 Leake, 187; Byng v. Byng, 10 H. L. Cas. 171; Echols v. Jordan, 39 Ala. 24; Guthrie's Appeal, 37 Pa. St. 10; Kay v. Connor, 8 Humph. (Tenn.) 624, 49 Am. Dec. 690; Annable v. Patch, 3 Pick. (Mass.) 360; Chrystie v. Phyfe, 19 N. Y. 344; Moon v. Stone's Ex'r, 19 Grat. (Va.) 130, 328; Hoyle v. Jones, 35 Ga. 40, 89 Am. Dec. 273; In re McIntosh's Estate, 158 Pa. St. 528.

68 2 Jarman, Wills, 1235; Parkman v. Bowdoin, 1 Sumn. 359, Fed. Cas. No. 10,763; Annable v. Patch, 3 Pick. (Mass.) 360; Mason v. Ammon, 117 Pa. St. 127; Roper v. Roper, L. R. 3 C. P. 32. See Smith v. Fox's Adm'r, 82 Va. 765.

64 Wild's Case, 6 Coke, 16; Clifford v. Koe, 5 App. Cas. 447; Parkman v. Bowdoin, 1 Sumn. 359, Fed. Cas. No. 10,763; Vanzant v. Morris, 25 Ala. 285; Dean v. Long, 122 Ill. 449; Nightingale ▼. Burrell, 15 Pick. (Mass.) 104; Chrystie v. Phyfe, 19 N. Y. 344; Clark v. Baker, 3 Serg. & R. (Pa.) 470; Butler v. Ralston, 69 Ga. 485; Biggs v. McCarty, 86 Ind. 352.

In some states, the decisions are adverse to the acceptance of the rule in Wild's Case. See Carr v. Estill, 16 B. Mon. (Ky.) 309; Fales v. Currier, 55 N. Y. 392; Mosby v. Paul's Adm'r, 88 Va. 533.

The rule is one of presumption merely, and does not apply if a different intention is apparent. 2 Jarman, Wills, 1235 et seq.

In those states where, by statute, a fee tail has been converted into a fee simple, or otherwise changed, the devisee will, in such case, take a fee simple or such other estate as the statute prescribes to take the place of a fee tail.65

Use of word “issue."

The word "issue," though in its popular sense meaning children, is used technically as meaning lineal descendants to any degree, and is so construed except when restrained by the context. Since the only way in which legal effect can be given to the word thus indefinitely extended in meaning is to regard it as equivalent to "heirs of the body," it will prima facie receive such construction, and a devise to A. and "his issue" will create an estate tail in A.67 If, however, it appear from the context to be restricted to issue of a certain degree, as children, or to issue existing at a given time, or to have some other meaning inconsistent with an estate tail, it must be taken as a word of purchase, designating the particular devisees.68

According to the English authorities, in determining

5 Butler v. Ralston, 69 Ga. 485; Moore v. Gary, 149 Ind. 51; Silliman v. Whitaker, 119 N. C. 89.

442 Jarman, Wills, 946; 17 Am. & Eng. Enc. Law (2d Ed.) 542; In re Estate of Cavarly, 119 Cal. 406; Hills v. Barnard, 152 Mass. 67; Gaboury v. McGovern, 74 Ga. 133; Drake v. Drake, 134 N. Y. 224; Wistar v. Scott, 105 Pa. St. 200, 214, 51 Am. Rep. 197; Gammell v. Ernst, 19 R. I. 292.

71 Leake, 180; 2 Jarman, Wills, 1258; 17 Am. & Eng. Enc. Law (2d Ed.) 543, 548; Parkman v. Bowdoin, 1 Sumn. 359, Fed. Cas. No. 10,763; Allen v. Craft, 109 Ind. 476; Wheatland v. Dodge, 10 Metc. (Mass.) 502; Thomas v. Higgins, 47 Md. 439; Drake v. Drake, 134 N. Y. 224; Robins v. Quinliven, 79 Pa. St. 333; Taylor v. Taylor, 63 Pa. St. 481, 3 Am. Rep. 565.

68 1 Leake, 180; 2 Jarman, Wills, 1259; Gaboury v. McGovern, 74 Ga. 138; Allen v. Craft, 109 Ind. 482; McPherson v. Snowden, 19 Md. 197; King v. Savage, 121 Mass. 303; Palmer v. Horn, 84 N. Y. 516; Carroll v. Burns, 108 Pa. St. 386; Gammell v. Ernst, 19 R. I. 292.

whether the word "issue" is to be taken in the sense of heirs of the body, the fact that there are issue of the devisee living at the time of the devise is immaterial." In this country a different view is sometimes suggested, to the effect that a joint estate will be created if there are issue actually in being.70

In the case of a deed, as distinguished from a devise, to "A. and his issue," according to the common-law rule, stated above, requiring the word "heirs" to create an estate tail, the deed cannot convey an estate tail, and consequently the word "issue," in order to have any effect, must be taken as a word of purchase giving to the issue of A. living at the time of the deed a joint interest in the property, or a remainder after life estate in A.," while, if there are no issue then living, the grantee would take a life estate merely, and the issue afterwards born would take nothing.72 Under the modern statutes, however, dispensing with the word "heirs" in the creation of a fee simple, A. would apparently take a fee simple in the latter case.

Failure of issue.

Where there is a devise to "A.," or to "A. and his heirs," with a devise over to other persons in case A. dies "without issue," or "on failure of issue," or equivalent expressions are used, if the failure of issue referred to is an "indefinite"

In other words, according to these authorities, the rule which applies in the case of a devise to A. and his children (rule in Wild's Case) does not apply to a devise to A. and his issue. See 2 Jarman, Wills, 1258.

TO 17 Am. & Eng. Enc. Law (2d Ed.) 550; Clark v. Baker, 8 Serg. & R. (Pa.) 470.

11 Elphinstone, Interp. Deeds, 318; Doe v. Collis, 4 Term R. 299; Mcllhinny v. Mcllhinny, 137 Ind. 411, 45 Am. St. Rep. 186, 24 L. R. A. 489; Price v. Sisson, 18 N. J. Eq. 168; Thomas v. Higgins, 47 Md. 489.

Ta Makepeace v. Fletcher, 2 Comyn, 457; Wheeler v. Duke, 1 Cromp. & M. 210. See, also, Bradford v. Griffin, 40 8. C. 468.

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