Aetna Life Ins. Co. v. Hoppin

• Citation: 214 F. 928
• Decision Date: 12 January 1914
• Docket Number: 2023.
• Parties: AETNA LIFE INS. CO. v. HOPPIN et al.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

214 F. 928

AETNA LIFE INS. CO. v. HOPPIN et al.

No. 2023.

United States Court of Appeals, Seventh Circuit.

January 12, 1914

Rehearing Denied May 12, 1914. [Copyrighted Material Omitted]

William Jack, of Peoria, Ill., for plaintiff in error.

Albert M. Kales, of Chicago, Ill., for defendants in error.

Before BAKER, SEAMAN, and MACK, Circuit Judges.

BAKER Circuit Judge.

Plaintiff in error was plaintiff in this action of ejectment. The cause was submitted to the court, without a jury, on an agreed statement of facts. Judgment was for defendants.

In 1862 Fassett, owner in fee of land in Illinois, deeded it to 'Franklin Hoppin and Sarah Hoppin, his wife, during their natural lives and the life of the survivor of them, and at the death of the survivor to the heirs of the body of said Sarah, their heirs and assigns.'

Franklin died in 1865; Sarah, in 1908. In 1862, when the Fassett deed was made, defendants Hoppin and Garland, son and daughter of Franklin and Sarah, were in being; and they were the only children ever born to Sarah. Defendant Vangieson is tenant of his codefendants.

Plaintiff claims title under an execution sale on a judgment against defendants Hoppin and Garland. Judgment was rendered in 1874 execution was levied and sale was had in 1875; and deed thereon was made in 1877.

Ever since territorial days there has been a provision in Illinois (Ill. St. An. c. 28, Sec. 1) that the common law of England and the general acts of Parliament in aid thereof, prior to 1606, shall be in force until repealed by legislative authority. Since 1819 for descent by primogeniture has been substituted descent to surviving children and descendants in equal parts, descendants of a deceased child taking the child's share in equal parts. Ill. St. An. c. 39, Sec. 1. The statute de donis (a part of the English law adopted by Illinois), by which a conditional fee was converted into a fee tail, has been barred since 1827 from taking effect, and what would be a fee tail under the English law has been changed to a life estate in the donee and a remainder in fee simple to the next taker. Ill. St. An. c. 30, Sec. 6.

If by the Fassett deed 'the heirs of the body of Sarah' took a contingent remainder, plaintiff does not deny that the execution sale was ineffective to pass any interest in the land. Baker v. Copenbarger, 15 Ill. 103, 58 Am.Dec. 600; Haward v. Peavey, 128 Ill. 430, 21 N.E. 503, 15 Am.St.Rep. 120; Ducker v. Burnham, 146 Ill. 9, 34 N.E. 558, 37 Am.St.Rep. 135; Hull v. Ensinger, 257 Ill. 160, 100 N.E. 513.

So the question is: What estate or estates were created by the Fassett deed in 1862 under the common law as modified in the two particulars named?

AEtna Life Ins. Co. v. Hoppin, 249 Ill. 406, 94 N.E. 669, is an exact precedent. That was an ejectment case between these parties, involving the same Fassett deed and the same execution sale. Plaintiff prevailed in the trial court. On appeal the judgment was reversed and the cause remanded for retrial. Thereupon plaintiff dismissed, and on appeal its right to do so was upheld. 255 Ill. 115, 99 N.E. 375. Though the decision has no force as an adjudication, it is, what cited authorities rarely are, a case squarely in point on the very language presented to us for construction. Exercising an undoubted right, plaintiff asks us to say whether that case was correctly decided.

Shelley's Case has no application, and therefore section 6 of chapter 30 is to be disregarded. In a deed to A. and his heirs, or heirs of his body, the word 'heirs' is descriptive of the quality of estate given to A. 'Heirs,' in the absence of a contrary definition clearly furnished by the donor, intends an unending line of succession by inheritance. Though A. has a fee simple or fee tail, his capacity to enjoy the estate, if not alienated, is coterminous with his life. So, when a conveyance to A. for his use during life and then to his heirs or heirs of his body came up for construction, it was held in Shelley's Case that the word 'heirs' was a word of limitation, descriptive of A.'s estate, and not a word of purchase, descriptive of grantees in remainder; that the donor either actually intended A. to have an estate in fee, or, if his intent was that A. should take only a life estate, his failure to supply a new lexicography for 'heirs' left his wish as one impossible of gratification, namely, that the law should not be enforced. In the present deed, however, the context displays the sense in which the grantor used the words 'heirs of the body of Sarah. ' The context is 'Sarah for life, then the heirs of her body, their heirs and assigns. ' He did not intend that Sarah should have a fee simple, for there is no limitation to her general heirs in unending succession. He did not intend that she should have a fee tail, for the words of limitation are not restricted merely to the stream of her blood so long as it shall continue. He intended, what he plainly said, that Sarah should have only a life estate; and since, therefore, the heirs of the body of Sarah were not to take from her by descent, he intended that they should take by purchase; and since the description of the purchasers is followed by the words of limitation 'their heirs and assigns,' he intended that those purchasers should take the remainder in fee simple. Such we believe is the natural reading of the deed, and such an interpretation is likewise required by the rule in Archer's Case, 1 Co. 66b, decided in 1597, when read with primogeniture in mind.

There the devise was to Robert Archer for life, and 'afterwards to the next heir male of Robert, and to the heirs male of the body of such next heir male. ' If the devise had been to Robert for life, and then to his next heir male, the word 'heir' could have been construed in a collective sense to denote an indefinite succession through Robert's blood in the male line, and so under Shelley's Case an estate in fee tail would have been created. But the added words, 'and to the heirs male of the body of such next heir male,' required attention to be given to the facts that the drafter of the instrument was using the plural form 'heirs' when he intended an indefinite succession by inheritance; that the indefinite succession was to spring, not from Robert, but from the next heir male of Robert; and that the singular form, 'next heir male of Robert,' therefore, could not properly be taken as nomen collectivum, but was a description of that person who by primogeniture could at Robert's death answer as his next heir male. Consequently the holding was that the next heir male of Robert took by purchase and constituted a new stock of descent. Robert's next heir male became the first holder of a fee tail. If the added words of limitation had been to the general heirs of such next heir male, so that the next heir male as purchaser would have acquired a fee simple, as is the wording here, there would have been even less room for contending that Robert Archer was given a fee tail.

Under the English law of primogeniture no ancestor could leave surviving him more than one heir. If he left sons, the eldest was his heir. If daughters only, they took as one heir as coparceners. So a deed to A. for life and then to the heir of his body might have different meanings. If there was no context, it was considered that the singular form was used collectively to indicate indefinite succession, and Shelley's Case applied. But a context might show that the singular form was employed to describe the person who by survival would become the heir of A.'s body, and that such heir should constitute a new stock of descent. But a deed to A. for life and then to the heirs of his body contained no ambiguity under English law. 'Heirs' could not be taken as descriptive of the one person; it could only mean the indefinite succession from generation to generation. Therefore, in a deed to A. for life and then to the heirs of his body, their heirs and assigns, the added words were ineffectual to obviate the rule in Shelley's Case. 'Heirs of the body,' being usable only to create an estate in tail, could not be descriptive of coexistent persons who on the death of the donee for life could then answer as the heirs of his body, and whose estate would be defined by the added words 'their heirs and assigns' as a remainder in fee simple. The application of the rule in Shelley's Case to this last supposed deed (Wright v. Pearson, 1 Ed. 119, Measure v. Gee, 5 B. & Ald. 910) is entirely consistent with the rule in Archer's Case where primogeniture prevails. Bayley v Morris, 4 Ves.Jr. 788; Evans v. Evans (1892) 2 Ch. 173. But in Illinois, and in this country generally, where the surviving children as tenants in common stand for the surviving eldest son, 'heirs' may have different meanings, just as under English law the singular form 'heir' might have different meanings. If there is no context, 'heirs' must be held to indicate the indefinite succession by inheritance, and Shelley's Case applies. But a context may demonstrate that 'heirs' was a description of purchasers who should constitute a new stock of descent. AEtna Life Ins. Co. v. Hoppin, 249 Ill. 406, 94 N.E. 669, where Archer's Case was relied on. And see, also, De Vaughn v. Hutchinson, 165 U.S. 566, 17 Sup.Ct. 461, 41 L.Ed. 827; De Vaughn v. De Vaughn, 3 App.D.C. 50; Daniel v. Whartenby, 17 Wall. 639, 21 L.Ed. 661; Dott v. Willson, 1 Bay (S.C.) 457; Lemacks v. Glover, 1 Rich.Eq. (S.C.) 141; McIntyre v. McIntyre, 16 S.C. 290; Jarvis v. Wyatt, 11 N.C. 227; Tucker v. Adams, 14 Ga. 548; Taylor v. Cleary, 29 Grat. (Va.) 448; Peer v. Hennion, 77 N.J.Law, 693, 76 A. 1084, 29 L.R.A. (N.S.) 945; Earnhart v. Earnhart, 127 Ind. 397, 26 N.E. 895, 22 Am.St.Rep. 652; Wescott v. Meeker, 144 Iowa, 311, 122...