Collins v. Williams

• Decision Date: 19 December 1896
• Citation: Collins v. Williams, 41 S.W. 1056, 98 Tenn. 525 (Tenn. 1896)
• Parties: COLLINS v. WILLIAMS et al.
• Court: Tennessee Supreme Court

41 S.W. 1056

98 Tenn. 525

COLLINS v. WILLIAMS et al.

Supreme Court of Tennessee.

December 19, 1896

Appeal from chancery court, Franklin county; T. M. McConnell, Judge.

Bill by Mrs. Louisa Collins, next friend, etc., against A. S Williams and others, commenced in the chancery court, and taken on appeal to the court of chancery appeals. From a decree of the latter court in favor of defendants complainant appeals. Modified.

Estill & Lynch, for appellant.

Banks & Embry, for appellees.

McALISTER J.

This cause involves, first, the construction of a will, and presents the question whether certain devises are governed by the rule in Shelley's Case, and, secondly, whether complainant is estopped by certain acts in pais from asserting title to other tracts of land originally owned by her, and not embraced in the will. The record discloses that in the year 1845 Samuel Weeks died testate in Franklin county, and left, surviving him, a widow and two daughters to whom, by the second clause of his will, he devised all of his property, real and personal, share and share alike. The daughters were of very tender years at the time of the death of the testator, Lucy being seven years and the daughter Louisa only one year old. Louisa Collins married in 1861, and has eight children. Lucy never married. By the third item of his will, the testator provided, viz.: "Should my two daughters before mentioned arrive at the age of maturity, and marry, my will and desire is that the property given to them shall not in any instance be liable for the debts of their husbands, but shall descend from my daughters aforesaid to their children." By the fourth item it was provided that "should either of my children before mentioned die without a child, then the property given to it shall descend to that which may be living, in the manner above specified." It is insisted on behalf of appellant that Mrs. Collins is the absolute owner of the property devised in the will, to the exclusion of her children; in other words, that no remainder was created by the terms of the will in favor of the children of the devisee, but that the first taker was vested with the estate in fee, under the rule established in Shelley's Case, which was in force in this state at the date of the execution of this will in 1845. This rule, once characterized by Judge Reese as a Gothic column, found among the remains of feudality, was abrogated by the act of 1852. This was subsequent to the death of the testator, and it may be conceded that, if the rule is applicable, it is the law of this case. That rule was that, "whenever any person, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is afterwards limited, by way of remainders, to his heirs, or the heirs of his body, the word 'heirs' are words of limitation of the estate, carrying the inheritance to the ancestor, and not words of purchase, creating contingent remainders in the heirs." It is argued by counsel for appellant that this devise falls within the rule in Shelley's Case. It will be observed, however, the words used in this will are "child" and "children," and not "heirs" or "heirs of his body." It has been uniformly held in this state that the word "child" or "children" is properly a word of purchase, and not of limitation, unless from the context of the will it is made to appear that it was intended as a word of limitation. There is nothing in the language of this will indicating that a different signification was attached to the word "child" or "children" than its ordinary legal meaning. The technical and legal meaning of the word "child" or "children" is the immediate offspring, and not an indefinite line of heirs. The fourth clause of the will illustrates the intention of the testator that a particular class was in his mind when he made this devise. As already stated in the first clause of the will, the testator devised this land to his wife and two daughters absolutely, and without limitation, share and share alike. By the second clause he provided that if his daughters should arrive at maturity, and marry, ""my will and desire is that the property given to them shall not in any instance be liable for the debts of their husbands, but shall descend from my daughters aforesaid to their children." The next clause clearly shows that the testator had in his mind the immediate offspring of his daughters, and not an indefinite succession. That clause provides that, "should either of my children before mentioned die without a child, then the property given to it shall descend to that [daughter] who may be living, in the manner above specified." So that we think it clear this devise does not fall within the rule in Shelley's Case.

Nor can we agree, as insisted by counsel, that the words "it is my will and desire," employed in the third clause, are merely precatory words, indicating a desire or recommendation, and not as creating a remainder in the children of the devisee.

The next question presented is in respect of the estoppel pleaded against complainant from asserting her title to the lands. This estoppel...