Doyle v. Andis
| Decision Date | 20 January 1905 |
| Citation | 102 N.W. 177,127 Iowa 36 |
| Parties | ELLEN DOYLE v. SARAH ELIZABETH ANDIS, JOHN A. ANDIS, LIZZIE ANDIS, MARY B. JONES, MAGGIE E. DAVIS, Appellants |
| Court | Iowa Supreme Court |
Appeal from Tama District Court.--HON. G. W. BURNHAM, Judge.
ACTION to quiet title. A demurrer to the petition was overruled and, defendants having elected to stand on the ruling, decree was entered as prayed. The defendants appeal.
Affirmed.
Willett & Willett and Marsh & Cook, for appellants.
Struble & Stiger, for appellee.
OPINION
In the year 1862 Robert P. Andis conveyed the land in controversy to Samuel S. Andis "during his natural life and then to his heirs." Subsequently the grantee named transferred the land by warranty deed to another, under whom the plaintiff through mesne conveyances holds title. Samuel S. And is died in 1899, and the defendants are his heirs at law. To the petition, stating the foregoing facts and asking that title be quieted in plaintiff, a general demurrer was interposed and submitted to the court on the theory that, while the language of the deed to Samuel S. Andis brings it within the rule in Shelley's Case, that rule does not obtain in this state. It was overruled.
Many definitions of that rule have been given. That adopted by Chancellor Kent is generally regarded as both accurate and comprehensive: "When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs or heirs of his body, as a class of persons, to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate." Preston on Estates, 263. Analyzing this definition somewhat, it appears that (1) there must be an estate of freehold in the first taker; (2) the estate in freehold and in remainder must be created by the same instrument; (3) these estates must be of the same nature both legal or both equitable; (4) the word "heirs" or other words equivalent in meaning, is essential to the limitation over in order to create an estate in fee simple; and (5) the limitation must be to the heirs of him who first takes the freehold. The estate for life, created in the first done, must be limited precisely as it would descend at law, in order to vest the fee. Little difficulty has been experienced in determining the sufficiency of the estate of an ancestor. It may be for the life of the devisee or grantee, or of another person, or of the joint lives of several persons, and may be absolute or determinable on contingency, and may arise by express devise or necessary implication of law. 2 Jarman on Wills, 1181.
The trouble has arisen in ascertaining whether the words employed in the instrument in disposing of the remainder are words of limitation (that is, measuring the duration and defining the extent of the estate of the taker of the freehold), of words of purchase (that is, pointing out and designating the objects of the conveyance or gift of the remainder to whom it passes directly from the grantor or devisor). Mr. Hays in his famous essay on the "Construction of Limitations to Heirs," adds another division, that of words descriptive of individuals, and then explains the three:
First, as words of limitation, their office is to measure the duration and mark out the devolution of the ancestor's estate. Thus, if land be given to A. and the heirs of his body, the word "heirs" is a word of limitation, because it is merely subservient to the purpose of ascertaining the force and direction in point of transmission of a gift made originally to A., who, as the sole object and motive of bounty, first attracted and absorbed the entire quantity of an estate not otherwise destined to benefit his heirs than as, in the way of the law, they were included in himself. Secondly, as words of purchase, they at once indicate the objects and limit the scope of the gift. Thus, if land be given to the heirs of the body of A., the word "heirs" is a word of purchase, because the heirs are themselves the original objects of the gift; yet the word "heirs" is not satisfied by the person or persons first answering the description of heirs or co-heirs, but is of equal capacity with the same word used as a word of limitation. So, if land be given to A. for life, with remainder to the heirs of his body, the intention is manifest to use the word "heirs" as a word of purchase, and not of limitation. In order to determine whether the word "heirs" is meant to be a word of limitation or of purchase, according to the above exposition of those terms, we have only to ask whether it is adjected as an incident to a gift made to the ancestor, or used as the substantive term of an independent disposition. Where the ancestor is dead, or no estate is given to him, or an estate is by other words expressly limited to him (as in the case put at the close of the preceding paragraph), the word "heirs" must always be designed to confer a distinct benefit on persons sustaining that character, and consequently to operate as a word of purchase. It is obvious that this cannot be the point on which learning and ingenuity have exhausted their powers, although, from the language of the disputants, the subject of contention would appear to be whether the word "heirs" was to be construed a word of limitation or of purchase. Thirdly, the words in question, when used as descriptive of individuals, are wholly deprived of their natural energy, and sink down to the level of "children," etc., . . . in which predicament no greater potency can be attributed to them than belongs to the terms with which they are now associated. They ascertain the objects, but in ascertaining the objects their force is entirely spent. The nature and extent of the estate to be taken must be sought for in the context, or, if that be wanting or be silent, in the implication of law. They cannot be more operative than the terms which they represent, and whose operation, as we have already seen, is simply to describe a class of individuals.
Mr. Hargrave, said to be the most lucid expounder of the rule, has discriminated clearly between conditions when the rule ought and ought not to be applied:
When it is once settled that the donor or testator has used words of inheritance according to their legal import, has employed them intentionally to compromise the whole line of heirs to the tenant for life, and has really made him the terminus or ancestor by reference to whom the succession is to be regulated, then it will appear that, being considered according to those rules of policy from which it originated, it is perfectly immaterial whether the testator (or donor) meant to avoid the rule or not, and that to apply it, and to declare the words of inheritance to be words of limitation, vesting the inheritance in the tenant for life, as the ancestor and terminus to the heirs, is a mere matter of course. But, on the other hand, if the words of inheritance were not used in their full and proper sense, so as to include the whole inheritable blood, and make the tenant for life the ancestor or terminus for the heirs, but the testator intended to use the word "heirs" in a limited, restrictive, untechnical sense, and to point at such individual person as should be the heir, etc., of the tenant for life at his decease, and give a distinct estate of freehold to such single heir, and to make his or her estate of freehold the groundwork for a succession of heirs, and constitute him or her the ancestor terminus and stock for the succession to take its course from, in every one of these cases the premises are wanting upon which only the rule in Shelley's Case interposes its authority, and that rule becomes quite extraneous matter. So, then, in order to ascertain, in every case, whether or not the rule is applicable, the inquiry simply is, in what sense did the testator or donor use the words? If in the former sense, the rule always applies, notwithstanding a positive declaration that it shall not. If in the latter sense, the rule is as invariably foreign to the case, the remainder is contingent until the death of the tenant for life, and the party named as heir takes by purchase. 1 Hargrave's Law Tracts, 575, 577.
Enough has been said to recall the nature and operation of the rule. Even this much has seemed unnecessary, in view of its commanding place in the law of real property. No rule of the common law has undergone the exhaustive investigation, thorough discussion, and severe criticism to which the rule in Shelley's Case has been subjected; and yet it has survived nearly 600 years of controversy in England, and has been generally accepted by the courts of this country as a part of that rich inheritance of common law upon which our jurisprudence is founded. No one now pretends to fix the date of its origin. The conditions for which it was intended to operate as a remedy are mere matters of conjecture. Some have thought that it was devised in feudal times to give the lord his profits of tenure (either wardship or relief) upon the descent to the heirs, of which he would be deprived were the remainder to pass to the heirs as purchasers; but Sir William Blackstone in Perrin v. Blake, 4 Burr 2579 (10 Eng. R. Cases 689), declares, that of this he has never met with a single trace in any feudal writer, and then adds:
There is hardly an ancient rule of real property but what has in it more or less of a feudal tincture. The common-law maxim of descent, the conveyancing by livery of seisin, the whole...
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