Granger v. Granger

• Decision Date: 19 February 1897
• Docket Number: 17,706
• Citation: 46 N.E. 80,147 Ind. 101
• Parties: Granger v. Granger et al
• Court: Indiana Supreme Court

46 N.E. 80

147 Ind. 101

Granger v. Granger et al

No. 17,706

Supreme Court of Indiana

February 19, 1897

Original Opinion of May 26, 1896, Reported at: 147 Ind. 95.

OPINION

Howard, J.

In the learned and able brief filed with their petition for a rehearing, counsel for appellant fail to cite a single Indiana case in support of their contentions, or to explain how we shall distinguish the case before us from former decisions of this court, upon which reliance was placed as authority for the conclusion arrived at in the principal opinion. It is true, that numerous English cases are cited particularly those of ancient date, as also text writers of that country, besides many American authorities, to show that the devise in this case was an estate tail. But the law has made progress, and American cases have not usually followed closely those precedents of the old country which were based upon social and political conditions different from our own. The spirit of early English institutions favored an entail of landed estates, while the spirit of our institutions favors the utmost freedom in the disposal of property.

As said in 2 Preston on Estates, 453, "The statute [de donis, or of entails] was considered as a family law, to preserve the property, and maintain the grandeur of the nobles and great men of those days. For that reason, and from the inclination of mankind in general to perpetuate their property in their families, the statute was liberally expounded."

But even in England, the law in this respect changed from age to age with the changed conditions of society and government. At first, the feudal lord bestowed a tract of land, or rather the use of it, upon his vassal. In time, the right to this use passed, on the death of the vassal, to his heirs; and so the custom grew to make the gift of tenure, in the first instance, to the vassal and his heirs. There was in the beginning no right of alienation in the vassal. The land belonged to the lord, and its use, merely, was given to the vassal, usually in compensation for personal services, military or otherwise. But with the growth of independence on the part of the vassal, arose a claim to a larger estate in the land. As, however, this estate was shared with the heirs, and fell to them, in succession, on the death of the ancestor, a fiction was resorted to in order to cut off the heirs and give full title to the life tenant. Yet even after the fictions of fine and recovery had become recognized means of perfecting title, the old forms still remained; and a deed or devise, in order to carry the full estate, continued to be, as before, to a man and his heirs, so that it became accepted as a rule of law that the whole estate in land could not be otherwise held by one person. Thereafter, consequently, expressions used to describe the grantee or devisee, though varying from the original words, "to him and his heirs," or "to him and the heirs of his body," but with some similarity of idea, were arbitrarily forced into the same meaning, in order to give stability to family estates, even to the extent of totally disregarding the plain intent of the grantor or testator. The adjudged cases show a constant struggle against the violence thus done to the natural meaning of the language used in the conveyance of land. As a result of this struggle, in instances where the modifying words palpably disclosed the intention on the part of the grantor or testator to use the words "heirs," "heirs of the body," "issue," and the like, in the sense of children or other definite persons, the courts began to yield to the obvious meaning of the words used, particularly in the construction of wills.

In 2 Jarman on Wills, Chap. 37, the author considers the effect of such modifying language used in connection with the words, "heirs of the body," and says: "A devise to A. and to the heirs of his body, or to A. for life and after his death to the heirs of his body, vests in A. an estate tail. On a devise couched in these simple terms, indeed, no question can arise; for wherever the contrary hypothesis has been contended for, the argument for changing the construction of the words has been founded on some expressions in the context," used by way of limitation or modification.

While the modifying expressions are shown in the prevailing current of the cases cited by Mr. Jarman to have been ineffectual to change the legal effect of the words "heirs of the body," yet cases are also given in which the courts held that the change intended was effected.

In Doe v. Holme, 3 Wils. 237, 241, 2 W. Bl. 777, the devise was: "To L. for life, with impeachment of waste remainder unto the heirs, male or female, lawfully to be begotten of the body of L., forever, they paying certain sume thereout." The court, as Mr. Jarman says, "inclined to the opinion that this was not an estate in L., but a contingent remainder in fee to the issue."

In Doe v. Laming, 2 Burr. 1100, the devise was: "To A. and the heirs of her body lawfully begotten or to be begotten, as well females as males, and to their heirs and assigns forever, to be divided equally, share and share alike, as tenants in common." A. died in the testator's lifetime. Lord Mansfield stated, as said in Jarman's text, that "the devise could not take effect at all, but must be absolutely void, unless the heirs took as purchasers."

In Doe v. Ironmonger, 3 East. 533, the devise was. "To A. and his heirs, upon trust to receive the rents, and apply the same for the support of S. and the issue of her body lawfully begotten or to be begotten, their heirs and assigns forever, without any respect to be had or made in regard to seniority of age, or priority of birth, and in default of such issue, over." The court held that the words "without seniority of age or priority of birth," showed that the heirs of S. took as purchasers or children.

In Doe v. Goff, 11 East, 668, the devise was: "To M. and the heirs of her body lawfully begotten or to be begotten, as tenants in common, and not as joint tenants. But if such issue should depart this life before he, she, or they should respectively attain their age or ages of twenty-one years, then over." It was held that M. took an estate for life only, remainder to her children. Lord Ellenborough considered that the heirs of the body being to take as tenants in common clearly demonstrated that children were meant by that description.

In Crump v. Norwood, also, 7 Taunt. 362, 2 Marsh. 161, "heirs of the body" being described as tenants in common were held to be children.

In Gretton v. Haward, 6 Taunt. 94, 2 Marsh. 9, the devise was to a wife for life, and after her death to the heirs of her body, share and share alike if more than one, and in default of issue to be lawfully begotten by the testator to be at her own disposal. It was held that the wife took a life estate, with remainder to her children as tenants in common.

The foregoing and other like cases, Mr. Jarman contends, were practically overruled in the case of Jesson v. Wright, 2 Bligh 1, where it was held that such phrases as "share and share alike," and "tenants in common," were not sufficient to show that the words "heirs of the body" were to be taken in the sense of children. Even in that case, however, Lord Eldon observed that, "The words 'heirs of the body' will indeed yield to a particular intent that the estate shall be only for life, and that may be from the effect of superadded words, or any expressions showing the particular intent of the testator," provided only such added words be clear and equivocal. Moreover, in cases decided since Jesson v. Wright, supra, it has frequently been held that modifying expressions, such as used in that case, were sufficient to cut down the estate from one in tail to one for life. One such case was Right v. Creber, 5 B. & Cr. 866, in which, after a life estate to a daughter, the devise over was to the heirs of her body, share and share alike, their heirs and assigns forever; and it was held that by "heirs of her body" was meant children.

Of another such case Mr. Jarman says: "Nor is Wilcox v. Bellaers [Hayes' Inquiry, 2] the only instance in which reluctance has been manifested to follow up the principle of Jesson v. Wright; for in other cases the term 'heirs of the body' has since been cut down to children, in subservience to expressions in the context which that case had appeared forever to have stripped of all controlling operation." 2 Jarman Wills (6th ed.), 375.

In the same chapter of the work here cited, numerous instances are given of another class of cases where explanatory words in the will, as "heirs male of the body," "heirs of his or her body lawfully to be begotten as aforesaid," and "heirs male of his body for their several lives in succession according to their respective seniorities, or in such parts, shares and proportions, manner and form, and amongst them, as the said W. T., their father, should appoint," were held to mean children. In this class of cases, it will be seen, as said by Mr. Jarman, "that the testator had annexed to the term 'heirs of the body,' words of explanation, which were held to prove that he had used the expression as synonymous with sons." 2 Jarman Wills (6th ed.), 379. See further, 2 Jarman Wills (6th ed.), 336; 1 Preston Estates, 349, 359, 369.

Thus what in the beginning had been a mere life tenure by a vassal, passed at first to the heirs of the vassal, next became fixed in such heirs, and then returned as an absolute estate to the first taker, the heirs being totally cut off, whatever might have been the intention of the grantor. Finally, however, but most reluctantly, the right of the grantor to dispose of his estate in such parts and with such tenure as he desired,...