Teal v. Richardson

• Decision Date: 19 February 1903
• Citation: 66 N.E. 435,160 Ind. 119
• Parties: TEAL et al. v. RICHARDSON.
• Court: Indiana Supreme Court

160 Ind. 119

66 N.E. 435

TEAL et al.

v.RICHARDSON.

Supreme Court of Indiana.

Feb. 19, 1903.

Appeal from circuit court, Steuben county; P. V. Hoffman, Special Judge.

Suit to quiet title by Elizabeth M. Richardson against Asbury Teal and others. Judgment for plaintiff, and defendants appeal. Transferred from the Appellate Court under section 1337u, Burns' Rev. St. 1901 (Acts 1901, p. 590). Affirmed.

Powers & Wood, for appellants. Woodhull & Yeagley, for appellee.

MONKS, J.

Eli M. Teal died testate in 1899, the owner in fee simple of the real estate in controversy in this case. He left no descendants surviving, except appellee, his daughter, a widow, who had no children at the time the will was made or at his death. Said testator, by his will, which was duly admitted to probate in Steuben county, disposed of all his property, real and personal. The part of his will disposing of his real estate reads as follows:

“Item 4. I give and devise to my daughter Elizabeth Richardson, all my real estate which I may own or in which I have any interest at my decease, to have and to hold during her natural life, with power to my said daughter to sell and convey the same in fee simple in case it becomes necessary so to do, and the remainder after her death to the heir or heirs of her body in fee simple.

“If my said daughter should die without issue living at the time of her death, then it is my will,” etc.

Here follows a devise over of all of his estate to appellants, the children and grandchildren of the testator's brothers. If said will gave said real estate to the appellee in fee simple, this case must be affirmed; if for life only, it must be reversed. It is insisted by appellee that said devise to her of the real estate in controversy falls within the rule in Shelley's Case, and that she therefore took the same in fee simple. Said rule is “that, when a freehold is devised to the ancestor for life, and by the same instrument it is limited either mediately or immediately to his heirs or the heirs of his body, the words ‘heirs' is a word of limitation, and not of purchase, and the ancestor takes the same in fee or in tail, as the case may be.” Perkins v. McConnell, 136 Ind. 384, 36 N. E. 121, and cases cited; Allen v. Craft, 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. 425, and cases cited; Nelson v. Davis, 35 Ind. 474, 478; 2 Thomas' Coke, 117-124, and note “p,” and note 4, pp. 534-540; Blackstone's Com. bk. 2, p. 242; 4 Kent's Com. p. 214 et seq.; 2 Wash. Real Prop. (6th Ed.) secs. 1601-1604, 1607-1613; Fearne on Remainders, chap. 12, secs. 393-502, pp. (206)-(248). By our statute (section 3378, Burns' Rev. St. 1901; section 2958 Rev. St. 1881; section 2958, Horner's Rev. St. 1901) estates tail are abolished, and what would be, at common law, estate tail, is in this state a fee simple. Waters v. Lyon, 141 Ind. 170, 175, 40 N. E. 662. It is firmly settled that the rule in Shelley's Case is a rule of property, and not a rule of construction, in this state. Allen v. Craft, 109 Ind. 476, 479, 9 N. E. 919, 58 Am. Rep. 425, and cases cited; Shimer v. Mann, 99 Ind. 190-192, 50 Am. Rep. 82, and cases cited; Waters v. Lyon, 141 Ind. 170, 175, 40 N. E. 662; 22 Amer. & Eng. Ency. of Law, 495-511, and notes. The words “heirs” or “heirs of the body,” in their primary and strict legal sense, are words of limitation, and not of purchase. Nelson v. Davis, 35 Ind. 474, 478;Shimer v. Mann, 99 Ind. 190-192, 50 Am. Rep. 82, and authorities cited; Allen v. Craft, 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. 425;Schoonmaker v. Sheely, 3 Denio, 485. It is true, as stated by appellants, that the cardinal rule in the construction of wills is that the intention of the testator must control; but it is also true that, when words are used that have a settled legal meaning, full effect must be given to them. It is said in Kent's Commentaries, vol. 4, p. *229: “All modern cases contain one uniform language, and declare that the words [“heirs of the body”], whether in deeds or wills, are construed as words of limitation, unless it clearly and unequivocally appears that they were used to designate certain individuals answering the description of heirs at the death of the party.” In Washburn on Real Property (6th Ed.) sec. 1613, it is said: “The rule is a rule of common law, so imperative that, though there be an express declaration that the ancestor shall have only a life estate, it will not defeat its union with the subsequent limitation to his heirs. So, though the limitation be accompanied by a declaration to the effect that the heirs shall take as purchasers, or is made to the heirs of the first taker and their heirs, or where the estate is to A. for life, and after his death to the heirs of his body, to share as tenants in common, or to be equally divided between them, it comes within the rule.” It was said by this court in Shimer v. Mann, 99 Ind. 193, 50 Am. Rep. 82: “The word ‘heirs' written in a deed or will is one of great power, and its force is not impaired by the mere use of negative or restraining words. Fearne expresses this doctrine in very strong words, for he declares that the most positive direction will not defeat the operation of the rule in Shelley's Case. Fearne on Remainders, sec. 453. *** While it is true that the word ‘heirs' may be explained to mean ‘children,’ it is also true that this meaning cannot be assigned to the word unless it clearly appears that it was employed by the testator in that sense. ...