de Wolf v. Middleton

• Decision Date: 28 January 1893
• Citation: 26 A. 44,18 R.I. 810
• Parties: DE WOLF et al. v. MIDDLETON et al.
• Court: Rhode Island Supreme Court

26 A. 44

18 R.I. 810

DE WOLF et al.

v. MIDDLETON et al.

Supreme Court of Rhode Island.

Jan. 28, 1893.

Bill in equity for partition by William F. De Wolf and another against Annie E. Middleton and others.

James Tillinghast and Theodore F. Tillinghast, for complainants.

Benjamin M. Bos worth, for respondent Middleton.

Francis Colwell and Walter H. Barney, for respondent the First Congregational Church.

John C. Pegram, George L. Cooke, and Darius Baker, for other and different respondents.

MATTESON, C. J. This is a bill for partition. By agreement of the parties, a hearing was had for the purpose of obtaining a construction of the second and fifth clauses of the will of William De Wolf, formerly of Bristol, deceased; the question involved being, what estates did the daughters of thetestator take under these clauses in the lands therein described? The second clause, after devising the testator's farm known as the "Poppasquash Farm" to his widow for life, proceeds as follows: "After her decease, I do give and devise the same real estate to my two dear daughters, Charlotte and Maria, their heirs and assigns, forever: provided, however, that in case my said daughters. Charlotte and Maria, should die, leaving no surviving issue, then it is my will that the estate, on their decease, be divided among my heirs at law, according to the statutes of descents, their heirs and assigns, forever; and I do devise the same accordingly." The fifth clause is a devise directly to the daughters named of his Hope street estate, in the same language as quoted from the second clause, except that for the words "on their decease" the words used are "on both their decease." Neither of these daughters left issue surviving at her death. Each left a will. Neither will contains any mention of either the Poppasquash farm or the Hope street estate, but each, after making specific bequests, devises in general terms "all the rest and residue of the property and estate, real, personal, and mixed, wherever situated, of which" the testatrix might die possessed, to the First Congregational Church of Bristol. It is contended in behalf of the First Congregational Church of Bristol that the effect of the provisions of the will under consideration was to give to the daughters named an estate in fee simple in the lands devised, in accordance with the rule in Shelley's Case; or that, in case the devise over is held not to fall within that rule, the daughters took an estate tall in the property. We do not think that the rule in Shelley's Case applies. That rule, us stated by Mr. Preston in his treatise on Estates, (see 2 Bouv. Law Dict. tit. "Shelley's Case, Rule in,") is as follows: "When a person takes an estate of freehold, legal or equitable, 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 the same legal or equitable quality, to his heirs, or the 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." The provisions of the will before us do not conform to the rule thus stated. In the first place, the devises to the daughters are in form absolute fees, after which no limitation by way of remainder can be made. In the second place, the limitation over is not to the heirs of the daughters, but to the...