The herald and mail. [volume] (Columbia, Tenn.) 1873-188?, 1874-03-27
CHANCERY DECIsION-No. o.

Column b1a, December Term. 1873.
W. ID. BeRderHUn ct dts., rs. 4. r. johnson ct ale
With view TO remove all doubt re-
speeding the title to the tract of land de-
vised to A. f. Johnston by his father,
VIM. J. Johnston, it is deemed advisable
that this Court construe the claim of the
will, which gives said tract of land to
the said A. F. Johnston. 1t is the Sec
ond clause, and reads as follows: "Sec-
ondly, give and bequeath to my son
Absalom F. Johnston the following ne
groes with their increase, tO-wit: Then
names them.) And, also, the remaining
half of the tract of land on which L now
live. The above mentioned property
with it's increase, at his death is to be
equally divided between his LdlOfuJ
heirs; but in case he should die leaving
no heirs, then the property with its in
crease is to be divided between his
brothers and sisters, share and share
alike. / also give him my rifle gun,
my dining table and sugar chest"
No question arises as to the shares and
other property of a personal kind. The
question is only as regards the tract of
land being the one~half on which his
testator lived, the other hall having in
the first item of the will, been devised
to his son Thomas F., in the same man.
ner and in the same language.
This will was executed on the 18th of
November, 1916, and consequently was
executed when the rule in Shelley case
was in force inTennessee, and falls under
the operation of that rule. The rule in
Shelley's case was not repealed until the
act OF 1872. (See Code, p. 2OO8.)
What was that rule? "When any
person takes an estate of freehold, les
gally or equitably, under a deed, will or
other writing, and in the same instru
ment, there is a limitation by way of
remainder, either with or without the
interposition of an intervening estate,
of right of the same legal or equitable
character to his heirs, of his body as
class of persons to take in succession
from generation to generation, the limi>
tation to the heirs, entities the ances-
tors to the whole estate"
The word heirs" has been always
held to be a word of limitation and not
of purchase in this State, unless con-
trolled by other words, clearly showing
a contrary intention. This devise is
void for remoteness. A gift by will to
A upon death of testator's daughter
Withottt tissue" was held void for re-
moteness. Hammer VS.. Hammer, Sd
Head, $685. The words here are "die
having no heirs"
The following cases determine that
where words in will refer to the death
OF person without issue, whether tie
terms used be ''if he die without ISSUE"
or "if he have no ISSUE" or "for want of
or default of ISSUE" they are construed
to mean an indefinite failure of issue;
and so the words ''dying without heirs"
or "heirs Of the BODY" or "heirs." (4th
Sneed, 646; LIST Sneed, 554; 5th Yerger,
36a.)
If the will in this case had been exc
cuted since the act of 1S51-2, Code p.
200S) different rule would govern. But
construed by the light of the authorities
and principles governing at the time
unhesitatingl,y to the conclusion that
the limitation over was too remote, and
hence void, and that the first taker, A.
f. johnston, took an absolute estate in
fee in said land; hence the same was
subject to the payment of his debts, and
hence, also, the purchaser Of said land
would acquire an unquestionable title.
". s. FLEMING,
Chancellor,