The new dominion. [volume] (Morgantown, W. Va.) 1876-1904, 1881-11-12

Nv bub II SlVOcSo w
sell, or give or devise the whole fee
simple to another, his right to do so
is absolute Nov" says Tucker,
"If the gift of an estate to man and
has heirs creates a fee in him, it is
by no means wonderful that con-
yeyance to him Nth remainder to
his heirs should be held to mean the
same; since no difference is easily to
be seen between the two limitations.
Certain reasons of public policy have
contributed to induce the courts to
hold that the two limitations have
the same effect; and therefore wheth
er an Estate be given to me and my
heirs or to me aciM remainder to my
heirs, it is construed to be the same
thing. have the fee simple, my heirs
literally nothing. Nor is the case
varied Though the phraseology is. }
where the estate is given to me &c
pressly for life, with remainder to
my heirs
Now, if this law from Tucker is
good, it settles the cases for the de-
fence; for Scott gives Maria Hoff-
man her land during her natural life
and then to descend TO her legal
heirs. This is the exact equivalent
of fuckers proposition; just the
same as if he had given her the land
during her natural life, with remain
| der to her heirs. So with jefferson.
But the court is urged to look to
the intent. 1t is insisted that it is
plain that Scott intended for the
daughters and one son only a life es-
tate, remainder to their children;
that this is plain from the will, and
from the fact that he gives other
children land without the words
during natural life;" and the drafts
man of the will says such was his
purpose; that he wished to give
them only life estates because the
son and the husbands of the daugh-
tiers were dissipated and he desired
to save the land for their children.
| feel the force of this argument. |
have little doubt but that the real
purpose of Scott was to give these
three children only life estates, and /
have struggled hard to find war
rant IN ldU to so hold. | concede
that as a general rule we must seek
the purpose of the testator; that his
intent is the polar star to light and
guide the construction; and | grant
that it seems to me that the rule de-
feats the real purpose of q plain man
making this will. But there stands
the rule in Shelly's case. To use the
language Of that great lawyer, VIM.
Green, 1.-The iron grasp" "the despot-
ic sway" Of the rule in Shelly's case
bind me. 80 Graf, 219. Where
that rule applies no matter about in
tention. The giving an estate to one
for life with remainder to his heirs
has legal meaning; the use of the
word heirs has technical effect. 1t
is word of art, having a peculiar
meaning fixed by so many decisions
that is, when so used, rule of prop
erty. The testator having used
these words which in law mean par
ticular thing, we cannot say he means
another, but presume he used the
words in their legal sense, knew what
they meant and intended to convey
that meaning. In the eye of the law
he intends what his words signify.
| Voluit, sed non dicu IN teStamentO.
He may have designed a particular
end, but has drawn his will amiss,
has used words of fixed legal mean
ing, and the law docs not throw away
that meaning and on conjecture give
another meaning to his words. His
word heirs in this connection is
word of limitation importing the in
heritable quality of the estate, signi-
flying that fee is given, and not a
designatio personarum, signifying
particular persons who are to take.
To make the word heirs a word Of
purchase and not Of limitation you
must be able to say from the will
that it is used as a mere designation
of one or more individuals, or a new
import given it by superadded words
of limitation varying its sense and
operation If the term heirs as used
in the instrument comprehend the
whole class of heirs and they become
entitled, on the death of the ancestor,
to the same extent and with the same
descendible qualities as if the grant
or devise had been simply to A and
his heirs, then the word heirs is one
of limitation, and the intention aoiIl
not control the legal effect of the
word a Kent. 222.
Now, under this law, suppose Ma
ria had never sold but died seized
Of the land and intestate, would not
her heirs have inherited as heirs be-
cause they were heirs? "All the
modern cases. says 4 Kent, 22S,
contain one uniform language, and
declare that the word heirs Of the
body, whether in deeds or wills, are
construed as words of limitation, I'M
less it clearly and umequirocally APP
pears to designate certain individ-
uals answering to the description Of
heirs at the death of the party"
/ do not think Tanzey's deposition
as to what Scott meant to do can
control the construction or change
the legal Interpretation of the Ian
guage.
But the fact is, these words being