should by deed or will, appoint, and in default of appointment, to the use of the right heirs of B. B, by a deed poll, appointed the estate to the right heirs of A. The contest was between the heirs of A and the heirs of B, the former claiming under the limitation in the appointment, and the latter under the settlement. One of the points contended for by the heir of B was, that the remainder in fee being in the trustees, an equitable interest only passed to the heirs of A under the appointment, and which could not unite with the estate for life of A under the settlement; but the Court was of opinion that the heir of B was entitled quacunque via; for if the limitation to the heir of B, under the appointment, was a legal limitation, it united with B's estate for life, under the settlement, and conferred the fee; but if it did not, then it was a contingent remainder, in equity, to the heir, and he took by purchase. Lord Kenyon subsequently expressed a more decided opinion that the legal estate in fee was in the trustees, and the certificate of the Court (it being a case from Chancery) was in conformity to this opinion.

The ground on which Lord Kenyon rested the certificate of the Court, involves a very extensive and no less novel [227] doctrine, and one which, in the absence of any confirmatory decision, cannot be relied on. To hold that the mere circumstance of there being included in the limitations a power of appointment, by virtue of which contingent remainders might be thereafter created, constitutes of itself a ground for vesting the fee simple in the trustees, is evidently going much farther than making trustees take the fee, because contingent remainders are actually created by the instrument containing the limitation to them; though even the latter more moderate doctrine has not been invariably countenanced by the authorities.

Thus, in the recent case of Heardson v. Williamson, (a) Lord Langdale, M. R., does not appear to have regarded the fact, that the will contained a contingent remainder of the devised estate, as a sufficient ground for holding the inheritance in fee to be in the trustees; while, on the other hand, in Cursham v. Newland, (b) trustees were held to take the fee under a will which appeared to supply no other ground for such a construction; and in Doe v. Willan, (c) and Houston v. Hughes, (d) Mr. Justice Bayley considered that the circumstance of contingent remainders being created by the will, favored the conclusion that the trustees took the legal inheritance.

In the case of Barker v. Greenwood, (e) too, it seems to have been regarded by Mr. Baron Parke in the same point of view,

(b) 2 Moo. & Scott, 113.
(d) 6 Barn. & Cress. 420.

(a) 1 Kee. 33, ante, 220.
(c) 2 Barn. & Ald. 84, ante, 208.
(e) 4 Mees. & W. 421.

though this able Judge disclaimed any reliance on the point; because the question in that case was not whether the trustees took the fee, but whether they took an estate pur autre vie, and the learned Judge considered it to be doubtful whether the trustees of such an estate would be bound, in the absence

of an express trust, to preserve contingent remainders, [228] a point upon which the writer is not aware of any decision. There certainly seems to be much difficulty in attaching any such obligation to the trustees, seeing that their estate is apparently created diverso intuito; at all events it is clear that such express direction to trustees to preserve contingent remainders, will not have any influence on the construction, if the will contains no such remainder; (a) nor where the subject of devise is a copyhold estate, as contingent remainders created of such property are not destructible, and therefore do not require any limitation of this nature for their preservation. (b)

It seems that where a will is so expressed as to leave it doubtful whether the testator intended the trustees to take the fee or not, the circumstance that there is included in the same devise other property which necessarily vests in the trustees for the whole of the testator's interest, affords a ground for giving to the will the same construction as to the estate in question. (c)

Here closes the long catalogue of decisions respecting the quality and extent of the estate conferred by devises in trust, from which the reader will have collected the principles that govern cases of this description, and the considerations which have been admitted to influence the construction, though, as the question is constantly presenting itself under new aspects and combinations of circumstances, difficulty will sometimes occur in the application of the established doctrine. Of all the adjudged points connected with the subject, that which has been deemed the least satisfactory, is the doctrine of those decisions (d) which, in certain cases, gave to trustees, whose estate was undefined, a term of years, (either with or without a prior estate for life,) determinable when the purposes of the trust should be satisfied.1 To exclude the application of this inconvenient and very refined rule of construction, two enactments have been introduced into the statute of 1 Vict. c. 26. The 30th section provides, "That where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor, such devise should be construed to pass the fee simple, or other the whole estate or interest

(a) Nash v. Nash, 3 Barn. & Adolph. 839.

(b) See Doe d. Woodcock v. Barthrop, 5 Taunt. 382.
(c) Houston v. Hughes, 6 Barn. & Cress. 403.
(d) Ante, pp. 218, 219.

1 See Ellis v. Page, 7 Cushing, 164, 165.

[229]

which the testator had power to dispose of by will, in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication."

Section 31 provides, "That where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied."

These clauses have been the subject of much criticism. (a) It is not easy to perceive why the provision regulating the estates of trustees should have been split into two sections, and still more difficult is it to give to each of those sections such a con

struction as will preserve it from collision with the [230] other. The design of the 30th section would seem to be simply to negative the construction which, in certain cases, (b) gave to a trustee an undefined term of years, for it allows him to take an estate of freehold, or a definite term of years, either expressly or by implication; but the 31st section takes a wider range, as it admits of neither of these exceptions, nor that of a devise of the next presentation to a church. Its effect is to propound, in regard to wills made or republished since the year 1837, the following general rule of construction; that whenever real estate is devised to trustees (and it would seem to be immaterial whether the devise is to the trustees indefinitely, or to them and their heirs, or to them and their executors or administrators) for purposes requiring that they should have some estate, without any specification of the nature or duration of such estate, and the beneficial interest in the property is not devised to a person for life, or being so devised, the purposes of the trust may endure beyond the life of such person, the trustees take (not, as in Carter v. Barnardiston, an estate for years, or, as in Doe v. Simpson, an estate for life, with a superadded term of years, but) an estate in fee simple. The result, in short, is that trustees, whose estate is not expressly defined by the will, must, in every case, and whatever be the nature of the duty imposed on them, take either an estate for life or an estate in fee. It is observable that this section allows the trustees to take an estate of freehold, not whenever the purposes

(a) See H. Sugd. Wills, 127; Sweet on Wills Act, 154.
(b) Ante, p. 218.

of

the trust require such an estate, but only in the specified case of the "surplus rents and profits being given to a person for life," making no provision, therefore, for the case (a possible though not a frequently occurring one) of a trust of any other kind being created for a purpose coextensive with life; for instance, a trust to keep on foot a policy of life insurance. Possibly it would be held that such a case is excluded [231] from the 31st section by the exception in the 30th section, and thus some effect would be given to this otherwise apparently idle clause of the statute; farther than this, (even if so far,) it is presumed the exceptive part of the 30th section could not be construed to qualify or control the operation of the 31st section, but decision alone can settle the point.

The enactments in question do not, beyond the particular cases which have been pointed out, interfere with the general doctrines of construction discussed in the present chapter. Even under wills made or republished since the year 1837, it may still be questionable whether trustees take any estate or only a power; also whether they take an estate limited to the lives of the tenants for life of the beneficial interest, or an estate in fee simple; and consequently there should be no relaxation in the anxious care of framers of wills to preclude ambiguity in this particular. It cannot, however, according to the suggested construction of the 31st section under such wills become a question, whether trustees take an estate in fee, or a chattel interest, in order to raise money, or for any other purpose.

The new doctrine would not, it is conceived, preclude the construction that trustees take an estate pur autre vie, with a power of sale over the inheritance. The writer is not aware, however, of any adjudged instance of such a construction, for where an estate is devised to trustees indefinitely, the authorities (with one solitary exception, (a) in which there seems to have been an opposing context,) conduct to the conclusion, that whatever duty is subsequently imposed on them, must be in virtue of their estate, the quality and duration of which are to be measured accordingly. The point, of course, depends on the conclusion to be fairly drawn from the entire will. (b)

(a) See Hawker v. Hawker, 3 Barn. & Ald. 537.

(b) In New Jersey, a naked trust estate descends to the oldest son, according to the law of primogeniture; such estates not being within the provisions of the Statute of Descents in that State. Wills v. Cooper, 1 Dutch. (N. J.) 137.

170

CHAPTER XXXVI.

WHAT WORDS CREATE AN ESTATE TAIL.1

PROPER terms of limiting an estate tail.

What informal expressions create an estate tail.

Limitation to "heirs male," or "right heirs male, forever."
Limitation over in default of "male heir," [p. 233.]

1 "Estates tail," as it is remarked by Mr. Chancellor Kent, "were introduced into the United States with the other parts of the English jurisprudence, and they subsisted in full force before our Revolution, subject equally to the power of being barred by a fine or common recovery." 4 Kent, (5th ed.) 14, 15. But they have been abolished in most of the United States, and the multifarious and complex learning connected with them has thereby become obsolete. Estates tail have been abolished in Virginia, 1776-New Jersey, 1820-New York, 1782-North Carolina, 1784-Kentucky, 1796. So in Tennessee and Georgia. In South Carolina and Louisiana, they do not appear to be known to their laws, or ever to have existed. See Den v. Small, 1 Spencer, 151; Saunders v. Hyatt, 1 Hawks, 247; Bramble v. Billups, 4 Leigh, 90; Thomason v. Andersons, 4 Leigh, 118; Ross v. Toms, 4 Dev. 376; Doe v. Craiger, 8 Leigh, 449; Tinsley v. Jones, 13 Grattan, 289.

In Alabama and Mississippi, a man may convey or devise land to a succession of donees then living, and to the heirs of the remainder-man.

In Connecticut, (Hamilton v. Hempstead, 3 Day, 332; Allyn v. Mather, 9 Conn. 114,) and in Vermont, (see Giddings v. Smith, 15 Vermont, 344,) Ohio, Illinois, and Missouri, if an estate tail be created, the first donee takes a life estate, and a fee simple vests in the heirs, or person having the remainder after the life estate of the grantee or first donee in tail. So in New Jersey. In Indiana, a person may be seised of an estate tail, by devise or grant, but he shall be deemed seised in fee after the second generation.

In Connecticut, there may be a special tenancy in tail, as in the case of a devise to A and his issue by a particular wife.

In Rhode Island, estates tail may be created by deed, but not by will, longer than to children of the devisee, and they may be barred by deed or will.

Estates tail exist in Massachusetts and in Maine, Lithgow v. Kavenah, 9 Mass. 167, 170, 173; Nightingale v. Burrell, 15 Pick. 104; Corbin v. Healey, 20 Pick. 514; Riggs v. Sally, 15 Maine, 408; Ide v. Ide, 5 Mass. 500, 502; Hawley v. Northampton. 8 Mass. 3; Williams v. Hichborn, 4 Mass. 189; Buxton v. Uxbridge, 10 Metcalf, 87 ; Cuffee v. Milk, ib. 366; Hall v. Thayer, 5 Gray, 523; Wight v. Thayer, 1 Gray, 284. So in Delaware and Pennsylvania (Eichelberger v. Burnitz, 9 Watts, 447; Elliott v. Pearsoll, 8 Watts & Serg. 38; Shoemaker v. Huffnagle, 4 ib. 437); subject, nevertheless, in all these States, to be barred by deed and by common recovery, and in two of these States by will, and they are chargeable with the debts of the tenant. 4 Dane, Abr. 621; Gauze v. Wiley, 4 Serg. & R. 509. See Roach v. Martin, 1 Harrington, 548; Waples v. Harman, ib. 223. Estates tail in Massachusetts, as at common law, descend to the oldest son, and to the oldest son of the oldest son. The law of descents in Massachusetts does not abrogate the rule of the common law in regard to estates tail. Wight v. Thayer, 1 Gray, 286, per Shaw, C. J. The law on this point seems to be otherwise in Connecticut. Hamilton v. Hempstead, 3 Day, 339; Allyn v. Mather, 9 Conn. 132.

In Maryland, estates tail general, created since Statute of 1786, are now understood to be virtually abolished, inasmuch as they descend, can be conveyed, are devisable and chargeable with debts, in the same manner as estates in fee simple. It is equally understood that estates tail special are not affected by the act of 1786. See Newton v. Griffith, 1 Harris & Gill, 111; Smith v. Smith, 2 Harr. & Johns. 314.