If this will is to be construed by the rules of interpretation established at the common law, it is clear that the daughters of the testator took under it estates tail in their respective shares of his real estate. It is too well settled to be controverted, that the words "heirs of their bodies" must be held to be words of limitation, and not of purchase; and that, even though the estates of the daughters are at first declared to be for life, and words of limitation are superadded to the words "heirs of their bodies," the rule in Shelley's case must, nevertheless, be inflexibly applied as a rule of law, and the life estates, expressly given to the daughters, be enlarged thereby to estates tail. The numerous decisions in support of this construction, in cases in which it is acknowledged to contravene the testator's intention, are so well collected and collated by Mr. Jarman, in the 37th and 38th chapters of his valuable treatise on Wills, that farther reference to authority is unnecessary.
In this case, however, the intent of the testator would seem to require this interpretation; for, although he first expressly gives to four, out of five of his daughters, estates for life, yet by the devise over on failure of their issue, and by his express declaration in the concluding sentence of this portion of his will, it is made plain that he intended that they should all have estates "in fee" if they left surviving issue, and estates for life only, in the event they left no such issue. Now the words "in *Page 554 fee," in this sentence, are quite as applicable to a fee-tail as to a fee-simple; and his general intent declared in it, considering the technical language before employed by him in limiting the estates of his daughters, can only be carried out by holding their estates to be estates tail.
Is this construction forbidden by that portion of our statute of wills which relates to the creation and continuance of estates tail? By the second section of that statute (Rev. Stats. ch. 154) it is provided: "No person seised in fee-simple shall have a right to devise any estate in fee-tail for a longer time than to the children of the first devisee; and a devise for life to any person, and to the children or issue generally of such devisee, in fee-simple, shall not vest a fee-tail estate in the first devisee, but an estate for life only; and the remainder shall, on his decease, vest in his children or issue generally, agreeably to the direction in such will." Are we to read the latter provision of this section as applicable only to wills in which the words "children" or "issue" of the life-tenant are used to describe who is to take the remainder in fee? or as applicable also to wills in which, after an estate for life to one, the remainder is given to his or her "heirs of the body," with superadded words of limitation in fee? Was it designed to include only the particular cases named in it, or by interpretation all other analogous cases?
We adopt the narrower interpretation of this section;
First. Because, if had been designed to abrogate the rule in Shelley's case, as applied to the creation of estates tail, it would have been very easy, by the use of general language, to have done so.
Second. If without such sweeping design, the intent of the legislature had been to apply the prohibition to cases in which the technical words to limit an estate tail, to wit, "heirs of the body," were used, it is strange that they are not set down in the statute as they are in the similar statutes of Massachusetts, Connecticut, New Jersey, and New York, (4 Kent, Com. 232, and notes b and c,) but that the words "children" and "issue" are; considering that these latter words are not words of limitation in a deed, and are not strictly such in a will. "If a man," says Lord Coke, "give lands or tenements to a man, et suosemini, *Page 555 or, exitibus vel prolibus de corpore suo, to a man and to his seed, or to the issue or children of his body, he hath but an estate for life; for albeit that the statute (de donisconditionalibus) provideth that voluntas donatoris secundumformam in charta doni sui manifeste expressum, de coeteroobservetur, yet that will and intent must agree with the rules of law;" and of this opinion, he continues, was Littleton himself, as appeared by his learned reading of that statute. Co. Lit. 20 b. It is evident also, from the cases collected by Mr. Jarman, that the words "children" or "issue" when used inwills, occupy a debatable position between words of limitation and words of purchase, and are treated by the courts as either, as will best, in their view, carry out the intent of the testator; the word "children" being deemed a word of purchase, and the word "issue" a word of limitation, unless clearly otherwise intended. 2 Jarman on Wills, 34, 35, 307 et seq., 328et seq.
The exclusion of the words "heirs of the body" from the statute is the more remarkable, because it was the presence of precisely these words in the case of Perrin v. Blake, decided in the King's Bench in 1770, which gave rise to that heated controversy, which, on account of the celebrity of Lord Mansfield, and the attack upon him by Mr. Fearne and others, versed in the law of real estate, "divided," according to Lord Campbell, "the profession of the law into bitter factions for many years, and is still famous in the traditions of Westminster Hall." Lives of the Chief Justices, vol. 2, p. 329, (2d Amer. ed.) This celebrated case, and the controversy growing out of it, could not have been unknown to the member of the profession who drafted the clause we are considering, first inserted into our wills act in 1798; and if so, he must have designed to leave the decision in that case to stand good law here, as it was determined by the twelve judges in the Exchequer Chamber, against the opinion of Lord Mansfield and the King's Bench.
Third. The cases collected by Mr. Jarman in the 37th, 38th, 39th, and 40th chapters in his book on wills, indicate, that whilst on the one hand the courts have, in general, inflexibly applied the rule in Shelley's case to all devises in which, after a life estate is given to one, a remainder is given to his "heirs of *Page 556 the body" with or without superadded words of limitation in fee, and, in consequence, held, that in such cases the first devisee took an estate tail, — they so differed in this regard as to devises in which the remainder was given to the "children" or "issue" of the first devisee, holding them, with the distinction before noticed, to be either words of limitation or of purchase as the intent of the testator, frequently determined according to artificial rules, seemed to require, as to present no certain rule of decision, and to leave the matter almost at large to the discretion of the judge, who, by his judgment frequently disappointed the obvious intent of the testator. 2 Jarman on Wills, 34-37, 232-456. The statute, we are of opinion, was designed to occupy this debatable ground, with the view of settling a vexed question rather according to the ordinary intent of testators, than in obedience to any supposed policy of the law which had been raised up judicially to defeat it.
Our conclusion is, that this portion of our statute of wills has no application to the devise, upon the construction of which we are called to decide.
Considering, then, that the complainant, Mary A. Manchester, took, under the will of her father, an estate tail in the portion of his real estate which has been set off to her, the case ofDriver d. Edgar v. Edgar, Cowp. 379, is precisely in point, that, notwithstanding the will declares that she is, if she die without issue, to have an estate for life only, this condition, and the remainder over to her surviving sisters dependent upon it, will be barred by a common recovery. The will, in this respect, declares merely what is true of every estate tail, — that, by the form of the gift, it ceases with the death of the tenant without issue, and thereupon the gift passes over to any one to whom it may be limited in remainder, or if there be no such remainder limited, reverts to the donor, or to his heirs. The third section of chapter 145 of the Revised Statutes makes a deed in fee-simple, duly executed by a tenant in tail, and acknowledged before the supreme court or court of common pleas, equivalent to a common recovery; for it provides, that "such conveyance shall vest an estate in fee-simple in the grantee, his heirs and assigns, and shall bar the tenant in tail, his heirs and *Page 557 assigns, and all others who shall claim the same in remainder or reversion expectant upon the determination of such estate tail."
We are, therefore, of opinion that the complainants can make a good title to the land contracted to be sold by them to the respondent, and are entitled to a decree that his contract of purchase shall be specifically performed. *Page 558