Sholfield v. Zehmer

Per Curiam.

The case of Hayes v. Foorde, 2 Black. Rep. 698, rules the present. It was held that a devise to heirs male of a father, enlarges a devise for life to the father, and makes it a fee tail. Here the devise was not to heirs male but to children; but as the father had no children born, to take along with him as co-tenants for life, the word children is to be taken as a word of limitation, and as equivalent to issue. There, as here, it was doubtful, on the direct words of the devise, whether an estate had been given to the father; but the doubt was removed by a schedule. annexed to the will, which showed a clear intent to give it. All the devises in the will before us, are to the children of the testator’s children, the premises in contest being given to the children of his son Charles, who, at the time of the devise, was childless; to which, however, was subjoined a direction, that each of his sons, and sons-in-law, should pay five pounds to the executors for “ his house” to pay quit rents, and keep the premises in repair; by which he estimated that each of his sons and sons-in-law would get 500 pounds. This shows an intention at least as strong as in Hayes v. Foorde, to give Charles an estate for life, which, by the addition of words of further limitation, must be enlarged to an estate of inheritance, in order to give effect to the principal intent, and whether it were fee simple or fee tail, is immaterial, either of which is sufficient to maintain the plaintiff’s case.