The defendant is the first named of the four nephews of Lucia A. Rand who were made beneficiaries under the thirteenth paragraph of her will. At the time he gave to the plaintiff the deed in question, he had acquired all the right, title and interest which his three brothers, the heirs at law of the testatrix, the heirs at law of D.C. Rand and Jane S. Smith, both deceased, and Catherine H. Carnahan, now deceased, and her heirs at law, had, or ought to have, or might thereafter have, in or to the land conveyed. If his conveyance failed to give a good title to the plaintiff, it must have been for the reason that some outstanding interest or possible future interest was not gathered up in the quitclaim to him. Those conveyed covered the entire field of possible interest, as well as *Page 296 some impossible, save that which is occupied by the surviving descendants of the four nephews. These nephews are still living. Their surviving descendants cannot, therefore, be known, and there has been no attempt to acquire any interest that their prospective surviving issue might have. If the terms of Mrs. Rand's will are such that the surviving descendants of her nephews, as they shall prove to be, or some of them, may thereunder have an interest in the property in question, then the plaintiff's title is not the good, indefeasible title in fee simple which the defendant warranted that he gave.
In so far as the testatrix attempted to make a devise in favor of these surviving descendants, the provisions of her will to that end are nugatory, as being in contravention of the statute against perpetuities in force when the testatrix died. In the capacity of heirs there could have been no present interest or future possibility of interest in these descendants not subject to alienation by the ancestor except through the operation of an entail. Counsel for the plaintiff concedes that this is so. His fundamental contention is that the testatrix intended to, and did, create a fee tail in one of the four nephews. Upon this proposition, followed by the unquestionable secondary one that the issue of a tenant in tail has no strict legal right in the entailed estate until after his death and nothing which they can convey, his entire argument is founded, as it needs must be.Comstock v. Gay, 51 Conn. 45, 62; St. John v. Dann,66 Conn. 401, 408, 34 A. 110.
In this State we have never recognized the conditional fee of the English common law, nor adopted into our law the statute de donis conditionalibus. From the earliest times it has been held in this jurisdiction that words appropriate to the creation of an estate tail vest a fee simple in the issue of the first donee in tail; such issue taking no interest in the land during the life of the *Page 297 donee, and the donee having no alienable interest beyond a life interest. 1 Swift's Digest, 79; Hamilton v.Hempsted, 3 Day, 332, 339; St. John v. Dann, 66 Conn. 401,407, 34 A. 110; Comstock v. Comstock, 23 Conn. 349,352. This principle was in 1784 enacted into our statute, now § 4027 of the General Statutes.
Estates tail may indeed be created in this State, and language which would create them at common law will do so here. Our ancient rule and confirming statute simply defined the legal character of such estates. They are estates of inheritance. For their creation by deed it is held that the word "heirs" is indispensable, and that no synonym such as "issue," "descendants," "seed," or "offspring," can supply its place.
This strict rule is relaxed as applied to devises, so that a devise to A and his "issue," or "descendants," or "seed," or "offspring," may suffice to create an estate tail, and one may be created even where words of inheritance are absent, if the testator's intent to that end is apparent. "The testator's intention may be shown by necessary implication, as well as by the express language of the will, so that the essential words of inheritance, though entirely absent, may often be implied, if the testator's manifest intent makes it necessary." Minor Wurts on Real Property, § 171.
This relaxation, in the case of devises, of the strict rule applicable to conveyances, results from a recognition that in a matter of testamentary disposition the testator's intent should be effectuated. Application of this principle has been made by us upon several occasions when estates tail by implication have been recognized.Dart v. Dart, 7 Conn. 250, 253; Hudson v.Wadsworth, 8 Conn. 348, 357; Williams v. McCall,12 Conn. 327, 329; Comstock v. Comstock, 23 Conn. 349,352; Turrill v. Northrop, 51 Conn. 33, 36; Horton v.Upham, 72 Conn. 29, 31, 43 A. 492. *Page 298
In the present instance the word "heirs" does not appear in the thirteenth paragraph of the will until the final limitation over after the provisions in favor of the four nephews and their descendants. That fact, however, is not one, as we have seen, of controlling importance. The controlling fact is the testatrix's intent as to the estate attempted to be created by her, as ascertained from the language of her will and the surrounding circumstances. Turrill v. Northrop,51 Conn. 33, 39; Bullock v. Seymour, 33 Conn. 289, 294. Did she intend that her nephews should take as donees in tail and their descendants by inheritance from their ancestor, or that the nephews should take estates for life and their surviving descendants a remainder over by purchase? If the latter, there was no estate tail. The heirs or issue of a donee in tail take by inheritance only.
The answer to this test question is plainly indicated by the language of the will. The successive conditional devises are made to several nephews, with limitations over upon failure of surviving descendants. Had the will stopped there with a devise of an estate of inheritance absolute, cut down by a later provision for a gift over upon failure of issue, there would be substantial ground for the contention that an estate tail general was created. Of this character are the Connecticut cases already referred to. But the will did not stop there. It did not leave the inheritable estate in the donee to operate in so far as it was not restrained. The testatrix went on to expressly and directly provide for the contingency of descendants surviving, as she also did for the alternative contingency of nonsurvival. She directed that if any son left a descendant the property should be given to such descendant or descendants. Here is language of direct gift in fee simple. The surviving descendants are designated as the beneficiaries of the testatrix's bounty. The indication is *Page 299 plain that she conceived that she was giving to them directly in the same way that she was giving to other persons named or described in the paragraph and not making a mere provision for a succession in perpetuity by inheritance to that which had been given to an ancestor. The gift is direct and in absolute terms to persons described, and not a provision for a transmission of title to descendants in unending sequence which the law arbitrarily converts into a fee simple in the issue of the first donee. In other words, the testatrix attempted to make the designated descendants her beneficiaries by her own act and not to provide for a beneficiary succession, to which the law, operating contrary to her will, would, for reasons of public policy, give the same effect. The erasure at the end of the thirteenth paragraph, whether it was occasioned by a wish to vest in the descendants an absolute estate, or a desire to avoid a perpetuity, or other reason, emphasizes the fact that the testatrix had in mind a gift direct.
As the final gift over to the heirs of D.C. Rand, Jane S. Smith and Catherine H. Carnahan is void as being in contravention of the statute against perpetuities, we have no occasion to inquire as to the effect of the quitclaim of Catherine H. Carnahan and her children, who proved to be her heirs, as accomplishing a release of an interest of her heirs, had the terms of the will been effective to create one in them. They could take nothing by the will, and there could therefore, be no interest in them to release.
The Superior Court is advised that the defendant, at the time of his said conveyance to the plaintiff, was seized and possessed of the land therein described as of a good, indefeasible estate in fee simple, and that judgment be rendered for the defendant.
In this opinion the other judges concurred.