Korn v. Cutler , 26 Conn. 4 ( 1857 )

Hinman, J.

Elbridge Cutler, by his will, devised the premises in question to the defendant, in trust for his daughter, Jane M. Cutler, who has since deceased, and by her will devised all her estate to the plaintiff. The words of the will of Elbridge Cutler, so far as this property is concerned, are, “ Furthermore, I give to my son, William Cutler, in trust for her, the said Jane M. Cutler, and her heirs, store No. 94, and lot, in my block of buildings on State street, in the city of Hartford, for her and her heirs’ sole use and benefit;” and it is made a question by the defendant, whether these words gave the daughter an equitable fee, which she could dispose of by will, or only a life estate, which left the property on her death to pass, under the will of her father, to her daughter, for whose benefit the defendant now claims to hold it. The rule in Shelley’s case would undoubtedly give to the daughter an equitable fee; as, however, that rule has been abolished in Connecticut, it becomes a mere question of intention, whether Elbridge Cutler designed by the words “for her and her heirs’ sole use and benefit,” that her heirs should take the estate as purchasers under his will, or only that they should take it as descendants from his daughter. But the word “ heirs” in this will is used very much as it is used in our ordinary deeds of conveyance, where the only object is so to limit the estate as to convey the fee, instead of a life estate merely, and we suppose there is no doubt that this is the ordinary object of the use of this word in conveyances, whether by deed or by will, where, in the same conveyance, an estate is limited over to the heirs of the grantee or donee. In the language of the books, it is used as a word of limitation, and not of purchase. Unless then there is something in other parts of the will to show that it was used in á different sense in this will, it ought undoubtedly to receive its ordinary and usual construction when used in such instruments. But there is nothing in this instrument to indicate that the testator did not intend that his daughter should take an equitable fee. His only object appears to have been to preserve the property for the sole use of his daughter during her life, without restricting her power to transfer it by will or otherwise. Such estates are very often held by married women; and it is well settled that they have the same power over them that other persons have over their estates. 2 Story Eq., sec. 1390. Imlay v. Huntington, 20 Conn., 147. The grantee of such an estate takes it discharged of the trust; so does the devisee. We therefore advise the superior court to decree that the defendant convey to the plaintiff his legal estate in the property thus held by him in trust for his sister.

In this opinion the other judges concurred.

Decree for petitioner advised.