Gorman v. Ray ( 1867 )

Opinion or the Court by

Judge Hardin :

The appellants sought, by their petition, to recover of the appellee a tract of land alleged to have been- devised to the female appellant by the will of Isaac McBee in remainder, subject to an estate for life in ber mother, Lucy A. Bay, wbicb bad terminated by ber death. the appellee in bis answer resists a recovery on the ground that said will vested the title in fee in said Lucy A. Bay who was bis wife, and said female appellant being the issue of their marriage, be claims that, on the death of - bis wife, be became vested with an estate for life in the land as tenant by the curtesy.

It appears, from the judgment rendered under an. agreement to submit the law and facts to the court, that evidence was beard upon wbicb the court based its judgment dismissing the action and, as the record contains no statement of the evidence, it must be presumed to have authorized the judgment, unless the will of Isaac McBee should be construed to have only vested in Lucy A. Bay an estate for life in the land and the remainder in the appellant Elizabeth J. Gorman.

Tbe disposing provision of tbe will as to tbe land is in these words:

“ I give and bequeath to my daughter Lucy Bay and! to tbe heirs of ber body,” etc.

“ To ber, the said Lucy A. Bay, and to tbe heirs of her-body forever.”

According to repeated decisions of this court, this devise must-be understood as creating an estate tail as defined by tbe common law, unless it appears from other expressions indicating the.testator’s intention that be used tbe language quoted with a different meaning, and we perceive nothing in tbe entire will to-authorize tbe latter inference.

And, as by the eighth section of chapter 80 of the Bevised Statutes, estates tail are converted into fee-simple estates, we are of the opinion that on the death of Lucy A. Bay the land in controversy descended to ber daughter Elizabeth, subject to the life estate of the appellee.

Wherefore, tbe judgment is affirmed.