Sybert v. Sybert ( 1953 )

Mr. Chief Justice Hickman

delivered the opinion of the Court.

The sole question for decision is the applicability of the rule in Shelley’s Case to a devise in the will of J. H. Sybert. Mr. Sybert died February 4, 1942, leaving a will, which was duly probated, and by which he left all of his property to his wife, Mrs. Cora R. Sybert, for life “and after the death of my said wife I will and bequeath to my five (5) sons the following described pieces and parcels of land, to wit: ‘(a) To my son Fred Sybert I will and bequeath the following described tract of land (a life estate only, to manage, control and use for and during the term of his natural life, and after the death of my said son, Fred Sybert, to vest in fee simple in the heirs of his body) * * This language was followed by a metes and bounds description of the tract of land in suit. Later, Mrs. Cora R. Sybert died, leaving a will, which was duly probated, disposing of this land in the same manner and by the identical words copied above from the will of Mr. Sybert. Fred Sybert, the son to whom the land was devised, died childless and intestate on July 3, 1950, survived by respondent, his wife, Eunice Sybert. Two of his brothers are petitioners. Their contention is that the will vested a life estate only in Fred Sybert, while respondent contends that the rule in Shelley’s Case operated to vest a fee simple estate in him. Her contention was sustained by the trial court and its judgment was affirmed by the Court of Civil Appeals. 250 S. W. 2d 271.

There is no need for us at this late date to write a dissertation on the history and rationale of the ancient rule in Shelley’s Case. It has perhaps been the subject of more writing in opinions, textbooks and law reviews than any other rule of property. Attorneys for petitioners, who have made an exhaustive and enlightening study of this subject, recognize that it is a positive rule of law in this State and not a rule of construction, and that, therefore, any abrogation of the rule must be made by the Legislature and not by the courts. The Legislatures in a majority of the states have abolished the rule in whole or in part, and it appears that in one state, Vermont, it was abolished by judicial decree. However, as observed in American Law of Property, Vol. 1, § 4.51, “The rule appears to be still in force in Arkansas, Delaware, Illinois, Indiana, North Carolina, Texas, and probably a few other states.”

The rule in Shelley’s Case has been variously stated. Since this court at an early date adopted Kent’s definition, we need not substitute another one for it, even though some of the more modern expressions of the rule are stated in somewhat clearer language. We quote the rule from a landmark case, Hancock v. Butler, 21 Texas 804, 808:

“ ‘* * * when a person takes an estate of freehold, legally, or equitably, under a deed, will, or other writing, and in the same instrument, there is a limitation, by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons, to take in succession, from generation to generation, the limitation to the heirs entitles the ancestors to the whole estate.’ 4 Kent, 215. This result would follow, although the deed might express that the first taker should have a life estate only. It is founded on the use of the technical words, ‘heirs,’ or ‘heirs of his body,’ in the deed or the will.

“The rule in Shelley’s case is said to be a rule of law. It is really an organic rule, entering into the creation of the estate of inheritance.”

The rule must inevitably apply in the instant case unless there is language qualifying the words “heirs of his body,” showing that they were not used in their technical sense, that is, to signify an indefinite succession of takers from generation to generation. Turning now to an examination of the particular provisions of the will under construction we find that the only qualifying words contained therein modify the estate of Fred Sybert — not the words “heirs of his body.” The language “a life estate only, to manage, control and use for and during the term of his natural life” is but a statement of the incidents of a life estate. The further language “and after the death of my said son, Fred Sybert, to vest in fee simple in the heirs of his body” does not indicate that the words “heirs of his body” were not used in their usual and technical sense. The expressions “vest in the heirs” and “vest in fee simple in the heirs” are identical in meaning. Crist v. Morgan, 245 S. W. 659 (Comm. App.); Brown v. Bryant, 17 Texas Civ. App. 454, 44 S. W. 399, writ refused. We concur in this conclusion of the Court of Civil Appeals: “We have diligently searched the wills of Mr. and Mrs. Sybert for some ‘explanatory context,’ qualification or modification of the words ‘the heirs of his body,’ as used in the wills, but none are present.”

Petitioners place much reliance upon Wallace v. First National Bank of Paris, 120 Texas 92, 35 S. W. 2d 1036, and Robinson v. Glenn, 150 Texas 169, 238 S. W. 2d 169. The instruments construed in those cases are clearly distinguishable from the will before us. In the Wallace case the remainder was “to his bodily heirs equally,” and it was held that the word “equally” qualified the word “heirs.” We do not question the soundness of that holding. It is in line with the holdings in Simonton v. White, 93 Texas 50, 53 S. W. 339, and Hunting v. Jones, 215 S. W. 959 (Comm. App.).

In Robinson v. Glenn two deeds were before us for construction. In one the remainder was “to the issue of her body” and we held that “issue” was a word of purchase, meaning children. That holding is in line with Hancock v. Butler, supra. In Lacey v. Floyd, 99 Texas 112, 87 S. W. 665, the holding of the court in Hancock v. Butler is stated in this language:

“In that case Judge Roberts elaborately reviewed the rule in Shelley’s case in many of its phases, but finally concluded his opinion with this statement: ‘What is decided now is, that the words “lawful issue” as they stand in this deed, are words of purchase and not of limitation. No other question having been made, none other will be decided.’ The question was correctly decided in that case, but it was based mainly upon the use of the word ‘issue’ instead of the technical word ‘heirs.’ The distinction between that case and this is, that in this case instead of ‘issue’ the word ‘heirs’ is used, to which the rule in Shelley’s case is peculiarly applicable.”

In the other deed contsrued in Robinson v. Glenn the remainder was to “her bodily heirs, share and share alike.” We held that “share and share alike” qualified the word “heirs” and took the case from out the rule. That holding is in accord with Cal-very v. Calvery, 122 Texas 204, 55 S. W. 2d 527.

This court has said that the rule in Shelley’s case should be strictly construed. That is but to say that it should not be extended to apply to any instrument the language of which does not bring it within the rule as heretofore construed by this court. The language in the will in this case brings it squarely within the rule, and whether or not the testator so intended is immaterial. While the court may be liberal in construing explanatory language so that the words “heirs” or “heirs of his body” will not be read in their technical sense, we cannot supply that language when it is omitted from the instrument itself.

The judgment of the Court of Civil Appeals is affirmed.

Opinion delivered February 18, 1953.