Lockman v. . Hobbs ( 1887 )

Smith, C. J.,

(after stating the case). . The only point presented in the appeal, as will be thus seen, is as to the legal effect of the 8th and 11th clauses construed in connection, and in whom, among the contesting claimants, the equitable estate in the land therein described is vested.

We do not find any difficulty in arriving at the intention of the testatrix in the devise, and it is different from that deduced by the Judge, from the words employed to express it.

1. “The lawfully-begotten heirs of her body” refer most obviously to the children of the devisee for life, Belza A. James, of whom there were only two, and this without the aid of the Act of 1856, which declares that a limitation “to the heirs of a living person” shall be construed to mean “the children of such person, unless .a contrary intention appear by the deed or will.” Rev. Code, ch. 41, §5.

So far from the indication of a different intent, found in other provisions of the will, that put upon the expression by the statute is shown to have been in the mind of the testatrix by the use of the same words in the clause next preceding, when, in directing the manner of apportioning the shares among the legatees, she says, “ each child share and share alike,” thus defining the meaning of the term, “heirs of her body,” used just before.

2. The limitation to the tw*> children then living wrhen the will took effect vested in them a present estate in remainder, which, except for clause 11th, would have been in fee, and but for the devise over, which reduces it to an estate in each for life, while it left not less a vested remainder in each for life, and terminating at his and her death. The life estate in the mother, however, continued, notwithstanding that the intervening estate in her children was, by their deaths in her life-time put out of the way of the ultimate remainder given in the 11th clause to the trustee, the defendant, Middleton D. Hobbs, for his own use when the said Belza A. should die.

The contingency, when this last remainder in fee was to rest in possession, having occurred — a contingency not attaching to the estate itself, but to the time of its enjoyment only, the defendant became the owner of the equitable as he had been of the legal estate, and this was thus freed from the trusts for others.

There is, therefore, error in the ruling that the plaintiffs were entitled to the equitable estate held by the defendant upon the trusts declared in the will, upon the death of said Belza A., and that he is accountable for the rents since accruing, and it must be reversed and the order of reference so amended as to strike out an inquiry as to such.

Error.