Brownell v. Brownell , 10 R.I. 509 ( 1873 )

To this bill the respondent demurred, alleging, as ground of demurrer, that it appeared from the complainant's bill that she had not and could not make a marketable title to said estate, or any title thereto which the respondent was bound to accept. The devise upon which the question before us is raised is as follows: —

"It is my will, that the house I now own in Providence, together with the furniture, I give to my daughter, Lucia E. Brownell, during her life, and at her decease I bequeath it to her oldest male heir; but in case there should be no male heir, then the estate to be equally divided among her surviving heirs."

And the question submitted is, if the daughter took, under this devise, an estate tail in the premises, so that she could give a good title in fee, or took an estate for life only, the remainder to vest in her oldest male child.

The estate here given to the daughter is to her during her life This is all that is expressly given her. Is this life estate enlarged by force of the language following to an estate of inheritance?

The rule of law is, that where, by the same instrument that gave the life estate, a limitation is made to the heirs generally of the devisee, his estate becomes thereby an estate in fee simple. If limited to the heirs of the body, his estate is enlarged to an estate in fee tail, and by the same rule, if limited to the heirs male of his body, or to the heirs female of his body, the devisee takes an estate in special tail, according as the limitation be to male or female heirs, and according to Coke, 1 Inst. 22, the limitation may be still more special, as to one of the heirs male.

The limitation here is to the eldest male heir in the singular, and the doubt is suggested whether the words eldest heir male are within the rule as heirs in the plural would be, and it is contended that here they are not words of limitation but words of purchase, and that they mean, and the testator meant by them, to designate the devisee, who should take in remainder, and intended the estate to pass to the oldest son of the daughter, and that by this construction all difficulties and inconsistencies will be removed.

A devise to A. and his heirs male forever is held to give to A. an estate tail, and his heirs male construed to mean heirs of his body, and have the same effect as the words heirs male of his body, and we may so read the words in the devise.

In the case of Dubber v. Trollope, Ambl. 453, the limitation was to the first heir male of his body, and it was resolved that it was all one as if the word "heir" had been "heirs" in the plural. And it has been resolved in other cases, that a limitation to heir of the body carries the estate to all the heirs of the body; and it is said the word heir is nomencollectivum, including all the heirs in succession, and the estate will go in tail in the line limited, in the same way as if heirs were used. Cuffee v. Milk, 10 Met. 366.

The limitation here is to the oldest heir male, and it is not necessary to call in aid the cases now referred to, which hold that heir may be construed as heirs in the plural, for heir in the singular may be more appropriate to express the intent of the testator, viz., that the estate should pass by inheritance from the daughter, not to all her heirs, nor to all her male heirs, but to one only of the male heirs, and that the oldest; and that the estate should go from oldest son to oldest son in succession, is as it would go to all the male heirs in succession were the word heirs, in the plural, used.

In Cuffee v. Milk, 10 Met. 366, where the devise was to the testator's son William, and to his oldest male heir forever, it was held, that William took an estate tail male; and inCanedy v. Haskins, 13 Met. 389, it was held that a limitation to the oldest male heir created not merely an estate in tail male, but one which passed to the oldest male heir in succession.

The rule of law is rigidly enforced, and it is quite settled, that where a freehold is given to the ancester, no subsequent limitation to heirs, or heirs of the body, can make them purchasers, though the estate be given expressly for life.

Jarman says there is no exception to the rule which makes an estate tail, except where the testator's intention appears so plainly to the contrary that nobody can misunderstand it. It must be entirely clear. Poole v. Poole, 3 B. P. 627; Dubber v.Trollope, Ambl. 453.

The limitation here to oldest heir male is followed by language such as Eyre, C.J., in the case in Ambler, held sufficient to remove all doubt whether the words "heir male" were words of limitation or words of purchase. The language is, "if there shall be no male heir, the estate shall go to her surviving heirs." There was, in that case, a question whether the words "heir male of his body" were used as words of purchase or of limitation, and though the court held them to be words of limitation, and to create an estate tail, "yet suppose," said Eyre, C.J. "that they do not create an estate tail, yet the subsequent words which are, ``and for want of such heir male, to be and remain to C.,' will effectually do it, and such heir male must be the heir male of the life tenant." There is no difficulty or inconsistency which requires this to be removed by holding the words oldest male heir to mean oldest son, and to be words of purchase; on the contrary, an inconsistency would arise from holding them to be words of purchase.

We are of opinion that the said Lucia E. Brownell took an estate tail by this devise.

Decree for specific performance of the contract of purchaseof said estate, in accordance with the prayer of the bill.