91 Indiana, Iowa,"2 Maryland, North Carolina, Penn- In some states such as Kentucky the rule never was 91 Andrews v. Spurlin, 35 Ind. 262; Biggs v. McCarty, 86 Ind. 352, 44 Am. Rep. 320; Shimer v. Mann, 99 Ind. 190, 50 Am. Rep. 82; Ridgeway v. Lanphear, 99 Ind. 251; Fountain County Coal etc. Co. v. Beckleheimer, 102 Ind. 76, 52 Am. Rep. 645, 1 N. E. 202; Hochstedler v. Hochstedler, 108 Ind. 506, 9 N. E. 467; Allen v. Craft, 109 Ind. 476, 58 Am. Rep. 425, 9 N. E. 919; Taney v. Fahnley, 126 Ind. 89, 25 N. E. 882. 92 Doyle v. Andis, 127 Iowa 36, 4 Ann. Cas. 18, 69 L. R. A. 953, 102 N. W. 177. 93 Josetti v. McGregor, 49 Md. 202, 210; Warner v. Sprigg, 62 Md. 14; Cook v. Councilman, 109 Md. 622, 72 Atl. 404. In Maryland, it has been held that a devise to trustees in general terms to pay the rents and profits to a devisee, coupled with a power to him to dispose of the property by will would seem to give a life estate only, but that a further provision that on the death of the first taker the property should go to his heirs at law brought the case within the rule, and conferred upon him the fee.Warner v. Sprigg, 62 Md. 14. But it has been said in Maryland the rule in Shelley's Case has not been applied with the same rigidity as in other jurisdic tions; and in that state, where the testator manifests an intention to give the first taker only an estate for life, and uses the words "issue," "sons," "children," or "descendants," the case will be withdrawn from the operation of the rule.-Horne v. Lyeth, 4 Har. & J. (Md.) 431; Lyles v. Digges' Lessee, 6 Har. & J. (Md.) 364, 14 Am. Dec. 281; Dickson v. Satterfield, 53 Md. 317, 320; Henderson v. Henderson, 64 Md. 185, 1 Atl. 72. 94 Tyson v. Sinclair, 138 N. C. 23, 3 Ann. Cas. 397, 50 S. E. 450. The rule is recognized in North Carolina, but there is a disposition on the part of the courts to restrict rather than enlarge its operation in order to effectuate the intention of the testator when practicable.-Ford v. McBrayer, 171 N. C. 420, 88 S. E. 736. 95 In re Guthrie's Appeal, 37 Pa. St. 9, 21; In re Huber's Appeal, 80 Pa. St. 348; List v. Rodney, 83 Pa. St. 483; Shapley v. Diehl, 203 Pa. St. 566, 53 Atl. 374. 96 Davenport v. Eskew, 69 S. C. 292, 104 Am. St. Rep. 798, 48 S. E. 223. 97 Seay v. Cockrell, 102 Tex. 280, 115 S. W. 1160. 98 Lane v. Lane, 106 Ky. 530, 50 S. W. 857. 6 3 gated or abolished by statute, as is the case in Alabama," California,1 Connecticut, Idaho, Kansas,* Maine, Massachusetts, Michigan,' Minnesota, Mississippi, Missouri,1o Montana,11 New Hampshire,12 New Jersey, 18 New York," Ohio,15 Rhode Island,16 Tennessee,17 Virginia,18 West Virginia,19 and Wisconsin.20 In Nebraska, while it can not be said that the rule is abolished, it is better to say that it exists in a restricted sense and would be enforced in instances where not in conflict with the otherwise expressed intention of the instrument.21 In Vermont the rule is regarded as of no special force,22 and in some cases is held not to apply.23 99 § 1025 Civil Code, Ala. 1 § 779 Civil Code, Cal. 2 Gen. Stat. Conn. (1902) § 4028. 3 § 3076 Rev. Codes, Idaho. 4 Gen. Stat. Kan. (1897) c. 110, § 52. 5 Rev. Stat. Maine, (1903) c. 73, § 6. 6 Rev. Laws Mass. (1902) c. 134, § 4. 7 Mich. Comp. Laws, (1897) § 8810. 8 Minn. Stat. (1894) § 4389. 9 Miss. Code, (1892) § 2446. 10 Mo. § 18 Stat. of Wills of 1825. 11 Mont. Civ. Code 1895, § 1228. 12 N. H. Pub. Stat. (1891) c 186. § 8. 17 Tenn. Stat. in 1852, c. 91, § 1, Code § 2008. 18 Va. Code, (1887) § 2423. 19 Code W. Va., c. 71, § 11, Code 1860. 20 Wis. Stat. (1898) § 2052. 21 See § 53, c. 73, Neb. Comp. Stat. (Anno. Stat. 10256); Albin v. Parmele, 70 Neb. 740, 98 N. W. 29. 22 Smith v. Hastings, 29 Vt. 240. 23 Blake v. Stone, 27 Vt. 475. CHAPTER XXXIL DEVISES OF ESTATES IN FEE SIMPLE- -WORDS OF LIMITATION. § 918. Common law rule as to words of limitation. § 919. The same subject: The word "heirs" unnecessary. § 920. Context may show intent to pass the fee. § 921. The same subject: Effect of use of word "estate.' § 922. The same subject: Effect of use of such words as "property" or "real effects." § 923. The same subject: Effect of use of such words as "forever," "absolutely" or "exclusively." § 924. Where devise is upon conditions, or in trust. § 925. Where devisee is charged with payment of debts. § 926. Devise of life estate with no gift over. § 927. Devise coupled with power of disposition. § 928. The same subject. § 929. The same subject: Where devise is limited to a life estate, or power of disposition is restricted. § 930. Gift over of what remains unexpended by devisee. § 931. Where fee is devised, rights of devisee can not be limited. § 932. As to cutting down a devise in fee by subsequent provisions in the will. § 933. The same subject. § 934. The same subject: Where the expressions are of doubtful meaning. § 935. Statutory changes regarding words of limitation. § 936. The same subject: Creation of estates generally: Limited to those recognized by law. § 918. Common Law Rule as to Words of Limitation. The rule of the common law is that a devise of lands without words of limitation gives to the devisee only an estate for life, or in other words, where the devise is (1345) II Com. on Wills-31 made in terms from which the law implies an estate for life and no words of limitation are added, the devisee takes only a life estate.1 A simple devise in general terms of messuages, lands, tenements, or hereditaments, with no designation of the quantity of the interest to be taken by the devisee, confers a life estate only.2 With respect to personal property, a bequest in general terms, under the common law rule, is sufficient to pass absolute title.3 § 919. The Same Subject: The Word "Heirs' Unnecessary. The rule of the common law, with regard to grants inter vivos, requires the use of the word "heirs" in order 1 Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659; Varney v. Stevens, 22 Me. 331; Farrar v. Ayres, 5 Pick. (22 Mass.) 404; Ferris v. Smith, 17 Johns. (N. Y.) 221; Steele v. Thompson, 14 Serg. & R. (Pa.) 84; Backenstoe v. Hunsicker, 244 Pa. St., 295, 90 Atl. 641; Mooberry v. Marye, 2 Munf. (Va.) 453. Lord Mansfield, in Doug. 734, says: "I verily believe that, in almost every case where by law a general devise of lands is reduced to an estate for life, the intent of the testator is thwarted; for ordinary people do not distinguish between real and personal property. The rule of law, however, is established and certain, that express limitation, or words tantamount, are necessary to pass an inheritance; 'all my estate' or 'all my interest' will do; but 'all my lands lying in such a place,' is not sufficient; such words are considered as descriptive of the local situation, and only carry an estate for life; nor are words tending to disinherit the heir at law sufficient to prevent his taking, unless the estate is given to some one else." 2 Canning v. Canning, Mos. 240, 242; Wright v. Denn, 10 Wheat. (U. S.) 204, 6 L. Ed. 303; Owings v. Reynolds, 3 Har. & J. (Md.) 141; Sargent v. Towne, 10 Mass. 303, 307; Jackson v. Embler, 14 Johns. (N. Y.) 198; Steele v. Thompson, 14 Serg. & R. (Pa.) 84; Hall v. Goodwyn, 2 Nott. & McC. (S. C.) 383. A bequest of personalty in such terms confers the whole interest therein absolutely. - Newton v. Griffith, 1 Har. & G. (Md.) 111; Hawley v. Northampton, 8 Mass. 3, 5 Am. Dec. 66; Wheaton v. Andress, 23 Wend. (N. Y.) 452. 3 Gibson v. Brown, (Ind. App.) 110 N. E. 716. to limit an estate in fee simple. Thus to pass the fee by deed it had to run to the grantee "and his heirs." With regard to devises of lands, the technical word "heirs” is not required since the intention to create an estate in fee simple in the devisee may be shown by other forms of expression.5 One dominant feature in connection with the construction of wills is to determine from the language of the instrument the intention of the testator and to give effect to such intention whenever it can be done without violating some rule of law. The whole scope and plan of the testator's disposition of his property must be considered, and the various provisions of his will must be compared one with another, construing them so that all may stand if possible. The testator's intention is not to be gathered from one clause alone, but from all the provisions of the will. While the rule of the common law is that a devise of real estate in general terms, unaccompanied by words of inheritance or other language limiting or defining the quantity of the estate devised, gives to the devisee only a life estate, yet where the will contains expressions or provisions indicating an intention 4 Coke Litt. 8b; 4 Kent Com. *6; Wilder v. Wheeler, 60 N. H. 351; Adams v. Ross, 30 N. J. L. 505, 511, 82 Am. Dec. 237; Ford v. Johnson, 41 Ohio St. 366; Oyster v. Knull, 137 Pa. St. 448, 21 Am. St. Rep. 890, 20 Atl, 624. 52 Bl. Com. *108; Rutherford v. Greene, 2 Wheat. (U. S.) 196, 4 L. Ed. 218;' White v. White, 52 Conn. 518; Haight v. Royce, 274 Ill. 162, 113 N. E. 71; Fenstermaker v. Holman, 158 Ind. 71, 62 N. E. 699; Young v. Kinkhead's Admrs., 101 Ky. 252, 40 S. W. 776; Baker v. Bridge, 12 Pick. (29 Mass.) 27; Godfrey v. Humphrey, 18 Pick. (35 Mass.) 537, 29 Am. Dec. 621; Bassett v. Nickerson, 184 Mass. 169, 68 N. E. 25; Gannon v. Albright, 183 Mo. 238, 105 Am. St. Rep. 471, 67 L. R. A. 97, 81 S. W. 1162; Jackson v. Housel, 17 Johns. (N. Y.) 281; Irvine v. Irvine, 69 Ore. 187, 136 Pac. 18. As to the rule in Shelley's Case, where the devise is to "A and his heirs," see §§ 898, 910. |