to devise an estate in fee, the courts will give effect to such intention.R It is not necessary to employ the words "heirs," "assigns," or other words of inheritance." Any other apt expressions denoting an intention to devise an estate in fee simple are sufficient for such purpose. There must, however, be either words of inheritance or other provisions which, according to the settled rules of construction, show an intention on the part of the testator to pass the fee." 6 Re De la Hunt, 57 L. T. N. S. 874; Reeder v. Antrim, (Ind. App.) 112 N. E. 551; Harper v. Blean, 3 Watts (Pa.) 471, 27 Am. Dec. 367; McAllister v. Tate, 11 Rich. L. (S. C.) 509, 73 Am. Dec. 119; Williams v. Jones, 2 Swan (32 Tenn.) 620. 7 Merritt v. Abendroth, 24 Hun (N. Y.) 218; Kirk v. Richardson, 32 Hun (N. Y.) 434; In re Kane's Estate, 11 Phila. (Pa.) 72; Davis v. Williams, 85 Tenn. 646, 4 S. W. 8. 8 Holmes v. Williams, 1 Root (Conn.) 335, 1 Am. Dec. 49; Robinson v. Randolph, 21 Fla. 629, 58 Am. Rep. 692; Walker v. Pritchard, 121 Ill. 221, 12 N. E. 336; Chamberlain v. Owings, 30 Md. 447. In Baker v. Bridge, 12 Pick. (29 Mass.) 27, 30, Shaw, C. J., says: "We take the rule now to be well established as well in equity as in law, that in a will, words of limitation are not necessary to create an estate in fee; but that where the words of the devise, according to their natural and fair import, construed in connection with other parts of the will, manifestly show that it was the intention of the testator to give an estate in fee, and where the general purpose and the particular intent of the testator as expressed or gathered by fair and plain implication from the will itself, can not be carried into effect without such construction, whatever may be the words in which the devise is expressed, the law holds that it passes an estate in fee." 9 Ferris (N. Y.) 221. Chancellor Kent, 4 Kent Com. v. Smith, 17 Johns. *535, The will of an old illiterate man Where a devise of realty in general terms is coupled with a general bequest of personalty, such fact is sufficient to indicate an intention to devise the lands in fee.10 § 920. Context May Show Intent to Pass the Fee. The intention of the testator to devise a fee may be indicated by limitations expressed, as where there is a devise over in the event of a certain contingency. The gift over in only one event is indicative of an intention on the part of the testator that the devisee shall take the whole estate absolutely in all other events.11 The devise was written by an old neighbor who possessed slight knowledge of the meaning and relation of words. All of the testator's realty was in absolute terms devised to his sister in the first part of the will. This was followed by a bequest of all his personalty "to have and to hold during her natural life." Concluding the instrument, he said: "I also vill and devise that my sister Ellen be not required to give bond but hold the same without let or hindrance same as I have done." This will was held to pass a fee and not merely a life estate. -Boston Safe Dep. & Tr. Co. v. Stich, 61 Kan. 474, 59 Pac, 1082. The use of the unnecessary word "heirs" in conveying or devising an estate or inheritance does not evince a lack of confidence in the force of the words previously used and does not cast a doubt on the meaning. "It is doubtful whether any competent or skillful conveyancer ever dispenses with them in-conveying a fee. Why should the use of words so long approved and so absolutely necessary at common law to effectuate such a purpose indicate a different purpose merely because the statute permits other and less words to have the same effect? Notwithstanding our statute has dispensed with the word 'heirs' in devising a fee, this court has often commended their use."Gannon v. Albright, 183 Mo. 238, 105 Am. St. Rep. 471, 67 L. R. A. 97, 81 S. W. 1162. 10 Gibson v. Brown, (Ind. App.) 110 N. E. 716. 11 Doe v. Cundall, 9 East 400; Marshall v. Hill, 2 Maule & S. 608; Burke v. Annis, 11 Hare 232. As to the meaning and effect of words of limitation, see § 909. This implication arises most frequently from devises over in the event of the devisee dying without heirs.-Tomlinson v. Nickell, 24 W. Va. 148. A testator gave his "entire property" to his three children, with a of the rents or income of an estate is held to pass the fee in the same manner as a devise of the estate itself.12 The same is true of a gift of the proceeds of a fund, without limit as to time.13 A provision that the property "shall descend to A and her children after her, "'14 or that a farm shall "belong to" the devisee,15 is sufficient to create an estate in fee. An estate in fee will pass by a devise of "the remainder," of the "reversion,"17 or of the "residue,"18 where there is no limitation over. So a fee will be con provision that if none of them should leave issue the property should be divided equally among the children of a brother and sister. The executors were authorized to manage the estate during the minority of his children with power to sell, and sundry other personal bequests were made in the will. The will was construed to give the real estate to the testator's children in fee, and the gift to his brother's and sister's children in case his own children died without issue was construed as referring to their death before his own.-White v. White, 52 Conn. go to the trustee individually or his heirs, there arises an implied devise to the son of the fee of the land upon attaining his majority. -Culhane v. Fitzgibbons, 42 Misc. Rep. (N. Y.) 331, 86 N. Y. Supp. 710. 12 Gulick's Exrs. v. Gulick, 25 N. J. Eq. 324. 13 Gulick's Exrs. v. Gulick, 25 N. J. Eq. 324. 14 Lennen v. Craig, 95 Ind. 167. 15 Patterson v. Nixon, 79 Ind. 251. 16 French v. Campbell, 2 Mackey (D. C.) 321; Norton v. Ladd, 1 Lutw. 755; Baker v. Wall, 1 Ld. Raym. 185. 17 Bailis v. Gale, 2 Ves. Sen. 48. 18 McConnel v. Smith, 23 III. 611; Mitchell v. Morse, 77 Me. 423, 52 Am. Rep. 781, 1 Atl. 141; Eliot v. Carter, 12 Pick. (29 Mass.) 436; Bullard v. Goffe, 20 Pick. (37 Mass.) 252, 257, 259; Lincoln v. Lincoln, 107 Mass. 590; Rathbourne v. Dyckman, 3 Paige Ch. (N. Y.) 9. veyed by a devise of all "right," "title," or "interest, "19 or of the testator's "moiety," "part," or "share." "22 or 25 § 921. The Same Subject: Effect of Use of Word "Estate." The use of the word "estate," or "estates, "my estate," at or in a certain place,23 or of a certain name, or designated as bought of a certain person,2 will operate to create a fee-simple. The word "estate" is supposed to refer to the testator's title,26 and will operate to pass whatever title may be in him. This presumption prevails, although the word "estate" be associated with locality, or be used in conjunction with words of express limitation in fee in the same will.27 If the word "estate" occurs in the sentence creating a life estate, and a devise in remainder is described by some less comprehensive term, it will not carry an estate in 19 Sharp v. Sharp, 6 Bing. 630; Andrew v. Southouse, 5 Term Rep. 292. 20 Doe v. Fawcett, 3 Com. B. 274; Montgomery v. Montgomery, 3 Jones & La T. (Ir.) 47; Green v. Marsden, 1 Drew. 646, 653; Stewart v. Garnett, 3 Sim. 398. 21 Reeves v. Winnington, 3 Mod. 45. A devise of "all my real estate," without words of limitation or inheritance, passes the fee simple.— See Snodgrass v. Brandenburg, 164 Ind. 59, 71 N. E. 137, 72 N. E. 1030; Boston Safe Deposit Co. v. Stich, 61 Kan. 474, 59 Pac. 1082; Godfrey V. Humphrey, 18 Pick. (Mass.) 537, 29 Am. Dec. 621; Forsaith v. Clark, 21 N. H. 409; Sharp V. Humphreys, 16 N. J. L. 25; Frame v. Stewart, 5 Watts (Pa.) 433; Carr v. Jeannerett, 2 McCord (S. C.) 66. 22 Macaree v. Tall, Amb. 181; Fletcher v. Smiton, 2 Term Rep. 656. 23 Ibbetson v. Beckwith, Cas. t. Talb. 157; Barry v. Edgeworth, 2 P. Wms. 523; Pettiward v. Prescott, 7 Ves. Jun. 541, 546. 24 Chichester V. Oxendon, 4 Taunt. 176; Roe v. Wright, 7 East 259. 25 Bailis v. Gale, 2 Ves. Sen. 48. 26 Randall v. Tuchin, 6 Taunt. 410. 27 Wilkinson V. Chapman, 3 Russ. 145; Johns Hopkins University v. Garrett, 128 Md. 343, 97 Atl. 640; Godfrey v. Humphrey, 18 Pick. (35 Mass.) 537, 29 Am. Dec. 621. fee.28 The word "estate" will not be construed to convey a fee where it would result in cutting off subsequent limitations.29 And where the word "estate" is not an operative word or is used merely in the introductory part of the will in expressing the testator's intention to dispose of all his worldly property, or where it is by reference restrained by an antecedent word, it will not carry an estate in fee.30 § 922. The Same Subject: Effect of Use of Such Words as "Property" or "Real Effects." The words "property" and "real effects''82 have the same effect in passing a fee as the word "estate." The word "property" in its strict and proper sense relates solely to the quantity of the estate and unless restraining words are used, it refers to the whole interest. Therefore, where the testator devises his "property" or "all his property," it is held to convey an estate in fee simple.34 28 Roe v. Blackett, Cowp. 235. 29 Key v. Key, 4 De Gex, M. & G. 73; Martin v. McCausland, 4 Ir. L. R. 340. See, also, Doe v. Roper, 11 East 518. 30 Robinson v. Randolph, 21 Fla. 629, 58 Am. Rep. 692. 31 Patton v. Randall, 1 Jacob & W. 189; Roe v. Pattison, 16 East 221; Doe v. Roberts, 11 Ad. & E. 1000; Nicholls v. Butcher, 18 Ves. Jun. 193; Footner v. Cooper, 2 Drew. 7; Bentley v. Oldfield, 19 Beav. 225. 32 Hogan v. Jackson, Cowp. 299; 33 Fogg v. Clark, 1 N. H. 163. 34 Donovan's Lessee v. Donovan, 4 Harr. (Del.) 177; Robinson v. Randolph, 21 Fla. 629, 58 Am. Rep. 692; Morgan v. McNeely, 126 Ind. 537, 26 N. E. 395; Mudd v. Mullican, 11 Ky. L. Rep. 417, 12 S. W. 263, 385; Cook v. Couch, 100 Mo. 29, 13 S. W. 80; Roseboom v. Roseboom, 15 Hun 309, affirmed in 81 N. Y. 356; Piatt v. Sinton, 37 Ohio St. 353; Foster v. Stewart, 18 Pa. St. 23; Mayo v. Carrington, 4 Call (Va.) 472, 2 Am. Dec. 580. |