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In a few other states, estates tail are made life estates in the first donee with remainder in fee simple to the person to whom the estate would pass at common law at the death of the first donee,11 or with remainder in fee simple to the children of the first donee as tenants in common, or to the children of deceased children by representation.15 And in some of the states an estate tail is good if not conveyed, but the tenant in tail may convey it in fee simple.16

297; Bingham v. Weller, 113 Tenn. 70, 106 Am. St. Rep. 803, 69 L. R. A. 370, 81 S. W. 843; Callis v. Kemp, 11 Gratt. (Va.) 78; Doe v. Craigen, 8 Leigh (Va.) 449; Hill v. Burrow, 3 Call (Va.) 342; Atkinson v. McCormick, 76 Va. 791, 799.

14 Stimson's Am. Stat. Law, §1313, citing statutes of Arkansas, Colorado, Illinois, Missouri, and Vermont.

Ark. Kirby's Digest, § 735; Horsley v. Hilburn, 44 Ark. 458; Black v. Webb, 72 Ark. 336, 80 S. W. 367; Gist v. Pettus, 115 Ark. 400, 171 S. W. 480.

Illinois Conveyance Act, § 6, Rev. Stat. 1874, p. 273; Lehndorf v. Cope, 122 Ill. 317, 13 N. E. 505; Peterson v. Jackson, 196 Ill. 40, 63 N. E. 643; Spencer v. Spruel, 196 Ill. 119, 63 N. E. 621; Kolmer v. Miles, 270 Ill. 20, 110 N. E. 407; Utter v. Sidman, 170 Mo. 284, 70 S. W. 702; Gannon v. Pauk, 200 Mo. 75, 98 S. W. 471; Missouri Rev. Stat., 1855, ch. 32, § 5; Brown v. Rogers, 125 Mo. 392, 28 S. W. 630.

15 Stimson's Am. Stat. Law, § 1313,

citing statutes of Connecticut, New
Jersey, New Mexico, and Ohio;
Croxall v. Shererd, 5 Wall. (U. S.)
268, 18 L. Ed. 572; Conn. Gen. Stat.,
1902, § 4627; St. John v. Dann, 66
Conn. 401, 34 Atl. 110; Weart v.
Cruser, 49 N. J. L. 475, 13 Atl. 36;
Doty v. Teller, 54 N. J. L. 163, 33
Am. St. Rep. 670, 23 Atl. 944; Dun-
gan v. Kline, 81 Ohio St. 371, 90
N. E. 938.

But in New Jersey the widow of
'the donee has dower and the hus-
band curtesy.-Revision of N. J.,
"Descent," § 11; Kennedy v. Ken-
nedy, 29 N. J. L. 185.

16 By an ordinary deed in Delaware, Maine, Maryland, Massachusetts, Pennsylvania, and Rhode Island, or by a deed acknowledged before a special commissioner or before a Supreme or Superior Court, or by will in Rhode Island. -Stimson's Am. Stat. Law, § 1313.

See, also, Posey's Lessee V. Budd, 21 Md. 477; Coombs v. Anderson, 138 Mass. 376; Gilkie v. Marsh, 186 Mass. 336, 71 N. E. 703; Lawrence v. Lawrence, 105 Pa. St. 835; Stouch v. Zeigler, 196 Pa. St.

1

In all cases, by reason of varying legislation regarding estates tail, the statutes must be consulted. And although converted into estates in fee simple, the rules applicable to estates tail are still important in determining the nature of the estate attempted to be devised.

§ 942. Words Sufficient to Create an Estate Tail.

An estate tail may be created by will without any formal language, and any expression showing an intention to devise a fee descendible to lineal heirs is sufficient to create it by the rule of the common law." In deeds, in designating the heirs, the words "of the body" or some words of procreation are necessary.18 But in wills, where the intention of the testator controls, words technically correct are not required. It is sufficient if the construction of the will shows that the testator intended to limit the estate either to general or special heirs of the body of the

489, 46 Atl. 486; Cooper v. Cooper, 6 R. I. 261, 264.

A person having a legal or equitable estate or right in fee tail, in possession, remainder, or reversion in any lands, tenements, or hereditaments has an actual vested estate attended with the usual incidents of full freedom, including the power at his own will to convert it into an absolute estate, both by the common law and by the statute. - Del. Rev. Code, 1893, §§ 26 and 27, c. 83; In re Reeves, (Del.) 94 Atl. 511; Holland v. Cruft, 3 Gray (69 Mass.) 162, 182.

The right to bar an estate tail is not property; it is an incident

of the estate-a privilege bestowed by the statute upon a tenant in tail which he may or may not assert. In re Reeves, (Del.) 94 Atl. 511.

17 Kolmer v. Miles, 270 Ill. 20, 110 N. E. 407.

Where the testator declares that the estate devised shall be descendible only to the heirs of his children of his blood, he means his lineal heirs, since no other heirs could be heirs of his blood.-Kolmer v. Miles, 270 Ill. 20, 110 N. E. 407.

182 Bl. Com. *114; Doty V. Teller, 54 N. J. L. 163, 33 Am. St. Rep. 670, 23 Atl. 944; McIntyre v. Ramsey, 23 Pa. St. 317; Jones v. Jones, 201 Pa. St. 548, 51 Atl. 362.

devisee. And words of inheritance are not necessary to create an estate tail, a devise to A and his "issue," or "descendants," or "seed," or "offspring" may suffice if the testator's intention to that end is apparent.1o A devise "to J during his natural life, and after his death to his issue," will confer an estate tail,20 the word "issue" being prima facie a word of limitation equivalent to "heirs of the body," but more flexible than these, and more easily restricted in its meaning.21 The word "offspring" is synonymous with "issue" and the use thereof may create an estate tail.22

8943. The Same Subject.

The words "heirs of the body," "bodily heirs," or "heirs lawfully begotten," are appropriate words of limitation to create an estate tail.28 A devise to a woman "and such heirs of her body, or children such as she shall have living at the time of her death," creates a like estate. The addition of the word children merely makes the description cumulative;24 it adds a qualification as to the second takers, but does not alter the words of limitation of the devise.25

19 2 Bl. Com. 114; Young v. Davis, 2 Dr. & Sm. 167; Lucas v. Goldsmid, 29 Beav. 657; Rudkin v. Rand, 88 Conn. 292, 91 Atl. 198.

The provision “and I do not want it to get away from my heirs to outside parties" does not denote an intention to create an estate tail.-Conover v. Cade, (Ind.) 112 N. E. 7.

20 Roe v. Davis, 1 Yeates (Pa.) 332.

21 Bradley v. Cartwright, L. R. 2 Com. P. 511; O'Byrne v. Feeley, 61

Ga. 77; King v. Savage, 121 Mass.
303; In re Guthrie's Appeal, 37 Pa.
St. 9; Robins v. Quinliven, 79 Pa.
St. 333.

22 Barber v. Pittsburgh, F. W. &
C. R. Co., 166 U. S. 83, 41 L. Ed.
925, 17 Sup. Ct. 488; Allen v. Mar.
kle, 36 Pa. St. 117.

23 Wright v. Curry, 163 Ky. 683, 174 S. W. 1.

24 Boyd v. Weber, 193 Pa. St. 651, 44 Atl. 1078.

25 Hiester v. Yerger, 166 Pa. St. 445, 31 Atl. 122.

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A devise to one "and his oldest male heir forever,"26 or to a person "and to his male heir (in the singular), conferred at common law an estate in tail male upon the devisee, and the issue took by descent and not by purchase.27 A devise to a man "and to the heirs of his body," operated with a like effect to pass an estate tail; and if it descended from the devisee in tail, the heirs of his body took in succession, the eldest son and his issue, the second son and his issue, and so on.28

§ 944. The Same Subject: Statutory Requirements.

In the creation of an estate tail the usual form of limitation is to one and "the heirs of his body," and this is denominated an estate tail general.29 But in most jurisdictions where estates tail are still recognized, they will be created by the use of any language which would create an estate tail at common law.30 However, in some jurisdictions where estates tail are permitted by statute, the act has prescribed the words necessary to create the estate as, for example, the use of the words "in tail" or "heirs of the body."81

26 Cuffee v. Milk, 10 Metc. (51 Mass.) 366.

27 Osborne v. Shrieve, Fed Cas. No. 10598, 3 Mason 391.

Kirby

28 Welles V. Olcott, (Conn.) 118; Hawley v. Inhabitants of Northampton, 8 Mass. 3, 5 Am. Dec. 66; Bender v. Fleurie, 2 Grant Cas. (Pa.) 345; Giddings v. Smith, 15 Vt. 344.

29 Pearsol v. Maxwell, 76 Fed. 428, 22 C. C. A. 262; Wilmans v. Robinson, 67 Ark. 517, 55 S. W. 950; In re Reeves, (Del.) 92 Atl. 246, affirmed in 94 Atl. 511; Watkins v. Pfeiffer, 29 Ky.

L. Rep. 97, 92 S. W. 562; Riggs v. Sally, 15 Me. 408; Ralston v. Truesdell, 178 Pa. St. 429, 35 Atl. 813; In re Tillinghast's Account, 25 R. I. 338, 55 Atl. 879; Du Pont v. Du Bos, 52 S. C. 244, 29 S. E. 665; Giddings v. Smith, 15 Vt. 344.

A devise "not only to A but to the heirs of his body" creates an estate tail general.-Rhodes v. Bouldry, 138 Mich. 144, 101 N. W. 206.

30 Rudkin v. Rand, 88 Conn. 292, 91 Atl. 198.

31 Gen. Laws R. I., cap. 202, § 21;

§ 945. Adding Words of Inheritance.

Inasmuch as the very nature of an estate tail is to pass the property by descent to a limited class of heirs, where the clause, "their heirs and assigns," is added after the creating of an estate tail, the words of inheritance must be held to mean heirs of the limited class capable of taking such estate, in other words, heirs in tail;32 and such words do not enlarge the devise to a fee simple either to the devisee or to the heirs of his body.33 The word "heirs" in a superadded clause of limitation can not have the effect of changing former words and diverting their meaning from the object of an estate tail.34

§ 946. "Issue" as a Word of Limitation or of Purchase.

There has been some conflict of authority in regard to whether the word "issue" was one of purchase or of limitation. Ordinarily, it is true, a simple devise to a person and his issue, or to one for life and after his death to his issue,36 or a devise to one and his issue "living at his death,"37 or to a person and his issue and the heirs or heirs and assigns of such issue forever,38 or to a person and his male issue and the heirs male of the

In re Tillinghast's Account, 25 R. I. 338, 55 Atl. 879.

32 Wight v. Thayer, 1 Gray (67 Mass.) 284; Hall v. Thayer, 5 Gray (71 Mass.) 523.

33 Buxton v. Inhabitants of Uxbridge, 10 Metc. (51 Mass.) 87.

34 Kingsland v. Rapelye, 3 Edw. Ch. (N. Y.) 1.

35 As to who are included in the word "issue," see §§ 848, 849. II Com. on Wills-33

36 Shelley's Case, 1 Coke 93b; King v. Melling, 1 Vent. 225, 232; Shaw v. Weigh, 2 Strange 798.

37 University of Oxford v. Clifton, 1 Eden 473; Jenkins V. Hughes, 8 H. L. Cas. 571, 585.

38 Denn d. Webb v. Puckey, 5 Term Rep. 299; Franklin v. Lay, 6 Madd. 258; King v. Burchell, 1 Eden 424, distinguishing Lodding. ton v. Kime, 1 Salk. 224.

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