Gibson v. Horton

The opinion of the court was delivered by

After stating the case, he proceeded as follows: The lessors of the plaintiff’ are a daughter and th^ representatives of other daughters of John Elliott, the first testator, who on the death of Henry Elliott without issue, claim an interest in the home plantation, or Matthew’s Enlargement, on the ground that Henry Elliott had not such an interest therein as enabled him to devise it to his sister, the wife of the defendant. To-support the pretensions of the lessors of the plaintiff^ it is contended, tha.t Henry Elliott, under his father’s will, took only a life-estate in Matthew’s Enlargement, or an estate in fee tail. On the part of the appellee it is contended, that he had an estate in fee, and that it passed by his will to the wife of the defendant. By the language of the will of the father, and according to the legal import given to the expressions used, both John and Henry, under the clauses by which the land is given to them, took estates in fee simple, clearly and technically expressed; and it seems equally clear by the limitations over., the estates given to each of them are reduced to estates tail—If '■'■John Elliott should die without lawful issue, my. will is that my dwelling plantation shall descend to my son Henry Elliott”—In case “my son Henry Elliott should die, failing of issue lawfully begotten, my will is that the land given to him shall be equally divided betwixt my seven daughters, ’’ are expressions too clear to admit of the least doubt, but that eacli of the sons took only estates fail in the land, iu the first instance, devised to them. But the question, on which this clause depends, is, what estate had Henry in the land devised to John, on the (acts as stated,at the.time Henry’s will was executed? In general, where land is given without mentioning what interest is to pass, the fee simple is designed; but according to the well established rules of law, when nothing is mentioned as to the extent of the interest, and there is nothing more in the will than the devise of the land, a life estate only will pass, the reversion in fee devolving on the heirs at law. In the will in question, on the death of John, without issue, Henry *180is to have the land; on the death of Henry, his sisters are to have that before given to him. The extent of the interest given to either not being specified, Henry would only take a life estate in the home plantation, and they (the sisters,) only estates for lives, as tenants in common, in the land devised to him. But the devise over to Henry depends on his giving up the land, before given to him, in value nearly equal to that of John’s, supposing Henry to take an estate in fee therein. He did give up the one, and took possession of the other. Where land is given by will, without specifying the interest, charged with the payment of a sum of money in gross, no matter how small, the devisee, if he takes the land, must pay the sum; but his interest is by the charge enlarged to an estate in fee, which without such charge would have been but a life estate. If being charged with the payment of a sum of money in gross, will convert a life estate to an estate in fee, surely charging the devisee, or making the devise to him depend on his conveying land belonging to himself to other persons, must have the same effect. It was contended, that as John took but an estate tail, on his death Henry had no greater interest, There is nothing in the will by which an estate tail can possibly be established in Henry to the land before given to his brother. There are no words in the will, in the slightest degree, calcula! ed to create such an estate. If the clause making it necessary for him to convey his land to his sisters, can have any effect, it must enlarge the estate to a fee simple. No instance, it is believed, exists, where an interest enlarged by a charge on land devised, has been restricted to an estate tail. It has been urged that the conveyance of the lands by Henry, is not a charge on, but collateral to the devise. The same might be said of the payment of a gross sum of money charged on the land; if the devisee refused to take the lands devised to him, he is not answerable for the money. But Henry elected to take the land with the terms imposed-^he has complied with those terms—his sisters obtained the full benefit of them; it would be great injustice to confine or limit his interest to a life estate in the land received in lieu of that conveyed; nor, according to the rules of law, can his interest be so restricted. The judgment given by the couqty court is therefore affirmed.

JUDGMENT AFFIRMED»