Whartenby v. Daniel

instructed the jury that in this case it was not necessary to inquire whether what was given to James Whartenby, the plaintiff, was an executory devise limited "to him after an indefinite failure of issue of Richard Tibbitt. and therefore too remote, or whether it wás a substitution-ary estate, or' a devise directed to take effect after a definite failure of issue of a person in being when the will was made. “Issue” “prima facie and generally means ‘heirs of the body.’ and it has reference to all lineal descendants.” The rule in Shelley’s Case is "an unbending rule.” To take it out of the rule, “the intent of the testator to change its primary meaning and employ it in an unusual sense must manifestly appear in the will itself. There must be enough to overcome the legal presumption to the contrary.” Super-added words of limitation alone are “insufficient to overcome the other legal presumption arising from the gift to issue that he intended them to take as issue, that is, by descent through their ancestor Richard Tibbitt. It raises no more than a presumption against a presumption, in which case the legal inference arising from the use of a word of limitation must prevail.” "In the present case there are no words of distributive modification.” “I do not think the fact that the laws of the state make a distribution when a fee descends, or is given to issue, or heirs, is of equal effect with an express direction in the will that there shall be a distribution.” “Where there are no words of distribution, there is an absence of this double expression of the testator's intent to employ the words ‘heirs of the body' or ‘issue' as equivalent to children, or as a mere description of persons." In no one of the cases cited "has a devise to a per*855son for life with remainder to his issue, and the heirs of the issue been held to give a mere life estate to the first taker, unless there were also in the devise of the remainder words of distributive modification.” In addition to the limitation to the heirs generally of the issue, and the express gift to Itichard Tibbitt during Iris natural life, the devise to his issue is not to his issue unqualifiedly, or generally. It is not to all his issue. The words are: “After his death to his issue by him lawfully begotten of his body, to such issue, their heirs and assigns forever.” “The testator in these words seems to have defined what he meant by issue, not heirs of the body, but issue begotten by the tenant for life, and begotten of his own bodjr, necessarily children.” This intention was further strengthened by the sub-stitutionary devise, in case of the death of the first taker without lawful issue, to persons then in being for life only, and by the fact that in such contingency they were to take the whole property for life, and that words of limitation were added to the devise to the issue. That the first taker took an estate for life, and the devise over to James Whartenby was not void for perpetuity. Verdict for plaintiff.

To this charge the defendants then and there excepted before the verdict, and filed their bill of exceptions.