Hamilton v. Hempsted

3 Day 332

• Court: Supreme Court of Connecticut
• Decided: June 15, 1809
• Status: Published

Opinion

By the Court.

The proceedings in the probate of ⅝ the will are conformable to the usage and practice of ‘that period; for the general assembly then exercised ex* ! tensive judicial power, especially in granting new trials, ! And it would be of dangerous consequence to set aside ! such ancient proceedings, because they do not appear to ; be conducted with all the regularity *f modern times.

In the construction of devises, the intent of the devi-sor, collected from the whole devise, is to be pursued, if that intent is consistent with the policy of the law. Though the words “ heir male in fierfietual succession” would comprehend his heirs male generally; yet, when taken in connection with the other words in the devise, that if the devisee has no heir male, then to his daughters, and if no issue, then to the daughters of the devisor, it is manifest, that the devisor intended the heir male of his body begotten; and that his object was to create an estate in fee tail.

Our courts have never adopted the fee conditional at common law, nor the statute of Westminster 2d, called the statute de donis; but from the principle, that the law abhors a perpetuity, they have decided, that a deed or devise, using words proper to create an estate in fee tail, should vest an estate in fee-simple in the issue of the*first donee in tail: And the statute on that subject has been considered to be in affirmance of the common law. *

New trial not to be granted.