Slemmer v. Crampton

50 Iowa 302

Opinion

Seevers, J.

l. will : devise of life estate, Whatever title Maria A. Avery had was derived through the will of George W. Avery, her father. It provides: “I give and bequeath unto my beloved danghter, Maria A. Avery, to be used, occupied, and enjoyed by her after she becomes of the age of legal majority, during her natural life only, the following lands: * * .* *- * and it is my further will that after the death of my daughter Maria said lands and lot shall go to the heirs of her body fee (free) and clear of all liens and incumbrances thereon. ”

It is insisted the said Maria under the will took a fee simple estate under the rule in Shelley’s Case. Such rule has been defined as follows: “That when the ancestor by any gift or conveyance taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or entail, the heirs are words of limitation and not words of purchase.” 4 Kent, 215. The same .author says: “There is more latitude of construction allowed in wills in furtherance of the testator’s intention” (4 Kent, 216), and that “there are several cases in which, in a devise, the words heirs or heirs of the body have been taken to be words of purchase and not of limitation, in opposition to the rule in Shelley’s Case. * * * * Thus it is in the case of a limitation to A. for life only, and to the next heir male of his body, and the heirs male of such heir male. * * * * In such cases it appears that the testator intended the heirs to be the root of a new inheritance or stock of a new descent, ;and the denomination of heirs of the body was merely descriptive of the persons who were intended to take.” 4 Kent, 421.

The ease at bar is clearly within this rule. The real estate was devised to Maria A. Avery for the term of her natural life only. During that time she was to occuxDy and enjoy the same, and at her death the real estate was to “go to the heirs of her body, free of all liens and incumbrances.” The intent of the testator to create a new stock of descent at her death is entirely clear.

Affirmed.