repair, will not be a sufficient ground to declare it only a lifeestate.100 38. The rules of law are probably substantially the same as at common law, in most of the American states. In Massachusetts 101 it has been decided, that a devise of "all the residue and remainder of my real estate" passes a fee, though no words of limitation or inheritance are added. And that a devise of real estate, without words of inheritance, passes a fee, if the devisee is personally charged in the will with the payment of money to a third person.100 In another case 102 the court held, that the following terms in a will, "all my estate both real and personal, reserving only sufficient to pay my just debts," carry a fee, without words of limitation, by force of the word "estate." And in another case,103 where no words of inheritance were used, from other portions of the will, and from the value of the estate as estimated by the testator, being that of the fee, that was held to pass. 39. In some of the states the general terms, "property" and "estate" have received a much more restricted construction.104 In the first case just cited the court are made to say that the word "property" does not include choses in action, but only personalty in possession, and in the later case of Hurdle v. Outlaw, the court seem to regard the expression, "all my property of every description," as limited to personalty, but as being sufficient to constitute "a universal legatee." In a still later case it is held that a limitation by will to one upon the contingency of arriving at a particular age, or marriage, manifested an intention to have the devisee take an estate in fee upon 105 100 Fuller v. Yates, 8 Paige, 325; 4 Kent, Com. 535, 536, 537. 101 Parker v. Parker, 5 Met. 134; Godfrey v. Humphrey, 18 Pick. 537. 103 Tracy v. Kilborn, 3 Cush, 557. The wife was here made sole executrix, but that fact is not regarded as important. 103 Baker v. Bridge, 12 Pick. 27. See also Cook v. Holmes, 11 Mass. 528. 104 Pippin v. Ellison, 12 Ired. 61; Hurdle v. Outlaw, 2 Jones, Eq. 75. 105 Gray v. Winkler, 4 Jones, Eq. 308; Holderby v. Holderby, id. 241. arriving at the prescribed age, or being married. But it was held in Clark v. Hyman,106 that a bequest of "all my property and possessions," followed by an enumeration of "personal and perishable," with the direction to pay the testator's debts out of it," to have and to hold to them and their heirs and assigns forever," did not pass real estate. 40. It has been held that a devise of "my land" to a county, to establish schools, passes a fee, since nothing less would be commensurate with the trust declared.107 But a power of sale attached to an express life-estate will not have the effect to enlarge it to a fee.108 41. The word "heirs" in connection with the word "issue," will be regarded as meaning heirs of the body, and will create an estate-tail in real estate. 109 But any words, which applied to real estate would create an estate-tail, will, when applied to personalty, give the first taker an absolute estate, and any remainShaw, Ch. J. here says: "It will be found, we believe, in all the cases, that where a gift over of personal estate has been maintained, it is where the gift to the first taker is by the terms of the bequest, not exceeding a gift for life." 110 42. It has been held in Pennsylvania,111 that where the testa der over is void. 100 1 Dev. 382. 107 Bell County v. Alexander, 22 Texas R. 350. 108 Dean v. Nunnally, 36 Miss. R. 358. 100 Albee v. Carpenter, 12 Cush. 382. 110 Ellis v. Merrimack Bridge, 2 Pick. 243; Homer v. Shelton, 2 Met. 194, and cases there cited. The same rule obtains in Tennessee. Clark v. Clark, 2 Head, 336. But an estate in remainder in personalty may be created, as well as in the realty, when such appears to be the intention of the testator. Smith v. Bell, 6 Pet. 68; Keating v. Reynolds, 1 Bay, 80. But the general proposition of the text is most unquestionable, that a bequest of personalty in the same terms, which will create an estate-tail in the realty, will give an absolute title to the first taker. Exrs. of Moffat v. Strong, 10 Johns. 11; Paterson v. Ellis, 11 Wend. 259. An executory devise in personalty is valid. Dunn v. Bray, 1 Call, 294. 1 Hall v. Dickinson, 31 Penn. St. 76. It is here said, that the word tor gave his son a tract of land, without words of inheritance, to take effect after the death of his widow, giving other land to be sold and the avails divided among other children, that the son took a fee-simple. And where the testator, in the introductory part of his will, expressed the purpose of making an entire disposition of his estate, and devised land to one, during his natural life, and after his decease to his children, it was held to give the remainder-men a fee.112 And a general devise to one of the testator's children, when she arrived at full age, with a restriction upon all the children as to conveying their portion of real estate, but directed them to receive the rents during life, and after their death, that their portions should be divided among their children and their heirs, and if any of the children died without issue, then among the survivors, was held to create an estate in fee-simple.113 So, also, where the devise was for life, and to children or their issue after the death of the first taker, it was held to create a fee-simple.114 A devise to one for life, with remainder to his heirs, creates a fee-simple.114 43. A devise, expressed to be in fee-simple for life, will create an absolute fee-simple.115 The word "children" used in a devise, as to one during life, and after his decease to his children, the children being alive at the time the will takes effect, must be regarded as expressive of testator's bounty to them. They therefore take as purchasers.116 And where, in a will which evidently contemplated the entire disposition of the testator's estate, certain real estate was given to one of the testator's children, without words of inheritance, but charged with certain payments and annuities, it was held to create an estate in fee-simple, not "heirs" is not necessary to create a fee-simple estate by will, when there are other expressions which show that intention. 112 Gernet v. Lynn, 31 Penn. St. 94. withstanding a provision that if any of the devisees should die unmarried, or without issue, his or her share should revert to the general estate. 117 And in a devise to the testator's widow of all his personal and real property, "so long as she lives, for her maintenance," adding, "she shall have her choice to sell it or not, as she believes best for her," and in another portion of the will," with the third part of his estate she should do and bequeath to whom she pleases," it was held to give her a freehold of the whole estate during life, and one third thereof absolutely.118 The rule in Shelley's Case seems to be in force in Delaware.119 But in all the American states, or nearly all, there has been considerable hesitation in regard to accepting and applying this rule to the fullest extent. It was always regarded as an artificial rule of construction in England, and one which tended to defeat the intent of the testator. And it has not received the unqualified indorsement of the English courts, in regard to devises. We should regret to find the American courts going further in the rigid application of such an unnatural rule of construction to devises, than such English judges as Mansfield and Wilmot were willing to go. Our own views in regard to the proper application of this rule, in those of the American states where no statutory provisions upon the subject exist, will be found fully expressed in two cases in Vermont. 120 117 Schoonmaker v. Stockton, 37 Penn. St. 461. 119 Musselman's Estate, 39 Penn. St. 469. 119 Griffith v. Derringer, 5 Harring. 284. 120 Blake v. Stone, 27 Vt. R. 475; Smith v. Hastings, 29 Vt. R. 240. In the first of these cases we said: "And as we have a statutory system of conveyance or transmission of the title of real estate, wherein we have, more or less explicitly, departed from many of the common-law provisions upon the subject, it deserves serious consideration, in my judgment, whether we should make any distinction between a covenant to convey, a will or devise, and a deed, in regard to the indispensable necessity of the use of the word "heirs," to create a fee-simple or fee-tail, or whether that 44. In Connecticut, the rule in Shelley's Case seems to have been regarded as in operation in a somewhat modified form word is always to be regarded as one of limitation, and never of purchase, in a deed, without reference to the clearly expressed intention of the parties. The question, as it affects deeds, will probably here ultimately settle down, upon the same basis it has, at common law, in regard to covenants and devises, as one of intention merely. Justice Wilmot says, in Long v. Laming, 2 Burr. 1100, 'Now it is certain that in some cases, and under some circumstances, they (the words "heir" and "heirs") may be construed words of purchase, either upon a will, or upon a deed.' And to this effect he cites two cases, Lisle v. Gray, found in Sir Th. Jones, 114; s. c. 2 Levinz, 223; s. c. Pollex. 582; s. c. Th. Raymond, 278, and Waker v. Snowe, in Palmer, 359; and concludes, 'They are not to be construed as words of limitation, either upon a will or upon a deed, when the manifest intention of the testator or of the parties is declared to be, or clearly appears to be, that they shall not be so construed.' This is sufficiently explicit, but however sensible and sound, as a rule of exposition, it has not generally obtained, in England, in regard to deeds. . . . . And every one feels the absurdity of any such broad distinction, in regard to the force and import of a word, between deeds and other instruments. .... "But it does not seem to us necessary to put this case upon the broad ground of intention merely. The English cases treat this case as an exception. The case of King v. Melling, 1 Vent. 231, where the devise was to one for life, et non aliter, and this was held sufficient to give only a life-estate, in the first grantee, with an estate over to the heirs in fee, as purchasers. So, too, Archer's case, without negative words, but only because the remainder is given over to the heir male in the singular number, regards the heir as taking by purchase and not by inheritance. And Bagshaw v. Spencer, before Lord Hardwicke, (2 Atkins, 577, and 1 Ves. Sen. 142,) is decided as conveying to the first grantee only a life-estate, because the words, 'without impeachment of waste,' are used, which have no application to an estate of inheritance. But if such words may determine the extent of the estate, so may others equally indicative of intention. Other cases may be referred to in Judge Reeves's dissertation upon this subject. Dom. Rel. Appendix, 453." The following suggestions upon the point are made in Smith v. Hastings, supra : "This question seems to involve, to some extent, the rule in Shelley's Case. 1 Coke, 88 b, 93. This question was somewhat examined in a late case. Blake v. Stone, 27 Vt. 475. It was there considered that the rule in Shelley's Case was to be regarded as of no special force in this state, except as one of construction and intention. This was the view taken of the same rule in England, by Lord |