J. R. Brooks and another v. M. B. Evetts and others, 33 Tex. 732

Walker, J. In this case -we are called on to construe the following testamentary clause in the will of Elizabeth J. Bonds, which bears date April 23, 1858: “ After all my lawful debts are paid and discharged, the residue of my estate, real and- personal, I give and bequeath to, and dispose of, as follows, to-wit': to my sister, Mary A. Stuteville, one-third of a league of land,” etc. This is followed by an inventory and description of .the property devised, including the land in controversy; after which are. the words following: “And all the above described property I give and bequeath to the said Mary A.

Stuteville and her heirs during her natural life.” • It is a fundamental rule in the construction of wills that the intention of the testator shall govern his devise, if not contrary to law, and capable of ascertainment. The district judge before whom this case was tried so construed the devise as to give a life estate to Mary A.

Stuteville, without remainder, vested or contingent, but with a reversion to the heirs of the testator; thus holding that no fee passed under the devise, and it would seem ignoring the word “heirs,” as well as the rule in Shelly’s case. (Reports, 1 vol., 104.) We think this was an erroneous construction. The word “heirs ” refers to a class of persons who take by succession from generation to generation. A limitation to heirs entitles the ancestor to the whole estate. (4 Kent, 215.) In Hancock v.

Butler, 21 Texas, 807, the court say, “ this result would follow, although the deed might express that the first taker should have a life estate only.” This case is unquestionable authority in the case at bar. The rule in Shelley’s case is a rule of law, and not a mere rule of construction. The unpopularity of the rule in several of the States of this Union has led to its repeal by statute, as in the State of Ohio, (Swan’s Statutes, 999, § 47,) the rule as to wills is abolished. In King v. Beck, 15 O. Rep., 561, et seq., the rule in Shelly’s case is severely criticised by that able jurist, Judge Reed.

He says : “We must not start out with a presumption that it' was the design of the testator to create an estate tail, and construe the words of the will to effect that object. That was only a family law in England, designed to build up families, cheat creditors and prevent forfeitures, and in no wise consistent with the spirit and genius of our own government and laws, or the habits and feelings of our people. “ Our statute forbids it, and such I believe is the case in all, or nearly all, the States in this Union.

Nor is there with us any disposition to strain a point to bring a case within the operation of the rule in Shelly’s case, a rule which had its origin in feudal tenure, and was first adopted to secure to the lords the profits and perquisites incident to inheritances; and, as an after thought the additional reason, that it was necessary to prevent an abeyance of the fee. It is at best a mere artificial technicality;' and just in proportion as it lacks reason, it appears to have won upon the affections of the profession.

In its simplicity, it possesses some sense, and to that extent we have adopted it as a rule of property in Ohio.

But it is the high and imperative duty of this court to conform its judicial decisions, when we attempt to walk by the light of precedent from another country, to the nature of our own government and free institutions.” A court sitting in a State where the rule in Shelly’s case was abolished by statute could use the foregoing language; and it would be gratifying to us if we too could throw away all presumptions in favor of estates tail, and show no affection for the rule in Shelly’s case—but we are compelled rather to follow the decision in Hancock v. Butler, and the earlier Ohio cases. (See McFeely’s Lessee v.

Moore’s Heirs, 5 O., 465; Armstrong v. Zane, 12 O., 287, and King v. King, Ib., 390.) These cases hold that a devise to A. for life, and after his decease to the heirs of his body, and failing heirs at his decease then over, was an estate tail in A. These cases were overruled in King against Beck, 15 Ohio, 539. The doctrine of this case Í3 that a devise to one and his heirs, to be used by the devisee for life, with remainder over to a third person, will not vest the fee in the devisee under the rule in Shelly’s case, if such construction would defeat the maniiest intentions of the testator.

The word heirs is sometimes construed to mean children or even legatees. > We are satisfied in this case to adopt the reasoning of the learned judge in King v. Beck, for we are clearly of the opinion that it was the intention of the testatrix to give to her sister, Mrs. Stuteville, an estate for life in the property devised, with a vested remainder to her heirs—for it is her heirs, to wit, the heirs of Mary A. Stuteville, who are to be the beneficiaries under this will, and not the heirs of Mrs. Bonds, the testatrix, as the district judge supposed.

Had it been the intention of the testatrix that upon the death of her sister the estate should revert to her heirs, we think that they would have been named as reversionary legatees. Under this construction of the will of Mrs. Bonds, Mrs. Mary A. Stuteville conveyed by her deed' of June 10, 1858, to Reuben Bonds an estate for her own life, and at her death the estate of the plaintiffs in error terminated, and the fee, discharged of the pre-. cedent estate, vested in the right heirs of Mrs. Stuteville.

The judgment of the district court is reversed and the cause remanded, to be proceeded in in accordance with this opinion. Reversed and remanded.