Pressgrove v. Comfort , 58 Miss. 644 ( 1881 )

Chalmers, C. J.,

delivered the opinion of the court.

By the last will and testament of Richard Boss, who died in Attala County, in this State, in 1847, he devised certain lands and negroes to his four grandchildren for life (he having no living children), with an attempted remainder to their heirs. The provision is that when the two elder of the grandchildren shall become of age there shall be a partial division of the property, and that thereafter these two shall receive the net profits of the portions allotted to them, until the two younger •children shall come of age, at which time there shall be a general and equal division of all the property among the four grandchildren, and “ after such division the land and negroes allotted to each shall be held by them for and during their natural lives, in trust only for the use of the heirs of their bodies.”

If any estate of freehold was by this will conferred upon the first takers, it is quite clear that such takers, by operation of the rule in Shelley’s case, were vested with an estate in fee, whereby the attempted limitation to the heirs of their bodies was defeated; since it is a plain attempt by the same instrument to convey to one or more ^persons a freehold estate, with a limitation over, byway of remainder, of another estate,of the same quality to the heirs of their bodies, as a class of persons to take in perpetuity. It falls, therefore, strictly within the rule in Shelley’s case. 4 Kent’s Comm. 215.

It is argued, however, that no estate whatever was granted to the grandchildren by the will, but that they were mere naked trustees during their lives for their own heirs, and that, taking no estate of freehold, they cannot be vested with an estate in fee. This argument is based upon the words, “ shall be held by them * * * in trust only for the heirs of their bodies,” and it would be plausible if other clauses of the will •did not show that they were not to be mere naked trustees, but were clothed both with the actual seisin of the property :and the usufructuary enjoyment of the rents and profits for life. It differs in no respect from an ordinary life-estate, and is therefore an estate of freehold. It is well settled that a .grant for life of the income and profits of personal property, or of the interest arising from stocks and other investments, will set in operation the rule in Shelley’s case whenever, by the same instrument, there is a limitation over to the heir or heirs of the body of the first taker. A fortiori will it apply where it is real estate that is so granted, with the right of possession -and usufructuary enjoyment in the first taker; nor will the •application of the words, “ in trust for his heirs ” to the grantee of the life-estate, affect the result. Scale v. Scale, 1 P. Wms. 290; Dods v. Dickerson, 8 Vin. Abr. 450; Butterfield v. Butterfield, 1 Ves. sr. 133 ; Daws v. Lord Chatham, 1 Madd. 488; s. c. 5 Bro. P. C. 450; Robinson v. Fitzherbert, 2 Bro. C. C. 127. In Garth v. Baldwin, 2 Ves. 646, personalty was limited to trustees, to pay the'profits to Eclward Turner ■Garth for life, and afterwards to pay the same to the heirs of his body. It was held that Edward Turner Garth was vested, by the rule in Shelley’s case, with absolute ownership of the property, though such was manifestly not the intention of the testator.

In Kepple’s Appeal, 53 Pa. St. 211, a devise of real estate •“ to my son, in trust, and for the use of his heirs-at-law, to have and to hold the same during his natural life, but he shall in nowise sell or dispose of the same during his life,” was held to pass the fee to the son. This case is quite on all fours with the matter in hand, and is in consonance with the current of authority.

Judgment affirmed.