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his esťate into four portions and pay to each each testator to write the word legitimate, of his children one-fourth part of the income or its equivalent, before each devise to childuring the life of each. Two of these children, heirs, .or issue of a woman. We vendren were daughters, of whom Mrs. Stuart ture the view that the profession of the was one.

state have never so defined and used these Under the eighth clause, at the death of terms in making such devises. Nor do we either of his said daughters, the trustees are believe that the ordinary testator so intends directed:

when he makes use of these terms in a devise “To pay to each of the children of such de- to a woman. ceased daughter an equal portion of her share, If Mr. Eaton had devised the life use of the discharged of said trust; the lineal descendants of any deceased child to take the part of such residue of his estate to his children with reshare as their parent would have taken if alive." mainder over to their children or issue, and Mrs. Stuart died leaving an illegitimate son

one daughter and one son died each leaving of her illegitimate daughter and a legitimate an illegitimate child, as we understand the daughter.

opinion the illegitimate child of the deceased The sole question on this part of the case daughter of the testator would take, while is: Did the testator intend by the devise to the illegitimate child of the son would not. the children of his deceased daughter to in- In one case children includes illegitimates; clude illegitimate as well as legitimate chil in the other, the same word has a different dren?

meaning and excludes thé illegitimate from The opinion asserts that in ordinary speech the devise. This inconsistency must result, by the use of the word "children" we mean else it must be held that in every will the illegitimate as well as legitimate children. word children embraces illegitimates as well This seems to me at variance with common as legitimates whether applied to a devise to

the children or issue of a mother or a father. usage. Again, the opinion assumes that our fail

il. It would be a strange and prideless grandure to accept the common-law doctrine that father who intended to perpetuate in his will a bastard is nullius filius led to the corol- his own daughter's misfortune by intending lary that the word "children” in a will em- to include among her children the offspring braces illegitimate as well as legitimate off- of her frailty. Men and women as a rule do spring unless a different intent is to be gath- not expose their family secrets in that fashered from the will read in the light of sur-ion. And Reuben Eaton, so far as the record rounding circumstances. It assumes, too, before us shows, did not in my opinion inthat a different interpretation follows from tend otherwise than his fellows would have that prevailing in those jurisdictions which intended. He did not intend to provide for by statute have legislated upon this subject. a line of illegitimates. These statutes recognize the illegitimate off

By the Public Acts of 1876, p. 91, c. 14, an spring as the child of his mother and per- addition to our statute of distributions was mit him to inherit from and through her. made. This act was passed immediately folThey give by statute what our court declar- lowing Dickinson's Appeal, 42 Conn. 491, 19 ed to be the law of this jurisdiction. And, Am. Rep. 553, and in its present form (G. S. of necessity, the same results should follow 1902, § 396) reads as follows: in each case. From the fact that the law

"Children born before marriage whose par

ents afterwards intermarry shall be deemed recognizes the illegitimate as the child of legitimate and inherit equally with other chilhis mother and permits him to inherit by dren.” and through his mother to the position that

This clearly expressed the legislative inany testator, when he makes a devise to the tent, and it would seem that the further children of a woman, intends to include her legitimation of illegitimates should be ex. illegitimate as well as her legitimate chil-pressed by legislative enactment rather than dren seems to me a rather long jump. This by judicial decision. construction does not follow as a corollary I am of the opinion that the entire share from our doctrine any more logically than it of the testator's estate held in trust and follows from the statutes of other jurisdic-devised to the children of Mrs. Stuart should tions which have placed their law upon a be paid to her legitimate child. parity with ours. In most of these states where by statute they have changed the com

(88 Conn. 286) mon law, the word "children," when used in

EATON V. EATON et al. a will, deed, or contract, means legitimate (Supreme Court of Errors of Connecticut. children unless the will as read in the light

June 10, 1914.) of the surrounding circumstances shows a 1. PERPETUITIES ($ 3*)-RULE AGAINST PERplain contrary intent. This we believe to be PETUITIES--OPERATION OF STATUTE. the almost universally accepted construction. A will executed in 1891, which was con

The natural and legal import of the term firmed and re-established by a codicil executed children is legitimate children." Heater v. Van by testator in 1897, who died in 1899, is not Auken et al., 14 N. J. Eq. 159, 164.

within the statute against perpetuities repeal

ed by Pub. Acts 1895, c. 249. In order to avoid the consequences of this [Ed. Note. For other cases, see Perpetuities, opinion, it will be necessary hereafter for Cent. Dig. $ 3; Dec. Dig. $ 3.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

2. WILLS ($ 614*) - CONSTRUCTION - ESTATES ( also a grandson, the defendant Louis Eaton ACQUIRED.

Sterry, born in 1893, and the illegitimate son Where testator bequeathed a specific sum of Nora Estelle in trust to pay the income to the four child of Nora Estelle Eaton, who was the illegitidren of a deceased brother for their lives, and mate daughter of said Ann Jane Stuart born directed that if any of the children should die in 1877 and died in 1896. The will contained leaving issue the part of the trust fund of the following provisions : which the child was entitled to the income should go absolutely to such issue, and gave a

"(7) I give and bequeath to my said executors half of his residuary estate in trust in the the sum of four thousand dollars to be held by same manner, a child took only a life estate, them in trust for the following purposes, viz., to and on his death leaving issue surviving the hold, invest and reinvest the same as trust remainder over of the part of the trust fund funds by law may be held and invested, and anof which the child was entitled to receive the nually or oftener in their discretion, to pay over income vested in such issue absolutely.

the income thereof equally to Edward L. Eaton [Ed. Note. -For other cases, see Wills, Cent. Eaton and 'Sophia 'J. Eaton all of Kent, chil

of Warren, Conn., Ann J. Stuart, Burritt Dig. $8 1393-1416; Dec. Dig. 8 614.*]

dren of my deceased brother, Reuben Eaton, 3. WILLS ($ 498*)—CONSTRUCTION—"ISSUE OF during their lives. But if any of said children HIS OR HER BODY.”

die leaving issue of his or her body, then the The words "issue of his or her body," in portion of said trust fund of which said child or a will creating a trust to pay the income to chil children are entitled to the income shall go and dren for their lives, and if any of the children belong absolutely to such issue; and if the surdie leaving issue of his or her body a portion vivor of such children die leaving no issue, then of the trust fund of which the child was enti- the remainder of said trust funds shall go and tled to the income should belong to the issue, belong absolutely to the issue of the other chilmean issue in any degree and includes illegit- dren, in such manner, as all of such issue shall imate issue, in the absence of anything to indi- receive an equal portion of said four thousand cate the use of the words in any other than dollars. their prima facie signification.

"(8) All the rest, residue and remainder of [Ed. Note.-For other cases, see Wills, Cent. my estate I give, devise and bequeath unto my Dig. $$ 1087-1089; Dec. Dig. § 498.*

brother Luther Eaton and said children of my For other definitions, see Words and Phras- deceased brother Reuben, as follows, viz., onees, vol. 4, p. 3794.]

half thereof absolutely to my said brother Luth

er, and the remaining one-half to said children 4. WILLS ($ 704*)-CONSTRUCTION-JURISDIC-of' Reuben, to be held in trust in the same way TION OF COURT. The court, in a suit to determine the valid- tion (7) of this my last will and testament."

and manner, as is provided in the preceding secity and construction of a will, will not determine questions unrelated to contingencies which

The superior court is asked to give its adhave arisen or to existing conditions.

vice in answer to the following questions: [Ed. Note.-For other cases, see Wills, Cent. "(1) Whether the provisions of the seventh Dig. $$ 1680, 1681; Dec. Dig. § 704.*]

section of said will, or any of them, and, if so, Wheeler, J., dissenting.

which, are invalid because of the statute against

perpetuities in force at the time said will was Case Reserved from Superior Court, Litch- made. field County; William S. Case, Judge.

“(2) Whether the provisions in the eighth

section of said will giving 'the remaining oneSuit by Charles A. Eaton, executor and half to said children of Reuben, to be held in trustee of the will of Russell Eaton, deceas- trust in the same way and manner, as is proed, against Ruth Ann Eaton and others to vided in the preceding section (7) of this my last determine the validity and construction of life use of said one-half of the residue, and di

will and testament,' give said children only the the will of the deceased. Cause reserved on rects the distribution of the principal thereof the facts alleged in the complaint for the ad- upon the death of any of said children in the vice of the Supreme Court of Errors. Ques- same way and manner as is directed in regard

to the $4,000 bequeathed in the seventh section tions answered.

of said will. Russell Eaton died March 23, 1899, leaving affirmative, then whether the provisions of the

"(3) If the second question is answered in the a will of which the plaintiff is executor, ex-eighth section of said will, or any of them, and, ecuted November 18, 1891, and a codicil if so, which, are invalid, because of the statute thereto executed March 1, 1897, both duly against perpetuities in force at the time said

will was made. probated. In the codicil the original will

“(4) If the second question is answered in the was confirmed and established in all respects negative, then to whom, and in what propornot affected by the codicil. He left surviv- tion, said one-half of the residue of said estate ing him a widow, the defendant Ruth Ann goes, of what right belongs, and should be dis

tributed. Eaton, a brother Luther, his sole heir at law,

“(5) Whether that portion of the trust fund and certain nephews and nieces. Luther Ea- held by the plaintiff of which said Ann J. ton died leaving a will of which Charles A. Stuart was entitled to the income during her life Eaton is executor. In that capacity he is shall now be paid over and distributed.

"(6) If said portion shall now be paid over made a party. Edward L. Eaton, Burritt and distributed to whom, and in what proporEaton, and Sophia J. Eaton, named in the tions the same goes, of right belongs, and seventh paragraph of the will, are still liv- should be distributed. ing. They and the administrator upon the section of said' will, ‘But if any of said chil

"(7) Whether, in the phrase in said seventh estate of Ann Jane Stuart, who died Marchdren die leaving issue of his or her body? the 2, 1913, are included among the defendants. testator intended by the words 'issue of his or

Ann Jane Stuart left surviving her a legit- her body' children or descendants generally. imate daughter, the defendant Gertrude her body' the testator intended legitimate issue

“(8) Whether by said words 'issue of his or Stuart Benson, who was born in 1892, and only.”

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r

xes

Howard F. Landon, of Salisbury, for plain "But if any of said children die leaving issue tiff. Leonard J. Nickerson, of Cornwall, and of his or her body, then the portion of said Frank B. Munn, of Winsted, for Gertrude trust fund of which said child or children are

entitled to the income shall go and belong abStuart Benson and another. Thomas F. solutely to such issue.” Ryan, of Litchfield, for Edward L. Eaton. John F. Addis, of New Milford, for Louis

One of the children, Mrs. Stuart, had an Eaton Sterry.

illegitimate daughter born March 26, 1877, who died September 14, 1896. This daugh

ter had an illegitimate son born December 5, PRENTICE, C. J. (after stating the facts

1893, and now living. The testator's will as above). [1] This will, which was confirm- was published November 18, 1891, and the ed and re-established by its codicil in 1897 codicil thereto March 1, 1897, which recited, and did not speak until the decease of the "I hereby confirm and establish my will in testator in 1899, does not come under the other respects.” At the death of Mrs. Stuoperation of the statute against perpetuities art and at the making of the codicil Gerrepealed in 1895. P. A. 1895, c. 249, p. 590. trude was the only living child of Mrs. Stu

[2] The gift of one-half of the rest, resid- art. The “issue of her body” in this clause ue, and remainder to the children of Reuben of the will meant the legitimate issue of her contained in the eighth paragraph was a gift in trust to be held and disposed of, principal body. If it could be held to include illegitiand income, in precisely the same way as mate issue of her body, there was none such was provided in paragraph 7 for the manage at the republication of the will and the tesment and disposition of the $4,000 fund, prin- tator could not then have so intended. cipal and income, which was the subject-mat

We need not renew or repeat our discuster of the provisions of paragraph 7. Ann sion had in the case of the will of Reuben

Eaton. Jane Stuart, having died leaving issue surviving, took only a life use. The remainder

The uncle of Mrs. Stuart (Russell Eaton) over of that portion of the trust fund of did not, in my judgment, by the devise to the which she was entitled to receive the income issue of her body intend to include therein vested in her issue and upon her death be the illegitimate son of the illegitimate daughcame an absolute estate in them.

ter of Mrs. Stuart, but did intend to include [3] By the words “issue of his or her only the legitimate children of Mrs. Stuart. body," as used in paragraph 7, was meant issue in any degree. That is the primary and usual meaning of those words, and there is

(88 Conn. 292) nothing to indicate their use here in any

RUDKIN v. RAND. more limited sense. Bartlett v. Sears, 81 (Supreme Court of Errors of Connecticut. Conn, 34, 39, 70 Atl. 33; Perry v. Bulkley, 82

June 10, 1914.) Conn. 158, 164, 72 Atl. 1014.

1. PERPETUITIES ($ 4*)-CREATION OF FUTURE The words “issue of his or her body” in

ESTATE. clude illegitimate as well as legitimate issue. Where testatrix made successive conditionThere is nothing in the will to indicate the al devises to four nephews, with limitations use of these words in any other than their over upon failure of surviving descendants, and prima facie signification. Eaton v. Eaton, 88 then to certain heirs, the limitation to the heirs

of Conn. 91 Atl. 191.

perpetuities. That part of the trust fund held by the [Ed. Note. For other cases, see Perpetuities, plaintiff, of which Ann Jane Stuart was en-Cent. Dig. $84-44; Dec. Dig. $ 4.*] titled to the income during her life, is now 2. ESTATES (8 7*)-CONDITIONAL FEE-STATpayable to her daughter Gertrude Stuart UTE DE DONIS CONDITIONALIBUS. Benson and her grandson Louis Eaton Ster The conditional fee of the common law or ry, one-half thereof to each.

the statute de donis conditionalibus have never

been recognized or adopted in Connecticut. [4] Advice is not given, and should not be

[Ed. Note.-For other cases, see Estates, given by the superior court, upon questions Cent. Dig. $ 7; Dec. Dig. $ 7.*) unrelated to contingencies which have arisen 3. ESTATES TAIL (3*)-STATUTORY MODIFIor to conditions that exist.

CATION. The superior court is advised to render its

Words appropriate to the creation of an judgment in conformity with the above con- estate tail vest a fee simple in the issue of the clusions. No costs in this court will be tax- first donee in tail; such issue taking no intered in favor of any of the parties. In this the donee having no alienable interest beyond a

est in the land during the life of the donee, and opinion the other Judges concurred, except life interest. WHEELER, J., who dissented.

[Ed. Note.--For other cases, see Estates Tail,

Cent. Dig. $ 3; Dec. Dig. $ 3.*] WHEELER, J. (dissenting). The testator 4. ESTATES TAIL (8 1*) — CREATION - LANgave to trustees a fund the income from

GUAGE.

Language which would create estates tail which was to be paid equally to the children at common law will create them in Connecticut. of his brother during their lives. He then

[Ed. Note. For other cases, see Estates Tail, provided :

Cent. Dig. $ 1; Dec. Dig. $ 1.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

5. DEEDS ($ 127*) — WILLS ($ 605*) – CREA- , among the heirs of my brother D. C. Rand, the

TION OF ESTATE TAIL-LANGUAGE NECESSA- heirs of Jane S. Smith and the heirs of CatherRY-DEED AND WILL.

ine H. Carnahan: Provided always that if any An estate tail cannot be created by deed son leaves a descendant, the said property shall unless the word “heirs" is used, and no syno- be given to such descendant or descendants.” nyms, such as “issue," "descendants," "seed," or "offspring," will suffice, but, as applied to

The five lines of the original draft immedevises, the rule is not so strict, no formal diately following were erased before execuwords being necessary, but any language dis- tion, to wit: closing an intention to create such an estate is

"Upon the same proviso and condition, and if sufficient.

such descendant fail to meet the said require[Ed. Note.-For other cases, see Deeds, Cent. ments, and shall die without any descendant, Dig. $$ 358, 359; Dec. Dig. § 127;* Wills, the next son as herein before provided shall Cent. Dig. SS 1300-1365; Dec. Dig. 605.*] take, and so on." 6. DESCENT AND DISTRIBUTION ($ 12*)-Es Upon Mrs. Rand's death the defendant, beTATES TAIL-NATURE AND INCIDENT.

The heirs or issue of a donee in tail take ing the first of her nephews named in said by inheritance only and not by purchase.

paragraph, for the purpose of fulfilling the [Ed. Note. For other cases, see Descent and condition therein as to home, and thereby Distribution, Cent. Dig. & 50; Dec. Dig. $ 12.*] vesting in himself such title to said property 7. WILLS (S$ 605, 614*)-CONSTRUCTION-Es- as might thereby vest in him under said parTATES TAIL-ESTATE AND INTEREST OF DEV- agraph, came to Middletown to care for the ISEES.

Testatrix devised realty to her nephew, the property and to make his home there. He first son of her brother, upon condition that thereafter continued a resident of Middlehe make his home thereon, "but if he fails to town, living upon real estate included in do so, or if he dies leaving no descent or de said thirteenth paragraph, and was therescendants,” then the property to go to the second son of her brother upon the same condition, after continuously in posersion and control "but if he fails to meet the requirements, or if of such real estate, including that in question he dies leaving no descendant, or descendants," in this action, until October 31, 1905, when then it was to go to the third and fourth sons he conveyed the same to the plaintiff by warof her brother successively upon the same conditions. Held, that the intention was that the ranty deed. He has ever since continued in nephews would take a life estate, and their sur- possession of all of the balance of said real viving descendants a remainder over by pur- estate. chase, and hence did not create an estate tail ; the gift being direct and in absolute terms to

Prior to the execution and delivery of his persons described and not a provision for the deed to the plaintiff, the defendant received transmission of title in unending sequence. from his three brothers named in said para

[Ed. Note.-For other cases, see Wills, Cent: graph, all the heirs at law of Mrs. Rand, all Dig. ss 1360-1365, 1393–1416; Dec. Dig. 88 The heirs at law of her brother D. C. Rand 605, 614.*]

and of Jane S. Smith, both then deceased, Case Reserved from Superior Court, Mid- and from Catherine H. Carnahan, then livdlesex County; William S. Case, Judge. ing, but since deceased, and all of her chil

Action by Carrie E. Rudkin against Philip dren, who proved to be her heirs at law at C. Rand, for breach of a covenant of seisin in her death, a quitclaim deed purporting to fee simple. On reserved questions. Judg- convey to him all the right, title, and interment for defendant.

est in said premises which each of said perLucia A. Rand died in 1892 seised and pos- sons respectively had, ought to have, or might sessed in fee simple of the real estate de- thereafter have. At the time of the execuscribed in the. complaint. This property is tion of this quitclaim deed, none of the granincluded in that which she disposed of by tors therein resided in either Middletown the thirteenth paragraph of her will duly or Rockfall, and no one of them has ever reprobated, which reads as follows:

sided in either of those places, or made any "All the rest and residue of my estate, bank claim of a present or prospective interest stock, railroad stock, notes and mortgages (if in said property. any) all the real estate on Mount Vernon, and Washington streets, all the real estate I own at

Bertrand E. Spencer, of Middletown, for Rockfall, Connecticut, with the mill, machinery plaintiff. Wesley U. Pearne, of Middletown, and capital invested there, I give, devise and for defendant. bequeath to my nephew Philip C. Rand with the proviso and on condition that he makes his home in Middletown aforesaid, or at Rockfall,

PRENTICE, C. J. (after stating the facts aforesaid, to care for the property; but if as above). The defendant is the first named he fails to do so or if he dies leaving no de- of the four nephews of Lucia A. Rand who scendant or descendants, then all the property were made beneficiaries under the thirteenth by this article of my will given to him shall be given to C. M. W. Rand, second son of my paragraph of her will. At the time he gave brother upon the same proviso and condition; to the plaintiff the deed in question, he had but it he fails to meet the above requirements, acquired all the right, title, and interest or if he dies leaving no descendant or descendants, then it shall be given to Samuel the which his three brothers, the heirs at law of third son, but if he fails to meet the above the testatrix, the heirs at law of D. C. Rand requirements or dies leaving no descendant or and Jane S. Smith, both deceased, and Cathdescendants then it shall be given to Robert the erine H. Carnahan, now deceased, and her fourth son; but if he fails to meet the above heirs at law had, or ought to have, or might requirements or dies leaving no descendant or heirs at law had, or ought to have, or might descendants the said property shall be divided thereafter have in or to the land conveyed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

If his conveyance failed to give a good title|nym such as “issue," "descendants," "seed," to the plaintiff, it must have been for the or “offspring,” can supply its place. This reason that some outstanding interest or pos- strict rule is relaxed as applied to devises, so sible future interest was not gathered up in that a devise to A. and his “issue,” or “dethe quitclaim to him. Those conveyed cov- scendants,” or “seed,” or “offspring” may ered the entire field of possible interest, as suffice to create an estate tail, and one may well as some impossible, save that which is be created even where words of inheritance occupied by the surviving descendants of the are absent, if the testator's intent to that iour nephews. These nephews are still liv- end is apparent. ing. Their surviving descendants cannot "The testator's intention may be shown by therefore be known, and there has been no necessary implication, as well as by the express attempt to acquire any interest that their language of the will, so that the essential

words of inheritance, though entirely absent, prospective surviving issue might have. If may often be implied' if the testator's manifest the terms of Mrs. Rand's will are such that intent makes it necessary." Minor & Wurts on the surviving descendants of her nephews, Real Property, § 171. as they shall prove to be or some of them,

This relaxation, in the case of devises, of may thereunder have an interest in the prop- the strict rule applicable to conveyances reerty in question then the plaintiff's title is sults from a recognition that in a matter of not the good indefeasible title in fee simple testamentary disposition the testator's intent which the defendant warranted that he gave. should be effectuated. Application of this

[1] In so far as the testatrix attempted to principle has been made by us upon several make a devise in favor of these surviving occasions when estates tail by implication descendants, the provisions of her will to have been recognized. Dart v. Dart, 7 Conn. that end are nugatory as being in contra- 250, 253; Hudson v. Wadsworth, 8 Conn, 348, vention of the statute against perpetuities in 357; Williams v. McCall, 12 Conn. 328, 329 ; force when the testatrix died. In the capac-Comstock v. Comstock, 23 Conn. 349, 351; ity of heirs there could have been no pres- Turrill v. Northrop, 51 Conn. 33, 36; Horton ent interest or future possibility of interest | v. Upham, 72 Conn. 29, 31, 43 Atl. 492. in these descendants not subject to aliena [6, 7] In the present instance the word tion by the ancestor except through the op- "heirs" does not appear in the thirteenth eration of an entail. Counsel for the plain-paragraph of the 'will until the final limitatiff concedes that this is so. His fundamen- tion over after the provisions in favor of the tal contention is that the testatrix intended four nephews and their descendants. That to and did create a fee tail in one of the four fact, however, is not one, as we have seen, nephews. Upon this proposition followed by of controlling importance. The controlling the unquestionable secondary one that the fact is the testatrix's intent as to the estate issue of a tenant in tail has no strict legal attempted to be created by her as ascertained right in the entailed estate until after his from the language of her will and the surdeath and nothing which they can convey, rounding circumstances. Turrill V. Northhis entire argument is founded, as it needs rop, 51 Conn. 33, 39; Bullock v. Seymour, must be. Comstock v. Gay, 51 Conn. 45, 62; 33 Conn. 289, 294. Did she intend that her St. John v. Dann, 66 Conn. 401, 408, 34 Atl. nephews should take as donees in tail and 110.

their descendants by inheritance from their [2, 3] In this state we have never recog. ancestor, or that the nephews should take nized the conditional fee of the English com- estates for life and their surviving descendmon law, nor adopted into our law the stat- ants a remainder over by purchase? If the ute de donis conditionalibus. From the ear- latfer, there was no estate tail. The heirs liest times it has been held in this jurisdic- or issue of a donee in tail take by inherittion that words appropriate to the creation ance only. of an estate tail vest a fee simple in the is. The answer to this test question is plainly sue of the first donee in tail; such issue tak- indicated by the language of the will. The ing no interest in the land during the life successive conditional devises are made to of the donee, and the donee having no alien- several nephews, with limitations over upon able interest beyond a life interest. Swift's failure of surviving descendants. Had the Digest, I, 79; Hamilton v. Hempsted, 3 Day, will stopped there with a devise of an estate 332, 333; St. John v. Dann, 66 Conn. 401, of inheritance absolute, cut down by a later 407, 34 Atl. 110; Comstock v. Comstock, 23 provision for a gift over upon failure of isConn. 349, 351. This principle was in 1784 sue, there would be substantial ground for enacted into our statute, now section 4027 the contention that an estate tail general was of the Revised Statutes.

created. Of this character are the Connecti[4, 5] Estates tail may indeed be created in cut cases already referred to. But the will this state, and language which would create did not stop there. It did not leave the inherthem at common law will do so here. Our itable estate in the donee to operate in so ancient rule and confirming statute simply far as it was not restrained. The testatrix defined the legal character of such estates. went on to expressly and directly provide for They are estates of inheritance. For their the contingency of descendants surviving, as creation by deed it is held that the word she also did for the alternative contingency "heirs" is indispensable and that no syno- of nonsurvival. She directed that, if any

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