Bill in equity filed in the supreme court of the District of Columbia by the children of John L. Vogt, to determine the meaning of a clause in the latter's will.
The defendants in the case, appellees here, were Charles Graff and Frederick C. Gieseking, executors and trustees named in the will, and Matilda S. Vogt, infant daughter of one of the complainants, appellant here, Frederick H. Vogt.
The part of the will to be construed is as follows:
'All the rest and residue of my real estate shall, when my youngest surviving child attains the age of twenty-one years, or one year thereafter, in the discretion of my executors, be sold by my executors at public auction, after due notice in the newspapers of this city. The proceeds of said sales shall be then divided among my heirs, share and share alike, and paid over to them respectively at once, except the share coming to my son, Fred H. Vogt. Said share shall be paid to Charles Graff and Frederick C. Gieseking, as trustees, by them invested, the income therefrom to be paid said Fred H. Vogt, the principal to be paid to his heirs after his death.'
Regarding this provision as a simple composition of English words, we should have no difficulty in deciding that the testator intended to give to Frederick H. Vogt a life estate in the designated share. But it is contended that the meaning of the testator is determined otherwise by the rule in Shelley's Case. The rule is thus laid down: Where 'the ancestor, by any gift or conveyance, takes 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 in tail, . . . 'the heirs' are words of limitation of the estate, and not words of purchase.' 1 Coke, 104; Daniel v. Whartenby, 17 Wall. 639, 641, 21 L. ed. 661, 663; Green v. Green, 23 Wall. 486, 488, 23 L. ed. 75, 76.
It will be observed that, under the rule, by a technical circumlocution, one estate only is created, though two parts are expressed,-a particular estate for life, with a remainder to the heirs of him who takes the particular estate. The rule, therefore, has been a fruitful source of controversy. On the one hand it has been praised as having a substantial foundation and necessarily expressing and enforcing essential legal distinctions in the transfer of property; to be, indeed, the very opposite of a technical rule, and one 'established through a long course of decisions extending over a great many generations,' and declared therefore to be a rule of substance in order to give effect to the intention of the grantor or testator. On the other hand, it is attacked as oftener defeating intention than executing it, being applied as an absolute and peremptory obligation to convey or devise an estate in fee simple even against an express declaration to the contrary. Invective, therefore, has been employed against it, and even ridicule; and English and American judges, while yielding to it, have pronounced it unjust. We, however, need not enter into the field of controversy. Whether it had a legal and substantial foundation when first pronounced, or yet has, whether it is a useful rule of property or part of the debris of an ancient system, having now only the mischievous vitality of frustrating the intention of a grantor or testator, we need not consider.
It is conceded to be a rule of property in the District of Columbia, and we are brought to the question whether, consistently with it, the intention which we have seen Vogt has expressed may be executed?
The statement of the rule we have given. There are certain conditions attached to it which give precision to its application. One of these is that the remainder after the particular estate must be to heirs of the whole line of inheritable blood, designating those who are to take from generation to generation. And they must be heirs of him who takes the particular estate, and by devolution from him.
This is important to be observed. The heirs must take from the first taker, and not be a description of a class taking from the testator, becoming themselves'the root of a new succession.' Guthrie's Appeal, 37 Pa. 9. Hargrave, in his Law Tracts, states the test to be 'whether the party entailing means to build a succession of heirs on the estate of the tenant for life.' If he does not, but intends to describe a class taking from him, the rule does not apply. We proceed to illustrate this.