591); Jackson v. Robins, 16 Johns. 588, and cases cited; Ide v. Ide, 5 Mass. 500; Rubey v. Barnett, 12 Mo. 3 (49 Am. Dec. 112, and note on pages 115-119); Appeal of Hinkle 116 Pa. St. 490 (9 Atl. Rep. 938); Burleigh v. Clough, 52 N. H. 267 (13 Am. Rep. 23); Logue v. Bateman, 43 N. J. Eq. 434 (11 Atl. Rep. 259); McCullough's Adm'r v. Anderson, 90 Ky. 126 (13 S. W. Rep. 353; 7 L.R. A. 832, and note); Stuart v. Walker, 72 Me. 146 (39 Am. Rep. 311, and note); note to Larsen v. Johnson, 78 Wis. 300 (47 N. W. Rep. 615; 23 Am. St. Rep. 404, note page 410); 4 Kent, Comm. (13th Ed.) 535, 536."

Sec. 288. Creation of fee simple estate. Where the granting and habendum clause in a deed show that the grant is made to the grantee and "her heirs and assigns, forever," a fee simple estate is created which is not reduced to a life estate by a subsequent provision in the deed, that if the grantor should "die leaving no lawful issue of her body," the lands conveyed should go to others named " and their heirs, forever," and that the grantor and her husband "are to be allowed to reside at their present home on said land for and during his and her natural life, and shall have the right of making her and his support thereon." Glenn v. Jamison, 48 S. C. 316 (26 S. E. Rep. 677). In Connecticut it is held that upon the death of the testator, a devisee under his will takes a fee under a devise to him providing that if the devisee should "die without issue" the land would go to another, it not clearly appearing that the words "die without issue" were intended to mean "die without issue" after the testator's death. Lawlor v. Holohan, 70 Conn. 87 (38 Atl. Rep. 903). A mere request by a testator in his will as to the disposition a devisee should make of a portion of the devised estate unconsumed at the time of the death of the devisee, does not create a trust or cut down an otherwise absolute estate. Clark v. Hill, 98 Tenn. 300 (39 S. W. Rep. 339). A devise to a testator's wife "absolutely and forever" with power to dispose of it as she deems proper, passes to her a fee, and a subsequent clause disposing of the property remaining at her death will be treated as precatory only. Barth v. Barth, Ky. (38 S. W. Rep. 511). A devise of land "to my wife L. J., and if she wanti

to leave it she is to let A. E. J. have the place in trust for his children," is held to give the wife a fee simple. S. C. Rev. at. § 1995, applied. Johnson v. Johnson, 48 S. C. 408 (26 S. Rep. 722). Where it appears by a will that the testator knew how to create a life estate when he so desired, a devise "I give to my wife, H. A. W., for a home, my one-half undivided interest in the real estate in which I now reside,” is held to give her the fee. Wilkinson v. Chambers, 181 Pa. St. 437 (37 Atl. Rep. 569). Where a testator, by his will, gave a farm to his son J.; he then gave another farm to his second son, and other two farms to his wife, with remainder to his third and fourth sons; he then provided that none of the farms given to his sons should be sold by them during the life of his wife, and that if any of his sons should die without leaving issue, but leaving a widow, the farm of such son should go to his widow, during her widowhood, and afterwards to the heirs at law of the testator, it is held that J. took a vested estate in fee simple in the farm devised to him, subject, however, to be divested by his death, during the lifetime of his mother, without leaving issue, but leaving a widow; that by the death of the testator's wife during the lifetime of J., the limitation over to the heirs of the testator was defeated, and the estate of J. became indefeasible. Patterson v. Madden, 54 N. J. Eq. 714 (36 Atl. Rep. 273). A conveyance to a trustee for the benefit of Huntil he shall attain the age of twenty-one years, after which he shall assume control of said property for himself," with the provision that if H. die without heirs of his body, the property shall revert to the grantor, passes the fee to H., defeasible upon his death at any time without heirs of his body. Trimble v. Shawhan, Ky. (41 S. W. Rep. 546). Particular devises held to create an estate in fee simple. Kinkele v. Wilson, 151 N. Y. 269 (45 N. E. Rep. 869); Young v. Kinkead's Adm'r, 776).

Sec. 289. Estates tail.

Ky.

(40 S. W. Rep.

Where a devise of land to one

provides that in case the devisee dies leaving no heirs lawfully begotten, then the realty shall go to another naming him, it is held that the first devisee does not take the fee simple but merely an estate tail by implication. Chesebro v. Palmer, 68

Conn. 207 (36 Atl. Rep. 42). Applying the rule in Shelley's Case and the statute of Pennsylvania, one in whom an estate tail has been created may bar an entail. Sheeley v. Neidhammer, 182 Pa. St. 163 (37 Atl. Rep. 939). Applying Ill. Act, July 1, 1872, § 6, converting an estate tail into a life estate in the first taker, it is held that a devise to the testator's wife "and her heirs by me" gives her a life estate and a vested remainder in fee simple to the designated heirs. Welliver v. Jones, 166 Ill. 80 (46 N. E. Rep. 712). Ind. Rev. Stat. 1843, p. 424, § 57, construed and applied-limitation of a remainder upon a fee tail estate. Moore v. Gary, 149 Ind. 51 (48 N. E. Rep. 630).

A devise to "W. and his heirs, being his own children, forever," creates at common law an estate tail, which by Ind. Rev. Stat. 1843, p. 424, § 56, is converted into an estate in fee simple. Moore v. Gary, 149 Ind. 51 (48 N. E. Rep. 630). The court say: "At common law, a devise to one and his children carried an estate in joint tenancy, when the person named had children living at the time of the devise; but when no such children existed the term 'children' was construed as a word of limitation, and as equivalent to issue' or 'heirs of his body,' and the parent took an estate tail. Wild's Case, 6 Coke 17; Hannan v. Osborn, 4 Paige 336; Nightingale v. Burrell, 15 Pick. 104-114; Wheatland v. Dodge, 10 Metc. (Mass.) 502; Shotts v. Poe, 47 Md. 513 (28 Am. Rep. 485); Parkman v. Bowdoin, 1 Sumn. 359 (18 Fed. Cas. 1213); Wood v. Baron, 1 East 259; Davie v. Stevens, 1 Doug. 321323; 2 Jarm. Wills (6th Am. Ed. by Bigelow) 383-390; 3 Jarm. Wills (Rand. & T. Ed.) 174-177, 182, 204; Schouler Wills (2d Ed.), § 555.”

Construing Ohio Rev. Stat. § 4200 restricting the entailment of real estate which provides that "No estate in fee simple, fee tail, or any lesser estate in lands or tenements lying within this state, shall be given or granted by deed or will to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in being at the time of making such deed or will; and all estates given in tail shall be and remain an absolute estate in fee simple to the issue of the first donee in tail," it is held that the statute supercedes the rule of the common law upon the subject; that it inhibits only

devises to persons who are in fact more remote than the immediate issue of persons in being at the death of the testator; and within the meaning of the act, a child in utero at the testator's death is in being. Phillips v. Herron, 55 O. St. 478 (45 N. E. Rep. 720).

Sec. 290. Rule in Shelley's case. The rule prevails in Pennsylvania and applies to devises although its application may operate to defeat the intention of the testator. Sheeley v. Neidhammer, 182 Pa. St. 163 (37 Atl. Rep. 939). The rule still prevails in North Carolina and is held to apply to a devise to one "during his natural life, and at his death to his bodily heirs." Chamblee v. Broughton, 120 N. C. 170 (27 S. E. Rep. 111). In the case of Stamper v. Stamper, 121 N. C. 251 (28 S. E. Rep. 20), the supreme court of North Carolina refer to the rule in Shelley's Case as follows: "The Don Quixote of the law, which, like the last knight errant of chivalry, has long survived every cause that gave it birth, and now wanders aimlessly through the reports, still vigorous, but equally useless and dangerous." The rule is held to apply to a devise of real estate to one to have "all the income or emoluments arising from the same during his natural life * * * and at his death the same shall descend to his natural heirs." Curry v. Patterson, 183 Pa. St. 238 (38 Atl. Rep. 594). The rule is held not to apply to a devise to a testator's son for life and after death to the " heirs of his body by him begotten," with remainder over if he should have no "heirs of his body, by him begotten, him surviving." Granger v. Granger, 147 Ind. 95 ( 44 N. E. Rep. 189; 46 N. E. Rep. 80; 36 L. R. A. 186). See opinion for extensive review of authorities. Particular devise held not to come within the rule. Collins v. Williams, 98 Tenn. 525 (41 S. W. Rep. 1056). The rule is abrogated in Kansas by Gen. Stat. 1889, par. 7256, providing that "when lands tenements, or hereditaments are given by will to any person for his life, and after his death to his heirs in fee, or by words to that effect, the conveyance shall be considered to vest an estate for life only in such part taken, and the remainder in fee simple in his heirs." Keith v. Eaton, 58 Kan. 732 (51 Pac. Rep. 271). Mill. & V. Tenn. Code, § 2814 (Shannon's Code, § 3674),abrogating the rule in

Shelley's Case, is held not to apply where a decree of partition vested the interest of one of the parties in her "for her sole and separate use during her life, and at her death to her children then living and the issue of such children as may be dead." Bigley v. Watson, 98 Tenn. 353 (39 S. W. Rep. 525; 38 L. R. A. 679).

Sec. 291. Creation of life estate. The common-law rule, that a general devise of real estate, without defining the interest to be taken by the devisee, gives only a life estate, which was abolished in England in 1837, is in force in Indiana although it was abolished by Rev. Stat. 1843, p. 485, § 5, until 1853; but this rule does not require that the word "heirs" be used to convey a fee. Mulvan v. Rude, 146 Ind. 476(45 N. E. Rep. 659); Rusk v. Zuck, 147 Ind. 888 (45 N. E. Rep. 691). The power of absolute disposition annexed to a life estate, does not enlarge it to an estate in fee. Skinner v.McDowell, 169 Ill. 365 (48 N. E. Rep. 310; 61 Am. St. Rep. 183); Rusk v. Zuck, 147 Ind. 388 (45 N. E. Rep. 691; 46 N. E. Rep. 674). Where a decree vests title in a trustee for a married woman, for her separate use and benefit during her natural life, and at her death said land is to descend to her children by said J. L. * but may be sold by the trustee and reinvested at the instance of said "married woman," it gives her only a life estate. Beard v. Utley, Tenn. (39 S.W. Rep. 735).

A deed of land to R. and E., "to have and to hold the same with general warranty to them and their heirs forever. The condition of this deed is that said land is conveyed to R. for his special use, benefit and profit, for and during his natural life and at his death to his son E., to him and his heirs or assigns, forever"gives R. a life estate with remainder in fee to E. Tempee's Admi'r v. Wright, 94 Va. 338 (26 S. E. Rep. 844). In South Carolina it is held that a conveyance of certain land to E to have and and to hold to "him and his forever," in which the grantor warrants the lands unto "E. and his heirs," but which stipulates that the land should revert to the grantor or his heirs if E. should die without children, is held to convey only a life estate. Wilson v. Watkins, 48 S. C. 341 (26 S.

E. Rep. 663).

The devise of real estate to the testator's widow, "giving