Fredrick Mcleod & Amos L. Dell vs. Philip Dell & W.M. Dell

Fredrick Mcleod & Amos L. Dell vs. Philip Dell & W.M. Dell

Lower Court

  • Alachua County

Date

  • 1861

Box

  • 473

Folder

  • 853

Transcript

2

An estate tail is substantially a fee conditional at common law, limited to certain heirs to the exclusion of heirs general -- to lineals to the exclusion of collaterals -- the will of the donor is to be observed, and if there be not such heirs as are specially designated, the inheritance reverts to the donor.

[2d Black. Com. 110-112, note 1, 119.

[1 Coke on Lit. 18 b. 19 a, chap. 2, sec. 13.

"Heirs of the body" are the aptest words to create an estate tail -- they are words of inheritance and procreation too, and are as necessary in a deed as is the word heirs, but they are not needed "in last wills and testaments wherein greater indulgence is allowed; an estate tail may be created by a devise to a man and his heirs males, or by other irregular modes of expression;" or to a man and his posterity, or by any other words which show an intention to restrain the inheritance to the descendants of the devisee.

"Of his body," these words are not so strictly required but they may be expressed by words that amount to as much." In a will, an estate tail may be created by less formal words than heirs of the body, words denoting an intention to give an inheritance descendible to lineal, to the exclusion of collaterals.

[2d. Black. Com. 115, 318, & notes 6[th] Co., 17 1[st], H. Bl. 447.

[1[st]. Coke. on Lit. 20, B. sec. 15, 2d. Jarman on Wills, 232.

The restraint on wills has worn off in reference to the term heirs, and anything passes under the term "estate."

[2d. Black. Com. 115, 6[th], Johns. 185.

Whilst it is conceded that "heirs of the body" are the aptest words to create an estate tail, yet it is insisted that the terms "children," "child," "son," and "issue," are sufficient to create such an estate.

[Wood vs. Baron, 1[st]. East. 259.

[Doe. & Dem. Gigg. vs. Bradley, 16[th] East. 399.

[2d. Jarman on Wills, 72 and cases referred to

[2d. " " " 318 to 326.