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

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

Lower Court

  • Alachua County


  • 1861


  • 473


  • 853



The act of 1829 having abolished estates tail and converted them into fee simple, the fee simple is vested in Amos L. Dell, the first taker. If that is not so, then we maintain that he is entitled to the estate by virtue of the rule in Shelly's case.

"Where the ancestor by way of gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited mediately or immediately to his heirs in fee, or in tail, that always in such cases the heirs are words of limitation and not of purchase.

[2d Black. Com., 172; 1 Coke, 104.

"When a person takes an estate of freehold legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way or remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality to his heirs, or heirs of his body as a class of persons to take in succession, the limitation to the heirs entitles the ancestor to the whole estate."

[4[th] Kent, 206; 1[st] Preston, 263,

Compare our case with Perrin vs. Blake,

[1 Co, 104; 2d Black., 381 and note.

The words "heirs of the body" do not always create an estate tail, their effect may be overcome by superadded words.

[2d Jarman on Wills, 243.

Where such words are used as give an estate tail in land, if applied to personalty they give the absolute estate.

[2d Jarman on Wills, 492.

[Watt's Adm. of Clardy, 2d Fla. Rep., 390.

When land is directed to be sold, and the proceeds paid over, the estate is personalty both in law and in equity.

[McCabe vs. Spruil, 1[st] Div. Eq., 189 N.C.

[Smith vs. McRarey, 3d Ir. Eq., 204 N.C.

In Florida slaves are personalty.

[Thompson's Digest, 183, 185.

[Watts vs. Clardy, Fla. Rep., 369.