referred to so long as they stood unmodified, and not overruled by this court; hence he was fully justified in holding in line with those cases that the rule in Shelley's Case applied, and that the appellee took a fee simple. We are of opinion that the trial court erred in its conclusions of law. The judgment is reversed, and the cause remanded, with instructions to the trial court to restate its conclusions of law in accordance with this opinion.

Sec. 294. Shelley's Case-Miscellaneous notes. For collation of authorities as to the history and reason of the rule, see Hardage et al. v. Stroope, 58 Ark. 303 (24 S. W. Rep. 490). In a deed the word “issue” is always a word of purchase. 2 Wash. Real Prop. p. 604, citing Doe v. Collis, 4 T. R. 299; Price v. Sisson, 13 N. J. 177; Taylor v. Taylor, 63 Pa. St. 483 (3 Am. Rep. 565). Ga. Code, § 2249 provides that "limitations over to heirs, heirs of the body, lineal heirs, lawful heirs, issue, or words of similar import, shall be held to mean children, whether the parents be alive or dead; and under such words, children and the descendants of deceased children, by representation, in being at the time of the vesting of the estate, shall take." Smith v. Collins et al., 90 Ga. 411 (17 S. E. Rep. 1013). The rule prevails in Illinois, Vangieson v. Henderson, 150 Ill. 119 (36 N. E. Rep. 974); and N. C. Code, § 1329 is held not to abolish the rule in that State. Starnes v. Hill, 112 N. C. 1 (16 S. E. Rep. 1011). The rule is abolished in California by Cal. Civ. Code, § 779. Barnett v. Barnett, 104 Cal. 298 (37 Pac. Rep. 1049). In Massachusetts the rule has been abolished as to wills since 1792, and as to deeds since 1836. Mass. Pub. Stat. ch. 126, § 4. Sims v. Pierce, 157 Mass. 52 (31 N. E. Rep. 718). N. J. Revision, p. 299, § 10, does not abolish the rule in all cases, but only so far as it relates to the lineal heirs of the first takee. Lippincott et al. v. Davis, N. J. L. (28 Atl. Rep. 587).

R. I. Pub. Stat. ch. 182, § 2 modifies the rule in its application to wills. Boutelle v. City Sav. Bank, R. I. (26 Atl. Rep. 53). Under Ky. Gen. Stat. ch. 63, art. 1, § 8, a conveyance to one and the "heirs of her body," passes a fee simple estate to the grantee, which is not affected by evidence outside of the deed of an intention to convey only a life estate. Short v. Terry, Ky. (22 S. W. Rep. 841); McMeekin v. Smith, Ky. (21 S. W. Rep. 353); Prichard v. James et al., 93 Ky. 306 (20 S. W. Rep. 216). This statute converts estates tail to estates in fee simple. Pruitt et al. v. Holland et al., 96 Ky. 641 (18 S. W. Rep. 852); Ruley et al. v. Ruley et al., Ky. (15 S. W. Rep. 659).

Whenever the situation is created that is pertinent to the rule, it applies without regard to the intention of the parties. Lippincott et al. v. Davis, N. J. L. (28 Atl. Rep. 587). A devise to one after his decease, to his heirs, their

"during his natural life, and,

Andrews v.

heirs and assigns, forever," comes within the rule. Lothrop, 17 R. I. 60 (20 Atl. Rep. 97); and so does a conveyance "to M. R. and her heirs exclusively." Reddick v. Lord, 131 Ind. 336 (30 N. E. Rep. 1085). Except as affected by § 643 of Mansf. Dig., abolishing estates in fee tail, the rule in Shelley's case applies, and a conveyance of land to one for her natural life, "and then to the heirs of her body, in fee simple; and if, at her death, there are no heirs of her body, to take the said land, then in that case to be divided and distributed according to the laws for descent and distribution," comes within the rule. Hardage et al. v. Stroope, 58 Ark. 303 (24 S. W. Rep. 490). It is held that the rule does not apply to cases of unexecuted trust nor where the word " children" occurs. Carrigan v.

Drake, 36 S. C. 354 (15 S. E. Rep. 339). The rule was held not to apply to a devise to the daughter “for and during the term of her natural life, and at her death to the issue of her body who may then be living," the devise further providing for the appointment of a trustee to preserve the life estate for the sole and separate use of the daughter. Gadsden et al. v. Desportes et al., 39 S. C. 131 (17 S. E. Rep. 706). The rule does not apply unless an estate is limited to the heirs, general or special, of the same person to whom a preceding freehold estate is given or granted. Smith v. Collins et al., 90 Ga. 411 (17 S. E. Rep. 1013).

EPITOME OF CASES.

Sec. 295. Fee-simple.

and bequeath to

The words "I give, devise her and her heirs forever" in a will, vests the fee simple of the lands devised in the devisee. Wolfer v. Hemmer et al., 144 Ill. 554 (33 N. E. Rep. 751). Citing, Baker v. Scott, 62 Ill. 86, and others. Under the law of Indiana, land may be devised to the person in fee to be divested on the failure of certain conditions, and then to vest in other persons. Boling, by Next Friend v. Miller et al., 133 Ind. 602 (33 N. E. Rep. 354). In a recent case the supreme court of Indiana say: "Words in a will which purport to vest a fee may be so modified and limited by other language in the same instrument as to plainly indicate that it was the intention of the testator to vest a life estate only. But where an estate in fee is devised in one clause of a will, in clear and decisive terms, it cannot be taken away or cut down, by raising a doubt upon a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the estate in

fee."

Ross et al. v. Ross et al., 135 Ind. 367 (35 N. E. Rep. 9). A devise to a married woman to have and to hold to her sole and separate use, free from interference or control of her husband, and to her heirs and assigns, gives her a fee, not a life estate with remainder to her heirs.

Cressey v. Wallace,

It is held that a deed

N. H. (29 Atl. Rep. 842). which "conveys and warrants" land to a town" for the use of the common schools" passes the fee. Newpoint Lodge No. 255, F. & A. M. v. School Town of Newpoint, Ind.

(37 N. E. Rep. 650). Where the granting clause of a deed conveys property to children in trust for the sole benefit of their mother, while the habendum clause declares it to be "in trust for her and themselves," meaning the children named as trustees, the mother takes a fee simple estate. Moore et al. v. City of Waco et al., 85 Tex. 206 (20 S. W. Rep. 61).

Ky. Gen. Stat. ch. 63, art. 1, § 7, which provides that every estate created by deed "without words of inheritance" shall be "a fee simple, or such other estate as the grantor or testator had power to dispose of," does not apply where a different purpose appears "by express words or necessary inference." Baskett v. Sellers et al., 93 Ky. 2 (19 S. W. Rep. 9). Under Mo. Rev. Stat. 1845, p. 219, § 5, a conveyance to one "to have and to hold the same, to her and her children, heirs of her body, forever," passes an estate for life to the first grantee with remainder in fee to her children. Bone v. Tyrrell et al., 113 Mo. 175 (20 S. W. Rep. 796). Ordinarily, an equitable estate in fee is subject to the same incidents which attach to a legal estate in fee, and, generally speaking, these include the right to dispose of the estate by alienation as well as by devise. Gunn v. Brown et al., Md. (23 Atl. Rep. 462). Md. Code, art. 21, § 11, applied-creation of fee simple estate. Kelly v. Hill, Md.

(25 Atl. Rep. 919). A right to take gas from the land, or water from the spring, of another, for private use or comsumption, is not land held in fee, and the appliances and privileges necessary to the enjoyment of the right are not. Greensburg Fuel Co. v. Irwin Nat. Gas Co., 162 Pa. St. 78 (29 Atl. Rep. 274). Under Mo. Rev. Stat. 1889, § 8834, the word "heirs" is not necessary to the creation of a fee simple estate. Mc Cullock et al. v. Holmes, 111 Mo. 445 (19 S. W.

Rep. 1096); Ewing v. Shannahan, 113 Mo. 188 (20 S. W. Rep. 1065). In the absence of such a statute, a conveyance to a trustee with power to sell and convey the fee vests in him an estate in fee simple, without the use of the word "heirs." Ewing v. Shannahan, 113 Mo. 188 (20 S. W. Rep. 1065).

Sec. 296.

Estates tail-Missouri statute. In Missouri Rev. Stat., 1855, ch. 32, § 5, it is provided that every conveyance or devise which would have created an estate tail under the statute of 13 Edw. I, "shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power over, and right in, such premises, and no other, as a tenant for life thereof would have by law; and, upon the death of such grantee or devisee, the said lands and tenements shall go and be vested in the children of such grantee or devisee, equally to be divided between them, as tenants in common, in fee; and, if there be only one child, then to that one in fee; and, if any child be dead, the part which would have come to him or her shall go to his or her issue; and, if there be no issue, then to his or her heirs." Under this statute it was held that where a deed conveyed land to the grantee "and his bodily heirs," the grantee took the life estate and no more, and upon his death, leaving no children nor their descendants, the remainder passed to his heirs generally. Clarkson v. Clarkson, Mo.

(28 S. W. Rep. 446). A grant to a woman and "her heirs by the body of S.," S. being her husband, would at common law create an estate tail, but under Mo. Rev. Stat., § 8838, it is converted into an estate for life in the woman, with remainder in fee to heirs begotten by S. Reed v. Lane, 122 Mo. 311 (26 S. W. Rep. 957). In a recent case the supreme court of Rhode Island say: "To create an estate tail it is necessary, in addition to the word 'heirs,' that there should be words of procreation to indicate the body from which the heirs are to proceed." Smith v. Collins, 17 R. I. 432 (22 Atl. Rep. 1018).

Sec. 297. Life estates. A devise to a wife without limitation, but occurring in connection with a provision that the property remaining at her death should be divided between

the next of kin, is held to vest the wife with a life estate only. Schorr v. Carter, 120 Mo. 409 (25 S. W. Rep. 538); Redman v. Barger, 118 Mo. 568 (24 S. W. Rep. 177); Baker v. Thompson, Mass. (37 N. E. Rep. 751); Wiley et al. v. Gregory et al., 135 Ind. 647 (35 N. E. Rep. 507); Hatch v. Caine, 86 Me. 282 (29 Atl. Rep. 1076). Where a will directed to the executor to" deliver the remainder to my wife, * * who is requested and expected to manage same to the best advantage in caring for and educating the children and supporting herself," it was held to vest in her a life estate only. Weaver v. Weaver's Ex'r et al., 92 Ky. 491 (18 S. W. Rep. 228; 36 Am. St. Rep. 604). Citing, Frank v. Unz, 91 Ky. 621 (16 S. W. Rep. 712). A conveyance to the wife and the heirs of her body was held to convey a life estate to the wife with a remainder to the children born and to be born. Fletcher et al. v. Tyler et al., 92 Ky. 145 (17 S. W. Rep. 282; 36 Am. St. Rep. 584); but where the conveyance authorizes the wife to sell and convey the land" if she deem it necessary and right" conveyances made by her and acquiesced in by the heirs are held valid. Hatton et al. v. Turman et al., Ky.

(17 S. W. Rep. 434). Where the wife is devised a life estate with power and authority to sell and convey, with remainder after her death to the testator's heirs, the wife's conveyance in the exercise of such authority conveys the fee of the testator's land. McMillan v. William Deering & Co.,

Ind. (38 N. E. Rep. 398); Boyle v. Boyle et al., 152 Pa. St. 108 (25 Atl. Rep. 494; 34 Am. St. Rep. 629). A deed conveying to the grantee "and her children" creates a life estate with remainder in fee to the children as a class. Hague v. Hague, 161 Pa. St. 643 (29 Atl. Rep. 261). In Georgia, prior to 1853, a deed to A., "and after his death to the issue of his body," creates only a life estate for A., and after his death a life estate for his issue. Bradford v. Griffin, 40 S. C. 468 (19 S. E. Rep. 76).

A devise of real estate to the wife, "subject to the condition that she is to receive the rents, profits, and benefits during her natural lifetime," with remainder over, after death, to the daughter, passes a life-estate to the wife. Jones v. Deming, 91 Mich. 481 (51 N. W. Rep. 1119). A deed in which the grantor does hereby grant, sell, and convey, unto J. P.

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