U.S. Supreme Court
Abbott v. The Essex Companies, 59 U.S. 18 How. 202 202 (1855)
Abbott v. The Essex Companies
59 U.S. (18 How.) 202
The following clause in a will, namely:
"I give to my two sons, viz., John and Jacob, all my lands &c., livestock &c., tools &c., bonds &c., to be equally divided between them, and the executor is ordered to pay debts out of that part of the estate."
"Item. It is my will that if either of my said sons, John and Jacob, should happen to die without any lawful heirs of their own, then the share of him who may first decease shall accrue to the other survivor and his heirs,"
gave an estate in fee simple to John and Jacob, and the share of the one who first died without issue passed over to the other son by way of executory devise. chanrobles.com-red
The part of the will which gave rise to the question is stated in the opinion of the Court.
It was admitted by the parties that said testator died in the year 1775; that his will was duly proved August 5, 1776; that his two sons, John Kittredge and Jacob Kittredge, survived him; that said John Kittredge died in the year 1826, never having been married; that said Jacob Kittredge died in the lifetime of his brother John, on July 15, 1807, leaving the following children, namely: John Kittredge, his oldest child, who died, without ever having had issue, on the 10th of January, 1823; Jacob Kittredge, his next oldest child, who died December 18, 1831, having had issue one child, who is the demandant, Hannah Kittredge Abbott; Thomas W. Kittredge, his next child, who is now alive; Hannah Kittredge, his next child, who died intestate on the 28th of October, 1815, never having had issue; George W. Kittredge, his next child, who died July 4, 1836, intestate, having had issue one child, Jacob Kittredge, who is now alive; and William H. Kittredge, his last child, who died intestate on the 1st of October, 1849, never having had issue. The marriage of the demandants was also admitted, and that the surviving son of Jacob Kittredge, the devisee named in said will, and also his surviving grandchild, had, before the commencement of the suit, released and conveyed to demandants all their interest and title in the demanded premises.
The demandants thereupon submitted, and requested the judge to instruct the jury, that by the said will of John Kittredge, his two sons John and Jacob, therein named, took and became seised as to the real estate therein devised to them in equal moieties of an estate tail general, with cross-remainder in fee simple, it being material and necessary, to enable the demandants to maintain the issue on their part, to prove that estates tail as aforesaid were so devised by the said will. But the judge refused so to instruct the jury, but did instruct them that under said will, the testator's said sons, John Kittredge and Jacob Kittredge, took and became seised of an estate in fee simple, and that the share of the one of the said sons who should first die without issue in the lifetime of the other of said sons would in that event go over to said other son by way of executory devise.
A writ of error brought up this ruling for review. chanrobles.com-red