heirs take a fee simple upon his death. By necessary implication, the result was to abrogate the Rule in Shelley's case, for under that doctrine an estate in fee simple would have vested in A.
That such was the effect of this enactment was contemporaneously understood by the legal profession. Thus the Washington Law Reporter for January 23, 1902 (30 Washington Law Reporter 53) states: 'The effect of this provision is to abolish the rule in Shelley's case.' Strange as it may seem, this Section does not appear to have been construed or even discussed by the Court of Appeals for this Circuit. Only very recently, however, one of the judges of this Court expressly recognized the 1901 Code as having repealed the Rule in Shelley's case.
Thus the legislation of 1901 liberated the law of the District of Columbia in respect to conveyances from two of the shackles by which it had been fettered. It struck down two rules of construction, which previously had been regarded as basic: the requirement of the use of terms of inheritance or other characterization, in order to create a fee simple estate; and the Rule in Shelley's case. We are now guided solely by the canon that deeds and wills must be construed in accordance with the intention of the parties insofar as it can be discerned from the text of the instrument.
Reverting now to paragraph 5 of the will under consideration, the devise by the testatrix to her daughter Vivian M. Simmons and to her granddaughter Jean Veronica Queen Butler, share and share alike, if it stood alone, could be considered as having created an estate in fee simple in each of the two ladies. This sentence, however, proceeds to direct the disposition of the property after the death of the first two devisees, namely, that upon the death of the granddaughter, her share should pass to Vivian M. Simmons in fee simple if she died without issue, but if she died leaving issue, her interest should descend to her issue. It was also provided that upon the death of Vivian M. Simmons her share should descend to her children per capita. Thus it was the manifest intention of the testatrix to make certain dispositions of the property to take effect upon the death of the first two devisees. This purpose cannot be effectuated unless the devise to the two ladies were construed to create life tenancies only. This view is fortified by the significant fact that in other paragraphs of the will the testatrix used the term 'in fee simple' whenever she intended to create an estate of that kind. In other words she, or the draftsman of the will, had in mind the desirability, if not the necessity, of using the term 'in fee simple' when it was desired to bring into being an estate of that type.
The construction of this paragraph of the will is of importance at this time, because the Court was informed by counsel at the oral argument that the property to which it refers has been taken by eminent domain, and compensation therefor has been paid into the Registry of the Court. It is necessary to interpret the will in order to make a proper distribution of this fund.
Accordingly, the Court concludes as follows:
1. That Vivian M. Simmons and Jean Veronica Queen Butler each took a life estate in an undivided one-half interest in the property;
2. That defendant Roland Arthur Queen, the infant son of Jean Veronica Butler, takes a vested remainder in his mother's share, to come into possession at his mother's death. This remainder is subject to being divested if he predeceases his mother; and is subject to being opened up if his mother has additional issue who will survive her, in which event the remainder interest will pass to all of the surviving issue share and share alike. Vivian M. Simmons has a contingent remainder interest in this one-half of the property to vest only in the event that Jean V. Butler dies without issue.
3. That the children of Vivian M. Simmons, i.e., the plaintiff Jean V. Butler and defendants Theresa Rosemond, Yvonne S. McKinney and Deborah M. Simmons, take a vested remainder share and share alike in her share, to come into possession at their mother's death. The class is subject to being opened up if the mother should have additional issue surviving her. The remainder interest of each child is subject to being divested if the child predeceases the mother.
Counsel may submit an order in accordance with this ruling.