The opinion of the court was delivered by: HOLTZOFF
This case constitutes a graphic demonstration of the observation made by Mr. Justice Holmes that, 'the history of what the law has been is necessary to the knowledge of what the law is'.
To arrive at a correct solution of the problem which now confronts this Court, it is desirable and helpful to revert to a brief history of the Rule in Shelley's case. This action is brought for the construction of a will. As only a question of law is presented, all parties, who have appeared, have filed motions for summary judgment. The primary question to be determined is whether each of the plaintiffs takes an estate for life or an estate in fee simple, in certain real property devised to them.
The Court is here concerned with the will of Sovella Brown. By the first paragraph the testatrix devised to her granddaughters, Theresa Simmons (Rosemond), and Yvonne S. Simmons (McKinney) certain real property as tenants in common 'in fee simple'; by paragraph 2, she gave to her daughter, Vivian M. Simmons, certain real estate 'in fee simple'; by paragraph 3, she left another parcel 'in fee simple' to her granddaughter, Jean Veronica Queen (Butler); by paragraph 4, she devised still another parcel to Vivian M. Simmons 'in fee simple'. It should be observed that in each instance the gift was made expressly 'in fee simple'.
Paragraph 5 of the will, which is the provision in litigation, reads as follows:
'Item No. Five: All of my real estate, together with the improvements thereon located at 304 Virginia Avenue, S.E., Washington, D.C., I give, devise and bequeath to Vivian M. Simmons and to Jean Veronica Butler, share and share alike, provided however, that should the said Jean Veronica Butler die without issue living at the time of her death, then and in that event her share of this property is to go to Vivian M. Simmons absolutely and in fee simple; but should the said Jean Veronica Butler die leaving issue surviving her, then and in that event the interest of the said Jean Veronica Butler in and to this property shall descend to her issue; the share of the said Vivian M. Simmons to descend, per capita, and not per stirpes to the children of the said Vivian M. Simmons upon her death.'
This provision may be simplified and summarized as follows. The testatrix devised certain real property located in Washington, D.C., to her daughter Vivian M. Simmons, and her granddaughter Jean V. Queen (Butler), share and share alike. It was further provided that if the granddaughter died without issue living at the time of her death, her share should pass to Vivian M. Simmons absolutely and in fee simple; but should the granddaughter die leaving issue surviving her, her interest should descend to her issue. The testatrix also directed that the share of Vivian M. Simmons should descend upon her death to her children, per capita and not per stirpes. It should be noted that the first clause in devising the property to Vivian M. Simmons and to Jean V. Queen (Butler) share and share alike, does not expressly indicate the type of estate that each of them is to receive. The question to be decided is whether each of these two beneficiaries took an estate for life, or an estate in fee simple.
At common law if one conveyed or devised real property to another without further specification, the grantee or devisee received a life estate. In order to create an estate in fee simple, it was necessary to add the words 'and his heirs' to the grant. In other words, a conveyance or devise to A vested in him only an estate for life. In order to give an estate in fee simple, it was essential to add words of inheritance, and the grant had to read 'to A and his heirs'. In the case of wills, it was permissible instead to give property to A 'forever', or to A 'in fee simple'. Any one of such provisions would have brought into being an estate in fee simple.
This technical requirement was, however, abandoned by Section 502 of the 1901 District of Columbia Code (D.C.Code, 1961 ed. Sec. 45-201), which reads as follows:
'Sec. 502. Interpretation. -- No words of inheritance shall be necessary in a deed or will to create a fee simple estate; but every conveyance or devise of real estate shall be construed and held to pass a fee simple estate or other entire estate of the grantor or testator, unless a contrary intention shall appear by express terms or be necessarily implied therein.'
Thus, under the law as it has existed in the District of Columbia ever since the adoption of the 1901 Code, it is no longer necessary to use words of art, such as 'and his heirs' or 'in fee simple', or any similar phrase, in order to create an estate in fee simple. A conveyance or devise to A without anything more, is construed as granting an estate in fee simple, unless the intention of the parties appears to be to the contrary.
Another doctrine that is germane to the issues in the instant case requires more comprehensive and thorough discussion. It is known as the Rule in Shelley's case, Wolfe v. Shelley (1579-1581) 1 Co.Rep. 93, 76 English Reports 206, 208. That decision comprised several points, but it became a landmark in the law of real property principally because of the doctrine enunciated by it to govern the interpretation of conveyances. The document construed by the Court created the following estate:
'To the use of the said Edward Shelley for the term of his life * * * and after his decease to the use of Mr. Caril and others for 24 years, and after the said 24 years ended, then to the use of the heirs male of the body of the said Edward Shelley lawfully begotten, and of the heirs male of the body of such heirs male lawfully begotten; and for default of such issue, to the use of the heirs male of the body of John Shelley.'
The case was originally argued before the Court of King's Bench and was then referred to the Lord Chancellor, who assembled all of the Justices of England to hear a reargument. It was finally concluded that Edward Shelley took an estate in fee tail. In the course of the lengthy discussion, it was stated, 1 Co.Rep. 104, 76 Eng.Rep. 199, 234:
'* * * when the * * * ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail; that always in such cases, 'the * * * heirs' are words of limitation of the estate, and not words of purchase * * * So inasmuch as in this case Edward Shelley took an estate of freehold, and after an estate is limited to his heirs male of his body, the heirs male of his body must of necessity take by descent, and cannot be purchasers; * * *'
To simplify and paraphrase the rule in modern phraseology, a grant to A and his heirs vests an estate in fee in A, rather than a life estate in A and remainder in his heirs. So, too, a grant to A for life and remainder to his heirs, would give an estate in fee ...