A devise of lands to "my grandson, Stephen Cooper (son of Stephen), my aforenamed grandson to come into possession at twenty-one years of age, and to have and to hold the above-named bequest to him during his natural life; and after his decease, I give the premises unto his male heirs, equally between them; and, for want of heirs male, then to go in equal shares to his daughters," vests an estate tail in Stephen, the grandson, under the rule in Shelley's case; the clause of the statute of wills in relation to the creation and continuance of estates tail, not being applicable to such a case. To bar an estate tail, the deed of the tenant in tail, if executed and acknowledged as required by section 3, ch. 145, of the Revised Statutes, need not, as against the heirs of the tenant, be recorded in the records of the town where the land lies.
BOSWORTH, J.
This case depends upon the construction of a devise in the will of Moses Cooper. The devise is to "my grandson, Stephen Cooper (son of Stephen), my aforenamed grandson to come into possession at twenty-one years of age, and to have and to hold the abovenamed bequest to him during his natural life; and after his decease, I give the premises unto his male heirs, equally between them; and, for want of heirs male, then to go in equal shares to his daughters."
By the established rules of construction, the words "male heirs," in this devise, are words of limitation; and enlarge the estate devised to Stephen Cooper to an estate tail. This is established by the rule in Shelley's case. The case of Manchester wife v. Durfee, 5 R.I. Rep. 549, recognizes this as an inflexible rule of law; and further decides, that our statute of wills, in its relation to the creation and continuance of estates tail, (Rev. Stats. ch. 154,) is not applicable to a case like this, to alter the rule of the common law.
The estate of Stephen Cooper then being an estate tail, was an estate which might, under our statute, (Revised Statutes, ch. 145, § 3,) by a deed duly executed by the person seised in fee-tail, under his hand and seal, and acknowledged before the supreme court or any court of common pleas in this state, be conveyed in fee-simple; and the statute declares, that such conveyance shall vest an estate in fee-simple in the grantee, his heirs and assigns, and shall bar the tenant in tail, his heirs and assigns, and all others who may claim the same in remainder or reversion, expectant upon the determination of such estate-tail. It is agreed that such a deed was executed by Stephen Cooper, embracing the land mentioned in the plaintiffs' declaration; and that the defendant, by several mesne conveyances, derives his title from the grantee mentioned in this deed. We are of opinion that this deed vested the title in the grantee in fee-simple, and the defendant taking that title, now has the estate.
The agreement of the parties further shows, that the deed of Stephen Cooper, before referred to, was first executed in the ordinary form before a magistrate, and recorded in the land records of the town of Gloucester, where a part of the premises was situated; and that subsequently it was acknowledged before the court of common pleas and supreme court, and recorded in Burrillville, where another part of the premises was situated, but not again in Gloucester. Would this defeat the operation of the deed, as a bar of the entail of the land in Gloucester? To this it may be answered that the statute, — Rev. Stats. ch. 145, sec. 3, — which provides the mode of barring the entail, does not require a record in the town clerk's office; but provides that a deed, executed and acknowledged in manner therein provided, shall bar the tenant in tail, his heirs and assigns, and all others who may claim the same in remainder or reversion, c. The general statute regulating conveyances of real estate provides, that all conveyances, c. of lands shall be void unless acknowledged and recorded, as aforesaid, i.e. in the office of the town clerk of the town where the lands or tenements lie; but provides, that between the parties and their heirs such conveyance shall nevertheless be binding. These plaintiffs are heirs of Stephen Cooper, and between them and the defendants the conveyance without record passed the estate.
Judgment for the defendant.