
    McFeely’s Lessee v. Moore’s Heirs.
    Kule in Shelley’s case, 1 Bep. 104, declared to prevail in Ohio.
    This was an action of ejectment, reserved in Hamilton county,, ■and submitted to the court, on an agreed statement of facts.
    Both parties claim under the will of John Hale. The tenements were devised by the following words: “ To my son Walter, I give and bequeath, as also to Phebe his wife, the use of two lots; my will is, that Walter and Phebe aforesaid may have the use of these two tracts of land during their respective lives; but, at their decease, my will is, that these two tracts of land descend to their heirs, to whom I bequeath the same to have and to hold said tracts, to themselves, their heirs and assigns, forever.” The plaintiff claims title from the heirs of Walter and Phebe Hale. The defendant’s title arises from the grantee of Walter and Phebe Hale. If Walter and Phebo had a fee simple in the land, it is vested in the defendant; but if they had but a life estate, the plaintiff is entitled to judgment.
    *0. M. Spencer, Jr., for plaintiff.
    Storer and Fox, for defendant.
   Judge Lane

delivered the opinion of the court:

The determination of the present question depends upon the rule of construction to be applied to the will. It is assumed by the plaintiff’s counsel that is the manifest intention of the testator to give the devisees an estate for life only; and it is insisted that where the intent sufficiently appears, it is the plain duty of the court to give effect to it, and to hold that no larger estate passes. The defendant’s counsel would apply the rule in Shelley’s case to the interpretation of this will; by the operation of which, he claims an estate in fee in the immediate devisees. The rule is, where the ancestor takes a freehold, and by the same conveyance, whether deed or devise, is limited, either mediately or immediately, to his heirs, the word “ heirs” is a word of limitation, not of purchase, and the fee vests in the ancestor. 1 Rep. 104. The very elaborate discussions upon the authority, effect, and extent of the rule, leaves no room to doubt that the estate’ created by the present will is fairly within its scope.

It is urged, however, that the rule has a feudal origin, and that policy does not require or permit its adoption in a community like ours. But it has been too long established to be abrogated by us. From the earliest period, we find it -a settled rule of the common law. It is found in the Year Books ; it is stated in the Institutes as clear and undisputed; it is recognized in the Abridgments of Fitzherbert and Rolle; it has descended, in the English courts, to the present time, unimpaired, by attempted innovations, and flourishing in full vigor. It has been adopted in the United States. In Connecticut, Maryland, Yirginia, South Carolina, and New Yoi*k, it formed a part of the common law, and it continues to exist, as a rule of property,- except where abolished by statute. If its policy be doubted, let the legislature bo ^called to act; but if we should disregard a rule, which has prevailed so widely and •subsisted so long, it would be an unfaithful interpretation of the law.

Judgment for defendant.  