
    Holt v. Pickett.
    
      Bill in Equity to Enjoin Action of Ejectment.
    
    1. Wills; construction of deuise; nature of estate. — A devise, “I lend to my daughter S., during her natural life, and at her decease to be equally divided between the heirs of her body the following land,”&c., creates a freehold estate for life in S.; the word “lend” as used in the devise being equivalent to “give,” “bequeath” or “devise.”
    2. Same; same; application of rule in Shelley’s case. — The superaddi.tion in a devise of a provision for equal division, or other words of distributive modification, inconsistent with the course of descent of an estate tail at common law, does not change “heirs of the body” as used in such devise, into words of purchase, so as to prevent the application of the rule in Shelley’s case.
    8. Same; same; same. — In a devise, “I lend to my daughter S. during her natural life, and at her decease to be equally divided among the heirs of her body, the following land,” &c., the superaddition of the words “to be equally divided,” does not change “heirs of her body,” as used the devise, into words of purchase so as to prevent the operation of the rule in Shelley’s case; and by such devise, under the influence of the rule in Shelley’s case, a fee simple title vested in the daughter S.
    
      4. Bill to enjoin ejectment; without equity xuhen shows a good defense to sw/f.--When a bill in equity is filed to enjoin an action of ejectment brought by the parties defendant, and the averments of the bill show that the complainant has a complete defense to the ejectment suit, the bill is without equity, and should be dismissed.
    Appeal from the Chancery Court of Montgomery.
    Heard before the Hon. Jere N. Williams.
    The bill in this case was filed by the appellant, Barrie L. Holt, against the appellee, on February 9,1895. The bill avers that William Plarris, a resident of said county- and State, died in October, 1825, seized and possessed of the real estate described in the original bill, leaving a will, which was probated and recorded in the office of the probate j uclge of said county in October, 1825. Item six of said will is as follows : “I lend to my daughter Sarah, during her natural life, and at her decease to be equally divided between the heirs of her body, the following land: Section 29, township 17, range 18, in Montgomery county, Alabama.” William Harris left surviving him a son, and the said Sarah, who intermarried with one A. J. Pickett. The bill further avers that said A. J. Pickett died intestate in said county and State, in 1858, and during the same year W. R. Pickett, his son, was duly appointed administrator of his estate by said probate court. Said A. J. Pickett left unpaid debts and said W. R. Pickett, as said administrator, took possession of his estate., including the real estate above described. On July 6, 1860, said W. R. Pickett filed his petition in the probate court of said county, praying for an order to sell said lands as the property of said A. J. Pickett, deceased, for distribution among the heirs and distributees of said A. J. Pickett, deceased, to which proceeding respondents and other heirs of said A. J. Pickett, deceased, were made parties; each of said parties were cited to appear at the hearing and were properly and legally represented thereat. A guardian ad litem was appointed to represent the interest of the minors at such hearing, who was present and represented the interest of said minors. In 1865, said court ordered that said administrator sell said lands for the purposes prayed. At said sale Olive S.. Holt purchased lots 10, 11 and 12 of Pickett’s tract, which were situated in said section, township and range, and paid the purchase money therefor. Samuel G. Reid purchased lot 45 of said tract, which is situated in said section, township and range, complied with the terms of sale and paid the purchase money therefor. Said administrator reported the sale of said lands, which report was duly and legally confirmed. Subsequently, upon the report by said administrator of the compliance with the terms of said order by said Olive S. Holt and Samuel G. Reid, the court ordered said administrator to execute deeds conveying to said Olive S. Holt and Samuel G. Reid, respectively, the lots sold to them, which was accordingly done. Each of said purchasers went immediately into the possession of the said lands purchased by them Complainant became the purchaser of said lots, of which he and those under whom he holds, have been in possession openly, notoriously, adversely and continuously for more than twenty years, claiming it as their ■own. It was further averred in said bill that said Sarah Pickett died intestate in the said county of Montgomery, in July, 1894, never having asserted any claim to said land since the death of her husband, except as his widow. ■Said W. R. Pickett, as said administrator, received the •purchase money of said land and distributed it to the widow and heirs of said A-. J. Pickett, deceased, who knew at the time of its receipt that it was the proceeds of the sale of said land. They accepted the same, enjoyed the use thereof and have never offered to refund it. Notwithstanding this, the parties defendant to this bill, •on December 11, 1894, instituted a suit in ejectment against Barrie L. Holt, in the circuit court of Montgomery county, to recover possession of said lots, claiming that their mother, said Sarah, had only a life estate therein, and that after her death it descended to them. It is further averred in said bill that each of the plaintiffs in said suit were heirs of said A. J. Pickett, deceased, and had received their pro rata share of the proceeds of the sale of said land from the administrator and used it, yet they claimed to be. the owner of said lands. Complainant averred that the claim of said plaintiffs in the ejectment suit is a cloud upon his title and averred that without the intervention of said chancery court, said plaintiffs (appellees) will press their suit, although in equity and good conscience they have no right or claim.
    The prayer is for process and for an injunction to restrain respondents from further prosecuting the said suit against complainant, in said circuit court of Montgomery, and upon a final hearing to decree that said respondents be forever restrained from interfering with complainants possession of said land, and for such other and further relief as might bo proper in the premises.
    ' The defendants demurred to the bill upon the following grounds:
    1. Under the allegations of the bill, complainant has a full, adequate and complete remedy at law, and there is no necessity for invoking the aid of a chancery court.
    2. The bill fails to show fully the will of William Harris, or what other provisions there might have been therein relating to said land.
    
      3. Because said bill fails to aver that Stephen Harris was ever in possession of said land, or what claim he asserted thereto. -
    4. The bill fails to show any other title in complainant than that acquired by adverse holding, which could have been asserted in the court of law as well as in equity.
    The respondents also filed a sworn answer denying all the equities'of the bill, and then moved the court to dismiss the bill for the want of equity therein, and also-made a motion to dissolve the injunction upon the sworn answer'.
    On the submission of the cause, the chancellor rendered a decree sustaining the first and fourth grounds of the demurrer, and also decreed “that the injunction be dissolved by reason of the denials of the answer to the-bill,” and that the motion to dismiss the bill for the want'of equity be overruled. From this decree the complainant appeals, and assigns the same as error.
    Graham & Steiner, for appellant.
    1. The complainant was entitled to the relief prayed for, and the chancellor erred in dissolving the injunction upon the denial of the answer. — High on Injunctions, §§ 1470, 1513, 1514; Jones v. Woodstock, 95 Ala. 551.
    2. If it be true that the rule in Shelley’s case, which was the law in Alabama at the time of the probate of the will of William Harris, applies here, then appellant did have an adequate remedy at law, and Mrs. Sarah Pickett had a fee simple title,to this land. — Pricev. Price, 5 Alá. 278; Machen v. Machen, 15 Ala. 375 ; Hamner v. Smith, 22 Ala. 433 ; May v. Ritchie, 65 Ala. 602 ; Lenoir v. Ranier, 15 Ala. 667; Martin v. McRee, 30 Ala. 116; McQueen v. Logan, 80 Ala. 304; 22Amer.& Eng. Encyc. of Law, 512 et seq.
    
    David T. Blakey and Tompkins & Troy, contra.
    
    1. It is clear that the testator intended by the clause of his-will in which he devised the land to his daughter Sarah, that she should have only a life estate in said land. In arriving at the intention of the testator, cases which have held that these words created an estate tail must be considered “as intended simply as a declaration of the legal effect and operation of the words and terms then under-consideration, when employed in conveyances of land generally, unrestricted or unexplained by other parts of the instrument.” — Sullivan v. McLaughlin, 99 Ala.-66. Thus in the following cases, the words “heirs of the body” were held not to create an estate tail because re- . stricted or explained by other parts of the instrument.— Robinson v. LeQrand, 65 Ala. 112, May v. Rushton, 65 Ala. 604; Slayton v. Blount-, 93 Ala. 575 ; Sullivan v. McLaughlin, 99 Ala. 65 ; Roberts v. Ogbourne, _ 37 Ala. 179.
    The reason of the rule in Shelley’s Case was that where a conveyance is made to a person for life with remainder to his heirs or the heirs of his body, the course of descent was the same as if the conveyance had been made to such person and his heirs, or the heirs of his body, creating a fee simple in the first instance, and a fee tail "in the second. Hence it has been conceded, that super added words of limitation varying the course of descent operate to make the words “heir” or “heirs of the b'ody” words of purchase, and not words of limitation.— Tanner v. Livingston, 12 Wend. 83 ; Selfv. Tune, 6 Mun-ford (Va.) 470 ; Bingham on Descents, 233 ; Robinson v. LeGrand, 65 Ala. 112.
    The super added words “at her death to te equally divided” among the heirs of her body, changed the course of descent from what it would have been had the conveyance been to her and the heirs of her body, and an estate tail created; and hence the words heirs of her body were used as words of purchase and not as words of limitation by the testator, William Harris, in his will. — Smith v. Greer, 88 Ala. 416 ; 2 Washburn on Real Property, 559-,
   HEAD, J.

The view we take of this case renders it necessary to decide only a single controverted question, and that is, whether the rule in Shelley’s caséis applicable to the devise contained in item six of the will of William Plarris, which became operative in 1825, when that rule was of force in this State. The devise in question is in the following language : ‘ ‘I lend to my daughter Sarah during her natural life and at her decease to be equally divided between the heirs of her body, the following land: section 29, township 17, range 18, in Montgomery county, Alabama.” Two reasons are urged, in argument, by counsel for the appellees, why the rule should not be applied : First, it is said that the use of the word lend shows an intention not to create an estate of freehold in the first taken ; and second, the superaddition of the words ‘ ‘to be equally divided between’ ’ preceding the phrase, “the heirs of her body,” divert these words from their technical meaning and show, either that they should be construed as if “children” had been designated, or that the persons, who might be heirs of her body at her death, were to take, not from the ancestor,, but from the testator, as a new stock of descent. We will dispose of these contentions in the ^rder in which we have stated them.

1. The supposed significance cannot be attached to the use of the word lend,. It means nothing more nor less than give, bequeath or devise, as we have heretofore held.— Woodley v. Findlay, 9 Ala 716; Ewing v. Standefer, 18 Ala. 400. In Lloyd v. Rambo, 35 Ala. 709, the synonymous word, “loan” was employed, with like result. Upon the authority of these cases, we must conclude that, by the terms of the will, an estate for life, which is an estate of freehold, was limited to the ancestor and thus the first requirement of the rule satisfied.

2. It is said by counsel for appellees,. who argue against the application of the rule in Shelley’s case to this devise, that “there are cases in which it is held that the words, equally divided, superadded, do not prevent the operation of the rule in Shelley’s case, but such cases are where the limitation was to the heirs and not the heirs of the body.” Counsel do not cite the cases which are supposed to justify this distinction and we have been unable to find any authority for it in the decisions of this court. On the contrary, we find the law to be well settled in Alabama, in other American States, and in England, that the super addition of a provision for equal division or other .words of distributive modification, inconsistent with the course of descent of an estate tail, at the common law, will not change heirs of. the body into words of purchase, and hence will not prevent the aitplication of the rule in Shelley’s case. The text writers of recognized authority state the law in the same way. Thus, Mr. Washburn says : “When an estate is limited to A for life, and after his death to the heirs of his body to share as tenants in common or to be equally divided between them, then it comes within the rule.” 2 Washburn Real Prop. (4th ed), 602. Mr. Jarman in his work on wills, after reviewing the English cases, including the great case of Jesson v. Wright, 2 Bligh 1, says : ‘ ‘The preceding cases present many shades of difference, but they -all concur in establishing the principle, that words of inconsistent modification engrafted on a limitation to heirs of the body are to be rejected. It follows, then, that every decision not strictly reconcilable with this principle may be regarded -as overruled by them.”-2 Jarman Wills, p. 372. In this country, where the rule of primogeniture does not prevail, the provision for equal distribution or division is not rejected .as impossible or repugnant, but it is held insufficient to convert heirs, or heirs of the body into words of purchase, because the superadded words accomplish no more than the law would direct without them. — Ewing v. Standefer, 18 Ala. 400; Moore v. Brooks, (Va.) 12 Grattan, 135, overruling the earlier case of Self v. Tune, 6 Munf. 470; Williams v. Foster, 3 Hill (S. C.) 193; Clarke v. Smith, 49 Md. 106.

In Ewing v. Standefer, supra, the bequest was as follows : “Ilend to my.daughter Lydia Standefer during her natural’life, five negroes, viz, Harrance, &c., these five negroes with all their increase, I will to the lawful begotten heirs of Lydia Standefer, to be equally divided among them at her death.’ ’ It will be observed the limitation was to “the lawful begotten heirs” but these words are construed to mean “heirs of the body.”— Good v. Good, 7 Ell. & Bl. 295; Pratt v. Flamer, (Md.) 5 H. & J. 10; Clarke v. Smith, 49 Md. 106; 2 Jarm. Wills, 325. This court expressly decided, that under the influence of the rule in Shelley’s case, the absolute property vested in the first taker. The decision was called in question by the counsel who appeared for the appellee, in the subsequent case of Hamner v. Smith, 22 Ala. 433, but the prior ruling was reaffirmed. These cases have stood unshaken to this day. The principle they announce is a rule of property in this State, and we could not disturb them, even if convinced they were erroneously decided. We do not, however, doubt their correctness. The authorities upon which they were based abundantly sustain them, and they are in accord with the general run of decisions in the American courts, some of which we have already cited. To those above noted, we add the following ; Watts v. Clardy, 2 Fl. 369; Ross v. Toms, 4 Dev. L. 376; Curtis v. Longstreth, 44 Pa. St. 202; Crockett v. Robinson, 46 N. H. 454; Cooper v. Cooper, 6 R. I. 261; Brant v. Gelston, 2 Johns. Cas. 384; Kingsland v. Yapelye, Edw. Ch. 1; Kennedy v. Kennedy, 5 Dutcher, 185.

3. By the terms of the will of William Harris, an estate tail, at the common law, would have been created in his daughter Sarah, and that estate our statute converted into a fee ' simple. Her title, however, was lost prior to her death, by the adverse possession of the complainant and those under whom he claims and no interest descended to her children. As they were not purchasers under their grandfather’s will and as they acquired no estate in the land in controversy by descent from their mother, they had no title upon which to recover in the action of ejectment. To that action, the bill of complaint shows he has a perfect defense, available in the court of law and the bill is, therefore, devoid of equity. The first ground of demurrer was well taken and the injunction was xsroperly dissolved. It is of no consequence that the chancellor rested his dissolution upon the denials of the answer.

Let the decree from which the appeal is taken, be in all things affirmed.  