Augustus John Cuthbert Hare.

The Central law journal, Volume 28 online

. (page 52 of 151)
Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 52 of 151)
Font size
QR-code for this ebook

sufficiency in law of the facts set forth in the
return as a cause of detention. The relator
in such case, not denying the allegations in
the return to be true in fact, pleads their in-
sufficiency in law, which may be by demur-
rer,^ or by exception,* or in some mode des-
ignated by statute or established by local
practice. The relator may likewise raise an
issue of fact, or, as it is sometimes styled, an
issue of law and fact, by denying or travers-
ing the material allegations in the return or
by confessing and avoiding them, alleging
new facts to avoid the effect of the averments
in the return.* Beyond this stage the plead-
ings or suggestions of the parties to a habeas
corpus proceeding do not ordinarily extend,
as such a thing as a formal joinder of issues
is not required, as in ordinary suits. When
all the material facts have been alleged by
the parties, a motion, either in writing or
oral, is made for the discharge of the person
brought up by the writ, and the case, to bor-
row a phrase from another department of the
law, may then be said to be ''at issue'* or in
shape for the introduction of evidence, or, if
the question presented is one of law, for de-
termination. Such formal matters, however,
as motions to discharge and the like, in prac-
tice are very little attended to and defects or
omissions in this respect are not allowed to
prejudice the rights of the party seeking re-

The trial is before the court or judge be-
fore whom the writ is made returnable, and
hence is commonly called the hearing.^
Whatever objections may have ever been

» Hurd Hab. Cor. 288.


V In re Booth» 8 Wto. 1, 12.

^ Nichols V. ComelliM, 7 Ind. 611.

* Hurd Hab. Oor. 298; Church Hab. Cor., 1 170.

raised to thus leaving all the issues of facts
involved in habeas corpus proceedings to be
determined by, the courts, they have been si-
lenced by the long and well settled practice
in both England and the United States. A
trial by jury can no more be demanded by a
prisoner or respondent in a habeas corpus
proceeding as a matter of right than in a pre-
liminary examination or a chancery proceed-
ing.'^ In a few instances, however, courts
have asserted the right to order an issue of
facts to be sent to a jury.^ The circum-
stances that the proceeding by habeas corpus
is summary in its nature and the trial is to
the court, without the intervention of a jury,
have, in practice, led to a modification and
relaxation in the application of the rules of
evidence in such proceedings, although the
general principles and rules of evidence still
govern as in other cases.^

While it is clearly right that, having regard
to the high nature and beneficial purposes of
the writ, the courts should free themselves
from the trammels of narrow rules and mere
technicalities, the same reason cannot be
brought forward to excuse the vagaries that
are often indulged in in entering up judg-
ments or decisions in these cases. The forms
of judgments or entries to be used upon the
determination of habeas corpus proceedings
will be here briefly noted. The petition in
these cases always prays for the granting of
the writ of habeas corpus; it is a mere appli-
cation for the unit. If it appears, at the time
when the petition is filed, that a habeas cor-
pus will not properly lie, the petition should
be *'denled" or ''refused." If, as is often
done under the English practice, upon the
petition a rule issues to show cause why the
writ of habeas corp^is should not be granted,
and, upon cause being shown, the court con-
cludes that the writ should not issue, then
the rule should be ''discharged" or the petir
tion "dismissed." After the writ has issued,
however, the petition has fulfilled its whole
design and can no longer be "granted" or
"denied." If, after issuing the writ, the
court concludes that, for want of lurisdiction
or the like cause, the issuing was improvident

so Hurd Hab. Cor. 299.

a Church Hab. Cor., 1 173.

« Bespublica v. Jailer, 2 Teatas, 258; Graham r.
Graham, 1 S. ft R. 880; Ex parte Dayia, 18 Yt. 401.

»Hiird Hab. Cor. 808; Church Hab. Cor., f 177;
Shortz ▼. Quigley, 1 Blnn. 222.

Digitized by


Vol. 28.



and that it shoald not proceed further under
the writ, the same should be * Squashed." If
the body is not produced and the court be-
comes satisfied that it is not in the respond-
ent's power to do so, as where he never had
the custody or possession, the writ may be
^^dismissed" or "discharged." After the
party alleged to be detained has been regu-
larly produced, being then in the custody of
the court, he can only be "remanded," or,
if an infant child, "restored" to the same
custody or "committed," or, if an infant
child, "placed" under another custody, or
he may be "discharged" or "released" from
further custody. These matters are not ex-
tremely important, but where there is a right
way it had better be followed.

Obedience to the final order in a habeas
corpus proceeding may be enforced by sum-
mary process of attachment for contempt,^
and a party brought before a court under the
writ and discharged will be protected in re-
turning to his place of abode.^ As to the
effect to be given to the final adjudication in
a habeas corpus proceeding, there is consid-
erable conflict of ruling. In the New York
case of Mercein v. People ^ it was held that
the principle of res adjudicata is applicable
to a proceeding upon habeas corpus and that
the party suing out the writ ought not to
be permitted to proceed, ad infinitum^ before
the same court or ofiScer, or before another
court or officer having concurrent jurisdic-
tion, to review the former decision, while the
facts remain the same. This ruling has been
followed in a number of cases,^ but it has
been said that the rule is stated in the above
quoted case as broadly as courts could well
go where liberty is concerned, and any exten-
sion of the rule would work injustice.^ On
the other hand, it has been held that a per-
son in confinement has a right to call upon
every court or judge having jurisdiction of
the matter to inquire into the cause of his

M Com. T. Beed, 50 Pa. St. 425; Com. ▼. Hamil-
tOD, 6 Mass. 278; Comm. v. Nutt, 1 P. A. Browne, 148;
Com. T. Maxwell, 6 Law Rep. 214.

^ Ex parte Hopkins, 8 P. Wms. 151; R. v. Clarkson,
1 Str. 444; In re Lloyd, 8 M. ft G. 547; In re Mc-
Dowle, 8 Johns. 828; State ▼. Balrd, 19 N. J. Eq. 481,

» 25 Wend. 64; 85 Am. Dec 658, 668.

^ In re Da CotU, 1 Parker, 129, 186; People y.
Fancher, 1 Hun, 27; In re Price, 12 Ih. 500, 511; Peo-
ple y. Brady, 56 N. Y. 182; Ex parte Scott, 1 Dak. 140.

« People y. Fancher, supra*

being restrained of his liberty." The case of
Mercein v. People was the case of an infant
child to whose custody conflicting claims
were set up, and there is authority for the
doctrine that the decision in such cases con-
cludes the claims of the parties inter sese^ but
that the principle must not be extended so
far as to conclude the person held in cus-
tody, whether private or under a criminal
charge ; ^ but there are also cases which deny
the application of the doctrine even in this
limited form.^ Lewis Hoohheimer.

^Ex parte Ealne,8 Blatchf. C. C. 1; In re Rey-
nolds, 6 Park. 276, 821.

^ People V. Beohdel, 84 N. W. Rep. 884; Brooks y.
Logan, 112 Ind.188. Ct.In re Bort,25 Kan. 308; Avery
V. Avery, 88 75. 1; People v. Allen, 40 Hun, 611.

4^ Jn re Doyle, 16 Mo. App. 159; In re Nolsinger,
25 lb. 116; Deringer v. Deringer, 10 PhUa. 190.



Suprtmt Omri of Qtorgia^ Juljf 11, 1888, .

Where an estate Is devised to A to her benefit during
her natural life, her husband to have no control, but
that it be and remain the property of the heirs of her
body after her death : Held, that the words ''heirs of
her body" are words of limitation, and by the opera-
tion of the rule in Shelley's Case, A takes under the
devise an estate in fee.

Bleckley, C. J., delivered the opinion of the
court :

This devise, made in 1841, was by a father to
his married daughter. He gave to her an equal
share with each of his other children in the gen-
eral residue of his estate, and added, '*to her ben-
efit during her natural life, but my will is that
[her husband] have uo control of her distributive
share, but that it be and remain the property of
the heirs of her body after her death.'' That, by
this provision of the will, an estate of freehold
was conveyed to the daughter, with the ultimate
estate of inheritance to the heirs of her body,
there is no dispute. Thus far both sides are
agreed, and, reduced to its final analysis, the sole
question between them is whether the rule in
Shelley's Case applies ; the effect of its application
being to raise an estate which would in England
be an estate tail, but which in Georgia, by virtue
of the statute C^obb, Dig. 169;, is an estate in
fee-simple. There could hardly be a more apt
instance for the application of the rule. The very
tilings are done which the rule contemplatea,
namely, an estate of freehold is given to a person,
and by the same instrument the ultimate estate
of inheritance is given to the heirs of the body of
that same person. The appropriate technical
words of entail are employed, and what the rule
in Shelley's Case undertakes to do is to determine

Digitized by




No. 8

the classitioation and e^eot of tbe same. Aceord-
iog to the role, they are to be treated as words of
limitation, and not words of purchase. The con-
tention here Lb that though, eo nomine^ the ulti-
mate estate is given to the heirs of the body, it is
not given to them as heiis — ^in the character of
heirs— but as children ; and these words, following
words importing an estate for life in the daughter,
are consequently words of purchase, not words of
limitation. This is the very question which the
rule solves and settles, unless there are explana-
tory words or clauses in the instrument which
show afllrmatively that the testator, though he
expressed himself in legal language, did not use
that language in a legal sense. Certainly, had
he wanted to entail his property to the extent of
this one share, he went about it in a right way,
and did what would have accomplished his pur-
pose, save for the hinderance of our prohibitory
law as to such estates. He made a disposition
wliich, prima fade at least, has all the constituents
of an estate tail that he could supply, and which
would be an estate tail if the law would do its
part and vitalize it as such. This the law would
not do, and for this reason alone no estate tail
was created. It takes two to create an estate, even
by the ex parte instrumentality of a last will and
testament; it takes the testator and the law.
Here the testator completed the workmanship of
an estate tail on his part, but, the law declining to
co-operate, that particular kind of estate was not
generated. It is said that though he adapted his
work so exactly to the creation of an estate tail,
he really had no such estate in contemplation, but
meant that his words should be taken as words of
purchase, words importing children of the first
generation alone, and not also their children after
them in indefinite succession to the end of time,
or failure of blood. If he meant children in their
literal and restricted sense, he could have said so
with a single word, and one which was appropri-
ate to his supposed purpose, both legally and col-
loquially. Still, it is not impossible that he may
have used a phrase of four words, "heirs of her
body," as the precise equivalent of the one word,
''children," for, strange as it would seem, it is
often done both in wills and deeds. That such
was his purpose is said to be inferable, first, from
the express exclusion of his daughter's husband,
which, it is suggested, would have been needless
had he intended an estate tail, as the bare entail-
ment would have been an exclusion of the hus-
band from participating in the inheritance, sup-
posing the entailment to be effective. But observe
that what is said of the husband is that he ''have
no control of her distributive share," showing a
design to create in the wife (testator's daughter)
a separate estate, one free from the marital rights
of her husband ; and this object accounts fully for
the presence of the clause respecting him. As
our law stood at the date of this will, his marital
rights, but for this or some such clause of exclu-
sion, would or might have attached upon whatso-
ever estate his wife acquired. The will sought to

exclude him, not only from the inheritance, but
from control pending the coverture; both of which
objects are quite as compatible with an estate tail
as with any other. Indeed, one of them, the
former, is essential to an estate tail, being involved
in the very nature of the estate, and therefore
needing no express mention in the instrument
seeking to create it. But the latter did need ex-
press mention, as, without it, whether the estate
in the wife was one for life, in fee, or in tail, the
marital rights would or might have attached. It
follows that these words respecting the husband
are not rendered superfluous ' by adhering to the
general signification, rather than adopting a
special and restricted signification for the terms
"heirs of her body," as used in this will.

Another circumstance relied on is that other
daughters of the testator shared equally with thia
one in the testator^s estate by the provisions of the
will, and that their shares were given absolutely,
without remainder, and without exclusion of, or
restrictions upon, their husbands. The argument
is that, as the testator did not provide for keeping
in the blood the shares of these other daughters,
he had no such design respecting the share ai
this one. He certainly liad no general testa-
mentary scheme embracing the entailment of his
property, nor did he have any embracing the ex-
clusion of husbands or of heirs general ; yet in
this one instance he certainly excluded the hus-
band and heirs general of this daughter. Having
deviated so far from the disposition made in l>e-
half of other daughters, and having done so by
using words appropriate to the generation of an
estate tail, why should it be com^luded that he did
not intend such an estate for this daughter and
her posterity from the fact that he provided
otherwise for the other daughters? We think
there is to much of guess-work in this reasoning
to make it the basis of a legal judgment. Too
doubtiul and uncertain is the theory of counsel,
however stated, that the only purpose the testator
had in discriminating among the daughters was
to hold off the husband of this particular daughter,
and prevent the property from ever vesting in
him. We do not know whether that was his only
purpose or not, since there is nothing In the will,
apart from what he has said in tbe devise we are
construing, to inform us. But grant that such
was his only purpose as an end, it would still leave
the question whether his purpose, as means to
accomplish it, was not to do what he has done;
that is to attempt to create an estate tall. That he
could have excluded the husband without giving
the devise the col of and characteristics of an
estate tall is certain. Then, how can we conclude,
except by mere guess, that he hit upon an appar-
ent entailment by mistake, rather than by design?
The truth is that any possible doubt about the
matter grows out of the failure of the es'ate tail
to take effect as such. If the law would let the
devise have effect as it is written, the title under
it to a fee-tail would be impregnable. It would
be upheld in any court in any country where the

Digitized by


Vol. 28.



rule in Shelley 'g Case is recoi^iized and adminis-
tered. Lastly, it is ur^d tliat the testator, hav-
ing given by the will two small pecuniary legacies,
one to the ^ ^lawful heirs** of a brother, the other to
a sister, *4f living, or her lawful heirs if she be not
alive,'* he certainly used ''heirs** as synonymous
with children in these bequests; whence it follows
that he also used ''heh^ of the body,** in a like
sense. If he meant children by the terms ''law-
ful heirs," as he possibly did, though that is not
more, but rather less, certain than our main ques-
tion, why he should have changed his vocabulary
to ''heirs of the body** if his meaning was un-
changed, is not easily accounted for. If, in his
mind, three sets of immediate children, and they
only, were in contemplation, why did he call two
of them ^^lawful heirs,** and one of them "heirs
of the body?** True enough, he might have done
this; but did he do it? Do or can we know it
well enough to escape from a rule of law so well
settled as the rule in Shelley's Case, and so di-
rectly in point?

We have gone over all the provisions of ihe will
which were relied upon in the argument to supply
qualifying or explanatory words for a reduced
interpretation of the words of entail, and in none
of them separately, nor in all together, can we
discover the slightest reason for adopting the
construction contended for. We have felt bound,
in good faith, to try this will by the law as it ex-
isted prior to the adoption of the Code, for that is
the law applicable to it, and the new provisions
of the Code should have no influence on the de-
cision. The Code, by sections 2248-2250, abro-
gates the rule in Shelley's Case, wipes it out
utterly; but this is only as to conveyances executed
since the Code went into effect ; that is, since the
year 1862. Prior to 1863, the terms "heirs of the
body,** when used In conveyances, unless modi-
fied or controlled by qualifying or explanatory
words, were words of limitation, not words of
purchase. The Code, § 2250, leaves them still
words of limitation, where no less estate than the
fee is expressed, and where they are used, not by
way of limitation over, but of direct and immedi-
ate limitation of the estate granted. When they
take effect as words of limitation, they do so as
they did prior to the adoption of the Code, under
the act of 1821, and pass, not a fee-tail, but a fee-
simple. The limitation power of the terms "heirs
of the body** is neither more nor less than that of
"heirs,** but just the same. Legally, they mean
heirs i^eneral, both under the Code and the act of
1821. The difference is that under the Code they
are taken as words of limitation only In the one
instance ; that is, where they apply directly to the
estate granted. It may be suggested, I think, as
universally true, that, whenever these words can
be treated ULder the Code as words of limitation,
they are superfluous; and the same may be said
of the word "heirs." Any word or words which
Import a fee- simple can have no effect upon the
conveyance as to the quantity of the estate, but
the conveyance will pass the fee without as ef-

fectually as with them; for, save when a less
estate is expressed, the fee always passes, and,, if
a less is expressed, it cannot be enlarged by con-
struction. Code, § 2248. We deem it unneceesaiy
to fortify our conclusion by analyzing the author-
ities cited by counsel, though we have not failed
to examine them before deciding the question^
The cases are as follows : Cited for plaintiffs in
error : Else v. Osbom, 1 P. Wms. 387 ; Jones v.
Jones, 7 Ga, 76; Benton v. Patterson, 8 Oa. 146;
Kemp V. Daniel, Id. 387; Tucker v. Adams, 14
Ga. 548; Robert v. West, 15 Ga. 123; Dudley v.
Porter, 16 Ga. 617; Gray v. Gray, 20 Ga. 826, 8^2;
Carroll v. Carroll, 25 Ga. 260; Sharman v. Jack-
son, 30 Ga. 226; Forman v. Troup, Id. 496; Bur-
ton v. Black, Id. 638; Lillibridge v. Ross, 31 Ga.
733; Clarke v. Harker, 48 Ga. 596; Wayne y.
Lawrence, 58 Ga. 19; Munroe v. Basinger, Id.
118; Sanlord v. Sanford, /d. 260; Butler v. Ral-
ston« 69 Ga. 485; Johnson v. Sirmans, /d. 617;
Ford V. Cook, 73 Ga. 215; Gaboury v. Mc€k)vem,
74 Ga. 142. Cited for defendant in error: Choice
V. Marshall, 1 Ga. 102; Wiley v. Smith, 3 Ga.556;
Jones V. Jones, 7 Ga. 76 ; Holcome v. Tuffts, Id.
538; Miller's Lessee v. Hurt, 12 Ga. 357; Tucker
V.Adams, 14 Ga. 548; Dudley v. Portei, 16 Ga.
613; Gray v. Gray, 20 Ga. 824; Jones v. Jones, Id.
699; Chtlders v. Childers, 21 Ga. 378; Pouinell v.
Harris, 29 Ga. 736; Sharman v. Jackson, 30 Ga.
224; Burton v. Black, Id. 638; Clarke v. Harker,
48 Ga. 596; Wayne v. Lawrence, 58 Ga. 15; But-
ler V. Ralston, 69 Ga. 485; Nussbaum v. Evans, 71
Ga. 753; Gaboury v. McGovern, 74 Ga. 133.
Judgment affirmed.

Note.— The rule in Shelley's Case, as laid down by
Lord Coke, is: "Where the ancestor, by any gift or
conveyance, taketh an estate of freehold, and in the
same instrument an estate is limited, mediately or im-
mediately, to his heirs in fee or in fee-tail, the heirs
are words of limitation of an estate, and not of pur-
chase." 1

Another way of stating the same rule is: ** Where a
person takes an estate of freehold legal or equitable,
under a deed, or will, or other writing, and in the
same instrument there is a limitation by way of re-
mainder, either with or without the interposition of
another estate, of any interest of the same legal or
equitable quality to his heirs, or heirs of his body, as a
class of persons to take in succession from generation
to generation, the limitation to the heirs entitles the
ancestors to the whole estate."*

Thus where an estate is devised to A for life, and
after his death to his heirs forever, the word **heir8^'
is one of limitation and not of purchase, and A takes
an estate in fee,' and where an estate is given to A for
life, and remainder to the heirs of his body, the first
taker gets an estate in fee-tail. <

1 1 Ooke Bep. 104.

s Hargrave's Law Tracts, 501 ; 4 Kent's Com. 216.

« King V. Utley, 85 N. C. 69; Stacy v. Rice, 27 I'a. St. 76;
Fewell V. Fewell, 6 Rich. £q. (S. 0.) 188; Biggs y. McCar-
thy, 86 Ind. 863; Washburne on Real Property, 696; Pres-
ton on Estates, 271; Gonzales v. Barton, 46 Ind. 296;
Hockstedler v. Hockstedler, 7 West. Rep.75; Little's Ap-
peal, 11 Atl. Rep. 620; Chipps y. Hall, 23 W. Va. 604; King
y.beck, 12 Ohio, 390; 2 Fearne on Remainder8,209; Parish
y. Parish, 87 Ala. 601.

4 Cooper y. Oonrsey, 2 Ooldw. (Tenn.) 416; Clarke y.

Digitized by




No. 8

The principle dlflerenee In effect between acqnUltlon
of tn ettftte by purchase, and descent, conflate In two
points: 1. By parcbase the estate acqalres a new In-
heritable quality, and is descendible to the owners
blood in general, and not the blood only of some par-
ticular ancestor: and 2. An estate taken by purchase
will not make the heir answerable for the acts of the
ancestor, as an estate by descent will.'

Application of the Bute.— The rule in Shelley's Case,
only applies where a remainder It given to the "heirs"
or ''heirs of the body" of the first taker. It does not
apply to a case where an estate for life is granted with
remainder to the issue of the first taker,* or children
of the tenant for life,? even where the words ''descend
to children" are used.* The word "children" in its
primary sense is always a word of purchase, and "is-
sue" also is a word of purchase. But "heir" and
"heirs" are words of limitation, and not of purchase.*
However, the rule in Shelley's Case, is considered as a
rule of construction, and not of property,!* and
whether the remainder is given to the heirs, issue or
children of the first taker, these words are either
words of limitation or purchase, as will best effectuate
the devisor's intention." if clearly shown that the
word "heirs" was used as meaning children, the
courts will givel it that meaning.^* Thus, where a
testator gave the interest of a fund to his son for life,
and, at the decease of the latter the principal sUm to
hit lawful heirs, share and share alike, the^term "law-
ful heirs" was construed to mean children and not
next of kln.i* And where an estate is given to A for
life but not to sell or dispose thereof, and the re-
mainder to bis heirs, the word "heirs" is construed as
a word of purcbase.i^ Also where there is an express
declaration in a devise that the first taker shall have
only a life estate and the fee-simple vest In his heirs,
the rule in Shelley's Case does not apply.i' And where
a will gives only the "use" of land to a devisee for
life, with remainder to his heirs, the word "use"

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 52 of 151)