Also known as: and her heirs · and their heirs · heirs
Written by attorneys — see sources below.
A phrase traditionally required in a conveyance to create a fee simple absolute in the grantee. The words ensure that the estate passes to the grantee's lineal and collateral heirs rather than terminating upon the grantee's death.
Anita Ali conveys land to her son Aaron Adams for life, remainder to Aaron's heirs. When Aaron dies, the property passes to his living descendants under intestate succession rules as if Aaron had died owning the land outright. The class members alive at the time the interest takes effect in possession receive shares determined by the applicable intestacy statute.
Ava Adebayo conveys Blackacre to her brother Andrew Avery and his heirs. The conveyance creates an estate that passes not only to Andrew's lineal descendants but also to his collateral relatives upon his death without issue. The inclusion of the phrase confirms that the full fee simple absolute transfers with unlimited inheritability.
Albert Allen dies intestate owning land he received as a gift to him and his heirs. With no surviving spouse, the entire estate passes by representation to Albert's surviving descendants under the governing intestacy provisions. The original words of inheritance ensure the property forms part of Albert's probate estate available for distribution to heirs.
Anika Anand deeds property to herself and her heirs in a trust instrument. The language does not create a reversionary interest in Anika because the doctrine of worthier title has been abolished. The phrase simply identifies the beneficiaries without presumptively returning any interest to the transferor.
A Virginia governor issues a patent granting Northern Neck land to David Hunter and his heirs forever. The words of inheritance confirm that Hunter receives a fee simple absolute that his heirs can assert against later claimants asserting title under state confiscation acts. The estate passes intact through Hunter's line of succession.
In April 1791 an action of ejectment was commenced in a Virginia district court held at Winchester for recovery of land within the Northern Neck tract. Denny Fairfax, a British subject holding under the devise of Thomas Lord Fairfax, was admitted to defend upon the usual terms of confessing lease, entry and ouster. The facts were reduced to a case agreed and treated as a special verdict. On 24 April 1794 the district court entered judgment for the defendant. The plaintiff appealed to the Court of Appeals of Virginia, the highest court of law in the state. At its April term in 1810 that court reversed the district court judgment and entered judgment for the plaintiff. The case was then removed into the Supreme Court of the United States. At February term 1813 the Supreme Court reversed the Court of Appeals judgment and issued a mandate directing that its judgment be carried into execution. The Court of Appeals unanimously declined to obey the mandate. It entered judgment declaring that the Supreme Court's appellate power did not extend to it under the Constitution, that section 25 of the Judiciary Act was not in pursuance of the Constitution, that the writ of error had been improvidently allowed, and that proceedings in the Supreme Court were coram non judice. A second writ of error was brought to the Supreme Court. The underlying facts agreed by the parties show that Lord Fairfax, a citizen and inhabitant of Virginia, died in December 1781 seized of approximately 300,000 acres in the Northern Neck. By his will he devised the lands in fee to his nephew Denny Martin, later Denny Fairfax, a native-born British subject who resided in England until his death between 1796 and 1803 and who never became a citizen of the United States. In 1789 the Governor of Virginia issued a patent granting a portion of the land, described as waste and ungranted and never escheated, to David Hunter, a Virginia citizen, pursuant to a treasury warrant dated 23 January 1788. The case agreed also incorporates the definitive treaty of peace of 1783, the treaty of amity of 1794, and the several Virginia statutes concerning land grants and escheats.
View caseCongress enacts a statute providing that certain small fractional interests in Indian trust land held by an owner and his heirs escheat to the tribe upon the owner's death. The statute eliminates the ability of the owner's heirs to receive the interests by descent or devise. The owners and their heirs challenge the provision as an uncompensated taking of property.
In the late 19th century, Congress enacted a series of land acts that divided communal Indian reservations into individual allotments for Indians and unallotted lands for non-Indian settlement. The Act of March 2, 1889, allotted 320 acres to each male Sioux head of household and 160 acres to most other individuals on the Great Reservation of the Sioux Nation, with the allotted lands held in trust by the United States. Ownership of these allotted lands fragmented over successive generations into numerous undivided interests, with some parcels having hundreds of owners. Because the land was held in trust and often could not be alienated or partitioned, the fractionation problem grew over time. This created administrative difficulties and economic waste. A 1928 report and comprehensive 1960 House and Senate studies indicated that one-half of approximately 12 million acres of allotted trust lands were held in fractionated ownership. In 1983, Congress enacted the Indian Land Consolidation Act. Section 207 provided that no undivided fractional interest in any tract of trust or restricted land within a tribe's reservation shall descend by intestacy or devise but shall escheat to the tribe if such interest represents 2 per centum or less of the total acreage in such tract and has earned to its owner less than $100 in the preceding year before it is due to escheat. The provision was signed into law on January 12, 1983, and became effective immediately, with no compensation provided to owners of escheated interests. Four enrolled members of the Oglala Sioux Tribe died in 1983 while owning fractional interests subject to the escheat provision. Chester Irving died on March 18, Mary Poor Bear-Little Hoop Cross died on March 23, Charles Leroy Pumpkin Seed died on April 2, and Edgar Pumpkin Seed died on June 23. Collectively the four decedents owned 41 such interests whose values included approximately $100 for the two interests lost by the Irving estate, approximately $2,700 for the 26 interests in the Cross estate, and approximately $1,816 for the 13 interests in the Pumpkin Seed estates. The three appellees are enrolled members of the Oglala Sioux Tribe who are or represent heirs or devisees of the decedents. Mary Irving is the daughter of Chester Irving, Eileen Bissonette is the guardian for the five minor children of Mary Poor Bear-Little Hoop Cross, and Patrick Pumpkin Seed is the son of Charles Leroy Pumpkin Seed and nephew of Edgar Pumpkin Seed. But for the escheat provision the fractional interests would have passed to the appellees or those they represent. Appellees filed suit in the United States District Court for the District of South Dakota claiming that the escheat provision resulted in a taking of property without just compensation in violation of the Fifth Amendment. The District Court granted summary judgment for the Government. The Court of Appeals for the Eighth Circuit reversed. The Supreme Court granted certiorari.
View caseThe phrase served as words of general inheritance that converted a life estate into a fee simple absolute. Without them, a conveyance to a named person alone typically created only a life estate that ended at the grantee's death.
No. Most states have abolished the requirement by statute or judicial decision. A conveyance to a named person alone now presumptively creates a fee simple absolute unless the deed expresses a contrary intent.
Under Uniform Probate Code section 2-710, language such as 'and his heirs' no longer creates or presumptively creates a reversion in the transferor. The phrase simply designates the beneficiaries of the disposition without triggering the old rule.
Uniform Probate Code section 2-708 directs that the property passes to class members living when the interest becomes possessory, in the shares they would receive under intestacy if the designated ancestor had died owning the property at that time.
…comparison of a probate judge readily setting aside as involuntary the will of an old lady badgered and beleaguered by the new heirs. Ante , pp. 457-458, n. 26. With wills, there is no public interest save in a totally free choice; with confessions, the solution of crime is a countervailing gain, however the balance is…