Also known as: heir of the body · heirs of the bodies · bodily heirs
Written by attorneys · grounded in primary & secondary sources — see below
Lineal descendants of a designated ancestor who succeed to the ancestor's property under the rules of intestate succession if the ancestor had died owning the property at the time the class is ascertained. The term identifies the members of a class gift when a donative instrument uses the phrase without specifying a distribution method. Shares are then allocated among living class members according to the jurisdiction's intestacy scheme at the distribution date.
Hannah Hale's will left her shipping fleet to her heirs of the body living when her youngest grandchild reached age twenty-one. At that date three of Hannah's children had died, two leaving surviving descendants and one leaving none. The court identified all then-living lineal descendants and divided the fleet in the shares they would have received if Hannah had died intestate owning the fleet at that moment.
Heidi Henderson received land under a deed to her and the heirs of her body with a reversion to the grantor's estate if the line failed. Heidi died without issue. The court held that the fee tail terminated and the reversion became possessory in the grantor's heirs, but Heidi's surviving spouse retained a subordinate dower interest carved from that reversionary estate.
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The class closes at the time the interest is to take effect in possession or enjoyment. All lineal descendants then living are included. Predeceased members are excluded except to the extent their surviving descendants represent them under intestacy rules.
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Shares are determined by applying the jurisdiction's intestacy statute as if the designated ancestor had died owning the property at the distribution date. Representation follows the applicable per stirpes or per capita at each generation scheme. Extinct branches receive nothing.
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Yes, the spouse receives the same dower or curtesy that would attach to a fee simple, but the interest is subordinate to any reversion retained by the grantor. When the fee tail ends for want of issue the reversion becomes possessory free of the spouse's claim.
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