Hodges v. . Fleetwood

Avery, J. (after stating the case). The first question to be settled in this case is, whether the words used in the premises of the deed, “ unto her, the aforesaid Mahatabel Pate, wife of Isaiah Pate, during her natural life, then to descend *124 to her heirs, the children of the said Isaiah Pate, after her demise,” &c., together with the subsequent words in the haben-dum, “ to have and to hold to them, the party of the second part, and their heirs, forever,” vested in Mahatabel Pate an estate in fee simple or only a life estate. It seems clear that the word “heirs” should be construed as a word of purchase — not of limitation. The words “the children of the said Isaiah Pate, after her demise,” following immediately after “heirs,” are evidently intended as a more particular description of the persons who are to take at her death, and that portion of the premises should be interpreted as if it had been written as follows: “ Unto the said Mahatabel Pate, wife of Isaiah Pate, during her natural life, and after her death, to her children, the issue of her marriage with Isaiah Pate.” The context shows, therefore,in what sense the word “heirs” was used, and that, in fact, it was intended to mean not simply children, but a particular class of children — the issue of that marriage with Isaiah Pate — and must be construed as vesting an estate in the land in those children, at her death/ as purchasers. Leathers v. Gray, 101 N. C., 162; Mills v. Thorne, 95 N. C., 362; King v. Utley, 85 N. C., 59. But the defendants’ counsel contended, on the argument/ that the words in the habendum, “to have and to hold to them, the party of the second part, and their heirs, forever,” must be interpreted as qualifying the estate given to Mahatabel Pate, and, notwithstanding the fact that the words “during her natural life” and “after her demise” are used in the premises in reference to her interest, she took an estate in fee simple under the deed. We cannot treat as sur-plusage, or ignore, the significant words used in the premises in order to reach such a conclusion. The words of the inheritance were intended to vest in the children a remainder in fee after the death of the mother. While the word “heirs,” when plainly constituting a part of the covenant of warranty, will not be transposed and *125 construed as if it were in the premises or habendum, it will be construed, when it appears in the habendum after the-words “to have and to hold,” just as if it had been written after the name of the grantor in the premises; and when deeds have been in artistically drawn, so as to locate the- habendum after the covenant of warranty, they have been interpreted by a transposition of the words of inheritance to the premises. Waugh v. Miller, 75 N. C., 127; Allen v. Bowen,. 74 N. C., 155; Phillips v. Thompson, 73 N. C., 543; Phillips v.. Davis, 69 N. C., 117. We think that the true meaning of the deed is the same-as if the language in the premises had been, “ unto the said Mahatabel Pate during her natural life, and after her death,, to her children — the issue of her marriage with said Isaiah Pate — and their heirs, forever.” We cannot concur with counsel in the view that such a conveyance at common law must be held to have vested in Mahatabel a fee-tail special, which was converted by the statute into a fee-simple estate,, and merged with her estate in fee expectant on the determination of the estate tail. At common law, an estate could have been conveyed to Mahatabel for life, with remainder in-fee to such children as might be born of the marriage with her then husband. It would have been a contingent remainder, because it might happen that there would be no issue of the marriage, and at all events there would be uncertainty in contemplation of law as to the number who would take as remaindermen; but when the remainder did vest in her children at her death, it would vest in fee simple — not restrained to any particular heirs, but inheritable by all of their heirs alike. We do not think that it is necessary to discuss or construe section 1329 of The Code, in order to decide the questions presented in this case. We hold that the plaintiffs are entitled to recover, and there was no error in the ruling of the Judge below. The judgment must be affirmed. No error. Affirmed.