Herring v. Rogers

By the Court. Stephens, J., delivering the opinion. 1. We will not send this case back for a rehearing on account of the admission of the copy deed, for it appears to us, from the history of the trial, that it was produced by Her-' ring himself under notice, and that he claimed under it.' [618] This, as against him, was sufficient guaranty of the correctness of the copy and of the execution of the original. No man can complain that other people should be allowed to assume the genuineness and correctness of a paper which he himself treats as being entitled to full credit, when his treatment of it does not depend on the report of witnesses, but appears in open Court. - Rooks’ testimony as to the deed— the deed itself afterwards being in evidence — is wholly immaterial. It did no good and no harm. 2. We concur with the Court below in holding that this deed did not create an estate-tail, but did give a remainder to the children; of Mrs. Herring. The property was to be hers during her life, and after her death, it was to be equally divided between the heirs of her body. This language indicates a division — but one division — and that one an equal division. When one equal division is made, the operation of the deed is exhausted. That one equal division being accomplished, the deed retires from the scene, and leaves the property forever afterwards just where that division places it. This is incompatible with an estate-tail. An estate-tail consists in a provision for the transmission of the property from generation to generation till the blood is exhausted, but this deed contemplates no control over the course which the property shall take after the one equal division. Again: The equality of the division is incompatible with an estate-tail. An estate-tail requires a division, or rather a succession of divisions to be made, not per capita among those who take as this deed does, but per stirpes. The phrase, “heirs of her body,” from the technical meaning which the law has attached to it, would, if unexplained, import this succession of divisions among the successive generations per stirpes, but this deed shows that it contemplates but one division per capita, and that one must take place at the death of the first taker. There is no intention in it to control the transmission of the property from generation to generation, and therefore it creates no entailment. The provision is limited to such heirs of the body as may be in existence to take at that single, equal division. 3. The charge on the other point would have been better if it had been, that if the jury should find Hodges and his wife entitled to recover, they should give them, instead of their legal share, that which the parties had acknowledged in [619] Court to be an agreed substitute for that share. The effect of the charge upon the verdict was just this, although the charge was slightly different, and not correct. The error could not have hurt Herring, for the right charge would have produced the same result with a more inevitable certainty. Judgment affirmed.