Mattocks v. Brown

Mr. Justice Paxsoit delivered the opinions of the court, Mattocks v. Brown. The learned judge of the court below committed no error in holding that the deed from Asa Mattocks to Charles Mattocks and'wife was not a testamentary disposition of the property described therein. The deed conveys a present interest to the grantees. Under it Charles Mattocks and wife take a life estate during their joint lives, and the life of the survivor of them. It was not in the power of Asa Mattocks to revoke or destroy this life estate. It was urged, however, that the concluding paragraph of the deed by which it was agreed that in case Charles Mattocks should survive Asa, the premises in question should go to the “ five children, and their representatives of the said Charles Mattocks,” is testamentary in its character, and converted the deed into a will. Undoubtedly, this provision was intended to take effect after the death of Asa Mattocks. This of itself, however, would not stamp the instrument with a testamentary character. Many deeds conveying and settling property contain provisions which become operative only after the death of the grantor or settlor, but where a present interest passes to a trustee, or the grantee, it has never been supposed that such instruments were of a testamentary character. [21] Here Asa Mattocks made a conveyance of the property in question for life, and upon a certain contingency, to the children of the life tenants. The contingency occurred. He had the power to make such a conveyance, and having made it, and the title having vested, he had no power to revoke it by will or otherwise: Ritter’s Appeal, 9 P. F. S. 9; Eckman v. Eckman, 18 Id. 460. Judgment affirmed. Brown v. Mattocks. This writ of error was taken to the same judgment as Mattocks v. Brown just decided. The court below having ruled that the conveyance from Asa Mattocks to Charles Mattocks and wife was a deed and not a will, and Asa having died before Charles, it became important to ascertain what interest the children of Charles took in the property. The operative words in the deed are : “ Shall go to and be vested in the five children and their representatives of the said Charles Mattocks, &c.” The learned, court below held that the children took but a life estate, there being no words of inheritance. The plaintiff in this writ of error contended that they took a fee. In order to sustain his contention we must hold that the wTord ‘‘ representatives” is the equivalent of the word “ heirs.” However this may be in the case of a will, where greater laxity of construction is sometimes permitted in order to carry out the intent of a testator, it has been uniformly held that in a deed, a fee does not pass without words of inheritance. “ In a will the legal force of the word ‘ heirs’ may sometimes be controlled by the context, but not so in a deed. It is in a deed a term of art Hileman v. Bouslaugh, 1 Harris 344. The rule of law is that in a present conveyance without the word “ heirs ” but an estate for life passes: Gray v. Packer, 4 W. & S. 17. The principle is thus stated by Coke, vol. 1, 493 : “ For if a man would purchase lands and tenements in fee it behooveth him to have these words in his purchase, to have and to hold to him and his heirs . . . For these words make the estate of inheritance. For if a man purchase lands by the words ‘ to have and to hold to him forever,’ or by these words, ‘ to have and to hold to him and his assigns forever,’ in these two cases he hath but an estate for life, for that there lacks these words (his heirs) which words only make an estate of inheritance in all feoffments and grants.” The courts of England and of this state have uniformly held to the above rule in the construction of deeds. The authorities cited by the plaintiff form no exception. They either have no bearing upon the case, or are decisions arising under wills, where, as we have before observed, a different rule has sometimes been admitted. Judgment affirmed.