McVay's Adm'r v. Ijams

CHILTON, C. J. This case turns upon the construction of the deed of gift, made by McVay to his daughter, Eliza W. Martin. The language is — "I give, grant, and confirm unto Eliza W. Martin, a negro girl, named Perse, to have, hold and enjoy said property and her increase, during the natural life of my said daughter ; which property, at her death, shall descend to the natural heirs of her body ; provided always, and upon this condition, and it is the true intent and meaning of these presents, that in case my said daughter above named die, leaving no natural heirs of her body, then, and in that case, said property above given to revert to my estate, to be repossessed and enjoyed by myself, or legal representative”, «fee. Eliza, the daughter, died without leaving issue living at the time of her death, and the plaintiff, as administrator of McVay, who is also dead, brings his suit for the property; and insists, that by the terms of the conveyance there has been a reversion of the property back to him. On the other hand, it is contended, that the gift to Eliza vested the absolute interest in her ; and so the primary court charged the jury. It is difficult to recognize in Forth v. Chapman, 1 P. Wms. 663, the good sense of the distinction which gives to the same words used in the will an entirely different meaning when applied to real and personal estate, — that dying without leaving issue', when referred to laud, should mean an in [243] definite failure of issue, and create an estate tail, but, when applied to personalty bequeathed over in the same will, should mean a definite failure of issue — that is, issue living at the time of the first taker’s death. It is, perhaps, equally difficult to see the force of the distinction taken by many of the authorities between ‘ dying without issue’ and ‘ without leaving issue.’ Upon both of these points, there is a distressing conflict of authority, as there will generally be, when, in the astuteness of courts to carry out what they suppose to be the intention of testators, distinctions are seized hold of 'which have no foundation in reason, and which, we can hardly suppose, ever entered into the mind of the testator. ' When, however, a rule of property has been adopted by judicial decision, and may reasonably be supposed to have entered into the business transactions of the country, it is our duty to adhere to it, lest we should overturn titles founded upon it. In such case,.it is better to leave the corrective to the legislature. In Bell and Wife v. Hogan, 1 Stew. 536, decided in 1828, the testator lent to his daughter six slaves, naming them, and ■ their increase, during her natural life; and if the daughter should leave an heir, or heirs, lawfully begotten of her body, he gave the said slaves to said heir or heirs so begotten, to them and their heirs forever ; and for want of such heirs, he desired that said slaves, with their increase, should be equally divided among his four children, naming them. It was said by the court, Chief Justice Lipscomb delivering the opinion, “ The failure of heirs must refer to the failure of her issue, and the word 1 leave’ sufficiently limits the time when the devise is to take effect; that is, if at all, at the death of the first taker.” The deed under consideration was executed several years after the decision above alluded to, and, for aught we can know, was influenced by it. Be this as it may, we do not feel at liberty to depart from that decision at this late day, when it has never been overruled, but has incidentally been recognized by several subsequent decisions. — See, also, Keyes on Chattels, §§.186, 187, and cases cited by this author. It follows that, as the term ‘ heirs of the body’ of the daughter is limited by the 'term 1 leaving’ to issue, living.at the death of the first taker, the doctrine applicable' to restates tail [244] cannot be applied. The reason why the words ‘ heirs of the body’ ordinarily create an estate tail is, that they include issue in infinitum. They cease to have this effect when limited to issue living at the time of the first taker’s death. — Hodgeson v. Bussey, 2 Atb. 89. Adhering to the principle settled in the case of Bell and Wife v. Hogan, supra, there is a clear distinction between' this case and those cited by the counsel for theappellee from our own reports. By the term ‘ to descend’ to the natural heirs of her body, &c., we merely understand the testator to mean that it shall go to them, as succeeding the parent, and not as affixing a descendible quality to the property. There is, technically speaking, no such thing as personal property descending to heirs: it goes to personal representatives, and by distribution to the heirs. Yet, under the rule in Shelley’s case, which we have held applies to personal properly, when the terms ‘ heirs of the -body’, or ‘ heirs generally’, are not merely descriptive of the particular persons to take under the deed or will, but as designating the line of descent, the absolute interest passes. In this case, under the rule in Bell and Wife v. Hogan, the words are descriptive of a particular class of persons who arc to take — issue of the daughter living at her death — and, consequently, the rule which enlarges the first estate for life into an absolute interest, and cuts off the limitation over in default of such issue, does not apply. In such case, the limitation over in default of such issue is good, and if it fails to take effect as a limitation, there is a quasi reversion to the grantor, or his legal representatives as to his personalty, if he be dead. — Williamson v. Mason, 23 Ala. 488. The attempt here to create a reversion by deed cannot prevail, as a reversion is the act of the law, and cannot be so created. But this limitation to the grantor, or to his representatives, if dead, is void because the law accomplishes the same thing. . There is, therefore, a quasi reversion of the property to the appellant, the representative of McVay; and the court mistook the law, in holding that the daughter took the entire, absolute interest in the property. Judgment reversed, and- cause remanded.