Brann v. Elzey

JUDGE HOLT delivered the opinion of the court. The rights of the parties to this appeal to the land in contest depend, upon the construction to be-given to the deed from John W. Williams, dated September 10, 1859. It provides: “I, John W. Williams, of the county of Payette* in the State of Tennessee, have this day bargained' and sold, and do hereby transfer and convey, to-Jane Williams (wife of Isaac Williams), of Graves county, in the State of Kentucky, and to the heirs of her body by the said Isaac Williams, for the consideration of one thousand dollars to me in hand paid, a certain tract or parcel of land. * - * * *" To have and to hold the same to the' said' Jane Williams and the heirs of her body by the said Isaac. Williams.” ' • The statute then and now in force in this State-provides: [442] “All estates heretofore or hereafter created, which, . in former times, would have been deemed estates in tail, shall henceforth be held to be estates in fee-simple.” (Revised Statutes, page 227; General Statutes, page 585.) It is urged upon the one hand that the deed in this instance would, in former times, have been held to create an estate in tail, and that it, therefore, ■under the statute, vested Jane Williams with the fee-simple title. Upon the other side, it is claimed that she took but a joint interest with her seven -children, all of whom were in esse when the deed was made. The words “heirs of the body,” or “heirs lawfully begotten of the body,” were appropriate to «reate an estate tail, and it is well settled that their use, or an equivalent expression, are words of limita'tion, to be construed as creating such an estate in the absence of any other words in the conveyance showing, or from which it can reasonably be inferred, 'that they were not used in their technical sense. It has also been held that the words “to her and .•her issue forever,” were not less extensive in their .import than “heirs of the body,” and that as the word “issue” embraced the whole line of lineal descendants, an estate tail was created. The word “posterity” has received a like construction. The word “children,” or words equivalent thereto, are not appropriate, however, to create such an estate. In the case of True v. Nicholls, 2 Duvall, 547, the words were, “and to her bodily heirs forever;” ■and it was properly held-that under the former law •they would have created an estate tail. [443] In Johnson v. Johnson, &c., 2 Met., 331, it was ■also so held, the words used being “and their heirs lawfully begotten of their bodies.” This case, however, 'is not a similar one. Here ■the words, both in- the granting clause of the deed and its habendum, are “the heirs of her body by the said Isaac Williams.” Estates tail are forbidden by our law; and hence* ■although the language appears to create such an' estate, yet if any other construction will not necessarily distort the meaning of the words used, it will be adopted. It seems to us, however, that in this instance there is no need of a strained construction. The words, “to the heirs of her body by the said Isaac Williams,” plainly mean their children. This was -clearly not only the intention of the grantor, but it is the obvious meaning of the language. In the case of Flournoy v. Allen, &c., decided by this court' on December 1, 1869, the words used in a deed from the husband to his wife and her trustee were: “and in trust for said party of the second part and her heirs by said party of the first part;” and to be held “in trust for said Elizabeth Hurt and her heirs aforesaid forever;” and it was held to create a joint estate in the mother -and her children. In this instance the children of Jane and Isaac Williams were as certainly identified as if they had been named. In Tucker, &c., v. Tucker, &c., 78 Ky. Rep., 503, the words used by the grantor were: “to Martha [444] Ann Tucker and the heirs of John C. Tucker (her husband), 'their heirs and assigns forever;” and it, was held that the word “heirs,” as used, was equivalent to the word “children.” In this case the words used do not denote an-indefinite or entire line of heirs; but a certain class clearly identified; and we conclude that they were used as word's of purchase, and that the children of Isaac and Jane Williams, by virtue of the* deed, acquired an interest in presentí with their mother. It follows that the judgment must be reversed,, with directions to overrule the demurrer to the-answer, to permit the amended answer to be filed, and for further proceedings in conformity with this opinion.