Mefford v. Dougherty

JUDGE PRYOR delivered the opinion op the court. This is an action to enforce a contract of purchase, made between George Dougherty and the appellant. The defense is, a want of title. At first impression, it would seem that the testator, in the devise made to his two children, intended to invest them with the fee in the land; but a more careful consideration of the testamentary paper would necessitate the violation, not only of well-recognized rules of construction, but require the court to pervert the meaning of the word •children, in order to reach such a conclusion. The testator owned a small tract of land, containing about one hundred and fifty acres, and died, leaving surviving [59] him two children — a son and daughter. The language of the will is: “I give to my son George, and to his children, the heirs of his body, about fifty acres of land. * * The land I have given my son George to be bounded,” &c. The same provision is made in the devise to his daughter, except that the devise to her is burdened with the payment of an eight hundred dollar debt. She gets one hundred acres. A devise to the son and his bodily heirs, or to the son and his issue forever, would vest no title in the children, but the language used'would be construed as passing from the devisor to the devisee such an estate as would descend from the devisee to those who were entitled to inherit from him. The words enlarge instead of restricting the interest devised; and, by our statute, pass to the devisee the whole of the estate devised; that is, a feésimple title. The bodily heirs or issue do not take ás purchasers, unless, by the will or deed, a life estate is carved out of the fee by the testator. A devise to A for life, and after his death to his heirs, or the heirs of his body, nothing else appearing, vests the heir as a purchaser with the remainder interest. (See section 10, article 1, chapter 63, General Statutes.) Where the devise is to A and his children, the children take as purchasers, and the question generally is, whether A is vested with a life estate, or only holds a joint interest with his children. The. word heirs, or heirs lawfully begotten, embrace all the descendants of the devisee or grantee; but the word children embraces only immediate descendants, and when used in a deed or will, the children take as purchasers, and are vested, if living, when the devise is to one and his [60] children, with a present interest, or take, under the devise, as they come into being. It is argued, with much plausibility, that the words heirs of his body, immediately following the word children, explain the meaning of the testator to be a devise to his son George and his bodily heirs. The devise is to his son, George Dougherty, and to his children, the heirs of his body, and to arrive at such a conclusion you must erase from the devise the words and to his children, leaving the devise to George and his bodily heirs, or the heirs of his body, which, if done, might defeat the intent of the testator. He devises one hundred acres of the land to his daughter in the same way, to her and to her children, the heirs of her body, and burdens the devise with the payment of a debt of eight hundred dollars. Now, this burden rests on the entire devise, and not alone on the interest the daughter is to take; and if the devise to George, which is now in controversy, was erased from the will of the testator altogether, and only the one devise appeared, and that to the daughter, it would be held at once that the purpose of the testator was to secure the land to the daughter and her children, and that she had but a life estate. So the devise to the son, by which his estate is limited, should not be enlarged upon the mere probability that the testator intended to give him the fee. It is true the testator, in speaking of the devises to his children, says, when alluding to the boundary, ‘ ‘ the land I have devised to George;” “the land I have devised to my daughter;” but such expressions are not incon61 sistent with, tlie devise as it reads, and some meaning must be attached to the word children. The will was evidently written by one of more than ordinary intelligence, embracing in a few words the devise of the whole estate, and the draftsman as well as the testator must have had some reason for inserting the word children, and to divest them of all interest would tend to defeat the intention of the testator. The judgment is, therefore, reversed, with directions to dismiss the petition or cancel the contract if the •appellant desires it.