Henson v. Breeze

Wood, J., (after stating the facts). The only question necessary for us to determine is whether or not the court erred in holding that the effect of the deed was to convey only a life estate to the grantee, Eudora Fort, and that her children were the owners in fee. In the case of Hardage v. Stroope, 58 Ark. 303, one J. L. Stroope and wife conveyed certain land to Tennessee M. Carroll, “to have and to hold the said lands unto the said Tennessee M. Carroll for and during her natural life, and then to the heirs of her body, in fee simple; and if, at her death, there are no heirs of her body to take the said land, then, in that case, to be divided and distributed according to the laws for descent and distribution in this State.” Construing the above deed, the court, among other things, said: “It is obvious that the deed to Mrs. Carroll created in her no estate entail. Her grantor reserved no estate or interest, nor granted any remainder, after a certain line of heirs shall become extinct, but conveyed the land to her to hold during her life, and then to the heirs of her body in fee simple. No remainder vested in her children. ’ ’ And the court held that under the rule in Shelly’s case the effect of the deed was to vest in Mrs. Carroll, the grantee, an estate of inheritance, and that she became seized of the land in fee simple. The use of the word “forever” in the present deed has the same effect as did the words “in fee simple” in the deed of Stroope to Mrs. Carroll. The use of the words “revert back and descend,” etc., did not differentiate the deed under consideration in the present case from the deed construed in the case of Hardage v. Stroope. As we construe the deed, it does not convey a life estate to Eudora Fort (now Kiblinger), with the remainder to the heirs of her body. The language does not justify such a construction. But the effect of the deed was to convey to Eudora Fort the fee. The bodily heirs of Eudora Fort Kiblinger contend that it was the intention of the grantor that in the event his daughter, Eudora Fort, died without children, that the lands would revert back to the grantor, under the clause, ‘‘and if the grantee, Eudora Fort, shall die without children of her body living, or descendants of such children, then the said lands shall revert back and descend to such persons as the law casts the descent of property of persons dying without children or descendants of children. ’ ’ The effect of this clause is precisely the same as was the following language in the habendum clause in the case of Hardage v. Stroope, supra; “and if at her death there are no heirs of her body to take the said land, then and in that case to be divided and distributed according to the laws of descent and distribution in this State.” As already observed, we construed this clause, under the rule in Shelly’s case, as a limitation to the heirs generally. The language of the deed, as we construe it, brings it within the doctrine of Hardage v. Stroope, rather than the doctrine of Horsley v. Hilburn, 44 Ark. 458, Wilmans v. Robinson, 67 Ark. 517, and other cases following those, which the trial court erroneously applied to the present case. It follows that Mrs. Eudora Fort Kiblinger had the right to convey the fee in the land in trust to secure the payment of her debt to Swilling, and hence her children, the heirs of her body, had no cause of action against those holding under title derived from that source. The decree is therefore reversed and the cause is remanded with directions to sustain the demurrer to the complaint, and to dismiss same because it does not state a cause of action.