Brabham v. Day

Terral, J., delivered the opinion of the court. The question propounded in this case, is the construction of [928] the following words in a conveyance of land, to wit: “To Eliza Day and her children, ’ ’ one side contending for a fee in Eliza Day, and the other side insisting that H. D. Day, now, as at the time of the conveyance, the only child of Eliza Day, is a tenant in common with Eliza Day of the land conveyed. We think that the plain and obvious interpretation of the words of the conveyance vest the fee in Eliza Day and H. D. Day, as tenants in common, the words “and her children ” being but a designatio personas. In Mason v. Clarke, 17 Beav., 131, Sir John Romilly, the master of the rolls, said: “I think it may be said generally that where a testator gives property to a parent and his children simpliciter, and there are children then in existence, the children and the parent take the property together, either as joint tenants or as tenants in common, according to the words of the will.” Our statute, code 1892, §2441, construes such conveyance to create estates in common. This rule of interpretation is indorsed by 29 Am. & Eng. Enc. L., 508, where many authorities are cited. A like rule of construction exists in the case of deeds. 3 Am. & Eng. Enc. L., 232, and notes. This is the view taken by the learned chancellor in the court below, and the judgment there is Affirmed.