109 Tenn. 674 | Tenn. | 1902
delivered the opinion of the Court.
On the 15th day of July, 1875, Robert H. Laird made and delivered a deed to his daughter, Mary Mc-Million Blackburn, by which was conveyed a valuable tract of land in Oiles county, consisting of one thousand and sixty-three acres. In the premises of this instrument it is recited that the grantor, for the love and affection he bore his daughter, and for a nominal money consideration, did “give, transfer, and convey to the said Mary McMillion Blackburn, wife of Jas. K. Polk Blackburn, and her children, forever,” the land in question, describing it by metes and bounds, with all the appurtenances and improvements. Following the description, the deed contains the following clauses, viz.: “I covenant with the said Mary McMillion Blackburn ... to warrant and defend the title to the said land ... to the said Mary McMillion Blackburn and her children . . . against any claim to be made by me. . . . And I ... do further agree and provide in this transfer . . . that in the event of the death of Mary McMillion Blackburn, wife of James K. Polk Blackburn, before her said husband, then . . . he, the said James, . . . shall have by three disinterested landowners in said county ... set apart for him four hundred acres of the above-described lands; ... to have and to hold and use and
At the date of this deed, Mrs. Mary McMillion Blackburn had four living children, one of whom, a daughter, married Alpheus Truett, and had born to her of this marriage a child named Edward Truett. Mrs. Truett afterwards died during the lifetime of her mother, leaving surviving this child. Subsequent to the date and delivery of the deed there were born to Mrs. Mary Blackburn five other children. Thereafter she died leaving surviving her husband and, in all, eight children and the grandchild, Edward Truett.
Another fact which it is proper to state is that on the 7th of January, 1878, James K. P. Blackburn and his wife, Mary M. Blackburn, conveyed all the interest of whatever kind which they had in this tract to the original grantor, R. H. Laird, and his wife, Nancy M. Laird. The grantee, R. H., is now dead, leaving his wife, Nancy, surviving; so that, if this deed conveyed any interest at all, it was an estate by entirety, of which she is now the owner.
This claim thus made, resisted as it is by the after-born children, makes necessary a construction of the deed of 15th July, 1875.
There is no doubt that a conveyance to a mother and her children, without qualifying words, is often held to be one in praesenti, vesting title in the then living children and the mother as tenants in common, and by construction of law excluding children coming into being thereafter. In the cases where this has been held, the rule is rested either upon the idea that a freehold could not be created to take effect in futuro, as at common law, livery of seizin was essential to such estate, or else upon an implication from
In view of these rules of interpretation, we will examine the deed in question. In the first place, we can see no reason why the grantor should have preferred
In the second place, we think an examination of the deed not only makes it clear that this term was designedly used in this comprehensive sense, but that this design or purpose of the grantor, so evidently fair and just, may be carried out by the courts without doing violence to any sound rule of construction. In Beecher v. Kicks, supra, the deed was to “Sarah Catherine Hicks” and to “the children of the said Sarah Catherine upon her body begotten by her said husband,” and it was held that it was the clear purpose of the grantor to carry the property conveyed to all the children falling Avithin the class cited as the direct- objects of his bounty, and that this would be effectuated either “by treating the conveyance as being to the mother in trust for herself and her children, or
But we think in the present deed is to be found phraseology which indicates that the intention of the grantor was to embrace all the children of Mrs. Blackburn, and at the same time to restrict her to' a life estate. This is found in the paragraph where it is provided that “the said Blackburn and his said wife are hereby put in possession of all said land. . . . and every part thereof, to their own use, said Blackburn having control and management . . . during the lifetime of his wife.” If the deed was to take effect in praesenti, as is claimed by the complainants, it is difficult to account for this provision; for, taking effect at its delivery, the mother and her living children would have had vested in them an estate in fee, the use and control of which, by operation of law, would have redounded to the interest of all as tenants in common; and the mother’s interest would, upon her death, have passed under the statute of descents or by virtue of her last will, as the case might be.
Evidently, however, this was not in the grantor’s mind. It was, so far as the mother was concerned, intended that the property as a whole should be limited to a use by the husband and wife during the term of her natural life. For whom and in whose interest
A decree will be entered in accordance with this opinion, and for a remand for partition or sale for partition. The costs of the lower court accrued up to the date of the appeal will be paid by the complainants, and of the appeal will be divided between the complainants and defendants, save and except Edward Truett, The costs accruing upon the remand will be disposed of by the chancellor.