44 So. 929 | Miss. | 1907
delivered the opinion of the court.
The deed for construction in this case is in the following words: “ This indenture, made this the 4th day of April, 1882, between Bobert Bradley, of the first part, and Mrs. Drucilla Bradley, of the second part, witnesseth: That the said’ party of the first part, for and in consideration of the sum of three hundred dollars to me in hand paid by. the said party of the second part, the receipt of which is hereby acknowledged, and the natural love and affection I bear my wife, said Mrs. Drucilla Bradley, have granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, and convey, to the party of the second part during her natural life, and at hei death to revert to my heirs, that certain tract of land situated in the city of Jackson, county of Hinds, state of Mississippi, known and described as follows: One hundred feet on Pascagoula street by eighty-five -feet on Congress street, being northeast angle of square 9 D, South Jackson, together with ap
It is perfectly manifest — too plain for discussion — that the intention of the grantor was to convey to his wife, Mrs. Drucilla Bradley, the life estate in said property, and the life estate only, and that the remainder was limited to his (the grantor’s) heirs, meaning by the word “ heirs ” manifestly children. The word “ heirs ” is not used here in its technical sense, but as descriptive of the persons to take. Harris v. McLaran, 30 Miss., 571. It is impossible to derive by any fair construction any other intent from this instrument, and-this intent is manifested by the instrument itself, taken as a whole, as alone it can properly be taken. The word “ heirs ” is not to be given the technical signification contended for by counsel for appellant, to the utter overthrow of this manifest intention on the part of the grantor, when to take it as meaning children, as descriptive of those to take, consists with and supports that intention. The principles which control this case are to be found in the case of Hart v. Gardner, 74 Miss., 153; 20 South., 877. That this was the grantor’s intention is further made clear by considering the relationship and situation of the parties when the deed was made. Mrs. Bradley was the second wife and the stepmother of Robert Bradley, the son. The father died in 1902, the wife in 1904, and the son, Robert, in 190'5. The grantor’s plain purpose, gathered from the deed itself and as interpreted in.the light of their relationship and this situation, was to give his wife the life estate and nothing more, and to limit the remainder to his heirs, meaning by heirs children. Harkleroad v. Bass., 84 Miss., 483; 36 South., 537. He most
We have carefully examined the authorities cited by the learned counsel for appellant, who make an exceedingly ingenious and able argument in this case, giving especial attention to Harris v. McLaran, 30 Miss., 533. The case of Harris v. McLaran is not identical with this case, though most of the language in the opinion might very well be invoked as to the general principles involved by counsel for appellant. Two things may be said about that opinion: First, that the facts of the two cases do not make them identical at all. Second, that the court paid no attention to the use of the words “ shall return to my lawful heir’s.” The word “ return ” in that deed, as the word “ revert ” in this, has a very potent bearing in the construction of the two deeds. And, thirdly, that the decision of Harris v. McLaran might very properly have been rested alone upon the last proposition in that opinion, which was that, since Thurman died whilst his daughter was living, Thurman’s collateral kin could not possibly have been his heirs; and they claimed strictly in the capacity of heirs in this technical sense, which meant those which were his heirs at his death. Beally, all the rest of the opinion in strictness is pure dictum. What this grantor in our deed meant by “ heirs ” was his son. He had nobody in his mind manifestly but his son and his wife when he made the deed, and he used the word “ heirs,” not in its strict, technical, common-law sense, but as a mere term of description to designate his son as the person to take — as the one to whom the remainder was limited. The opinion in the McLaran case expressly says, at page 572: “ If there was any part of the instrument, or any associated word or phrase, which, in the slightest degree, authorized the inference that the donor used the words ‘ lawful heirs ’ in a restricted sense, it might possibly be conclusive.” And again, at page 571, the court says: “ Hnless it was apparent from the instrument itself that
Affirmed.
