42 Ala. 422 | Ala. | 1868
A gift to O. and her bodily heirs forever, ■uncontrolled by any other words in the conveyance, vests an absolute estate, in the subject of the gift, in O.; and that, whether the estate of O. is limited expressly or by implication, to be one for her own life. — Ewing v. Standifer et al., 18 Ala. 400; Loyd v. Rambo, 35 Ala. 719, and authorities therein cited; Johnson's Adm'r v. Johnson, 32 Ala. 637. Such is the unbending rule of the common law, and we must presume that it was in force in South Carolina where the deed was executed, in the absence of proof to the contrary. — Ellis v. White, 25 Ala. 540; Foster v. Glazener, 27 Ala. 391; ib. 301.
We can see no substantial distinction between a gift to “O. and the heirs of her body,” or to her and “her bodily heirs.” Both expressions may be controlled, modified or explained, by other expressions in the conveyance. — Powell v. Glenn, 21 Ala. 458 ; Landman v. Snodgrass, 26 Ala. 593.
The words “bodily heirs” in the conveyance, are not explained, modified or restricted by any other words or clauses of the conveyance, and we must give them their technical common law interpretation. The words, “which I convey wholly into her charge and possession by the delivery of the same,” instead of explaining or restricting the words “bodily heirs,” so as to show that the donor intended that they should take as purchasers, are affirmative of the construction put upon them by the common law.
We are satisfied that upon the weight of authority, the deed of conveyance vested an absolute estate in the property conveyed, to Mrs. Odell.
It follows, that upon her death, no one can sustain an action for its conversion but her husband, in case his marital rights attached during the coverture; or, if not, then her personal representative or alienee, if she conveyed her interest or title to another.
There is evidence tending to show that the marital rights of the husband never attached, and also that they did attach to the property conveyed; but by the first charge given to the jury by the court, they were relieved from passing on this question, and upon the present record we cannot properly give any opinion as to the law upon it. But it has heretofore been passed upon by this court.
If the marital rights of the husband never attached to the property, then, upon this record, the suit should have been brought in the name of the personal representative of Mrs. Odell. If his rights did attach, then the question may arise on another trial, whether the agreement of the husband with appellee, conferred any title in connection with such evidence as may be introduced, upon which the action of trover can be maintained.
This view disposes of all the questions raised by the bill of exceptions, which will likely be presented on another trial, in the same form and upon the same facts now before us, and we therefore deem it unnecessary to say anything with reference to them.
Eor the error in giving the first charge, and the refusal to give those charges which are in conformity to this opinion, the judgment of the court below must be reversed and the cause remanded.
Reversed and remanded.
