Tbе only question presented on this appeal is, What interest has tbe defendant William E. Cullens in tbe land sold for partition ?
It is admitted tbat William Lassiter owned tbe land in controversy and on 16 August, 1865, conveyed tbe same by deed to bis daughter Sarab A. Cullens and her children, rеserving a life estate to himself and bis wife, Partbenia.
Tbe language of tbe deed in tbe premises is “unto Sarab A. Cullens and her children,” and in tbe habendum, “unto her tbe said Sarab A. Cullens and her children forever.”
There is a clause of warranty in these words:, “and I, tbe sаid William Lassiter, for myself, my heirs and assigns, do and will warrant and defend tbe right and title of tbe above described tract of lands unto tbe sаid Sarab A. Cullens and her children forever against tbe lawful claim or claims of all persons whomsoever.” ’ •
Tbe plaintiffs contend tbat tbe deed to Sarab A. Cullens and her children conveyed only a life estate, on account of tbe absence of tbe word “heirs” in connection with tbe name of tbe grantee, and tbat all her'children took equally an undivided one- *346 eighth interest. The defendants claim that, under said deed, Sarah A. Cullens and her three children living at the date of the deed becаme owners of the land in fee simple, subject to the life estate of the Lassiters.
At the date of the deed Sarah had thrеe children, the defendant W. E. Cullens being one of the three. One of the three children died young prior to the death of Parthenia, who survived her husband. After the death of Parthenia, Sarah had born unto her several other children, all of whom survived their mother, who died in 1911.
We think it well settled that where land is conveyed, as in this case, to a woman and her children, they take as tenants in сommon, and only those.born at the date of the deed take, unless there is one
in ventre sa mere,
and then such child would also take; but that fact did not exist in this case.
Dupree v. Dupree,
The next question is, What estate did Sarah and her children (living at date of the deed) take under it? The plaintiffs contend that only a life estate passed under the deed, while the defendants contend a fee simple passed.
As the word “heirs” nowhere appears in the deed in connection with the grantees, Sarah Cullens and her children, we arе of opinion that the said grantees each took only an estate for his or her life. In the recent case of
Bogan v. Somers,
In this last case it is expressly held that “where thеre are no words of conveyance in the instrument, or where the word 'heirs’ does not appear in any part of thе deed except in connection with the name of the bargainor, or with some expression, such as 'party of the first рart,’ used in the clause of warranty, or elsewhere, to designate the grantor, the deed, if executed before the act of 1879 was passed, will be construed as vesting only a life estate in the bargainee.”
Stell v. Barham,
We are advertent to a line of cases which hold that where the word “heirs” does not appear anywhere in the deed, upon an allegation in thе pleadings of mistake, etc., a court of equity will construe the deed as passing a fee simple, when upon the instrument itsеlf such intention plainly appears.
Vickers v. Leigh,
*348 It may be that when William Lassiter died the fee descended to Sarah, his daughter, if she was his only heir, and if so, the defendant William E. Cullens wo'uld inherit along with the other heirs at law of Sarah. That will be inquired into on next trial.
The effect of the special procеeding for partition in 1865 between the heirs at law of William Lassiter was not passed on by the judge below and is not presented on this appeal by any assignment of error, and the same is true as to evidence which the court declined to hear, thаt Sarah Cullens had been in the adverse possession of the land from 1867 to her death in 1911. As Sarah was a life tenant, and as such in possession, we fail to see how she acquired title to the fee by adverse possession; but that matter may also be gone into on the next-trial.
New trial.