112 Mich. 474 | Mich. | 1897
On February 6, 1851, James G. Birney made a deed of the premises described in the declaration, of which the following is a copy of the important part, viz.:
“ And Lorainie Spicer, wife of Ezekiel Spicer, of the same place, of the second part, witnesseth, that, in con*475 sideration of one hundred dollars paid by the said Ezekiel Spicer to the parties of the first part, they have bargained and sold and do hereby convey to the said Lorainie Spicer the lots known as numbered eight and nine (8 and 9) in square numbered forty-eight (48) in the village of Lower Saginaw, above mentioned, according to the lithograph map of it published by Green and McGowan. To have and to hold the said lots to the said Lorainie, to the children of her body begotten by the said Ezekiel, to her heirs, executors, and to the assigns of the said Lorainie and Ezekiel, forever; and the said James G. Birney, for himself, his heirs, executors, and administrators, hereby covenant and agree that he will at all times defend the lawful title hereby conveyed, to the said lots, of the said Lorainie, to the children of her body begotten by the said Ezekiel, to her heirs, executors, and to the assigns of the said Lorainie and Ezekiel, against the claim or claims of all persons whomsoever.”
The plaintiffs are three of four children of Ezekiel and Lorainie Spicer, two of whom were born after the deed was made, and, of two living at the time, one is a plaintiff, and one died leaving no issue; and it is claimed by the plaintiffs that they and Lorainie Spicer, their mother, inherited each one-fourth of this share, i. e., one-sixteenth of the entire premises, and they have joined as plaintiffs, claiming the undivided fifteen-sixteenths. The defendants are in possession under a deed purporting to convey the entire title, from Lorainie Spicer, made after the death of Ezekiel Spicer; and, she having married again, her husband joined in the conveyance. The claim of the plaintiffs is that this deed from Birney conveyed a life .estate to Lorainie, with remainder in fee to the children of herself and Ezekiel, while the defendants claim (1) that this deed attempted to create an estate tail, and therefore Lorainie took title in fee simple, by virtue of the statute (2 How. Stat. § 5519); and, failing in that contention, (2) that the land was conveyed in fee, and in moieties (or at least in fifths), to her and the children of her body, by Ezekiel, as a class.
We may dispose of this second suggestion first. It is noticeable that in its premises the deed makes Lorainie
So we may first inquire whether we may find a life estate in Lorainie, with a remainder, or must say that the deed was an attempt to create an estate tail, which, under the statute, vested the fee in her. If we should say
It seems to be conceded that whatever estate was conveyed to the children, intentionally or through the futile attempt at an entail, if it were such, was not to the exclusion of the children subsequently born. Counsel for the defendants necessarily take that view when they argue that this was an estate in tail. The plaintiffs’ counsel unqualifiedly admits it in his brief, and apparently supports it by the argument that inasmuch as their estate is not a grant, but a remainder, the rule that would have excluded them if described in the grant does not apply, and, as unborn children may take an estate in remainder with
As intimated, unless the word “children” is to be construed as synonymous with “issue” or “heirs,” they took no estate of inheritance. There might possibly be circumstances where “children of her body begotten” might be held to mean lineal descendants of any degree; but, without' words in the instrument or extraneous circumstances tending strongly to show an intention that such meaning should be given, it would do violence to the common understanding of both words “children” and “begotten.” The word “children” usually means “descendants of the first degree,” and “to beget” is to procreate, as a father or sire. The word ‘ ‘ children ” is usually confined to immediate descendants,—those of the first generation. It includes neither grandchildren nor more remote descendants. See authorities cited in 3 Am. & Eng. Enc. Law, 231. And it is said that “the word ‘children’ may acquire a more extensive meaning only from the context in which it occurs, or from its use in a case where the person using it must know that there neither then is, nor can afterwards be, any person within the first generation to whom it can be applied.” Willis v. Jenkins, 30 Ga. 167; In re Chapoton’s Estate, 104 Mich. 11; Tillinghast v. D’Wolf, 8 R. I. 69. The instances are perhaps more common where the word “heirs” or “issue” is construed to mean “ children.” Such a case is Tucker v. Tucker, 78 Ky. 503, cited by counsel, where the meaning is obvious from the context, though in these cases it is probable that •the same rule (i. e., necessity or obvious intent) applies. It has been said that: ‘ ‘ The word ‘ children, ’ being confined to issue in the first degree, consequently, when used in a deed or will, applies primarily to a specific and determina
This brings us to the other clause of the habendum, viz.: ‘ ‘ To her heirs, executors, and to the assigns of the said Lorainie and Ezekiel, forever.” We have indicated that we think that this refers to Lorainie Spicer. It is her heirs and her executors, and the assigns of herself and Ezekiel, who were apparently in the mind of the grantor. Were these words omitted, the conclusion that Lorainie, and the class described as her children, would have taken successive life estates, is irresistible; and that the donor would have owned the reversionary interest is plain. It is equally
In determining the effect of a habendum upon a grant, we should do violence to the settled rules of construction were we not to determine the meaning of the conflicting provisions of the habendum by determining the intent of the grantor, as expressed in the habendum, so far as it could be determined from the instrument; and, having done this, we would then determine its effect upon the grant. To our minds, it is obvious that the first object was to secure to Lorainie Spicer an estate for life, and, second, that the children should enjoy a life estate in remainder; and we will not be justified in holding it to have been defeated by so technical a rule as that suggested above, unless it cannot be legitimately avoided. Following the discussion of the grantor’s intent into the realm of reasonable speculation, it would seem plausible that he wished to provide for a full enjoyment of the estate by Lorainie when the time should arrive (if it ever did) that the possibility of issue begotten by Ezekiel should be extinct. This might obviously happen through the death, or possibly the divorce, of Ezekiel without such issue living, or the subsequent death of such children. If the habendum had stopped at the word “heirs,” this deed would have created an expectant estate in fee simple in Lorainie Spicer’s general heirs (2 How. Stat. § 5544; Defreese v. Lake, 109 Mich. 415), to become operative upon the termination of the life estates of the children (see 2 How. Stat. § 5544; Defreese v. Lake, 109 Mich. 415), and could not be said to have been an enlargement of the life estate granted to Lorainie. This would have cut off the reversion. But apparently the grantor sought to do more, and convey an estate to Lorainie in fee after the possibility of the second life
There are two ways in which the plaintiffs can sustain their title: (1) By saying that Lorainie’s life estate and the estate in expectancy merged in her, to the exclusion of the intermediate life estate, which has already been discussed. (2) By saying that the deed from Lorainie Spicer conveyed nothing, as in such case her estate in expectancy, if she had one, descended to them, provided that they were her only heirs; and, if she had not, such estate came to them as her general heirs, under the terms of the Birney deed. We are of the opinion that it was competent to create an estate in fee in expectancy, and had the habendum read, “To said Lorainie Spicer, to the children of her body begotten by the said Ezekiel, to her, and her heirs, executors, and assigns,” we should have no doubt that the grantor had intended to convey to her the estate that would have otherwise reverted to him at the expiration of the life estates. This estate might be contingent under 2 How. Stat. § 5541; and it would be alienable and descendible under 2 How. Stat. § 5551. But the language was not that, and we must either hold that the intent failed, so far as she was concerned, and that the estate went to her heirs, or that the obvious intent was to convey to her, her heirs, executors, etc. This latter construction is supported by the fact that the deed professed to give to her the power to assign,—coupled with the requirement that Ezekiel Spicer should join, it is true, but dependent upon title. If she had no title, she would have nothing to assign, nor would Spicer. Upon the other hand, it may be said that, if she had title, Spicer certainly had nothing to assign, and it was therefore superfluous to mention him. This is perhaps true, though we should not overlook the fact that the married woman’s act was not in force at the time that the Birney deed was
It follows that the plaintiffs, or some of them, are own
The judgment must be reversed, and the plaintiffs allowed a new trial. Ordered accordingly.