160 Ky. 684 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
This suit was brought by Hettie E. Duncan and her husband, W. T. Duncan, against Sue Emma Medley, their daughter, and their three other children, to obtain a construction of a certain deed executed on September 20, 1874, to Hettie E. Duncan and others, by Micajah Maderra, her father, the deed being as follows:
“Hardin County, Kentucky. In the year of our Lord one thousand eight hundred and seventy-four, Sept. 20 1874 I do give to Hettie E. Duncan our daughter her children the heirs of her body and W. T. Duncan her husband his life time interest in 168-3/4 of land
Tbe trial court held that W. T. Duncan took a life estate in tbe land; that Hettie E. Duncan took a life estate subject to the life estate of her husband; and that tbe remainder after the termination of tbe life estates, vested in tbe children of Hettie E. Duncan, living on September 24, 1874, tbe date of tbe conveyance, and thereafter born alive.
At tbe time this judgment was rendered, there were four living children of tbe Duncans; but it appeared from tbe evidence that at least two, and possibly more, children bad been born to them alive since tbe date of tbe conveyance, who bad died before tbe institution of this action. The court, therefore, reserved for further proof and future adjudication tbe question of tbe exact remainder interest of tbe remaindermen respectively.
From so much of tbe judgment as adjudged to their children any interest in remainder in tbe land in question, tbe plaintiffs appeal.
1. The term, “heirs of her body” is one of limita
But, where it is apparent from the will or deed that the word “children” is used in the sense of “heirs,” it will be read as meaning “heirs” and construed as a word of limitation. Virginia I. C. & C. Co. v. Dye, et al., 146 Ky., 519.
On the other hand, where it is apparent from the instrument that the term, “heirs of her body” is used in the sense of “children,” it will be read as meaning “children,” and construed as a word of purchase, and not of limitation. American National Bank v. Madison, 144 Ky., 152; Hunt v. Hunt, 154 Ky., 679.
In the deed here under consideration, the language is, “to Hettie E. Duncan our daughter her children the heirs of her body.” The terms “her children” and “the heirs of her body” are used synonymously. Being so used, the question presents itself as to whether “her children” was used as meaning “the heirs of her body,” or whether “the heirs of her body” was used as meaning “children.” In other words, which term was used in the primary sense, and which was descriptive ?
The rule to be applied in detérmining this question is to try to ascertain whether the grantor intended that his daughter should take in fee, or a life estate only; and there is but little language in the deed to assist us in a determination of the grantor’s intention. The words “We do hereby give to our beloved daughter,” however, imply a conveyance by way of gift induced by parental love.
In the case of American National Bank v. Madison, supra, the conveyance contained the words, “in consideration of the love and respect which they (her parents) have for Josephine E. Madison who is their daughter, her children.” There were several children living at the date of the conveyance. The caption of the deed made Josephine E. Madison and her bodily heirs, parties; and the habendum clause was to Josephine E. Madison and her bodily heirs forever. But the court held that “bodily heirs” and “children” were evidently used synonymously, “bodily heirs” having the same meaning as “children,” and that where so used, they were words of purchase and not of limitation; and that Josephine E. Madison took only a life estate.
In the deed under consideration in the case at bar, the inclusion of the provision that “W. T. Duncan agrees not to trade his lifetime interest in said land” indicates a purpose in the grantor of protecting the interest of the children; and also aids in arriving at the conclusion that the words used in the deed were not intended as words of limitation. We are of the opinion that the circuit court properly construed the deed in question and that the judgment should be affirmed.
It is so ordered.