18 Ala. 400 | Ala. | 1850
This was-an action of detinue, brought by the defendants in error against the plaintiff to recover five several-negro slaves. They claimed as the children of Lydia Standefer and grand-children of John Echols, deceased, under tbe will of the latter, which bequeathed the said property as follows: “Í lend to my daughter Lydia Standefer, during her natural life-five negroes, viz: Barrena, &c., these five negroes, with all their increase, I will to the-lawful begotten heirs of Lydia Standefer, to be equally divided among them ¿t her death.” The plaintiff'’ in error claims as a purchaser, deriving title- from Skelton Stan-> defer, the husband of Lydia, through intervening purchasers.
The Circuit Court ruled that the sale made by the husband,into whose possession the slaves went, pending the life of the wife, did not bar the right of the defendants in error to recover. The correctness of this charge depends upon the construction to be given to the clause of the will above refered to. What estate did the husband of Lydia take under the will ? It is clear that the testator intended to confer upon his daughter a life estate only in the slaves. This is expressly given. We lay no> stress upon the word lend, but consider it in the connection in which it occurs, as synonymous with give or bequeath. This intention we must carry out, if it be consistent with the rules of law. The remainder, after the life estate, he gives to the “lawful begotten heirs of Lydia, to be equally divided between them at her death.” Further, to simplify the sentence, we may read it as though the words, “lawful begotten” were omitted, as this is implied in the term heir simply — an heir being ex justis nvptiis procrcat-us. — 2 Powell on Dev. 424.
There is no other expression in the will to aid us in construing this clause, and to explain the term heirs. How is it to- be understood? Asa word of limitation, or of purchase ? The rule in Shelly’s case, which in this State has been held to apply, es well to personal, as to real estate, (Price v. Price, 5 Ala. 580,) settles “ that when the ancestor by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, in fee or in tail, the heirs are words of limitation of the estate, and not words of purchase.” — 1 Coke, 104. The effect of the rule, in cases to which it applies, is to merge the remainder in the particular estate, thereby enlarging it into an estate in fee or in tail, so that the heirs generally, or heirs of the body, may take not under the gift or conveyance as purchasers, but by descent from the ancestor. The word heirs, or heirs of the body, when unexplained, are uniformly regarded as words of limitation, descriptive of the line of heirs to take, and not of particular individuals. In the case before us, we cannot perceive how the word heirs can receive any other than its technical construction. It is clear that it cannot be limited to children of the first taker, for it would equally embrace grand-children,
In this case, the term heirs comprehends the whole class of heirs, and they would become entitled on the death of Lydia Standefer, the first taker, (supposing the subject of the bequest to be land,) in the same manner and to the same extent, and with the same descendable qualities, as if the devise had been to her and her heirs without the addition of other words. The law confers the right to an equal participation in the property in all the heirs — the will, which provides for the distribution, does no more. — 4 Kent 222. In such case the word heirs is a word of limitation, and the intention will not control the effect of the word. To make it a word of purchase, it must be used as a
Mr. Lewis in his work on the law of perpetuity, (page 3S4,) says, “as an ordinary rule it may be laid down, that the words “ issue” and “ heirs of the body,” (which are generally and primarily regarded as synonymous, though the latter expression is more strict and technical,) are words of limitation, i. e., do not carry the legacy to the person, answering that description, os qmrchaser, after the decease of the ancestor taking a prior life interest, but describe and regulate the quantum of interest to be taken by such ancestor, and this construction is not varied by the circumstance of words of division or distribution being super-added to the gift to the issue, nor will that of a gift over, in default of issue, afford a sufficient reason for construing the word “issue” otherwise, than as a word of limitation.” — Citing Doe v. Apling, 4 Term Rep. 82; Doe v. Cooper, 1 East, 229; Tate v. Clarke, 4 Beav. 100; which he thinks equally applicable to devises of land and bequests of personal property — note io. It appears, however, to me, that the word “ issue,” used in the creation of the limitation over, would indicate much more strongly the intention of the donor that tbe remaindermen should take as purchasers, than the use of the words, “lawfully begotten heirs.” In Woodley v. Findley, 9 Ala. 716-19, the words were, “I lend to Mary Foster one negro girl, &c., during her natural life, and at her death, I give and bequeath said negro girl and her increase to the lawful issue of her body that may then be living, to them and each of them, share and share alike, their heirs and assigns forever; but should the said Mary die without lawful issue, then to go to her sisters, share and share alike.” It was held that the words, “ issue of her body,” as used in this will, should be construed as words of purchase, and the first taker having died without issue, the limitation over to her sisters was good as an executory devise. We are satisfied with that decision as a correct exposition of the law applicable to that case. The distinction is there taken between the terms issue and heirs. The first might well be considered as synonymous with children, whereas, the latter requires to be restricted
In Machen v. Machen, 15 Ala. 373, we had occasion to examine pretty much the same proposition now before us. There the will read as follows: “I leave to Jane Machen two negroes, Tamer and Prince, during her natural life; then to her bodily heirs. If there should be no heirs,” then over, &c. We held, that there being no words used in the will, to show that the term “bodily heirs,” was synonymous with children, that the rule in Shelly’s case applied, and enlarged or converted the estate for life into an absolute estate in the first taker. In Lenoir v. Raney, 15 Ala. 667, the property was conveyed in trust for the use ofC., during her natural life, and after her death, said slave to be the joint property of the heirs of the body, &c. Held that C. took the absolute estate. See the cases collected, refering to limitations of this nature, in note 2, to Bale v. Coleman, 1 Perre Williams, 142, (Amer. ed.;) 4 Brown’s Ch. Rep. (Perkins ed.,) note 1, to Jacobs et al. v. Amyatt et al., p. 406, marg. p. 542; Doe v. Aplin, 4 D. & E., 82; Lyon v. Mitchell, 1 Maddock’s Ch. Rep. 467-486.
In Dunn v. Davis, 12 Ala. 135, the bequest was “to my daughter Maria, for life, and at her death, to her heirs or children," held that the term children explained what the testator meant by heirs, and that no estate tail was created, and the children took vested remainders. — Goldthwaite, J., dissented. Had the word children in that case been omitted, there is no room to doubt
Having arrived at the conclusion that the absolute property in these slaves vested under the will in Lydia, which by virtue of the marriage vested immediately in her husband Skelton Standefer, «upon his reducing the slaves into his possession, it follows that he had power to dispose of them, and having done so, the purchaser from him is entitled to hold them against the heirs of Lydia. The Circuit Court ruled the law otherwise. T.he judgment must, therefore, be reversed and the cause re- ' manded. As the view we have taken of the case will, in all probability, be decisive ®f it, we deem it unnecessary to notice the other questions, presented by the record.