120 P. 429 | Cal. Ct. App. | 1911
The action is for specific performance of a written contract for the purchase of a tract of land in Sonoma county. The facts are not disputed and the only question of *504 law presented is, as agreed by counsel, "whether or not the plaintiffs have a present title in fee in the lands involved which they can convey by deed to the defendant." It is stipulated that on the twentieth day of April, 1883, W. S. M. Wright was the owner in fee of the premises, and on that day he executed a deed thereof to Mrs. M. O. Hall "for the natural life of the said party of the second part, and then to the heirs of her body begotten forever." On said date Mrs. Hall had five living children, two of whom have since died and two other children have since been born. The interests, if any, of the deceased children have been distributed to Mrs. Hall, and she and all the living children have joined in the deed which has been tendered to appellant. One of the said children is a minor, and Mrs. Hall has been appointed the guardian of his person and estate, and by an order of the superior court she has been authorized and directed to sell the minor's interest in the property.
Appellant states his case substantially as follows: Section
On the other hand, respondents cite section
It is also claimed that the word "heirs," as used in the deed, should be construed to mean "children," for the reason that, under this construction alone is it possible to give effect *506 to the whole of the deed. For the general rule is that a conveyance to the "heirs" of a living person is void for uncertainty, as before his death it cannot be ascertained who will be his heirs, but if the grantor means "children" when he uses the word "heirs," the uncertainty is avoided. Under the foregoing view it is claimed that the whole of the fee is vested, since the age of the life tenant, as stipulated by the parties, precludes the possibility of the birth of another heir.
The case, however, of County of Los Angeles v. Winans,
It seems impossible to make any distinction between the deed in that case and the one to be construed by us. By placing in juxtaposition the expressions limiting the estates, we can see that they are almost identical, and must receive the same interpretation. In the former, the deed conveyed the lands to Mrs. Emma Means "for and during the term of her natural life and upon her death to the heirs of her body." Here the limitation is "for the natural life of the said party of the second part and then to the heirs of her body begotten forever." If in the one case the "heirs of the body" take a future contingent, and not a vested, interest, so it must be in the other case. It cannot be doubted that this view gives effect to the ordinary signification of the terms employed and harmonizes the apparently conflicting sections, 694 and 780, of the Civil Code. It may be remarked that the word "then" clearly refers to the time of the expiration of the life estate. The language would be exactly equivalent if it were "for the natural life of the said party of the second part and 'afterward' to the heirs of her body begotten forever." *508
The attention of the learned trial judge was probably not called to the aforesaid decision. At any rate, it is controlling, and the judgment is reversed.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 18, 1912.