35 Ind. App. 662 | Ind. Ct. App. | 1905
Appellants in the court below began this suit against appellees for possession of, and to quiet title to, 160 acres of real estate in Kosciusko county, Indiana, basing their cause of action upon a certain deed executed by Henry Eord and Phebe, his wife, to Isaac Minear, Jr., and wife, Jane Minear, on January 22, 1838. Omitting the formal parts, description, and the usual covenants, that part of the deed material to this controversy is as follows: “Witnesscth, that said Henry Eord, for and in consideration of the sum of $400 and other good consideration to'him in hand paid by said Isaac Minear, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, conveyed and confirmed, and by these presents doth grant, bargain, sell, convey and confirm unto said Isaac Minear and to' his wife, Jane Minear, and to the survivor of them and to the legitimate heirs of said Isaac Minear, if he should have any, either with his present or with a future wife lawfully married, and in ease of no such lawful issue then and in that case after the death of both said Isaac Minear and Jane, his wife, then in that case said hereinafter mentioned lands and messuage hereby granted to be considered as a part of the estate of Isaac Minear, Sr., and to be divided among his heirs as such, and to their heirs and assigns forever, a certain tract of land in the county of Kosciusko, in the State of Indiana, aforesaid. * * * Together with all the appurtenances to the only use, benefit and behoof of said Isaac Minear, and his wife, Jane, during their natural lives, or the survivor of them, and to said Isaac’s legitimate heirs, and for want of such to the heirs of his father, Isaac Minear, Sr., forever.” This deed was properly signed and acknowledged by Eord and wife, and recorded February 20, 1838. On November 1, 1839, Isaac Minear, Jr., and his wife, Jane, Isaac Minear, Sr., his wife joining, by general warranty deed conveyed said real estate to one Hester
But when we add to the language used in conveying the title to Isaac Minear, Jr., and his wife, the words, “and to the legitimate heirs of said Isaac Minear, and to their heirs and assigns forever,” we have words meeting the requirements of the common law for the transfer of the fee to real estate by deed. True the words “legitimate heirs” have been defined to mean children born in lawful wedlock. Bouvier’s Law Diet.; Anderson’s Law Diet., 611; Lytle v. Beveridge (1874), 58 N. Y. 592. “Legitimate” is also defined by Webster to mean lawful; lawfully begotten; born in wedlock. In the Century Dictionary as lawful; of lawful birth; born in wedlock; a legitimate heir.
In Hochstedler v. Hochstedler (1887), 108 Ind. 506, this language is used: “That the clause of the will devising to the appellee, David Hochstedler, and his sister and brothers, the estate in possession and in remainder, which is created for them, does, under the rule in Shelley’s Case, devise an estate in fee. We think the authorities require this concession, for, where a life estate is created in a devisee named, and the same will devises the remainder to devisees, who are named, and their lawful heirs, they, the devisees, take an estate in fee.” Citing many authorities.
In Gonzales v. Barton (1873), 45 Ind. 295, the court
In the case at bar the language of the deed will not warrant us in giving the word “heirs,” or the phrase “legitimate heirs of Isaac Minear, Jr.,” any other meaning than that assigned them by law.
“In England, before the wills act of 1837, the phrases, ‘if he have no issue,’ ‘if he die without leaving issue,’ ‘leave no issue,’ ‘for want of issue,’ ‘in default of issue,’ ‘if he die without issue,’ and other words of similar import, unexplained by the context, when made the contingency in devises of a limitation over of real property, were invariably construed to mean an indefinite failure of issue, and to create an estate tail.” Hertz v. Abrahams (1900), 110 Ga. 707, 36 S. E. 409, 50 L. R. A. 361.
In Moore v. Gary (1897), 149 Ind. 51, the court said: “At common law a devise to one and his children carried an estate in joint tenancy when the person named had children living at the time of the devise, but when no such children existed, the term ‘children’ was construed" as a word of limitation and as equivalent to ‘issue’ or ‘heirs of his body,’ and the parent took an estate tail.” Oases cited.
In our opinion, there is no error in the record. Judgment affirmed.