9109 | S.C. | May 19, 1915
May 19, 1915. The opinion of the Court was delivered by In separate paragraphs or items of their will testators devised certain lands to each of their children by name, "and the heirs of his body." The devise to plaintiff's grantor, omitting the description of the land, reads: "Item. We give and devise to our beloved son, Benjamin F. McDaniel, and the heirs of his body, thirty acres," etc. The others are in *197 the same language, except the name of the devisee and description of the land devised.
Following these devises, but in a separate paragraph, are these words:
"To have and to hold during the term of their natural lives, then to go to the heirs of their bodies."
About a year after the execution of the will a codicil was added, the material part of which reads: "Item. That the land given and bequeathed in our first will and testament to our son, James A. McDaniel, Jr., and the heirs of his body, we do hereby give and bequeath unto him with full power to himself to dispose of it, if he may so elect, and the better to enable him, our said son, James A. McDaniel, Jr., to dispose of the same to his own benefit and advantage, we have this day given him a deed for the same."
Having children, B.F. McDaniel conveyed the land devised to him in fee simple to plaintiff. His children, being advised that he had only a life estate, conveyed the remainder to J.W. Dillon Son, under whom defendant, T.A. Dillon, claims it, after the death of B.F. McDaniel, who is still living.
The question is, what estate did B.F. McDaniel take under the will? The defendant, Dillon, relies upon the clause of the will above quoted, which for brevity, is called the habendum, and the codicil to show an intention that each devisee should take only a life estate with remainder to the heirs of his body as purchasers.
The habendum does show the intention that each devisee shall take only a life estate. It says so plainly. But, in equally plain terms, the remainder is limited to "the heirs of their bodies." The word "their," in this clause, evidently refers only to the immediate devisees — the sons and daughters — and does not include "the heirs of their bodies," so as to qualify those words, as used in the several devises, and make them words of purchase. The rule is well settled that, when technical words are used, they must have their *198 technical meaning, unless a contrary intention clearly appears from the whole instrument. There is nothing in the habendum clause from which we could infer the intention that the words "heirs of their bodies" should not have their technical meaning; nor can such an inference be drawn from the codicil. It does not appear whether the devisee therein named had issue. The codicil might, therefore, have been executed because he had no issue or to enable him to dispose of his land before the death of testators, as it recites that a deed therefor was executed, or it might have been because testators were ignorant of the legal effect of their devises. In such matters we cannot speculate. Certain it is, that neither the habendum clause, nor the codicil, nor both together, warrant a clear inference that the words "heirs of their bodies" were not used in their legal sense. This being so, they must have that meaning; and, giving them that meaning, the conclusion is inevitable that plaintiff's grantor took a fee conditional and his conveyance to plaintiff vested in him a fee simple title. The cases cited by appellant fully sustain this conclusion.
Judgment reversed.