183 Ga. 796 | Ga. | 1937
The plaintiff filed a suit in ejectment for the recovery of an undivided third interest in certain described
The test in construing the words “and her living heirs,” as here used and under the facts disclosed, is whether they be words of purchase or words of limitation. If they be taken as words of limitation, the defendants’ demurrer to the petition should have been sustained, for the reason that the legacy would thus have put the fee-simple title of the entire property in the mother. If, on the other hand, the words mentioned be construed as words of purchase, then the plaintiff should recover her proportionate interest in the estate as a tenant in common, and the judgment overruling the demurrer should be affirmed. If the word “heirs” stood alone, it would manifestly connote the idea of limitation only. Almost every deed conveying a fee-simple estate is made to a named grantee, his heirs and assigns. Indeed, according to the English rule, at least as it existed when our rules of jurisprudence were being formulated, in order to create a fee the use of some such word was necessary. Hnder that rule, a grant or devise to A vested in him a life-estate only. Clements v. Glass, 23 Ga. 395, 397. Our rule in this respect was changed by the act of 1821 (Code, § 85-503), which declared that “the word ‘heirs,’ or its equivalent, is not necessary to create an absolute estate; but every conveyance, properly executed, shall be construed to convey the fee, unless a less estate is mentioned and limited in such conveyance.” In the case before us no contention is made by either side that the words of the devise did in fact create a less estate than the fee in the first taker or takers. There is no contention that there is any valid limitation over in remainder. The sole contro
Judgment affirmed.