91 W. Va. 39 | W. Va. | 1922
The question presented upon this certificate from the circuit court of Ohio county is the propriety of the court’s ruling upon a demurrer to a bill and amended bill.
On the 22nd of February, 1873, Henry B. McLain and Robert B. McLain were the owners of a parcel of land situate at the corner of Market and Twelfth Streets in the city of Wheeling. Upon this tract of land there were at that time
It appears that the tenants of the upper floors of the building conveyed to John G-. McLain continued to use the stairway in the adjoining building until the time of his death in the year 1914. By his will he devised this property to his widow, Anna Hay McLain, with the provision in the will that should she remarry the devise would become void, and the estate pass to thosé who would take the same under the laws of descents and distribution. After McLain’s death the tenants of his widow, who took the property under the will, continued to use the stairway. The plaintiffs denied the right of the widow or of her tenants to use said stairway, and upon their refusal to desist from such use a bill was filed against the widow asking that she be enjoined from using said stairway in connection with the upper floors of the building devised to her by her husband. A demurrer was interposed to this bill, and it seems that the court held the same for sometime before passing thereon. While the- same was pending upon the demurrer the widow conveyed the property by apt and proper deed to the other defendants, who are her four children, as well as the children of her late husband, John G. McLain. An amended bill was then filed making these grantees parties defendants, and contending that they had no right superior to that of the widow to the use of the stairway, and asked that they and their tenants-be enjoined from its use. A demurrer was interposed to this bill. The court below held that during the time the'title to this real estate was in the defendant, Anna Hay McLain, neither she nor her tenants had the right to use the said stairway as appurtenant to her property, but that when she made the deed conveying the same to the children of John Gr. McLain the right to use the stairway as appurtenant to said property was restored.
The defendants insist that the court should have sustained the demurrer to the bill for the reason that the word “heirs” in- the grant of the easement, providing that this privilege should continue in force only so long as the said John G. Mc-Lain or his heirs owned the property, was not used in its strict legal sense, but in a broader sense, and included not only his surviving children, but his widow as well; and also for the reason that even though the word heirs be construed in its strict legal sense, the children of John G. McLain did take an estate in this property upon his death, being the right to be possessed of it and own it in ease their mother remarried. It is quite true that the term “heirs” in its strict legal sense may not include a surviving wife or husband, but it is also true that in the common or ordinary acceptation of the term it is used to designate anyone who by law takes any interest in the estate of a deceased party. Strictly speaking, distributees of the personal estate of a deceased person are not heirs. The word in its narrow technical significance includes only those who take real estate by descent. It is also quite true that in ascertaining the meaning of the word heirs it is the rule to give it its technical meaning, and particularly is this true where, as is usually the ease, the instrument in which it is used creates an estate and designates the parties entitled to it. At common law the word heirs was limited to those who were entitled to the estate of a deceased person by reason of their blood relationship to him, but this court has held in the case of Reid v. Stuart, 13 W. Va. 338, and Custer v. Hall, 71 W. Va. 119, that the térm would include a husband or wife entitled to take under the Statute of Descents and Distribution. The language used' in the proviso under consideration here was not used for the purpose of creating any estate, or designating any person entitled to take the same, but was simply general language used for the purpose of indicating that the right to use the stairway was limited to John
In the case we have here the restrictive clause quoted was not for the purpose of creating any estate, but was only for the purpose of limiting the persons who might have a right to use the easement granted to 'J'ohn G. McLain. There can be little doubt but that John G. McLain interpreted it as including his wife, for he would hardly have placed' the property in such a position as to deny it this valuable easement had he believed that that would be the effect of devising it to his widow. The language used in the last sentence throws some light upon the proper construction of this term. It is there stated that the stipulations are to apply to and bind the heirs, successors and administrators of the respective parties. If the word heirs in the restrictive clause was used in its primary sense, it is hard to understand how the administrators and executors of the parties could be bound by the stipulation. When we consider the subject-matter with which the parties were dealing, and all of the language used by the parties in dealing with it, as well as the apparent purpose which they sought to accomplish, we are convinced that this term heirs was not used in its primary sense, but as meaning any member of John G. McLain’s family to whom the estate might pass, either by descent or by devise.
We are, therefore, of the opinion that the plaintiffs are entitled to no relief upon their bill or amended bill, and that the demurrer interposed thereto should have been sustained, and the question certified is answered accordingly.
jReversed and demurrer sustained.