30 Ga. 224 | Ga. | 1860
By the Court.
delivering the opinion.
Three points arise in the construction of this deed. 1st. Whether by its,-terms an estate tail is created. 2d. Is the remainder a vested or contingent one ? 3d. Who will take under the limitation to the heirs of the body ?
1. As to the first, we consider it well established, that although these words, “heirs of the body,” do, prima facie import an estate tail, yet in the language of Lord Hardwick, Hodgson vs. Russey, 2 Atk., 89, “ the general run of cases makes this plain, that notwithstanding they sound like words of limitation, yet upon circumstances and the intention of the parties, they may be construed words of purchase, and descriptive of the person who is to take.” See, also, Archers’ case, 1 Co., Kemp vs. Daniel, 8 Ga., 385. The superadded words, “ at his decease to be equally divided,” exclude the idea of a perpetuity, and take from the words that technical signification that the law ordinarily attaches, and gives to them their natural sense; hence we hold that they were used here as words of purchase, and not of limitation, and that they do not create an estate tail.
2. The limitation over then being good, is the remainder contingent or vested? It was insisted on by counsel for plaintiff in error, who is also plaintiff in the Court below, that the words “ heirs of the body,” must be considered as synonymous with children, and hence that Matilda Sharman, who was a child of the tenant for life, in life at the date of the deed, took a vested remainder, and which on her death
No words of explanation are to be found in the instrument, and we consider that they create a contingent remainder to a class of persons who at the death of the tenant for life would answer the description of heirs of the body. Wherever the remainder is limited to a person not in esse, or not ascertained, then the remainder is contingent. Fearne, 217. As if a lease be made to one for life-remainder to the right heirs of J. S. Boraston’s Case, 3 Co., 20 a. In Else vs. Osborne, 1 P. Wms, 38, after a settlement for life on the grantor, with remainder to trustee during his life, etc., there was a remainder to the heirs of his body. Lord Chancellor Cowper decided it to be plainly a contingent remainder, being limited to the heirs of the body of A., who can have no heir during his life, for nemo est hceres viventis. Bailey vs. Morris, 4 Ves., 798, was a case in which there was a limitation by deed after life-estate to husband and wife to the heir male of her body by him, to be begotten, and for want of such heir remainder over. A son was' born of the marriage, who died during the life of the wife, and through whom the plaintiff
Wherever the limitation is contingent by reason that the person or persons to whom it is directed cannot be ascertained, as in the case of a limitation to the right heirs of J. S. (then living,) no interest will vest in the heir during the life of J. S., nor will it be transmissible or descendible from any one dying before it becomes vested. Fearne 371, Doe vs. Tomlinson, 2 M. & S., 170.
Indeed, these words, heirs of the body, in themselves, import a contingent remainder, for admitting that the person who will be heir is in being, still it is uncertain whether the person who would be heir should the ancestor die at a particular time, may not die before the ancestor, and hence the person who will eventually be heir, is one, who even if he is in being, cannot be ascertained until the death of the ancestor. And hence, it is a general rule that a remainder limited to the heir or heirs of a living person, is a contingent remainder. To this there are certain exceptions, as where there are explanatory expressions showing that they were used in some other sense, as sons, or children, as denoting the persons who at the time are the apparent heirs. Another exception is, when, by the celebrated rule in Shelly’s case, the words are to be considered as words of limitation. 2 Fearne, 202. In this instrument, however, there are no explanatory words showing
By this construction we violate no intention of the donor, as collected from the instrument. The children of Jackson living at the date of the deed, and who were then his apparent heirs, were not the immediate objects of her bounty. This is manifest from the creation of a prior life-estate. She, no doubt, intended to give the benefit of this disposition first to her son for life, and then to those who, at his death, would stand towards him in the relation of his heirs. It would be a most forced construction to say that after the death of her son, the tenant for life, she intended the property to pass away from his family and go to strangers. But this would be the result were we to hold that the words heirs of the body, are here synonymous with children, and that they took vested remainders transmissible to their legal representatives. This presumption of intention has no bearing on the decision we give. Her intention is to be looked for in the deed itself, and there is nothing there inconsistent- with the construction we put upon it. “ At his death to be equally divided among the heirs of his body,” we construe to mean a remainder to those who at that time would answer to the description of heirs of the body; that is, the lineal descendants upon whom the law would cast the descent of lands if the ancestor had died intestate. Lemacks vs. Glover, 1 Rich. Eq., 141. And it is undoubtedly competent that an interest may be limited to such persons as shall at a particular time sustain a particular character. Halloway vs. Halloway, 5 Ves., 401.
Where property .is given to a class of persons, and not by name, it will take in all who shall answer the description at the time the gift shall take effect, and if there be but one, though it be expressed in the plural number, that one will take. Swinton vs. Legare, 2 McCord’s Ch. R., 445; Myers vs. Myers, 2 ib., 257, 259.
It is clearly established by De Visme vs. Mele, 1 Bro. Ch. Cas., 537, any many other cases, that when the testator gives
It follows, therefore, that as the husband or representative of Matilda Sharman at the death of Jackson, the life tenant does not answer the description of persons to whom the gift is made; that he cannot take, but that her children, who do answer to that description, and who are also within the intention of the donor, take instead. And so the judgment of non-suit was properly awarded by the Court below.
3. It having been ascertained who are to take under the description, it remains to be determined, how the distribution is to be made under the direction “ to be equally divided.” "We hold that they are to take per stirpes and not per capita; and this opinion is founded on the intention of the donor, as gathered from the words of the instrument, construed in reference to, and in connection with, the Statute of Distribution of this State, by which the grantor evidently contemplated that the property should be distributed among these persons.
Elizabeth Tankersly in making this deed, never could have meant that one, of a half dozen grand-children, should take equally under the deed with one of the children of her son, the life tenant, who was in life at the making of the instrument, and directly within the scope of her immediate intended bounty. It is true, she says equally divided, but that is to be understood and construed as that equal division made by the distribution laws, that is, that all the heirs related to the first taker equally, or in the same degree should take equally, while those who were in the same line, but further removed, should take by representation, that is, all together standing in the place of the deceased parent, and taking but the share or proportion which is equal with the shares of the children. This is an equal division among the heirs of Wrm. E. Jackson, and it is not the less so that one or more of the shares must again be sub-divided into as many parts as there are grand-children distributees.
Matilda Sharman was in life at the execution. She was in the eye of the donor at that time, as one who would take an equal share with the other children at the death of her father, should she at that time be in life; but she was not, and as her children, equally with herself, answer the descrip
In England the rule would be different, but the reason of the rule cannot be the same here as there, on account of the difference in the law of descents. In Lemack vs. Glover, Reported in Rich. Eq., 141, this question was well considered by Chancellor Harper. The testator in that case bequeathed the use of personal property to his sister Jane, and after her death bequeathed the same to the heirs of her body, to them and their heirs and assigns forever.” The Court held, first, that the words, “ heirs of the body,” were words of purchase. Second, that all who answered the description of the heirs of the body at the death of Jane, were entitled; but the Court dividing equally as to whether such persons took per capita or per stirpes, there was no decision of that question, Chancellor Harper holding that they took per stirpes; Chancellor Johnson and Justices O’Neal, Evans, Wardlaw, concurring; while Chancellor Johnston, Dunkin and Justice’s Richardson, Butler, and Frost, held to the contrary. We think the opinion in favor of the per stirpes distribution is the better one. The other is put on the ground that the rule was settled in the previous adjudication of Campbell vs. Wiggins, Rice Eq., 10, and not upon reason or law, and with the candid confession that such rule, when applied to the circumstances of that case and considered in connection with the proportion in which the distribution is to be made, the Court