42 S.C. 342 | S.C. | 1894
The opinion of the court was delivered by
The question presented by this appeal turns upon the proper construction of a deed, executed on the 8th of February, 1858, by Eobert Parker, the grand-father of the plaintiff, to Jasper P. Parker, whereby the land in controversy, in consideration of the sum of eight hundred dollars, was conveyed to the latter upon certain trusts declared in said deed, in the following words: “This conveyance is made to the said J. P. Parker for the sole use and behoof as trustee for Nancy Hawkins, my daughter, the trustee accounting to my estate out of the share that my daughter, Nancy Hawkins, would be entitled to, the sum of eight hundred dollars, as above stated. And said tract of land to be kept for her
The defendant, John G. Pruitt, did not answer, and the trustee, Jasper P. Parker, filed a formal answer, admitting the allegations of the complaint, and disclaiming any personal interest in the land. The other two defendants demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The Circuit Judge, after setting-out the clause of the deed from Robert Parker to Jasper P. Parker, above copied, sustained the demurrer upon the ground that the plaintiff “did not take a vested remainder under the said deed.”
To answer this question, it is necessary first to determine what is the proper interpretation of the words, “heirs of her body,” and “heirs” found in the clause under consideration. While these words have a well defined technical signification, they also sometimes have a popular signification, synonymous with the word “children.” Inasmuch as Nancy Hawkins was alive at the time this deed was executed, it is very clear that the words “heirs of her body” could not have been used in their technical sense in the connection in which they are found, for “Nemo est hwres viventis," and, hence, they must have been used in the sense of “children.” See Holeman v. Fort, 3 Strob. Eq., 66; Bailey v. Patterson, 3 Rich. Eq., 156; Lott v. Thompson, 36 S. C., 38. But no such reason exists for deflecting the meaning of the word “heirs” from its proper technical signification, and hence it must be interpreted in that sense. Hnder this interpretation of these words, it seems to us that the true intent of the grantor was to make a conveyance to the trustee of the land in question, “to be kept” by him for the joint use of Nancy Hawkins and her children during her life, “and then,” that is to say, at her death, the estate was to go to her heirs free and discharged from any further trust.
Thus reading the deed, it will be observed that while the precedent life estate is given to Nancy Hawkins and her children, the remainder is not to the heirs of the same persons to whom the life estate is given, but only to the heirs of Nancy Hawkins. This forbids the application of the rule in Shelley’s case to this case; for as is said in 2 Washb. Real Estate, book II., chap. IV., sec. 8, paragraph 8: “The subsequent limitation to the heirs must be to the heirs of the ancestor who takes the particular estate. Thus where the estate was limited to the wife for life, remainder to the heirs of the bodies of the husband and wife, the freehold being in the wife alone, the limitation over would be a remainder, and their heirs would take as purchasers.” Indeed, the very terms in which the rule is stated in the original case, as well as in the more extended statement of the rule in 1 Preston on Estates, both quoted in Porter v. Doby, supra, necessarily imply that the rule only applies where the limitation is to the heirs or heirs of the body of the same person who is named as the first taker.-
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.