Ejectment by appellees against appellant. The decisive question in this case exists in the construction of a certain deed of gift from Daniеl W. Hodges and his wife, of date August 29, 1882. For all necessary purposes of decision we adopt this skeleton of the deed: “* * * We, Daniel M. Hodges and Martha Hоdges, for and in consideration of the love and affection which we bear toward our beloved son, William R. L. Hodges, and his heirs lawfully begotten by him, we do herеby give, grant, and convey unto our said son William R. L. Hodges and his lawful heirs, * * * to bave and to hold unto the said William R. L. Hodges and the children of his body, their heirs and assigns, forevеr. * * *” The appellees contend that, sinew
The face of the instrument evinces the want of skillfulness in the draftsman thereof, especially in the respеct that the word “heirs” and the word “children” are indiscriminately employed. — May v. Ritchie,
The quoted expressions from the premises and granting clause of the deed both employ the word “heirs,” and, as said in Slayton v. Blount, “no' one is the heir of a living person;” and, of course, these appellees were not аt the time of the execution of the deed, and are not noAY, ivithin the description spoken by both the premises and granting clauses. Unquestionably, acсording to these expressions, the grantors had in mind the future repositories of the title, since their son was without heirs until his demise, not yet occurring. We do not think it can be assumed that these grantors were ignorant of so obvious a fact as the relative meaning of the word “heirs” imports. To impute to them such ignoranсe would be to convict them of the want of at least average intelligence. Turning to the habendum: If “children” is given, in that connection, its usual signification —a word of purchase — it is manifest that a conflict be
We think the only way to reconcile the conflicting provisions is to read “children of his body” as the equivalent intent and meaning of “heirs of his body” or “issue.” This conclusion cannot be escаped, if the description of the objects inspiring, in part, the gift of the land is not wholly ignored. The grantors did not restrict the motive for their donation to the then living progeny of their son. If we ascribe and limit • the source of their desire to make the gift to their affection for the son and his then born children, it is impossible to avoid the feeling that an unexpressed limitation is read into the instrument as the very motive for its execution. That such a view is altogether supported within the four comers of the instrument, we need only consider that the grantors refer, in the premises and granting clauses, to the heirs of that son, evidently contemplаting those who should be of his body, but answering to the description only after his decease. If the various expressions under consideration are taken tо
The several decisions of this court to which counsel for appellees have called our attention have been carefully considered; but their want of apрlication to the status presented by the instrument in question here is apparent. For instance, several of these decisions dealt with instruments wherein supрort was provided for grandchildren, and the court very naturally attached importance to such a provision. As is clear from the opinions, prоvision for support indicated a purpose for present enjoyment by those answering to the description of children or equivalent terms. No such expression appears in the instrument in hand. The conclusion announced renders it unnecessary to treat other questions argued.
The court below gаve, at the instance of the plaintiffs, ■the affirmative charge as to two-thirds undivided interest in the land in suit. This is error, for which the judgment is reversed, and the cause is remanded.
Reversed and remanded.