130 So. 890 | Ala. | 1930
Plaintiff, appellant, brought her statutory action of ejectment, and defendants pleaded the general issue. The case was tried by the court without a jury, and the facts are agreed upon. Plaintiff and defendants alike claimed title through a deed executed by A. M. Weatherford, Sr., and by him delivered to A. M. Weatherford, Jr. The report of the case contains the parts of the deed necessary to an understanding of the controversy between the parties.
The question presented for decision is whether the deed created a fee or an estate for life only in grantee. The grantee left no bodily heirs. Plaintiff's contention was and is that the named grantee took a fee simple, which was vested in her (plaintiff) by grantee's will; defendants insist that the grantee took an estate for life only, and that, upon his death, the title reverted to themselves as the heirs at law of the grantor.
The judgment here is with the plaintiff, appellant.
The grantee, as we have stated above, had no children, no lineal descendants, no posterity in the regular order and course of descent. It will be conceded that, if A. M. Weatherford, Jr, had left lineal descendants, they would have taken under the deed of Weatherford, Sr. But, as the event was, the course of descent was controlled by the limitation over to "his legal heirs or nearest kin." This alternative or conditional limitation put the fee in the grantee, Weatherford, Jr., in virtue of section 6901 of the Code. The language of the limitation over is "legal heirs or nearest kin." Just what is meant by this alternative limitation over in the circumstances of this case is not clear. Our best judgment is that the two phrases mean the same thing — are used interchangeably. 29 C. J. 302, note 83. So construed, the limitation over is to heirs and vested a fee simple in the junior Weatherford (Code, § 6900), which passed by his will.
Appellees lay stress upon Deramus v. Deramus,
The judgment will be reversed, and the cause remanded to the end that a judgment in agreement with this opinion may be rendered in the trial court.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.