185 So. 897 | Ala. | 1938
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *171 Howell L. Peebles, in January 1878, was the owner of certain described lands in Bullock County, Alabama. He died in March 1919, leaving a last will, which has been duly admitted to probate. His widow, Willie W. Peebles, survived. No child was ever born of this union, but in April 1900, he legally adopted a child, then eight years of age, under the name of Howell Peebles Wilcoxen. Peebles at the time of his death had no parents, no grandparents, no brother nor sister, niece nor nephew living. The widow, Willie W. Peebles, died in March 1936, without issue having been born of her marriage with Howell L. Peebles.
These complainants, his cousins, constitute his next of kin in blood relationship. They claim title to the lands here involved under a deed (and we think it clear that it is a deed and not a will — Graves v. Wheeler,
Under the terms of the will (also, in pertinent part, appearing in the report of the case) Peebles devised the reversion in the realty described in the deed to defendant Howell Peebles Wilcoxen, but complainants insist the deed of 1878 takes precedence over the will, and the chancellor accepted this theory of the case.
Complainants' contention is succinctly stated in the sixth paragraph of the bill, as follows:
"That said deed created a life estate in and to the property described therein in Willie W. Peebles, grantor's wife, with contingent remainder in such child or children as were born to her by him, with gift over, in the event his wife survived him, to his next of kin. That on the death of said Howell L. Peebles, childless, his next of kin, at the time of his death, took a vested remainder in said property, and upon the death of his wife, the life tenant, the next of kin of said Howell L. Peebles at the time of his death (and the respective heirs of those then deceased) took a fee simple estate in and to said lands."
On the other hand defendant contends that under the language of the deed, which must be interpreted in the light of the common law, there was in fact no remainder interest in these complainants, but that the estate created was one in reversion, capable of subsequent disposition by the grantor as was done in the execution of the will which should be held to prevail.
Our study of the authorities has led us to the conclusion that this is the better view. The prime purpose here, of course, is to ascertain the intention of the grantor, which must control. Section 6921, Code of 1923; Section 2187, Code of 1876; Long v. Holden,
This was pointed out by the Tennessee Court in Robinson v. Blankenship,
We think this language equally applicable here, and that neither the above noted statute nor section 2180, Code of 1876, section 6902, Code of 1923, nor any other statute of our State affects the common law rule referred to by the Tennessee court. This common law rule recognized and applied by the Tennessee court in the above authority is correctly therein stated as appears from an examination of both textbooks and decided cases.
In Section 1525, Vol. 2, Washburn on Real Property, 6th Ed., the author states the rule as follows:
"At common law, if a man seised of an estate limited it to one for life, remainder to his own right heirs, they would take, not as remaindermen, but as reversioners; and it would be, moreover, competent for him, as being himself the reversioner, after making such limitation, to grant away the reversion. And where he made the limitation after a life estate to his own heirs by will, they took as reversioners, and not as purchasers."
And in 18 Corpus Juris 310, the following:
"At common law, the rule is that, where a person conveys a life estate to another with remainder to the heirs of the grantor, they take, not as remaindermen, but as reversioners, and the grantor being himself the reversioner after such limitation he may grant away the reversion. A deed creating a remainder in fee, to vest contingently in some person not in esse, on his coming into being, providing for the reversion of such remainder to the grantor or his heirs in the event the contingency does not occur, does not divest the grantor of the fee of such contingent remainder; and the contingent interest will not be deemed to be in abeyance, but to remain with the grantor, subject to be divested on the happening of the contingency."
And among the exceptions to the fourth class of contingent remainders considered in 21 Corpus Juris 984, is "a remainder limited to the heirs of the grantor." The cases of Akers v. Clark,
"An exception to contingent remainders is where the remainder is limited to the heirs of the grantor. This exception rests on the principle that, while such a limitation is designated as a remainder, it is not a remainder at all, but is an estate which continues in the grantor as the reversion in fee."
But our own Court in Due v. Woodward,
Among other cited authorities is that of Couch v. Anderson,
The cases of Robinson v. LeGrand Co.,
In the Robinson Case, supra, the Court in construing the deed placed controlling emphasis upon the words "now in force," and that of May v. Ritchie, supra, concerned a deed executed before the statute abolishing the Rule in Shelley's Case, and in which the word "children" was used, essentially a word of purchase and not of limitation, as likewise pointed out in Graves v. Wheeler, supra. The devise over to the next of kin in Terrell v. Cunningham, supra, had reference to the next of kin of the first taker, and not of the grantor, a distinction which must be kept in mind, as the underlying principle upon which the common law rule rests is that when the same quality and quantity of estate is devised that the devisee would have acquired by descent, the title passes by descent and not purchase. Gilpin v. Hollingsworth,
But it is insisted this common law rule is here inapplicable as the language of this deed is not "heirs" or "lawful heirs," but the grantor has used the words "next of kin," which it is argued has reference to a class, the blood relations of the grantor who took a contingent remainder as purchasers.
True, technically these words mean nearest in blood relationship, but in statutes of distribution, "reckoning according to what may be termed the priorities of such statutes, 'next of kin' implies those entitled to the property of an estate, whether they in fact be any blood relationship or not." Pinkston v. Semple,
"Words of limitation, in this technical sense, mean words 'which do not give the estate imported by them originally to the heirs * * * described, or to whom they are expressly directed, but only extend the ancestor's estate * * * to an *177 estate of inheritance descendible to the heirs described. * * *' Fearne on Rem. 77. And on page 78: 'When the word "heirs" * * * operates only to expand an estate in the ancestor, so as to let the heirs described into its extent and entitle them to take derivatively through or from him, as the root of succession, or person in whom the estate is considered as commencing, they are properly words of limitation; but when they operate only to give the estate imported by them, to the heirs described, originally and as the persons in whom that estate is considered as commencing, and not derivatively from or through the ancestor, they are properly words of purchase. * * * In general, words of purchase are those by which, taken absolutely without reference to or connection with any other words, the estate first attaches or is considered as commencing in the person described by them, whilst words of limitation operate by reference to or connection with other words and extend or modify the estate given by those other words.'
"Undoubtedly the words 'and heirs' may be used in deeds and wills in the sense of sons, daughters and children, etc. (that is, as words of purchase), when the context demands such construction, but the burden is thrown upon him who contends they are words of purchase to rebut the presumption that they are used as words of limitation (i. e., as intended to mean not individuals but quantity of estate and descent), which in a fixed legal sense they import, and the intent not to use the words in their legal and fixed sense must be unequivocal and not to be misunderstood."
It is clear enough, therefore, that there is ample authority to the effect that the words "heirs" or "heirs at law" and "next of kin" are often used interchangeably, even in judicial opinions as well as common parlance; and, as applied to the instant case, we are persuaded the grantor so used the words "next of kin" in the same sense he might have used the words "heirs at law."
His first solicitude was for his wife and any children that might be born of their union. The provision for his children constituted a contingent remainder. But no child was born and the contingency never arose. The estate to the wife was for life only. And he was evidently solicitous that the property be left under his own control, and that it should never become that of his wife's relatives. He twice used the word "revert." Should he survive the wife and she have no children of her body by him, then the lands are to "revert" to him. But should the wife outlive him, and die without children of their union, then the lands are to revert to his "next of kin." These complainants, more or less distant relatives, constitute his next of kin, and under the statute then of force, subdiv. 4 of section 2252, Code of 1876, now changed by subdiv. 6 of section 7365, Code of 1923, they would have inherited his estate.
We need not stop to inquire as to the technical accuracy of the statement that a reversion is never created by a deed or other act of the grantor who creates it at the very time when the particular estate is created (21 Corpus Juris 1018; Powell v. Pearson,
So, in the instant case, we feel constrained to hold that the grantor meant by the word "revert" to his "next of kin," that the property should "come back, and pass as if no conveyance had been made," to use the language of Couch v. Anderson, supra.
In Due v. Woodward, supra, the Court observed that it could "scarcely be conjectured that the grantor could have intended to tie up the disposition of the fee" in the property until his daughter or after born children should reach majority.
Applying like reasoning here, it may with much more force be contended that the grantor did not intend to tie up the disposition of his property for those only collaterally related. But that he merely intended to direct "the course of descent from him as ancestor to the lawful heirs," to use the language of Due v. Woodward, supra. *178
We therefore conclude that the words "next of kin" are properly to be here interpreted as interchangeable with the words "heirs" or "heirs at law," and as thus interpreted to be construed as words of limitation and not of purchase. So construed, the estate in reversion all along remained in the grantor, and he could grant any such reversion, which he did by his will now duly probated. The will, therefore, has precedence over the deed, and should be given its full force and effect.
The decree rendered is not in harmony with these views, and will accordingly be here reversed. A decree will be here entered denying complainants relief and declaring the title to the property described in these proceedings to be vested in the defendant.
It is so ordered.
Reversed and rendered.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.