190 Ky. 326 | Ky. Ct. App. | 1921
Opinion op the Court by
Affirming.
This suit involves a contest between three of the appellants and defendants below, who are the infant children of the other appellants and defendants, Thomas P. R. Wilson and Nannie E. Wilson, and the plaintiff and appellee, Earnest Woodward. The subject matter of. the contest is to obtain a construction of a deed to 65 acres of land, located in Ohio county, which was executed by Thoma's P. R. Wilson on November 17, 1903. Omitting signature, certificate, attestation clause and description, neither of which is pertinent to the question involved, it reads:
“This'deed, between Thomas P. R. Wilson of Ohio county and state of Kentucky of the first part and Nannie Wilson and her bodily heirs of said county and state of the second part; Witnesseth, that the said party of. the first part in consideration of the love and affection I have for the said Nannie Wilson and her bodily heirs, she being my beloved wife the receipt of which is hereby acknowledged, do hereby sell, grant and convey to the party of the second part her heirs and assigns, the following described property, viz.: ... To have and to hold the same with all the appurtenances thereon, to
Thomas P. E. Wilson and wife lived on the land at the time and continued to do so thereafter with their three infant children as they'were born and on December 8,1916, the parents executed an absolute deed conveying the land to the plaintiff, Earnest Woodward, who, upon the discovery of the prior deed involved here, brought this suit against his grantors and their infant children for a construction of it. The guardian ad litem appointed by the court to defend for the infants filed answer claiming that a correct construction of that deed was to convey a life interest in the land to the mother of the infants, Nannie E. Wilson, with remainder to her children, or if not, to convey a joint equal- interest in the land to her and her children. The court construed the deed (copied above) to convey to Nannie E. Wilson a fee simple title to the land, and that her children took nothing thereby and adjudged accordingly! The infants by their guardian ad litem have appealed and are making the same contentions here that were made in their answer in the trial court; but we are unable to find any error in the judgment appealed from.
The terms “bodily heirs,” “heirs of the body,” “heirs lawfully begotten of the body,” and other similar ones, as applying to a grantee in a deed, or a devisee in a will, at common law created what was- known as an entailed, estate giving to the named grantee or devisee a life estate and a similar estate to his lineal descendants, if any, at his death, and so on in a successive line as long as there were such lineal descendants; but in 1796 the legislature of Kentucky enacted what is now section 2343 of the Kentucky Statutes, which says: “All estates heretofore or hereafter created, which, in former times, would have been deemed estates entailed, shall henceforth be held to be estates in fee simple; and every limitation on such an estate shall be held valid, if the same would be valid when limited upon an estate in fee simple.” Continuously since then this court in construing the section has consistently held that common law estates tail were converted by the statute into estates in absolute fee, unless from the language found in the whole instrument (deed or will) it appeared with reasonable clearness that it was the intention of the creator of the estate that a different construction prevail, in
The same purpose and intention are plainly manifested in the habendum clause where the conveyance is expressed to be “to the second party her heirs and assigns forever, with covenant of ‘general warranty.’ ” It is not stated therein, as is shoiwn above with reference to the granting clause, that the conveyance is “to the second parties, their heirs and assigns forever,” etc. The second party according to the language of the habendum clause is also but one person and the limitation of the estate is to “her heirs and assigns.” Clearly there is no room for any doubt as to what the grantor meant by the language he employed in the deed under consideration. As to what he actually intended to but did npt express can not influence us in considering what he actually expressed by the language he did employ.
If, however, the language was more doubtful than it is, and so much so as to admit of two constructions, one conveying the absolute fee to the named grantee, and the other conveying to her a less estate, it would then be our duty, under numerous opinions of this court, to construe the deed so as to convey an absolute fee. Lawson v. Todd, supra; Edwards v. Cave, 150 Ky. 272; Baxter v. Bryan, 123 Ky, 235; Moore v. Sleet, 113 Ky. 600; Tanner v. Ellis, 127 S. W. (Ky.) 995, and Kirby v. Hulette, supra.
It is therefore our opinion that the trial court correctly construed the deed involved, according to the statute, supra, and the numerous opinions of this court construing it, and the judgment is affirmed.