Ewing v. Shropshire

• Decision Date: 31 March 1888
• Citation: 80 Ga. 374
• Parties: Ewing et al. vs. Shropshire, next friend.
• Court: Georgia Supreme Court

80 Ga. 374

Ewing et al. vs. Shropshire, next friend.

Supreme Court of the State of Georgia

MARCH TERM, 1888.

Deeds. Titles. Estates. Tenants in common. Remainders. Before Judge Maddox. Floyd county At chambers, September 10, 1887.

This was a bill to restrain a contemplated sale of land, conveyed to the complainant's mother by the deed mentioned in the decision; complainant claiming that she was a tenant in common with her mother, being an only child. The answer set up that the title was in complainant's mother, and that complainant had no interest in the property. Upon the hearing, the chancellor enjoined the defendants from selling the land, and they excepted.

Halsted Smith, for plaintiffs in error.

Alexander & Wright, contra.

Bleckley, Chief Justice.

This deed was made in 1877, and to determine its effect requires a construction of certain sections, especially section 2250, of the code. The conveyance was by deed of gift, to which the father was party of the first part, and the daughter party of the second part. He conveyed to her " and the lawful heirs of her body begotten, to her and their sole and separate use, and free from all debts, liabilities and contracts of her present or any future husband, " to have and to hold unto her " and her heirs... to her and them, and their own proper use, benefit and behoof forever in fee simple "; and warranted title to her, " and her heirs and their assigns." Had the deed omitted the words, "the lawful heirs of her body begotten, " and used in lieu thereof the words '' her heirs, " there could have been no question that an absolute fee simple estate would have vested in the daughter alone; that is, she would have been sole tenant in fee simple as to the whole of the premises conveyed. With this supposed modification, the entire instrument would have been consistent with itself throughout; not a word would have presented any conflict, literal or legal, with any other word or collection of words. The whole problem before us, therefore, results from the insertion of the phrase, " the lawful heirs of her body begotten"; and so we set out with the certainty that the gift is either to the daughter alone, or to her and the heirs of her body. That the heirs are to be lawful and begotten, adds nothing substantial to their description, since to be heirs of the body at all they must have both of these attributes. Legally speaking, the precise equivalent of "the lawful heirs of her body begotten " is "heirs of her body." The more extended description only serves to show that the donor consciously intended to restrict the range of " heirs " to such persons as the law embraces in the terms " heirs of the body."

We thus reach the final form of the question which we have to answer: What estate, under the code, is created by a gift to a woman (daughter of the donor) and the heirs of her body, she having a child in being at the time of the execution and delivery of the conveyance? Is it an absolute fee solely in her, or a tenancy in common with her child (joint tenancy being abolished by statute), or an estate for life in her, with remainder in fee to the child?

" An absolute or fee simple estate is one in which the owner is entitled to the entire property, with unconditional power of disposition during his life, and descending to his heirs and legal representatives upon his death intestate." Code, §2246. " The word 'heirs, ' or its equivalent, is not necessary to create an absolute estate; but every conveyance, properly executed, shall be construed to convey the fee, unless a less estate is mentioned and limited in such conveyance. If a less estate is expressly limited, the courts shall not, by construction, increase such estate into a fee, but disregarding all technical rules, shall give effect to the intention of the maker of the instrument, as far as the same is lawful, if the same can be gathered from its contents; and if not, in such case the court may hear parol evidence to prove the intention." Id. §2248. " Limitations over to 'heirs, ' 'heirs of the body, '' lineal heirs, ' ' lawful heirs, ' ' issue, ' or words of similar import, shall be held to mean children, whether the parents be alive or dead; and under such words children, and the descendants of deceased children by representation, in being at the time of the vesting of the estate, shall take." Id. §2249. " Estates tail are prohibited and abolished in this State. Gifts or grants to one and the heirs of his body, or his heirs male or heirs female, or his heirs by a particular person, or his children or his issue, convey an absolute fee. Estates tail being illegal, the law will never presume or imply such an estate. Limitations which, by the English rules of construction, would create an estate tail by implication, in this State shall give a life estate to the first taker, with remainder over in fee to his children and their de scendants, as above provided; and if none are living at the time of his death, remainder over in fee to the beneficiaries intended by the maker of the instrument." Id. §2250. " All limitations over after the death of the first taker, upon his dying without heirs, or dying without issue, or dying without leaving heirs or issue, or on failure of issue, or other and equivalent terms, shall be construed to mean a failure of heirs or issue at the time of the death of the first taker, and shall convey the estate in the manner prescribed in section 2250." Id. §2251.

Section 2246, in what we have quoted from it, though new as statute law, makes no change in the definition or the incidents of an absolute or fee simple estate. Section 2248 is a reproduction of the act of 1821 (Cobb's Dig., 169,) in so far as it declares words of inheritance, such as 'heirs, " etc., needless to create an absolute estate, and makes every conveyance, properly executed, have that effect, unless a less estate is therein mentioned and limited. The rest of the section is new as statute law, and as a universal rule, new in the law generally; for, prior to the code, there was no inhibition, in all cases, against enlarging a less estate expressly limited, into a fee by construction; nor any absolute requirement to disregard technical rules in order to arrive at intention; nor was the door so wide open to the admission of parol evidence to clear obscurities and explain patent ambiguities. Section 2248 is wholly new, and works a radical change in the prior law by making certain words and phrases, or other like words, always import purchase and not limitation when used in limitations over. According to the rule in Shelly's case, such words, so used, would generally be taken as words of limitation and not of purchase. The code totally extirpates that celebrated rule, and establishes the very reverse of its doctrine, as to all limitations over. Wilkerson vs Clark (this term), ante, p. 367.

What is a " limitation over "? In a large sense, and nodoubt in the sense intended by the code, it includes any estate in the same property created or contemplated by the conveyance to be enjoyed after the first estate granted expires or is exhausted. Thus in a gift to A for life, remainder to the heirs of his body, the remainder is "a limitation over " to the heirs of the body, and under this section of the code, the children of A and the descendants of deceased children would take the remainder as purchasers. And the same persons would take the same estate in the same capacity were the remainder limited to heirs, lineal heirs, lawful heirs, issue, or the like. To any possible application of the rule in Shelly\'s case to such a conveyance there is a double obstacle; first, by section 2248, which enjoins that technical rules be disregarded, and inhibits the enlargement of the estate granted to A into a fee by construction, a less estate, to-wit, one for life, being mentioned and limited; and secondly, by the universal rule laid down in section 2249, that in limitations over, any description, such as heirs, etc., which embraces children, will enable them to take, if they are in being at the time of the vesting of the estate.

Instances more strict of "limitation over, " as the phrase is commonly used, are the following: A gift or grant to A for life, and upon failure of issue or heirs of his body, then to B in fee. Or a devise to A forever, but if he should die without issue or heirs of his body, to B in fee. These instances might be multiplied and varied indefinitely. In both these examples the idea of substitution, as well as succession, is embraced, that is, B is not only to take, if at all, after the first estate granted, or the interest therein of the first taker is exhausted, but in lieu of other persons (issue or heirs of the body) who would take or continue to hold (it matters not whether by purchase or by descent) were they in being. It may be that in a first or any single limitation over, the element of substitution is essential in rigid propriety of legal language, but we are well satisfied that the code, in the section under consideration, usesthe phrase in the broad sense, that which embraces successive ownership and possession of the same property, whether brought about by substitution, or by immediate and absolute appointment without condition or alternative, as in the example first suggested; that of an estate tor life in A, with remainder to the heirs of his body. When two or more estates of freehold in the same property are granted by the same conveyance to be enjoyed successively, or one in lieu of another, each of them, except the first, is a limitation over.

Section 2251 is almost a literal reproduction of the act of February, 1854, (acts of 1853-4, p. 72,) requiring that certain phrases, or any terms equivalent thereto, in limitations over, be construed to import always a definite, and not an indefinite, failure of heirs or issue—a failure at the death of the first taker. The conclusion of the section, providing that such...