Gearheart et al. v. Little et al.

• Decision Date: 26 May 1950
• Citation: 313 Ky. 116
• Parties: Gearheart et al. v. Little et al.
• Court: Supreme Court of Kentucky

313 Ky. 116

Gearheart et al. v. Little et al.

Court of Appeals of Kentucky.

May 26, 1950.

Dial P. Gearheart and others brought action against Dorothy Little and others, for a declaratory judgment that plaintiffs' mother took only a life estate and that plaintiffs took the remainder in fee under a deed. The Circuit Court, Floyd County, Edward P. Hill, J., sustained a general demurrer to the petition and upon plaintiffs' refusal to plead further, dismissed their petition. The Court of Appeals, Sims, C.J., held that since the deed was to plaintiffs' mother and her bodily heirs, and the habendum was to "the party of the second part, their heirs and assigns forever," the deed conveyed a fee to the named grantee.

Affirmed.

1. Deeds. — In construing deed courts will attempt to ascertain intention of grantor gathered from instrument as a whole.

2. Deeds. — If instrument admits of two constructions, one indicating fee and other life estate, court will adopt construction favoring fee.

3. Deeds. — When word "children" is followed by word "forever," "children" is construed as "heirs," and "children forever" are construed as words of limitation and not of purchase, and grantee takes fee, in absence of language clearly indicating contrary intention.

4. Deeds. — Where conveyance was to grantee and her bodily heirs as party of second part and habendum was to party of second part, their heirs and assigns forever, deed conveyed fee estate. KRS 381.070.

Combs & Combs for appellants.

Joe Hobson for appellees.

Before Edward P. Hill, Judge.

CHIEF JUSTICE SIMS.

Affirming.

The one question presented on this appeal is whether the deed quoted in the next paragraph conveyed the fee or merely a life estate to grantee with remainder to her children. The grantors are parents of the grantee, who subsequently conveyed the property, and her children brought this declaratory judgment action in which they set out the deed and ask the court to adjudge that their mother took only a life estate and they took the remainder in fee. The chancellor sustained a general demurrer to the petition as amended and upon appellants' refusing to plead further, dismissed their petition.

The deed reads:

"This Indenture made and entered into this 15 day of January 1916 between James Newman and Darkus Newman, his wife of Floyd County of same Co. and State of Kentucky, of the first part and Darkus Gayheart and her bodby heirs of Floyd, County of the same Co. and State aforesaid of the second part:

"Witnesseth: That the parties of the first part, for and in consideration of the sum of and this being Darkas Gayheart and her Bodby hins entire interest in my land as described, the receipt of which is hereby acknowledged, have bargained and sold and by these presents, does bargain, sell, and convey unto the said party of the second part, a certain tract or parcel of land laying in Floyd County, Kentucky and described as follows: (Description) "To have and to hold said tract of land, with the appurtenances thereunto belonging unto the party of the second part, their heirs and assigns forever, with covenants of General Warranty."

Appellants correctly state the rule, that in construing a deed the courts will attempt to ascertain the intention of the grantor gathered from the instrument as a whole, Hays v. Kentucky-West Virginia Gas Co., 290 Ky. 174, 160 S.W.2d 376, and if the wording of the instrument admits of two constructions, one indicating a fee and the other a life estate, the court will adopt that construction favoring a fee. Fairchild v. Fairchild, 237 Ky. 700, 36 S.W.2d 337. They insist that as the grantors in the deed under consideration used in two phrases words which it is evident they intended for grantee and "her bodily heirs," and as the acknowledgement used these same words and as the consideration in the deed was to give the grantee her prospective interest in her parents' estate, and as the habendum contained the phrase "to have and to hold * * * unto the party of the second part, their heirs and assigns forever," it is manifest the intention of the grantors was to give their daughter a life estate with remainder to her children; and that they used "bodily heirs" as meaning children.

We are unable to accept this line of reasoning. But admitting for the sake of argument, grantors used "bodily heirs" as meaning children, and that in the habendum instead of writing "unto the party of the second part, their heirs and assigns forever" had they written "unto the party of the second part, their children and assigns forever," still grantee would have taken a fee and her children nothing. We have many times written that when the word "children" is followed by the word "forever," then "children" is construed as heirs, and "children forever" are construed as words of limitation and not of purchase and the grantee takes the fee in the absence of language clearly indicating a contrary intention. Eakins v. Eakins, 191 Ky. 61, 229 S.W.2d 130; Williams v. Ohio Valley Banking & Trust Co., 205 Ky. 807, 266 S.W. 670, and the authorities cited in the Eakins opinion. We find no indication in the deed before us that grantors intended their daughter to take only a life estate as they were giving her what was...