Roberson v. Wampler

• Decision Date: 14 September 1905
• Citation: 51 S.E. 835,104 Va. 380
• Parties: ROBERSON et al. v. WAMPLER.
• Court: Virginia Supreme Court

104 Va. 380

51 S.E. 835

ROBERSON et al.

v.WAMPLER.

Supreme Court of Appeals of Virginia.

Sept. 14, 1905.

Deeds—Construction—"Heirs."

The word "heirs, " in a deed to the heirs of a living person, will be construed as meaning "children"; it appearing from other language of the deed and the circumstances surrounding its execution that it was used with such meaning.

[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Deeds, §§ 417, 422.]

Appeal from Circuit Court, Wise County.

Suit by John M. Wampler, guardian of Susan J. Roberson, and infant, against Thomas Smith and others, to enjoin the cutting of timber on land claimed to belong to complainant's ward, as the only child of John B. F. Roberson. A. A. Roberson and others filed a petition in the suit, claiming to be part owners of the land. From an adverse decree, petitioners appeal. Affirmed.

Ayers & Fulton, for appellants.

Bond & Bruce, for appellee.

BUCHANAN, J. The principal question involved in this case is whether the word "heirs, " as used in the deed under which the parties to this controversy claim, was employéd in its technical sense, or as meaning "children." The language of that deed, omitting the description of the land conveyed, is as follows:

"This deed made this April 25th, 1902, between James Roberson and Nancy, his wife, of the County of Wise and State of Virginia, of the first part, and John B. F. Roberson heirs, of the County of Letcher and State of Ky., of the second part.

"Witnesseth: That for and in consideration of the natural love and affection they have for their sd. son and especially for his heirs and for the further consideration of the preformance of the agreement berth to be written on their part, doth grant, bargain and sell unto the heirs of the sd. John B. F. Roberson, a certain tract or parcel of land, lying and being in the County aforesaid on the waters of Pound River. * * *

"To have and to hold the said heirs of John B. F. Roberson forever, and it is also agreed and becomes a part of this contract that the said heirs of John B. F. Roberson shall take it is also agreed the said heirs of John B. F. Roberson is furnish timber to keep up the line fence so far as it binds on the other heirs of James Roberson care of or cause to be taken care of said James Roberson and Nancy, his wife for and during their natural lives by furnishing them with food and raiment, washing and bedding such as will be fit and becoming to persons of this age and as the custom's of the country, and for the performance of the said service the said grantors doth hereby retain a lien on the said premises, and the said James Roberson and Nancy, his wife, for themselves and their heirs doth covenant with the said heirs of John B. F. Roberson that they will warrant generally the premises hereby conveyed."

At the time of the execution of the deed John B. F. Roberson was living.

It is a well-settled rule of construction that technical words are presumed to be used technically, unless the contrary appears upon the face of the instrument, and that words of a definite legal signification are to be understood as used in their definite legal sense. Nye v. Lovitt, 92 Va. 710, 713, 714, 24 S. E. 345, and authorities cited; Waring v. Waring, 96 Va. 641, 32 S. E. 150; Brett v. Donaghe's Guardian, 101 Va. 786, 788, 45 S. E. 324. But where other expressions are used in conjunction with such technical words which plainly indicate what the intention was, and that such intention was not in accordance with the technical signification, the intention will control the legal operation of the words. 2 Minor's Inst (1st Ed.) 1114, 1115; 1 Jarman on Wills (Bigelow's Ed.) 61, and note; Wootton v. Redd's Ex'r, 12 Grat. 196, note to Michie's edition, citing cases; Tebbs v. Duval, 17 Grat. 349.

The word "heirs" is a technical word having a definite legal signification, and, when unexplained and uncontrolled by the context, must be interpreted according to its strict and technical import, and in this sense it designates the person or persons appointed by law to succeed to the real estate in cases of intestacy. But where, from the language of the instrument and the circumstances surrounding its execution, it appears that the maker in using the word "heirs" meant "children, " it will be so construed. This it is conceded is so as to wills; but it is insisted that a different rule prevails as to deeds, and cases are cited to sustain the contention that a deed made to the "heirs" of a living person is void, although words are used in conjunction therewith which show that the word was not used in its technical sense, but as meaning children. Hall v. Leonard, 1 Pick. 27; Hileman v. Bouslaugh (Pa.) 53 Am. Dec. 478; Morris v. Stephens, 46 Pa. 200; Winslow v. Wins-low, 52 Ind. 8.

Whatever may have been the rule of decision in the earlier cases of the states of Massachusetts, Pennsylvania, and Indiana, the later decisions seem to have modified the rule. The weight of authority and the better reason is in favor of the rule that in deeds, as well as in wills, the intention of the maker of the instrument, as gathered from all its parts, must prevail.

In Heath v. Hewitt, 127 N. T. 166, 27 N. E. 959, 13 L. R. A. 46, 24 Am. St Rep. 438, where by statute the courts are required to give effect to the intention of the maker in construing deeds as well as wills, it was held that where, from the language of the deed and the circumstances surrounding its execution, it appears that the grantor, in using the word "heirs" meant "children." it will be so construed, and effect thus given to the instrument notwithstanding the general rule that a conveyance to the heirs of a living person is void for...