Suttle & Weaver Land & Improvement Co. v. Barker

• Decision Date: 21 November 1912
• Citation: 60 So. 157,178 Ala. 366
• Court: Alabama Supreme Court
• Parties: SUTTLE & WEAVER LAND & IMPROVEMENT CO. v. BARKER.

60 So. 157

178 Ala. 366

SUTTLE & WEAVER LAND & IMPROVEMENT CO. v. BARKER.

Supreme Court of Alabama

November 21, 1912

Appeal from Circuit Court, Perry County; B. M. Miller, Judge.

Ejectment by Muggie E. Barker against the Suttle & Weaver Land &amp Improvement Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Lavender & Thompson, of Centreville, for appellant.

W. F Hogue, of Marion, for appellee.

SAYRE J.

In this case the ownership of land is in controversy between a daughter of Margaret Clarissa King and a purchaser from her. The result depends upon the meaning and effect to be ascribed to the will of Elias King, who died in 1852. So much of the will as affects the property is as follows: "I give to my son Edwin W. King, in trust for my beloved granddaughter Margaret Clarissa King, the following described land, viz (Describing the land in controversy.) The property above given to my son Edwin, in trust for my granddaughter Margaret Clarissa King, is given for the sole and separate use and benefit of my said granddaughter and the heirs born of her body free from any control or liability for the debts of any husband she may hereafter have, and should my said granddaughter die without having issue unto her born and living, then I wish the property above given to her equally divided among the sisters of my said granddaughter equally, the sisters alluded to being begotten by my son Edwin; the proceeds arising from working the land and negroes above given I give to my wife and son Edwin, after defraying all the expenses of my said granddaughter, until my granddaughter arrives at the age of seventeen years, after she reaches that age then all the proceeds to be applied for her benefit." At the time of the execution of this will and at the time it was put into effect by testator's death, Margaret Clarissa King was unmarried and under 17 years of age. Later she married, and plaintiff (appellee), her daughter, was born in 1856. The trustee died in 1860. In 1886 Margaret Clarissa King, then Margaret Clarissa Huey, and her second husband, J. G. L. Huey, conveyed the land to Lovelaces, from whom it passed by mesne conveyances to defendant, and since that they, and those holding under them by successive alienations, including defendant, have been continuously in possession of the lands claiming them adversely.

The question propounded to the court in the agreed case submitted to it was, in substance, this: Did Margaret Clarissa King take a life estate with remainder to the heirs of her body living at the time of her death, as plaintiff (appellee) contended, or did she take a fee tail which was converted into an absolute fee by the statute of 1812 or a fee under the rule in Shelley's Case, of force in this state at the time of testator's death, as defendant contended?

After consulting the arguments of counsel and the authorities cited in their briefs, and many adjudicated cases besides, our conclusion that Margaret Clarissa (King) Huey's deed under the statute conveyed the entire fee to those grantees under whom the defendant claims has been determined on considerations which will be briefly stated.

The will created a trust estate for the benefit of Margaret Clarissa; but the trust was executed, not executory--that is, no conveyances were to be executed to put it into effect--and in the case of an executed trust equity will construe the limitations in the same manner as similar legal limitations. Young v. Kinnebrew, 36 Ala. 97.

The language of the will purports to give the property to Margaret Clarissa King "and the heirs born of her body." There seems to be no question but that at the common law, in the circumstances which have been stated, this gift, unaffected by any inferences of a different testamentary intent to be drawn from the context, would have created a base, conditional, or qualified fee, giving the whole estate to the donee and only limiting the line of descent to the general heirs of the donee's body, a fee tail general, and that under the statute of 1812 (section 3397 of the Code of 1907) it vested in her the same power over the whole estate as in cases of pure and absolute fees. "All the modern cases contain one uniform language, and declare that the words 'heirs of the body,' whether in deeds or wills, are construed as words of limitation, unless it clearly and unequivocally appears that they are used to designate certain individuals answering the description of heirs at the death of the party." 4 Kent, 228; Young v. Kinnebrew, supra; Smith v. Greer, 88 Ala. 414, 6 So. 911; Slayton v. Blount, 93 Ala. 575, 9 So. 241. Appellee concedes this, but seeks an affirmance on the ground that other parts of the will explain that the testator intended that Margaret Clarissa took a life estate only with remainder to her children living at the time of her death.

"The words 'heirs of the body' will indeed yield to a clear particular intent that the estate shall be only for life, and that may be from the effect of superadded words, or any expressions showing the particular intent of the testator; but that must be clearly intelligible and unequivocal." Jesson v. Wright, 2 Bli. 50; 10 Eng. Rul. Cas. 745. The terms "heirs," or "heirs of the body," may be properly interpreted as meaning "children"; but this is not the ordinary and primary meaning of these terms, and to so construe them requires peculiarities of the instrument, whether deed or will, clearly evincing an intention to that end. Rosenau v. Childress, 111 Ala. 214, 20 So. 95. Such peculiarities are generally found in the unskillful use of technical terms, importing inconsistencies into the instrument. Always the intention of the donor must prevail unless it runs counter to established rules of law, but in ascertaining that intention "the words he uses are to be taken in their natural and proper sense, which implies that technical words are to be construed according to their technical meaning, unless a clear indication is furnished by the context that they were used in a different sense." Young v. Kinnebrew, supra. They must be accepted with the meaning which for ages has been affixed to them, and upon which a rule of property has been established and maintained wherever the common law prevails. It is dangerous, where words have a fixed legal effect, to suffer them to be controlled without some clear expression, or necessary implication. Jesson v. Wright, supra.

Here the language used is the technical language of limitation. The will is not inartificially drawn, nor is there any indication that the testator was ignorant of the meaning of the terms he used. The word "born" neither added to nor detracted from "the heirs of her body," for "the ancestor during his life beareth in his body, in judgment of law, all his heirs; and therefore it is truly said that 'Hæres est pars antecessoris' " (2 Coke, Litt. 146), and "Expressio eorum quæ tacite insunt nihil...