Wallace v. Hodges

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: Wallace v. Hodges, 160 Ala. 276, 49 So. 312 (Ala. 1909)
• Decision Date: 22 April 1909
• Parties: WALLACE v. HODGES ET AL.

49 So. 312

160 Ala. 276

WALLACE v. HODGES ET AL.

Supreme Court of Alabama

April 22, 1909

Appeal from Circuit Court, Lawrence County; D. W. Speake, Judge.

Ejectment by W. G. Hodges and another against B. P. Wallace. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

D. C Almon and Lowe & Tidwell, for appellant.

G. O Chenault, for appellees.

McCLELLAN J.

Ejectment by appellees against appellant. The decisive question in this case exists in the construction of a certain deed of gift from Daniel W. Hodges and his wife, of date August 29, 1882. For all necessary purposes of decision we adopt this skeleton of the deed: "* * * We, Daniel M. Hodges and Martha Hodges, for and in consideration of the love and affection which we bear toward our beloved son, William R. L. Hodges and his heirs lawfully begotten by him, we do hereby give grant, and convey unto our said son William R. L. Hodges and his lawful heirs, * * * to have and to hold unto the said William R. L. Hodges and the children of his body, their heirs and assigns, forever. * * *" The appellees contend that, since William R. L. Hodges had, at the date of the execution and delivery of the deed, two children, viz., these appellees, those children took, under the deed, as tenants in common with their father, William R. L. Hodges. The court below sustained this insistence. The appellant insists that the legal effect of the conveyance, according to the intention of the grantors, was to vest in William R. L. Hodges an estate tail, converted by statute into a fee, in the lands described.

The face of the instrument evinces the want of skillfulness in the draftsman thereof, especially in the respect that the word "heirs" and the word "children" are indiscriminately employed. May v. Ritchie, 65 Ala. 602 Slayton v. Blount, 93 Ala. 575, 9 So. 241. If the expression in the habendum clause, namely, "the children of his body, their," was absent from the instrument, there would be no ground for controversy, because the descriptive terms, "his heirs lawfully begotten by him" and "his lawful heirs," appearing in the premises and granting clause of the deed, would be held to evince an intent to create an estate tail, converted by statute into a fee. May v. Ritchie, 65 Ala. 602; Slayton v. Blount, 93 Ala. 575, 9 So. 241. Does the quoted part of the habendum alter the result in ascertaining the intent of the grantors? Does it evince an intent to vest in the appellees an equal estate with W. R. L. Hodges? Was the expression used in the sense of creating a limitation, or was its purpose to make these appellees purchasers, deriving their right from the grantors?

"Children," in usual legal acceptation, is a word of purchase; but that its meaning in this respect may be that of limitation, rather than of purchase, according to the intent with which it is employed, has been long adjudicated. Echols v. Jordan, 39 Ala. 24. It is a significant fact in this instance that, though these appellees were in esse at the date of the execution of this deed by their grandparents, and, according to their contention, love and affection for them inspired in part the donation shown by the deed, they were not made grantees by name in the instrument. In wills, which, by nature, are ambulatory, such an omission is naturally usual; but when the creation of a tenancy in common by deed is sought to be drawn from the instrument, and the intention of the grantor becomes a matter of construction, the omission to name the grantees is a fact worthy of serious consideration in determining the grantor's intent.

The quoted expressions from the premises and granting clause of the deed both employ the word "heirs," and, as said in Slayton v. Blount, "no one is the heir of a living person;" and, of course, these appellees were not at the time of execution of the deed, and are not now, within the description spoken by both the premises and granting clauses....