Thomas v. Denton , 15 Ala. 583 ( 1849 )

CHILTON, J.

In Shepherd v. Nabors, 6 Ala. Rep. 631, it was held, that a deed by which a father gave to the heirs born of his daughter’s body, a female slave, providing [that he should retain the possession of the slave during his life, and at his decease, the slave should be “ in full possession of the heirs born” of his said daughter, was a testamentary paper, and might be proved as such ; and that all the children to whom the daughter gave birth, might claim an equal interest in the slave and her increase, under the deed as an ex-ecutory devise.

So in Dunn and wife v. The Bank of Mobile, 2 Ala. Rep. 156, it was held, that if necessary to give effect to the intention of the donor, the deed would be regarded as a testamentary paper, and the provision for the after born children would take effect as an executory devise.

In the case at bar, however, the deed is not set up as a testamentary paper, but the plaintiffs, all of whom were born after its execution, insist upon it as vesting in them an estate in common with the grantees named therein, and the question is, can the deed so operate as to open and let in the after born children. It is an absolute conveyance to the donees of the slaves in question. Its language is, “ I give, grant and bequeath unto William Seay and Nancy Ann Seay, together to all the heirs of Polly Seay’s body, the right, title, &e., to a certain negro girl and her increase (naming her) equally be= tween all the children or heirs of the body of the said Polly Seay, to be the only right and property of all the said Polly Seay’s children, which slave. I do hereby warrant and defend to all the said Polly Seay’s heirs against myself, &c.”

. It. is needless to speculate upon the supposed intention of the donor, in the use of the words, “ heirs of the body of Polly Seay.” Conceding that the word heirs is a synonym for children, as nemo hceres viventis, still the deed vests the interest in the slave immediately in the donees, who, at the time of its delivery were capable of taking, and there being no trust created by the terms of the deed, it would follow, that the complainants not then in esse could take no title under it. Granting that there may be cases, where executory trusts in behalf of after born children may be created by deed, as was the case in Murray et al v. Walker, 1 Strobhart’s Eq. Rep. 193, no benefit can accrue to the plaintiffs below, from the concession, as the deed in this case makes no such provision for them. Neither can they, for the same reason derive any aid from the doctrine of springing, future, or contingent uses. “ Springing uses,” says chancellor Kent, (4 Com. 296 et seq.) “ are limited to arise on a future event, where no preceding estate is limited, and they do not take effect in derogation of any preceding interest.” If the conveyance operates by way of transmutation of possession, the estate must be conveyed, and the use be raised out of the seizin created in the grantee by the conveyance. Or the use may, by the conveyance, be severed from the grantees seizin, in which case the statute executes it, as in conveyances to stand seized &c. Future uses are' limited to take effect as remainders. This doctrine more particularly applicable to real estate, can certainly have no influence upon the deed before us, as the estate passes in praesenti by this deed, and no words creating an estate or use in futuro in the post nata children, are employed. The donees take the absolute estate, and the complainants, having no interest can take nothing by their bill. We are not allowed, as we can conceive, to imply a trust against the words of the deed, and thus to impose a restraint upon the alienation of the property for the life of Polly Seay.

Our conclusion is, the chancellor erred in his decree. It is therefore reversed, and a decree here rendered dismissing the bill, at the cost of the defendants in error.