Couch v. Anderson , 26 Ala. 676 ( 1855 )

G-OLDTHWAITE, J.

—The only question presented on the. record is, as to the construction of the deed executed by John Couch, by which he conveyed a negro to his daughter, a married woman, “ for life, and at her death to her child or children ; but, should she die without lawful issue of her body, then said slave to return and belong to my other heirs.” It was admitted on the trial, that the plaintiffs below were the children of the grantor, born before the execution of the deed; that the daughter of the grantor died without having had any children, and that the grantor was still living.

Waiving the question, whether the words “ child or children,” used in the first part of .the deed, are words of limitation, or of purchase, and conceding, for the purposes of the argument, that they are the latter, the question then is, as to the effect of the limitation over to the “ other heirs” of the grantor, The word heirs, without explanation, is alyqiys construed as a word of limitation, and must be taken as such in the present case, unless it is apparent from the other parts of the deed that it was used in a different sense. The argument on the part of the appellants is, that as by the terms of the deed, the daughter takes for life, and on her death without children, the property is to “ belong to the other heirs ” of the grantor, the use of the word “other” qualifies the general meaning of the term “heirs” to which it refers, and shows that the grantor did not intend to use that word in its ordinary sense, but applied it to persons standing to him in the same relation as liis daughter. It is possible that the grantor meant this ; but we think it more probable, from the use of the word “ return,” taken in connection with the words which immediately follow it, that, in the event his daughter died without children, his intention was, that the property designed for them should come back, and pass as if no conveyance had been made. Presuming, as was very natural, that he should die before his daughter, his first object was, to make provision for her during life, and at her death for her children ; if, however, she should have no children, then the property designed for them was to return and pass to his other heirs. Such a disposition is in accordance with the feelings and affections of most men, and in expressing his intention, he merely expressed what the law would do. Our conclusion is, that there is nothing in the deed which shows that the word “heirs” was used in a different sense from that which the law ordinarily attaches to it, and being therefore a word of limitation, his children could not take under th§ deed.

Judgment affirmed.