Edins v. Murphree , 142 Ala. 617 ( 1904 )

McOLELLAN, C. J.

The question in this case is whether the children of Nancy Eclins living at its date, took as tenants in common with her under the following deed: “Know all men by these presents that we, G. B. Flowers and wife Elizer Flowers, for the love and affection that we have for our daughter Nancy Edins and her bodily heirs, do grant and convey unto the said Nancy Edins, and her bodily heirs the following described lands, to-wit: (description) to have and to hold to her own use and bodily heirs, and Ave, G. B. Flowers and Avife Elizer Flowers, for ourselves, heirs or assigns, Avill warrant and defend the above named lands unto said Nancy Edins, her heirs and assigns, against the laAvful claims of all other persons.” If the words “bodily heirs” as employed in this conveyance are to be given their ordinary, legal significance the estate is'a fee simple in Nancy Edins — that is at common law it would have been an estate tail in her which our statute converts into a fee simple. Those words are to be taken in that sense — to mean the issue of the body of Nancy Ed-ins in all generations to the end of time, rather than as meaning her children, the first generation of issue of her body — unless it can be said to appear upon the face of the instrument that the grantor intended by their use to designate the children of the said Nancy. We are • unable to find any such thing in the writing. There is nothing in the situation and relations of the parties as disclosed in the writing — and beyond the writing in a case of this character we cannot look even for the circumstances attending its execution — that is inconsistent with a purpose on the part- of the grantors to convey a fee tail, or a fee simple to their daughter Nancy Edins, and the Avord “children” is not employed at all. In this respect the case is radically different from that of Wilke v. McGraw, 91 Ala. 631, relied on by appellants, and fails to measure up to any case in which this court has construed the words “bodily heirs,” or “heirs of the body” to mean children. — May v. Ritchie, 65 Ala. 602; Slayton v. Blount, 93 Ala. 575; Wilson, et al. v. Alston, 122 Ala. 630.

This was the view taken by the chancellor; and upon it he properly dismissed the bill for want of equity. The possibility that the bill could be amended so as to give it equity afforded no ground for its retention against the motion to dismiss. — Seals v. Robinson, 75 Ala, 363; Gardner v. Knight, 124 Ala. 273; Tait v. Mortgage Co., 132 Ala. 193, 199, 200; Turner, et al v. City of Mobile, 135 Ala. 73, 130.

Affirmed.

Tyson, Simpson and Anderson, J. J., concurring.