Jones v. Jones , 20 Ga. 699 ( 1856 )

By the Court.

Benning, J.

delivering the opinion.

It must have been the intention of the makers of the instruments, respectively, to part with the property mentioned in their respective instruments. If so, they must each have used the word “loan” in the sense of the word give.

Taking the word “ loan” in the sense of the word give, are the words of the instruments such, that by the laws of entails, they would, if the property were realty, create an estate tail in Sophia Jones, the first taker ? The Court below held that they were.

And we think that the Court held right, as to the words of the will, but not right as to the words of the deed. The words of the will would, if the property ivere realty, bring the will within the rule in Shelly’s case, that rule being as follows : “ That it is a rule of law, when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in, for or in tail; that always, in such cases, (the heirs) are words of limitation of the estate, and not words of purchase.” (1 Colee, 104.)

An estate for life in realty is a freehold. The estate which Sophia Jones took was an estate for hef life.

This estate which she thus took was, however, an estate to her for her life, “ and then to her bodily heirs” ; and “ to her bodily heirs,” are, technically, words of entail.

Therefore, if the property had been realty, she would have taken an estate tail in it, provided the old law of entails were the law to govern.

This being so, she, by our Act of 1821, took the absolute interest in the property.

This disposes of the will.

As to the deed. We think that the words “ at that time,” •contained in the deed, mean at the time of Sophia Jones’ ■death. If that is what they mean, then they have the effect, ■ according to Kemp vs. Daniel, (8 Ga. R. 385,) so to restrain the other words of the deed as to prevent those words from being creative of what would be an estate tail in Sophia Jones, if the property were realty.

The material part of the head note of Kemp vs. Daniel is as follows: “ Where B, by his last will and testament, bequeathed certain negroes to his daughter, as follows : To my daughter, Celia Rosamond Powell, I give and bequeath, and to the heirs of her body, the following named negroes, &c. ■Should she have no heirs of her body, she is to have the use ■of said negroes for her lifetime, and at her death, should she die without any heirs from her body, the four named negroes above and their increase to return to my son, John B. Bailey, ■as his property: Held, that it was the intention of the testator that his daughter should take a life estate in the ne:groes, and that her children should take an estate in remainder thereto as purchasers.”

There is no difference between the will in Kemp vs. Daniel and the deed in the present case, on the point under consideration. We, therefore, construe the deed as creating, in Sophia Wallace, only an estate for her life, and in her children the remainder.

This case was not argued at all on one side of it, and it was argued but very little on the other. And I must say that I have not a great deal of confidence in the correctness -of the-decision on the deed.