Moreland v. Hunley , 37 Ga. 342 ( 1867 )

Harris, J.

1. The new trial granted by the Judge below was evidently upon the sole ground that the deed of Nettles made in Chambers county, Alabama, conveyed in the habendum an estate to the children of Mrs. Harrington inconsistent with th^t given to Mrs. Harrington in the premises.

In this interpretation of the deed of Nettles, we think there was error. The words of conveyance are, “ do give and grant unto my said daughter'a negro woman and her children, to have said negroes and their increase unto my said daughter and her children, free from the control of her husband, and from all liability to pay any of the debts of said husband.”

To vest at common-law a fee simple estate in Mrs. Harrington, the words “ and to her heirs ” were essential; without them, by the uniform adjudications of the English Courts, she could only have taken an estate for life. Did she take more by the deed in this case? No statute of Alabama has been shown, or decision of her highest Court referred to, which will authorize us to assume that the principles of the common-law have been altered by or departed from in that State. The common-law of necessity, then, furnishes the only rule for the interpretation of instruments made in other States. Controlled by its familiar principles, we are constrained to hold that, under the deed of Hetties, that Mrs. Harrington took a life estate only in the slaves, remainder to her children.

If this reasoning is correct, it is impossible that there can be any inconsistency of estates, as supposed by the Judge below.

2. The whole testimony in the cause seems to have been fully considered and passed upon by the jury, and the Judge having refused to grant -the new trial upon any ground connected with it, but only upon the law point which we have just disposed.of, we think that this old litigation should be arrested, and accordingly reverse the judgment, granting a new trial.