Citation Numbers: 63 Fla. 163
Judges: Cockrell, Hocker, Shackleford, Taylor, Whitfield
Filed Date: 1/15/1912
Status: Precedential
Modified Date: 9/22/2021
— In an action of ejectment there was judgment for the defendant and the plaintiff took writ of error. The agreed statement of facts makes it appear that Margaret E. King, an unmarried woman, for a cited consideration of love and affection for Stephen Gonzalez and of one dollar executed a conveyance of land in 1877 to Walter Rutherford, Trustee, “to have and to hold the said property to the said trustee and his heirs upon trust that the said trustee and his heirs shall permit tile said Stephen Gonzalez to occupy, enjoy and possess during the term of his natural life, if he do not survive to the age of twenty-one years. If the said Gonzalez do survive to the age of twenty-one years, then the said Trustee shall convey to him the before mentioned property subject to the condition that if the said Gonzalez have heirs of his body in being at the time of his death, the said property shall descend in due course to said heirs, but if at ihe time of his death, he have no heirs of his body in being, then if the (grantor) be living, the said property shall revert to, and the title thereof revert in the (grantor), or, if at said time the said (grantor) shall have departed this life, then the said property shall belong to” two religious bodies. It also appears that Stephen Gonzalez became twenty-one years of age prior to October 26th, 1886, when he married, and that a son, the plaintiff in error, was
The question to be determined is the character of the estate in the land that Avas taken by Stephen Gonzalez under the conveyance by Margaret E. King to Walter Rutherford, Trustee, it being assumed by the parties that Rutherford made the conveyance to Stephen Gonzalez as directed by the trust conveyance to him.
Stephen Gonzalez having attained the age of twenty-one years, the important consideration is Avhat estate in the land should haAre been conveyed to him by the Trustee Rutherford.
The direction to “convey to Mm (Gonzalez) the before mentioned property subject to the condition that if the said Gonzalez have heirs of his body in being at the time of his death, the said property shall descend in due course to said heirs,” clearly indicates an intention that Stephen Gonzalez upon becoming of age should have the property absolutely if he should “have heirs of his body” to whom “the said property shall descend in due course” at his death. The property could “descend in due course to said heirs” only through Stephen Gonzalez, and it could not so descend unless he takes an estate of inheritance by the conveyance to him made under the direction that “the said trustee shall convey to him the before mentioned property.” If the estate taken by Stephen Gonzalez is merely a conditional fee, he did attain the age of twenty-one years and did have at his death an heir of his body to whom the property could “descend in due course.”
The provision “but if at the time of his said death, he have no heirs of his body in being, then if the (grantor) be living the said property shall revert to” her, does not reduce the state of inheritance taken by Stephen Gonzalez under the previous terms of the trust deed, to a life estate. In requiring that “the said trustee shall convey to him the- property subject to the condition that if the said Gonzalez have heirs of his body in being at the time of his death, the said property shall descend in due course to said heirs,” an estate of inheritance subject to the condition was provided for, and the fee became absolute by the happening of the specified condition. o The legal effect of the language used was not to provide a life estate in Stephen Gonzalez since it provided for an estate that “shall descend in due course to said heirs,” meaning the heirs of the body of Stephen Gonzalez which is an estate of inheritance. See Watts v. Clardy, 2 Fla. 369; Russ v. Russ, 9 Fla. 105; Hamilton v. Tidwell, 131 Ky. 428, 115 S. W. 204, 29 L. R. A. (N. S.) 961 and notes; Rowland v. Warren, 10 Or. 129.
When the trust deed is considered as a whole, it is obvious that Margaret E. King intended the property to be for the benefit of Stephen Gonzalez. Before the age
There was apparently no intention to create a new estate in the heirs of the body of Stephen Gonzalez; and the law does not give to the language used the effect of carrying to the heirs of his body an estate by purchase through the trust deed as distinguished from an inheritance through the ancestor of Stephen Gonzalez*. The heirs could inherit only through an estate of inheritance in Stephen Gonzalez; and if he had an estate of inheritance he could convey it, the conditional fee becoming absolute upon the death of Stephen Gonzalez leaving an heir of his body.
After becoming of age Stephen Gonzalez and his wife joined Margaret E. King in conveying the property to the predecessor in title of the defendant in error. This carried an estate of inheritance from Stephen Gonzalez to the grantee which became absolute in such grantee or his successors in title upon the death of Stephen Gonzalez in 1909, leaving an heir of his body who could have inherited, the property if it had not been conveyed by’ the ancestor.
The judgment is affirmed.