Brasington v. Hanson

Per Curiam,

The first and second specifications were not pressed upon the argument at bar. The remaining specifications involve the proper construction of 'the deed of Arthur Tanner to Sally Brasington. The learned judge below held, and we think properly, that this deed vested in Sally Brasington, and her four sons named therein, the immediate right to the possession and enjoyment of the lots in controversy, as tenants in common. See fifth specification. The grant in the deed is to Sally Brasington, “ for the only use and behoof of the said Brasington, and her heirs, viz.: Samuel, Milton, Oscar and Albert H. Brasington.” The grant to the said Sally is to her and her heirs. The word “ assigns” is stricken out wherever it occurs in the deed. This, however, is not important, as a grant to a man and his heirs carries with it the estate to his assigns by operation of law.

It was contended by the appellants that Sally Brasington took but a life estate, and that no title vested in the designated heirs until her death. We do not think the word “heirs” in this deed was intended to be used in its ordinary sense. On the contrary, we think it means children. Had the conveyance been to her, and to children as a class, the contention of the appellants would have had more force. But it was not to a class, but to certain designated children, and we think the learned judge below was right in holding, that the title was vested in Sally Brasington, and her four children named, as tenants in common. The language of the deed is unusual, and we know of no case that is upon all fours with it.

Judgment affirmed.