Higdon v. Leggett

*438 ANDERSON, C. J.

[1]

The deed in question, by the granting clause, conveys the land to “Mrs. Jane M. Leggett and her children, Ada E. Leggett, George W. Leggett, Emma B. Leggett, and Samuel J. Leggett, Jr., and also in trust for such children a£ may be born of said Jane M. Leggett.” The habendum clause provides that said land is to be held, etc., by the parties of the second part and their heirs forever, and also “in trust for such children as may be born of said Jane M. Leggett.” The warranty is to the parties 'of the second part, “to and for themselves and such children as may be born of the body of Mrs. Jane Leggett.” There is nothing in this deed limiting the interest of Mrs. Leggett to a life estate and trustee for the named children as remaindermen, as it is an express conveyance to each of the grantees jointly and in fee simple, hut subject to have their respective interests diminished by subsequently born' children, and for whom the title is to be held in trust by the existing grantees. Southern R. Co. v. Hays, 150 Ala. 212 , 43 South. 487 . Indeed, the trial court held that Mrs. Leggett and the other named grantees took as joint owners of the entire estate, but excluded the after-born children of Mrs. Leggett by a subsequent marriage upon the evident theory that Col. Leggett paid for the land, and did not intend that it was to be enjoyed by any of the children of his wife other than those of his Wood, and, in effect, construed the deed as including only the children of Mrs. Leggett begotten by her then husband, Col. Leggett.

[2]

Considering the deed upon its face, it plainly, without technicality or ambiguity, provides for all children who may be born of the body of Mrs. jane M. Leggett, whether by a present or future marriage; and, standing alone, as a conveyance from strangers, there can be no difficulty whatever in giving it its plain and simple meaning of including ail children to be born to Mrs. Leggett, including those of a subsequent marriage. On the other hand, should we concede the contention that Col. Leggett paid for the land and had it conveyed, we have nothing to overcome the plain terms of the deed by interpolating after the words, “children to be born of the body of Mrs. Leggett,” the words, “begotten by her then husband, Col. Leggett.” We have nothing to counteract the manifest meaning of the words used except the mere inference that it was unnatural for Col. Leggett to have not confined his generosity to the children of his own blood. Such action may appear unnatural, but is by no means unprecedented or prohibited, and, unaccompanied by facts or circumstances evincing ,a contrary intent, will not of itself overturn the plain meaning of the words employed. If Col. Leggett paid for the land, and was a donor to his wife and children, presumptively, he gave directions as to the conveyance, and that it was read over by him, and would have detected the omission in three separate places in the deed to confine its operation to the after-born children by him begotten. The omission does not appear to be unintentional, and cannot be ascribed to the use of technical terms or ambiguous language adopted by an unskilled scrivener. As was well said in the opinion of the Kentucky court in the case of Pettit v. Norman, 119 Ky. 177 , 82 S. W. 622 :

“ * * * While it is not customary for a father to voluntarily permit one who is a stranger to his blood to share with his children in his bounty, he may do so if he choose, and the fact that it is unusual will not, per se, authorize a court to disregard the plain meaning of the words in the deed conferring such bounty. It is not made to appear that the grantor did not understand the legal meaning and effect of the words ‘her children’ as used in the deed. The words themselves are free from ambiguity, and there are no other words in the instrument that conflict with them, or throw any doubt upon their meaning; nor is it intimated that, at the time of making the deed, the grantor was deceived or misled, or that he was subject to any undue or improper influence. It must be presumed, therefore, that the instrument in all its parts expresses the intention of the grantor.”

The trial court erred in holding that the deed did not include the children of Mrs. Leggett by a subsequent husband and is, to this extent, reversed, in order that the proceeds of the sale of the land may be distributed in conformity with this opinion.

[3]

The bill, by paragraph 11, avers that the lands cannot be equitably divided between the joint owners, and that a sale of same will be to the interest of the minors-, and this averment was admitted by the answer and established by the proof, and the decree of the circuit court in all respects, except as heretofore noted, must be affirmed.

Affirmed in part, and reversed and remanded in part.

SAYRE, GARDNER, and MILDER, JJ., concur.