Cox v. Newby

85 S.E. 369, 101 S.C. 193, 1915 S.C. LEXIS 104

Opinion

The opinion of the Court was delivered by

Mr. Justice Hydrick.

The question here is the proper construction of a deed conveying real estate, which is regular and in the usual form. In the premises the grant is to Elizabeth J. Cox. The habendum is “unto the said Elizabeth J. Cox and her heirs begotten by her present husband, George Cox, forever.” Then follows a full covenant of warranty “unto the said Elizabeth J. Cox and her heirs by George Cox.”

At date of the deed, Mrs. Cox had five children by George Cox. Two of them predeceased her. She died in 1912, after having conveyed the land in fee simple to Dill, under whom the defendants claim. Mrs. Cox left three children by George Cox surviving her. They are the plaintiffs.

The question is, what estate did Mrs. Cox take under the deed? Plaintiffs contend that the word “heirs” in the habendum and warranty was used in the sense of “children.” If so, then Mrs. Cox and her children took only life estates, for there is no other word of inheritance in the deed. But the deed shows the intention of the grantor to part with the fee.

1 It is contended that the word “begotten,” being in the past tense, so qualified the word “heirs” as to show not-only that it was used in the popular sense of that word, as meaning “children,” but also as meaning children already born and in esse. Such construction is not warranted by reason or authority. “Begotten” is often used to refer to future as well as past issue. The words “begotten” and “to be begotten,” “procreatis” and “procreandis,” have always been construed to mean the • same, unless a contrary intention clearly appears. Coke Eitt. 20b.

2 The word “heirs” is a technical word, and the rule is well settled that when technical words are used, they must have their technical meaning, unless a contrary intention clearly appears from the context. There' is nothing here to take this case out of the rule. Church v. Moody, 98 S. C. 234, 82 S. E. 428, is conclusive of the question. There the deed was to Margaret Scott “and the heirs of her body begotten,” etc. At date of the deed she had one child and another was afterwards born. Held, that both were entitled under the deed.

Judgment affirmed.