
    Calcina M. See, Anna E. Wightman and Pliny A. Derr v. Melissa M. Derr, Chas. S. Derr and Isaac O. Derr.
    
      Deed — “ Heirs ” construed as “children.”
    
    1. “ Heirs ” may mean “children.” So held where an improvident person deeded land to his brother to be immediately deeded by tie latter to the wife and “ heirs ” of the former.
    2. In Michigan, a remainder in fee may lawfully be created in favor of an unborn child.
    3. Costs on chancery appeal are discretionary, and were denied on modifying a decree where appellant denied existing adverse interests.
    Appeal from Oakland. (Stiekney, J.)
    June 10. — June 17
    Bill to correct deed, etc. Defendant Isaac appeals.
    De•cree modified.
    
      Newton db Howard for complainants.
    
      Jas. M. Goodell and Hugh MoGurdy for defendant appellant.
    Estates tail are abolished in Michigan, by 1. The code .of 1820, p. 393; 2. Bev. Stat. 1827, p. 2613. Comp. L. •(1871) § 4070, which section is an exact copy from the Be-vised Statutes of New York, in force in 1820, and ever since; 1 Rev. Stat. (N. Y.), p. 22, sec. 3; Coe v. De Witt 22 Hun 429 ,; in New York the construction of words of similar import to those disputed here has always been to vest an estate in fee in the grantee : Lott v. Wylcoff 2 N. Y. 355 ; Brown v. Lyon 6 N. Y. 419; Striker v. Mott 28 N. Y. 91; Sehoonmaker v. Sheely 3 Pen. 485 ; Thurber v. Chambers 66 N. Y. 42; Seaman v. Haney 16 Hun 71; MeLoughlin v. Maher 17 Hun 215 : Rounsela v. Hand 21 Hun 253 ; Coe v. De Witt 22 Hun 428 ; a grant to be valid, must be to a corporation, or to some certain person named, who can take by force of the grant and hold in his own right, or as trustee: Jaakson v. Dory 8 Johns. 385; Jackson v. Sisson 2 Johns. Cas. 321; a conveyance to the heirs of a living person is void: 3 Washb. R. P, 6; Morris v Stephens 46 Penn. St. 200; Bariled Petition 20 Am. L. Reg. (N.S.) 98 and note; Hall v. Leonard 1 Pick. 27; Winslow v. Winslow 52 Ind'. 8; Newsom, v. Thompson 2 Ired. 277; a grant to one unborn, is void; Dupree v. Dupree Busb. Eq. 164; Hall v. Thomas 3 Strobli. 101 ; Hamilton v. Pitcher 53 Mo. 334; conveyance to J. S. or his heirs, vests the title in J. S. absolutely: Ready v. Kea/i'sley 14 Mich. 225 : it is the same as to J. S. and his heirs ; Roga/n v. Page 2 Wall. 605 ; the declarations of the grantor at the execution of the instrument are inadmissible to prove his intention : Russ v. Stephens 51 Penn. St. 282;. under Nemo est haeres viventis, a testamentary gift to the heirs of A., during A.’s lifetime, is void: 3 Greenl. Cruise 106, § 317; 2 Jarm. on Wills 13 ; Otis v. Prince 10 Gray 582 ; Norris' v. Hensley 27 Cal. 439, 450 ; Campbell v. Rowdon 18 N. Y. 412, 416 ; in a conveyance to-a married woman and her children, those subsequently born do not take: Ayton v. Ayton 1 Cox Ch. 327 ; Strommi vt. Rottenbury 4 Pessaus. 268 ; Hogg v. Odom Pud. (Ga.) 185; Crimes v. Orrand 2 Heisk. 298 ; Roleman v. Fort 3 Strobh. Eq. 66 ; Kitchens v. Craig 1 Bailey 119 ; in Hunter v. Watson 12 Cal. 363, it was held that a deed to a person not then living and his heirs would be void, since the word “ heirs ” was a word of limitation and not of purchase, and consequently there was no person to take under it: see Brant, ex dem. Provost v. Colston 2 Johns. Cas. 384; Thurber v. Chambers 66 N. Y. 42: 4 Hun 721; where a devise in general terms to the testator’s infant son was followed by a habendum, “ during his natural life and to his heirs ” with a limitation over to certain nephews and nieces in case the son should die within age, and without lawful issue — held, that if consistent with the general scope of the will, the word “heirs” must be construed as a word of limitation, enlarging the life estate to a defeasible estate in fee simple: Carter v. Reddish 32 Ohio St. 1; see also Wilson v. Wilson 32 Barb. 328 ; Sherma/n v. Sherma/n 3 Barb. 385 ; Barnes v. Hathaway 66 Barb. 453 ; Brant v. Qelston 2 Johns. Cas. 384; Patterson v. Ellis 11 Wend. 259 ; Grout v. Townsend 2 .Hill 554; Morris v. Stephens 46 Penn. St. 200; Huss v. Stephens 51 Penn. St. 282 ; Baxley v. Bailey 25 Mich. 185 ; Sutphen v. Ellis 35 Mich. 446 ; Éberts v. Eberts 42 Mich. 404; Jacobs v. Miller 50 Mich. 119.
   Campbell, J.

This bill was filed in Shiawassee county, to correct a deed, and. remove certain incumbrances, so far as complainants’ rights are concerned, upon lands in that county once owned by their grandfather, John Derr, and intended by him, as claimed, for the joint benefit of complainants and their mother, Melissa M. Derr, one of the defendants.

On January 10th, 1857, John Derr made a conveyance of the land to his son Charles S. Derr, the father of complainants, but subject to stringent conditions against incumbering or alienating during the grantor’s life. On the 23d of January, 1862, a few months before complainant Pliny was born, there being some prospect that Charles S. Derr would go into the army, an understanding was had that the land should be secured in some way for his wife and family. Pursuant to this understanding John and Charles S. Derr, and their wives, joined in conveying the property to defendant Isaac O. Derr, who is a brother of Charles, for the sole purpose expressed, “ to convey the said land in fee to Melissa M. Derr, wife of said Charles S. Derr, and the heirs of said Charles S. Derr.” On this same day, and as a part of the same transaction, Isaac O. Derr and wife made, a conveyance, in which Melissa M. Derr was named as party of the second part, and which in the granting part conveyed the land “ unto the said party of the second part, and to the heirs and assigns, forever, of Mr. Charles S. Derr, husband of said second party; * * * the estate in said land to be to said second party for the period of her natural life, and remainder in fee to the heirs of said Charles S. Derr. * * * to have and to hold the said premises as described, with the appurtenances, unto the said party of the second part, for her natural life, and to the heirs and assigns, forever, of said Charles S. Derr.” At that time, complainants Calcina M. See and Amel E. Wightman were young children. Pliny was born September 12, 1862, a little less than eight months thereafter.

After this, Charles S. Derr (whose improvidence was a principal cause of this arrangement) and his wife Melissa, executed several mortgages on the premises to Isaac O. Derr and others. In 1876 an attempt to procure another loan from outside parties led to a refusal, on the ground of imperfect title in Melissa M. Derr. Thereupon a bill was filed in her name asserting that the deed was intended to be made to her in fee-simple, and asking to have it corrected so as to provide in that way. This bill was taken as confessed against complainants, two of whom are infants, and on a reference to a commissioner and on the sworn statements of John, Isaac, and Charles S. Deri', it was so decreed. This decree was made in February, 1877. Petitions were subsequently filed on behalf of complainants to set aside this decree for various grounds involving circumstances against equity in the conduct of the proceedings, and the decree' was afterwards opened, and the bill dismissed, with general acquiescence. •

The case now comes before us on complainants’ bill at issue on the facts. The court below decreed that the complainants were tenants in common with Melissa, each owning an undivided fourth part of. the estate by present title in fee. Isaac 0. Derr appeals, claiming by title under his mortgages in fee-simple.

If we look only at the deed made in 1862 by John and Charles Derr, and* their wives, to Isaac, it would be quite consistent with it to hold that it was intended to have Isaac place-the title in Melissa and the two children of herself and Charles S. Derr then living. As Charles Derr is a party to the deed, and therefore shown by it to be living, the word “ heirs ” must be construed as used in its popular and not uncommon sense as “ children,” and meant to so describe them. But inasmuch as the deed from Isaac was made out at the same time, and with the intention in all parties that it should be regarded as the means of carrying out their common purpose, it must be regarded as actually conforming to that purpose, unless some mistake is made out. The construction of this deed is plainly enough that Melissa should have a life-estate, and the children a remainder in fee. For that purpose it is a perfect instrument, using the word “ heirs ” as meaning children. This meaning, when used in reference to the heirs of a person appearing by the deeds.to be living, is sustained by many authorities, several of which are cited by counsel for complainants. The case of Heard v. Horton 1 Denio 165, contains a full discussion of the subject.

Upon an examination of the testimony we are satisfied that it was the original purpose in fact of the parties, when the transaction of 1862 took place, to give' a life-estate to Melissa M. Derr, and to give the children no more'than a remainder in fee. The deed made by Isaac at that time is open to no objection, except the formal one of using an ambiguous word, heirs,” to describe the children. Complainants do not dispute the intention of the parties to include Pliny as well as the others, and as a remainder may be lawfully created under our statutes in favor of an unborn child, and as such was the probable intention here, there is no legal obstacle to so declaring.

In our opinion the title of Melissa covered the whole land as a life-estate, but complainants are entitled to the remainder in fee, and the mortgages and transfers made by Charles and Melissa are void as to such remainder. The decree, therefore, is incorrect in recognizing any title whatever in fee in Melissa and also in recognizing a vested estate in present enjoyment in three-fourths of the land in complainants. The decree must be so modified as to declare the interests as a life-estate in Melissa in the whole property, and a remainder in fee in complainants after such life-estate, and its various provisions must be so changed as to conform to that holding.

As the chief controversy arose out of the assertion by Isaac O. Derr, the defendant who appeals, of a right in denial of any interest whatever in complainants, and as the costs in equity are in our discretion, we think that the decree, as modified in this Court, should leave the costs below as decreed there, and grant no costs to either party in this Court.

The other Justices concurred.  