
    Ann Smith v. Sarah A. Hankins, et als.
    
      3. conveyed to his son T. “ and his heirs ” a house and lot, “ to have and to hold the same to the said T. during his natural life, and after his death to his heirs forever; provided, that if the said T. shall die without' children, then to revert and vest in the heirs of J.” T. survived his father and died without children. Sold: that T. took under the deed a fee, qualified with the condition that if he died without issue, the fee should go to the heirs of J., and that on the death of T., the plaintiff, his widow, took no estate from her husband, either as heir or as widow.
    Error to the Superior Court of Cincinnati.
    The suit was brought to recover real estate. The plaintiff is widow of Thomas B. Smith, deceased, who was the son of John Smith, late of Cincinnati, deceased, and the defendants are the children and heirs of John Smith. The question of title turns principally upon the. construction of a deed of John Smith to his son, Thomas B. Smith, made May 9, 1850, whereby, in consideration of $1,625 to him paid, and in further consideration of natural love and affection, “John Smith sold, granted, and conveyed unto the said Thomas B. Smith and his heirs the following described .real estate” [describing it], “to have and to hold the same to the said Thomas B. Smith during his natural life, and after his death to his heirs forever; provided, that if the said Thomas B. Smith shall die without children, then and in that event the property hereby conveyed is to revert and vest in the heirs of the said John B. Smith, the grantor herein.” Thomas B. Smith had seven children, but they, .and his father, John Smith, all died in his lifetime.
    Eor the plaintiff, it is claimed that the deed conveyed to Thomas B. Smith a fee-simple estate; that the habendum •clause is repugnant to the granting clause, and must be rejected ; and that on the death of Thomas B. Smith without ■children, the plaintiff, as his wife, inherited the fee, under the statute law of Ohio.
    
      The defendants, on the contrary, claim that upon the deed, considered as a whole, it appears that the grantor intended to convey only a life estate, or else a fee-simple, determinable on the death of Thomas B. Smith without children, so that when Thomas B. Smith died, the estate passed by this deed directly to the issue of John Smith.
    
      King &; Thompson, with Von Seggern, for plaintiff in error r
    Insisted that the deed operated as a sale and not as a gift; that the intention of the deed must govern. 2 Blk. Com. 298; 4 Kent’s Com. 468; 3 Washburn on Real Prop. 644; Stokely v. Butler, Hobart, 168; Doe v. Chippendale, 2 Taunt. 109; 2 Greenl. Cruise, tit. 32, ch. 21, sec. 75; Ib. tit. 32, ch. 20, sec. 13; Jackson v. Ireland, 3 Wend. 99; 29 Ind. 475.
    The grant and habendum are not only contradictory, but. so irreconcilable that by no compromise can either be preserved consistently with the other, and we claim that the habendum must give way. Goodtitle v. Gibbs, 5 Barn. & Cres. 709; Cochin v. Heathcote, Lofft, 191; Carter v. Madgwick, 3 Lev. 339; Baldwin’s Case, 2 Coke, 22; Tyler v. Moore, 42 Penn. St. 374; Jamaica Pond Aq. Co. v. Chandler, 9 Allen, 159, 168; Berry v. Billings, 44 Me. 416; Nightingale v. Hidden, 7. R. I. 115; King v. Beck, 15 Ohio, 559; Stephenson v. Hagan, 15 B. Mou. 282; Sisson v. Seabury, 1 Sum. 235; Fearne Cont. Rem. 193.
    Eor construction of the word “ heirs,” see 4 Kent’s Com. 506; Ellis v. Page, 7 Cush. 161; Brewster v. Benedict, 14 Ohio, 368 ; Mowatt v. Carow, 7 Paige, 328; Moore v. Raisbeck, 12 Sim. 123.
    
      Edward Colston, with Jordan, Jordan Williams, for defendants in error,
    contended that Thomas B. Smith took
    only a life estate, and on the subject of construction of deeds cited 2 Greenl. Cruise, tit. 32, ch. 20, p. 297; Ewing v. Burnet, 11 Pet. 41; Parkhurst v. Smith, Willes, 332; McCoy v. Bixbee, 6 Ohio, 310; Wolfe v. Scarborough, 2 Ohio, St. 361; 25 Me. 51; 5 Barn. & Cres. 316; 3 Wend. 99; 29 Ind. 425; 34 Me. 305.
    
      On the construction of the word “ heirs,” see King v. Beck, 15 Ohio, 564; Morgan v. Morgan, 5 Day, 157; 4 Kent, 279; Parish’s Heirs v. Ferris, 6 Ohio St. 563; Niles v. Gray, 12 Ohio St. 320.
    If we are wrong in saying that Smith took only a life •estate, then he took a determinable fee at most. 1 Blackstone (star paging), 155,156 ; Williams on Real Prop. 268. In either case his estate actually ceased at the time of his ■death.
    
      S. S. Carpenter, also for defendants in error.
   Day, J.

We find no such repugnancy between the granting and the habendum clauses of the.deed as to justify a rejection of the latter clause, or between the granting ■clause and the proviso as to warrant a rejection of the proviso. Nor is there any reason why the term “ heirs ” in the granting clause might not be explained or qualified in the clauses which follow, so as to limit the grant to the issue •of the grantee, and to show that the grantee was only to take a life estate or a qualified fee.

The property is conveyed by the granting clause to Thomas and his heirs, but the fee thus granted in general terms, by the more specific language that follows, is explained so as to mean a fee, qualified with the condition that if he died without issue, it should go to and vest in the heirs or issue of the grantor.

We think no construction more favorable to the plaintiff than this can be given to the deed, without doing violence to the intention of the grantor, as manifested therein.

It follows that when Thomas died without issue living, the estate passed, by the deed, to the issue of John Smith, the grantor, and left nothing to the plaintiff by way of inheritance or of dower.

Judgment affirmed.

Scott, Chief Judge, Wright, Johnson, and Ashburn, JJ., concurred.  