Fort Jefferson Improvement Co. v. Dupoyster. receipt whereof is hereby acknowledged, said first party does bargain, sell, and convey unto second party the fol lowing described lands, to-wit: All of section three, township five, range four west, not in Mississippi river; also, all of section ten in same township and range, not in said river; also, all section of section two and section one in same township and range; also all of sections eleven and twelve in same township and range, not covered by the Wm. Clark and Walter Scott surveys; also, all of section seven and the south half of section six in township five, range three west; also, the south half of section thirty-four and the southwest quarter of section thirty-five, township six, range four west. All of said lands are on the waters of Mayfield creek, on the Mississippi river, in Ballard county, of Kentucky. It is expressly agreed and and understood that said second party is to deed or will said lands to the bodily heirs of J. C. Dupoyster,-in other words, the title and possession of said lands is only invested in said second party during his natural lifetime, then to said heirs of J. C. Dupoyster; and second party has the discretion, of allotting said lands between said heirs as he may see proper; said second party to have and to hold said lands during his natural lifetime, and said heirs, and their heirs and assigns,together with all the appurtenances thereunto be longing, forever, with covenant of general warranty." The lower court construed this deed to mean that Ben S. Dupoyster took a life estate, with a contingent remainder to the bodily heirs of J. C. Dupoyster, with power of appointment in the life tenant. We think it quite plain that the grantor intended that Ben Dupoyster should take only a life estate in the land conveyed. We are also of the opinion that the word "heirs" and "bodily heirs," as used Fort Jefferson Improvement Co. v. Dupoyster. in this deed, mean “children," and the lower court properly so held; but we are of the opinion that the court erred in deciding that the intention of the grantor was to invest the children of J. C. Dupoyster with a mere contingent remainder. The intention, we think, was to vest a life estate in Ben with remainder to the children of Joe C.; his first born taking the entire remainder, which, however, opened up to let in the afterborn children. No power of appointment proper is created by this deed in the life tenant. At any rate, the power was an extremely limited one, and was directed to be exercised for the benefit of the bodily heirs of Joe C.; and, to make the meaning plainer, the grantor adds: "In other words, the title and possession of said lands is only vested in said second party during his natural lifetime, then to the heirs of J. C. Dupoyster." Then follows a provision merely giv ing to Ben the "discretion" of allotting, of dividing out or partitioning, "as he may see proper," these lands among the children of Joe C. The language does not suggest an unequal allotment or partition, nor create the power of cutting off or lessening the right or interest of any one of these heirs or children. We must suppose the allotment or division was intended to be an equal one, but that the discretion was vested in Ben to designate the location of each child's interest or share. And this designation or allotment he might make by will or deed. It follows that the children of J. C., as they were born, took vested remainders. It appears from the record that during the married life of J. C. Dupoyster there has been born to him four children, two of whom are dead. Hence, under our construction of this deed, the interest of the dead children passed by the law of descent to their lawful heir or heirs. If it should appear that the child of Joe Fort Jefferson Improvement Co. v. Dupoyster. B. Dupoyster has received by the deed of 1883 more than his proportion of the land in controversy, as fixed under our construction of the deed of 1859, then that deed should be held void to that extent. At the time of the conveyance of the land in controversy by J. C. Dupoyster and Ben S. Dupoyster to the appellant company, it is quite certain that the Dupoysters knew of the existence of this deed of 1859, and knew that they could not convey to the company the fee-simple title, all of which, from the evidence, was unknown to the company. This fact, in connection with other evidence here tending to show fraud and misrepresentation upon the part of the Dupoysters, justified the lower court in ordering a rescission of the contract. On whatever of the land J. C. may be the owner by inheritance from his dead children there will be a lien in favor of appellant for the purchase money wrongfully received by him. A brief has been filed on behalf of the Langdon heirs, but there are no pleadings filed or issues made in this action from which we can intelligently discuss their interests, if any. The judgment is reversed, and cause remanded for proceedings consistent herewith. Petition for re-hearing filed by appellant and overruled. INDEX. ACCOMPLICE- See Criminal Law, 22. ALIENS- 1. Rights of British Subjects-Naturalization.-Former citizens of ....582 (807) |