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Vanderbilt Law Review

First Page

1110

Abstract

Construction of Deed: Limitation to "My own living children": The deed presented for construction in Tipton v. Wynn, after conveying alife estate to the grantor's daughter, contained the following language:

"and after her death to the heirs of her body. In case she has no bodily heirs, then to my own living children."

When he executed the deed, the grantor had six living children, including the life tenant-grantee. Only one of the grantor's children, however, survived the life tenant, who died without bodily heirs. The complainants, certain heirs of those children of the grantor who had predeceased the life tenant, maintained that the term "living children" referred to those children of the grantor living at the date of the deed. Thus complainants sought to share in the division of the property on the theory that they had inherited the interests of the deceased children. The court, considering the grantor's intent to be the determinative issue, found that the grantor had intended the death of the life tenant to be the crucial date and affirmed the chancellor's decree in favor of the defendant, the sole surviving child of the grantor.

Comment upon the decision is rendered difficult because of the abbreviated statement of the facts upon which the opinion is based. Whether the use of the particular language of the deed results, as a matter of law, in a finding that the takers of the interest are to be determined as of the death of the life tenant, or whether the record disclosed parol evidence of such intent to clarify the ambiguity in the deed, is not apparent from the reported decision.

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