Frankie Ivey and Others, Plantiffs in Error, v. Ella J. Peacock and Others, Defendants in Error, 56 Fla. 440

Cockrell, J. Upon the rejection of a deed of conveyance offered 'by the plaintiffs in an action of ejectment, a non-suit with bill of exceptions was taken and judgment final entered for the- defendants. The plaintiffs claimed title as the heirs of the grantee named in the deed and an objection was interposed that no estate of inheritance passed thereunder.

The deed nowhere contains the words “heirs” or “heirs of the body,” but in the premises grants, bargains, sells, aliens, remises and releases and “forever .quit claims” to the party of the second part the land by appropriate description and -the habendum clause reads: “To have and to hold the said described property, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise .appertaining, fi> have and to hold the same in full right, title, interest or demand of wihat nature soever, as against the said parties of the first part, in fee simple forever.” The deed was executed in 1887, and .contained no reference to other deeds or instruments.

It is admitted that at the' common law the word “heirs” was indispensable to create an estate of inheritance, and that

Chapter 5154, Laws of 1903, Gen. Stats. § 2456, dispensing with words of limitation, is prospective only and does not purport to affect prior, grants or conveyances. By express statutory enactment the Common law of England of a general nature are declared to be of force in this State, if not inconsistent with the Federal or State Constitutions or statutes. Gen. Stats. of Fla. § 59.

We do not find any decisions of this court directly upon the point, but both the decisions and the text writers are practically unanimous in stating that the words “heirs” is indispensable to the conveyance of an estate of inheritance by deed and that no substitute is possible, unless the common law has been changed by statute. Tiedeman Real Property, § 37; Tiffany Real Property, § 20; 1 Wash. Real Prop. (6th Ed.) § 147; 11 Am. & Eng. Ency. Law (2nd Ed.) 367.

We are not now concerned with the various possible exceptions such as grants to the State, trust deeds, conveyances to corporations, contemporaneous deeds, reconveyances. The plaintiffs in error rely upon tire statement of the law as given in 13 Cyc. 642. The author of the

Article on Deeds there asserts that it is generally held essential that the deed read to' the grantee and his heirs, but adds “It has, however, been held in a large number of decisions that the language of the whole instrument should be considered in order to' discover the intent and that where there is a clear intention to pass a fee simple, the deed will be construed so as to' effectuate such intention, although the word “heirs” or technical words of inheritance are omitted.” An examination of the cases cited in support of the text will disclose, however, that they are founded upon statutes which come within some of the .exceptions mentioned above or are, cases construing wills not deeds.

Tire general rule of construction obtaining here as elsewhere that all parts of an instrument will be looked to and that construction adopted that carries out nrlo'st clearly the evident intent of the parties does not authorize us to convert a life estate into' a fee simple by construction. The judgment is affirmed. Shackleford, C. J., and Whitfield, J., concur. Taylor, H'ocker and Parkhill, JJ., concur in the opinion.