J. M. Simonton, Next Friend, v. A. White, 93 Tex. 50

BROWN, Associate Justice. The land in controversy was the community property of W. J. Gentry and his wife, who died previous to the transactions hereafter named; her husband and their three daughters,,, Ava Anna (now Mrs. Simonton), L. Zerza, and Luddie Gentry survived. W. J. Gentry made and delivered to Mrs. Ava Anna Simonton- the following deed: “The State of Texas, County of Milam. — Know all men by these presents that I, W. J.

Gentry, of the county of Milam and State aforesaid, for and in consideration of the love and affection and duty as a father towards my daughter, Ava Anna Simonton, her children, Willis, David, Curry, and Prince, have granted as a gift and conveyed by these presents do grant, give and convey unto the said Ava Anna Simonton and her bodily heirs of the county of Milam and State of Texas, all that certain tract or parcel of land lying and being situated in the county of Milam and being a part of the Reuben Fisher league. [The field notes are omitted.] How the above described land and premises, together with other valuable stock and property heretofore given, granted, released unto my daughter, the said Ava Anna Simonton, constitute fully her pro rata share of my estate, real and personal.

Now the above mentioned land and property hereby conveyed is not to be traded or sold, but the produce of the same are to go to the support of the said Ava Anna Simonton and her family during her natural life, and at her death to be equally and impartially divided between her bodily heirs. “To have and to hold the above described premises, together with all and singular the rights and appurtenances thereunto in anywise belonging unto the said Ava Anna Simonton, her bodily heirs forever.

And I do hereby bind my heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said Ava Anna Simonton her bodily heirs against every person whomsoever lawfully claiming or to claim the same or any part thereof. “Witness my hand, Baileyville, Texas, 2nd day of September, A. D., 1892. “W. J. Gentry.” Ava Anna Simonton was, at the time the deed was made, the wife of J. M. Simonton, who is still living, and the mother of Willis, David, Curry, and Prince Simonton, all of whom are still living and minors.

Since the making of the deed, other children have been born to Mr. and Mrs. Simonton. J. M. Simonton and the four children named lived with Mrs. Ava Anna Simonton at the time, and they all continue to live together. Ava Anna Simonton and her husband, for a valuable consideration, executed at different times two deeds to J. H. Drennan, by which she conveyed to him seventy-five acres of the land described in the above deed, which was duly recorded.

At a subsequent date, Ava Anna Simonton and her husband, by general warranty deed, conveyed 125 acres of the land in controversy to White, and the deed was properly authenticated and duly recorded in Milam County. J. H. Drennan, for a valuable consideration paid, by warranty deed conveyed the seventy-five acres of land to White. White purchased the land and paid a valuable consideration without notice except that given by the terms of the deed from Gentry to Mrs.

Simonton, and has had exclusive possession of it since January 1, 1895, renting it out, collecting the rent, and appropriating it to his own use and benefit. The reasonable rental value of the land was $900 per annum during the time that he has had possession of it. W. J. Gentry settled with the other daughters for their interest in the land in controversy at the time he conveyed it to Mrs. Simonton. J. M. Simonton, as next friend of the minors, Willis, David, Curry, and Prince Simonton, sued in the District Court of Milam County to recover the land from A. White.

The case was tried before the district judge without a jury, who gave judgment for the defendant, which judgment was affirmed by the Court of Civil Appeals. The trial court held, (1) that under'the deed from Gentry to Mrs. Simonton a fee simple title vested in the latter and passed to White; (2) if not, then a life estate vested in Mrs. Simonton which passed to White, and she being alive, plaintiffs could not recover. If either proposition be correct, the judgment must be affirmed.

Under the rule in Shelley’s case, the words “give and convey unto the said Ava Anna Simonton and her bodily heirs,” if not qualified, would vest in Mrs. Simonton an estate in fee simple, not because the grantor intended to convey to her such estate, but because the law gives to the language that effect. Taylor v. Cleary, 29 Gratt., 451. However, that rule does not preclude a construction of the words “bodily heirs” so as. to ascertain the grantor’s intention, but the well established doctrine is, if it appears from the instrument that Gentry used the words “bodily heirs” to designate children of Mrs.

Simonton, effect will be given to that intention and the estate conferred upon her will be limited to her life with remainder in fee to the children thus pointed out. Doe v. Laming, 2 Burroughs, 1100; Taylor v. Cleary, 29 Gratt., 448; May v. Ritchie, 65 Ala., 602. The consideration expressed in the deed from Gentry to Mrs. Simon-ton is the affection of the grantor for his daughter and her four children, naming them, and the duty wfiich he owed to them.

It Gentry used the words “bodily heirs” in their technical sense, the children would be excluded from the benefits of this conveyance, although they are embraced in the consideration expressed. The purpose to be accomplished by the conveyance is declared in the following language: “How the above mentioned land and property hereby conveyed is not to be traded or sold, but the produce of the same are to go to the support of the said Ava Anna Simonton and her family during her natural life, and, at her death, to be equally and impartially divided between her bodily heirs.” If “bodily heirs” means the heirs of Mrs.

Simonton in an indefinite line of succession, the provision quoted is void; the declared consideration is without meaning, and the clause forbidding alienation becomes inoperative. Governed by the rule in Shelley’s case, the requirement that the produce of the property should be applied to the support of the daughter and her children amounts to a false pretense, and the direction that, after Mrs. Simonton’s death, the property should be equally divided between her bodily heirs, is imposible of execution and absurd.

If, however, the words “bodily heirs” as used in the deed be construed to mean the four children named or to include with them those subsequently born, the consideration expressed and the declared purposes harmonize, the prohibitory clause is not only valid, but necessary for the preservation of the trust created, and the provision for common support responds to the declared paternal affection and duty. Under this construction, impartial distribution of the property at the termination of the life estate is both possible and just.

The rule in Shelley’s case, if applied to this instrument, destroys all of the benefits which were intended to be conferred upon the children and renders the instrument incongruous and contradictory in all of its parts, while the enforcement of the well defined intention of the grantor harmonizes every provision of the deed. We conclude that Mrs. Simonton took an estate for life only with remainder in fee to her children after her death. It is claimed, however, if Mrs. Simonton did not take the estate in fee simple, she had a life estate in the land which passed by her deeds and mesne conveyances to White.

It is established in this State that an estate for life may be vested in a married woman with a provision in restraint of alienation. Wallace v. Campbell, 53 Texas, 229; Monday v. Vance, 92 Texas, 428. In the case last cited, Chief Justice Gaines examined this question with care, and, after stating the contrary rule which prevails in England, said: “A different rule prevails in some of the courts of this country and notably in our own State (citing Wallace v.

Campbell, supra), but all the authorities recognize an exception in favor of married women; and it is universally held that a conveyance may be made in trust for their benefit with the restriction upon their power of alienation.” In that case, there were no words of prohibition, but the trust was of such a character as rendered the estate inalienable. In this case, the deed expressly prohibits alienation and creates in Mrs.

Simonton a trust for the support of herself and children which is inconsistent with the power to sell the property. “The very purpose of the deed in question was to provide a permanent support for the wife and children and "the means of educating the latter. To permit an alienation of the interest of the beneficiaries is destructive of the trust and incompatible with its purposes.” Monday v. Vance, supra. The conveyances made by Mrs.

Simonton were in direct violation of the terms of the deed under which she held the estate in trust, and all purchasers claiming under her had notice of the want of power on her part to pass any title to the property. The children born of Mrs. Simonton since the making of the deed are not parties to this suit, and there is no question raised as between them and those named in the instrument.

The plaintiffs are beneficiaries in the deed; they are tenants in common with the other children, if the latter have a right in the land, and therefore are entitled to recover and restore the property to the trustee for its execution. It may be necessary to adjust equities between the plaintiffs and the defendant, and we will not undertake to dispose of the case in this court, but the judgments of the District Court and Court of Civil Appeals will be reversed and this cause remanded for further trial. Reversed and remanded.