Barnett v. Barnett

Harrison, J. March 14, 1890, B. B. Barnett executed to the plaintiff herein a deed of conveyance of certain lands in Fresno county, by which he purported to “give, grant, alien, and confirm unto the said party of the second part and to his heirs (and assigns forever) all those certain lots, pieces, or parcels of land .... to have and to hold, all and singular, the said premises, together with the appurtenances, unto the said party of the second part (heirs and assigns forever) for and during his natural life, and to the issue arid heirs of the body of the said party of the second part.” The instrument was upon a printed form, and the above words in paren[299]theses were erased therefrom, and the words in italics were inserted in writing. The defendant, Lena Barnett, is the daughter and sole issue of the plaintiff, and the other defendants are his brothers and sisters. The plaintiff claims that by the aforesaid instrument the lands herein described were conveyed to him in fee, and, as the defendants claim that he took thereby only a life estate, and that at his death the heirs of his body will take the fee, he brought this action to procure a judgment in accordance with his said claim, and to restrain the defendants from making any claim thereto. A demurrer to the complaint was sustained by the court below upon the ground that it failed to state a cause of action, and.from the judgment entered thereon the plaintiff has appealed.

At the common law, by what is commonly called the rule in Shelley’s case, the above instrument would undoubtedly be construed as giving to the plaintiff an estate in fee tail in the lands, and if it had been executed prior to the adoption of the Civil Code would have received the same construction in this state. (Norris v. Hensley, 27 Cal. 439; Estate of Utz, 43 Cal. 200.) Section 779 of the Civil Code, however, provides: “When a remainder is limited to the heirs or heirs of the body of a person to whom a life estate in the same property is given the persons who, on the termination of the life estate, are the successors or heirs of the body of the owner for life are entitled to it by virtue of the remainder so limited to them, and not as mere successors of the owner for life.” The effect of this section is to abrogate the rule in Shelley’s case, and with other sections in the Civil Code to furnish the rules by which to determine the estate or interest in the lands which the plaintiff took by virtue of the grant. (Civ. Code, sec. 4.) Section 1105 declares that “a fee simple title is presumed to he intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended”; and, if it does appear from the grant