Fales v. Currier , 55 N.H. 392 ( 1875 )

The word "children" is a word of purchase, as much as would be the word parents or brothers. If there had been children living at the time of the grant, they would probably have taken as tenants in common with their mother; but as there were then no children, the true construction of the deed seems to be that Polly Bartlett took an estate for life, with remainder to the children. Paine v. Wagner, 12 Sim. 184.

In the recent case of Cole v. The Lake Company, 54 N.H. 242, it was held that in this state a fee might pass by deed, where the language used, in its natural and popular signification, unmistakably showed that such was the intention of the grantor, although the word "heirs" might be wanting; but nothing was said in that case giving countenance to the idea that when there is no latent ambiguity the intention of the parties can be obtained from any other source except the deed, or that any of the established rules for the construction of written instruments were relaxed or changed. The technical word "heirs," as used in deeds, has a well ascertained and purely technical sense, and is a convenient word to show that the intention was to pass a fee. Its legal interpretation and effect, when thus used, were not questioned in the case referred to; much less is there anything in that case to indicate that other words of limitation may be disregarded, or given an effect to defeat the intention of the grantor which they were employed to express.

What bearing the views expressed in Cole v. The Lake Company may have on the question whether these plaintiffs by the deed take a remainder in fee or for life we need not now inquire, because that question is not raised by the demurrer.

In this view the proposed amendment seems to be immaterial. There seems to be no objection, however, to its allowance; and it will be incumbent on the plaintiffs at the hearing to show that the erasure was made before the execution of the deed. I think the demurrer must be overruled.

SMITH, J. In the absence of evidence or circumstances from which an inference can be drawn as to the time when the alteration was made in this deed, it is incumbent on the plaintiff to show that it was done before its execution. Burnham v. Ager, 35 N.H. 351; Humphreys v. Guillow, 13 N.H. 385.

There are but two ways of acquiring real estate, — one by descent, and the other by purchase. If one does not take as heir, he takes by purchase, no matter how he acquires his title. 1 Washb. R. P., ch. 4, sec. 43, n. 1. That the word "children," in the deed under which the parties claim, is a word of purchase, there being no children born at the time of its execution, seems to be well settled by the authorities cited by my brothers CUSHING and LADD. Polly Bartlett, then, took an estate for life, remainder to her children; but whether for life or in fee does not now arise.

Demurrer overruled.