The facts are not disputed and the only question presented is the correct construction and effect to be given to the instrument which is in the form of a deed. Its granting clause reads: "For the consideration of the sum of One Dollar, in hand paid by second party, the receipt whereof is hereby acknowledged, and the love and affection I bear toward my wife, Lizzie Tillotson, of said county and state, party of the second part, do hereby at the decease of my body, and during the natural life of said second party and unto the heirs of her body, if then there be such, otherwise to my heirs, grant, sell and convey unto the said Lizzie Tillotson and her said heirs forever, within the provisions above written." Its habendum clause is in the usual form. Reference to the grantees in the covenants of title and against incumbrance is to "Lizzie Tillotson and her said heirs." It is conceded that this instrument conveyed a present interest in the real property *Page 577 to Lizzie Tillotson, and that the full enjoyment thereof was postponed until after the death of the grantor. It was a present and not a future disposition of the property. Trumbauer v. Rust,36 S.D. 301, 154 N.W. 801, 11 A.L.R. 10. The appeal is from that part of the judgment which decrees that the deed conveyed the remainder estate to the heirs of the body of Lizzie Tillotson, determined as of the time of her death, and which determines the proportionate interest of the parties in the premises.
It is the contention of the plaintiffs that the deed vested the remainder in them at the time of the death of William Tillotson; that the words in the deed, "if then there be such," relate to some previously fixed time in the deed, and that such time is "at the decease of my body," referring to the death of the grantor; that, moreover, there is a strong indication of the grantor's intent that the remainder should vest at his own death to be derived from the circumstances existing at the date of the execution of the deed; that William Tillotson had a son at the time of the execution of the deed born as the issue of a prior marriage and there were children, the issue of the grantor and grantee, and the possibility of other children; and that naturally William Tillotson left open the vesting of the remainder until his own death, thereby providing for after-born children. It is urged that the grantor referred to the children who were to take at his death as "the heirs of her body" for the reason that he desired to exclude his son, Charles, in the event there were children as the issue of the marriage between Lizzie Tillotson, the grantee named, and himself living at the time of his death, and that it is reasonable to conclude that the grantor intended that the property should vest in his issue and not to include the issue of his wife by another marriage.
Respondents on the other hand contend that the remaindermen take as purchasers under the deed and not as heirs of the life tenant by reason of section 329, Rev. Code 1919, which 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 take by virtue of the remainder so limited to them, and not as mere successors of the owner for life." And, therefore, since the life estate vested by the deed in the life tenant was not to be defeated or *Page 578 avoided by any contingency, by the operation of section 330, Rev. Code 1919, which provides that in such event "it is to be deemed intended to take effect only on the death of the first taker," the remainder did not vest until the death of the life tenant.
It is a general rule of construction that a deed is to be interpreted in the same manner as any other contract so as to give effect to the intention of the parties if that intention can be ascertained. Sections 530, 866, Rev. Code 1919. Trumbauer v. Rust, 36 S.D. 301, 154 N.W. 801, 11 A.L.R. 10, supra. However, the intention of the parties cannot prevail against established rules of law and the legal operation of the deed. This court in Barbour v. Finke, 52 S.D. 11, 216 N.W. 592, 595, quoted with approval the following statement from Brown v. Brown, 66 Me. 316: "The law has prescribed certain plain rules to be observed in the execution of such important instruments as those by which the title to real property is transferred; and whatever courts may sometimes have done in their zeal to carry into effect the intention of parties, the law itself does not permit its salutary rules to be broken or bent to meet the exigencies of ignorance or negligence; deeming it better on the whole, that the intention of a party in disposing of his property should occasionally fail, than that its important and firmly established rules made and applied for the benefit of all be overridden."
The heirs of a person are those whom the law designates to succeed to his estate in case of intestacy as distinguished from those who take by will as devisees. 29 C.J. 288. In fact the meaning of this term and of "heirs of the body" became so firmly rooted in this and other jurisdictions that it required acts of Legislatures to repeal the application of the rule in the Shelley Case where a remainder is limited to the heirs or the heirs of the body of a person to whom a life estate is given. See section 329, Rev. Code 1919; Tscherne v. Crane-Johnson Co., 56 S.D. 101, 227 N.W. 479. When there are no qualifying or explanatory words or expressions in the context of a deed these terms are, like other legal terms, to be construed in their legal sense. The appellants contend, and the majority opinion holds, that the expression, "if then there be such," restricts the meaning of the term "heirs of the body"; that the membership in such class is to be ascertained as of the death of the grantor. The words "if then there be such" follow *Page 579 immediately after the words "during the natural life of said second party and unto the heirs of her body" and precede "otherwise to my heirs." Since the alternative remainder was not vested, but contingent, being subject to the happening of an event when it would take effect, and since the life tenant could have no heirs prior to her decease, it clearly appears that the words, "if then there be such," refer to their survival of the life tenant. The language signifies that if the life tenant died without leaving issue the remainder to the heirs of the grantor would become operative. The California Court in Hall v. Wright,17 Cal. App. 502, 120 P. 429, 431, had under consideration a grant "for the natural life of the said party of the second part and then to the heirs of her body begotten forever." It was claimed that the language of the deed and the fact that the age of the life tenant precluded the possibility of another heir indicated the intention of the grantor to vest the remainder at the time of his death. The court held that giving effect to sections of the Code of that state, identical with sections 279, 329, and 330, Rev. Code 1919, the remaindermen took a future contingent interest which would not become vested until the death of the life tenant, and that the word "then" referred to the time of the expiration of the life estate.
If in the instant case the grant was to "Lizzie Tillotson * * * party of the second part * * * during the natural life of said second party and unto the heirs of her body," it could not be doubted that title to the remainder would have vested upon the death of the life tenant. Section 329, 330, Rev. Code; County of Los Angeles v. Winans, 13 Cal. App. 234, 109 P. 640; Hall v. Wright, supra; In re Shoemake, 211 Cal. 457, 295 P. 830; Emmerson v. Hughes, 110 Mo. 627, 19 S.W. 979. The grantor desired to make provision for vesting of the remainder in other persons if the life tenant died without issue, and inserted the language "if then there be such (heirs), otherwise to my heirs." It is not the natural and reasonable interpretation of this provision for the vesting of the remainder in other persons upon failure of issue of the life tenant to hold that the annexation of these words are in explanation of the words "heirs of the body," indicating that the grantor meant to use them in a qualified sense as designating persons in whom he intended the estate to vest at his death, and to preclude the application of the clear and unambiguous provisions of *Page 580 the statutes referred to. If the grantor intended to limit the remainder to his issue, he did not give expression to such purpose. I am of the view, therefore, that the construction given to the deed by the learned trial court was correct, and that the judgment should be affirmed.
RUDOLPH, P.J., concurs in the above opinion of ROBERTS, J.