The opinion
On Motions for Rehearing.
[9] Both appellant and appellees have filed motions for rehearing herein, with lengthy arguments and citations of numerous authorities. After carefully examining same, the conclusion at which we have arrived does not differ in its practical effect from that announced in our original opinion herein. We adhere to the view that the words “heirs of her own,” used in the will, meant “children,” and that the will meant to bequeath the residue of the estate to Lula West in the event Annie Calvert should die without leaving children surviving her. It is true that, in many cases seemingly similar to this, courts have construed the words “without issue” to mean without having issue born to the party. Courts have been influenced to some extent in this regard, as appears from the opinions, -by the fact that it is advisable that the estate in lands should not remain uncertain. But that consideration should have no influence in this case for the reason that we hold that the appellee is empowered under the will to sell the lana and make good title thereto. If she does not sell the same she derives all the benefit intended by the testatrix, and if she does sell the same the grantee acquires a perfect title. In many of the cases in which it has been held that issue means issue born, and not surviving, the language used would bear this construction. Thus, in Clough v. Clough, 64 N. H. 509, 15 Atl. 127 , the language used was “if she should have living issue.” In Isbell v. Maclin, 24 Ala. 315 , the language was “should she marry and have lawful issue.” In McCullough v. Coal Co., 210 Pa. 222 , 59 Atl. 984 , the language was “should my son have heirs or issue.” In each of these cases it was held that the birth of a child vested the estate in fee simple; but in the instant case we think it clear that the testatrix intended the rights of her granddaughter Lula West to depend upon her daughter Annie Calvert leaving children at the time of her death.
In cases relied upon by appellees as vesting an estate in fee simple, the language used was “heirs of body,” which has been construed to mean heirs generally within the rule of Shelley’s Case. Peters v. Rice, 157 S. W. 1181 ; McGennis v. McGennis (Ky.) 29 S. W. 333 . In Lacey v. Floyd, 99 Tex. 112 , 87 S. W. 666 , the language used was “to his lawful heirs.” In that case the court pointed out the distinction between heirs and children. In Brown v. Bryant, 17 Tex. Civ. App. 454 , 44 S. W. 399 , the language used was “heirs.” In Pearce v. Pearce, 104 Tex. 73 , 134 S. W. 210 , the language used by Judge *1045 Ramsey was, “the estate became absolute upon the birth pf a child”; but in that case the child survived her mother, to which the court evidently had reference, instead of simply to the birth of a child. In Chase v. Gregg, 88 Tex. 552 , 32 S. W. 520 , the devise was to the wife of the testator (his second wife), with remainder to his son by a former marriage in ease she should die “without leaving a child or children born to her.” No child was born to her.
We adhere to our ruling that the word “residue,” used in the third clause of the will, taken in connection with the second clause, empowered appellee to sell the property and make good title thereto. Appellant says that in so holding she reaps a barren victory, inasmuch as appellee will doubtless ■sell the property, and thereby deprive her of any benefit therein. We are not responsible for this consequence, if such it be, nor do we think that we would be justified in supposing that the appellee will sell the property bequeathed to her, except upon what she may deem good reason for so doing and not merely to defeat the purpose expressed by her mother in her will.
[10] We think we were technically in error in describing the estate, which the will vests in the appellee, as a life estate. In Chase v. Gregg, supra, Mr. Justice Brown, speaking for the court, said:
“Under the will of Darius Gregg, Mrs. Gregg took an estate in fee, determinable upon the condition expressed.”
We think this is a proper description of the estate vested in appellee by the will. Lord Coke says:
“Of fee simple, it is commonly holden that there be three kinds, viz.: Pee simple absolute, fee simple conditional, and fee simple qualified ■or base.”
And Chancellor Kent says:
“Though the object on which it rests for perpetuity may be transitory or perishable, yet such ■estates are deemed fees, because, it is said, they have a possibility of enduring forever. It is the uncertainty of the event and the possibility that the fee may last forever that renders the estate .a fee and not merely a freehold.” Pipe Line Co. v. Ry. Co. 62 N. J. Law, 254, 41 Atl. 759 , 42 L. R. A. 572.
A very learned discussion with reference to the construction of wills will be found in the .late case of Middleton v. Dudding (Mo. Sup.) 183 S. W. 443 -458.
In our original opinion herein we said:
“This decision is based upon the fact, as rshown by the statement of facts, that appellee has no children, and it is not contemplated that .she will ever have.”
The statement of facts shows that appellee is married and has no children, and there was no intimation in the briefs of either party that the possibility of issue was not extinct. However, the statement of facts -does not show that she will never have children, and therefore this finding of fact is withdrawn.
Por the reasons stated, the motions for rehearing upon the part of both appellant and appellee are overruled.
Motion overruled.