dissent">

Dissenting Opinion.

Smith, C. J.,

delivered a dissenting opinion.

I am unable to concur in the decision just rendered.

The word ‘ ‘ children” in this conveyance is not, and cannot be construed to be, the equivalent of the word ‘ ‘ heirs, ’ ’ and the only effect here of the words, “of her body,” is to clearly exclude adopted children from the benefit *314 of the deed, so that the quality of the estate here conveyed, is the same as it would have been had the words, “of her body,” been omitted from the deed.

At common law the word “children,” in a deed to “A. and his children,” is not a word of limitation,., but of purchase; and unless there is something in the. deed to the contrary, it conveys either a fee simple, to A and his children as co-tenants (tenants in common, under Sec. 834, Code 1942) or a life estate in A, with remainder to his children; the first, if A has children when the deed is executed, the second, if he has no children, then. The first branch of this rule was acted on by this Court in Brabham v. Day, 75 Miss. 923, 23 So. 578, and Reddoch v. Williams, 129 Miss. 706, 92 So. 831. It has had no occasion heretofore to consider the second. Both branches of this rule are well established by authorities,. 3 Rest. Property, Sec. 283, and we have no statute to the contrary. What the court has here done is to reject the , second branch of this rule, and substitute another for ■ it, on the theory that “the relation of life tenant and remainderman is not favored under our land title and economic system.” I do not know what this means nor on what authority it is based, certainly on nothing in our State or Federal Constitutions and laws. That relation was recognized and protected by the common law of England when it was taken over by us and has been by this Court and its two predecessors since our judicial system was organized under our Constitution of 1817. Moreover it is recognized and permitted by our statutes among which are those now appearing in Miss. Code of 1942 as Sections 657, 835, 836, 838, 839, and 905, under which a landowner has the absolute right to convey or' devise his land to one for life, with remainder to another.

Most, if not all, of the apparent conflicts in the decisions dealing with conveyances of this character, are caused by some courts finding’, or, as here, thinking they have found, something1 in the conveyances before them requiring a contrary decision.

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