Benning v. Benning's Ex'or , 53 Ky. 585 ( 1854 )

Judge Simpson

delivered the opinion of the court.

•' The questions involved in this controversy depend upon the construction and legal effect of the writings which were executed when the suit for alimony was compromised. On the part of the plaintiffs it is contended, that although the deed of trust vested in the trustee all the title of the grantor in the property cont veyed, he held it merely for the purposes mentioned in the deed, and as the only trust declared therein, was for the use and benefit of his wife during her life, it follows as a legal consequence, that when that trust was accomplished, and the life estate terminated, the use resulted to the grantor or his heirs.'

The statement contained in the deed, that the grantor “gives up all his right, title, and interest in the slaves forever, and binds himself,' his heirs, &c., never to claim them, or any of them, or their profits, at any time whatever,” is, according to the argument for the plaintiff, accounted for by the fact that the parties entertained the belief, at the time the deed was executed, that the only title the grantor had in them was an estate during the life of his wife. Having conveyed that eslate for the use of his wife, and not supposing that he had any other interest in the slaves, he gave up all his right to them forever, that is, he gave up forever the life estate which he held in them, and bound himself and his heirs never to claim them, at any time whatever, during the continuance of that estate. The same argument assumes that it must have been the intention of the parties to convey only an estate for the life of the wife, inasmuch as they believed that to be the full extent of the husband’s title to the slaves, and that consequently the deed should receive such a construction as would be consistent with this intention of the parties.

On the other side it is argued, the intention of the parties was, that all the title which the grantor had in the property should be conveyed in trust for the benefit of his wife. This intention is supposed to be manifested by the language used in the deed, and to be deducible from the fact that the grantor’s title to the slaves was acquired through his wife, and therefore, whatever right to them she had at the time of the marriage, he was willing and intended to restore to her.

It is also argued, upon the same side, that the deed of trust vested an absolute title to the slaves in the wife. That by the premises the grantor conveyed all his right, title, interest, and estate in them, and that, so far as the interest thus conveyed is attempted to be diminished by the habendum, the latter is repugnant to the former, in which case the rule applies that “ when an habendum is contrary or repugnant to the premises, the former is void and the premises shall stand. 2 Coke's Rep., part 2nd, page 478, Baldwin's case.

The arguments on both sides are plausible, and the deed itself, even when the whole of its provisions, and the extrinsic circumstances incident to its execution, which tend to elucidate the intention of the parties, are all considered, is still somewhat difficult in its construction. Looking alone to those parts of it, which are commonly used to define the nature and extent of the estate conveyed, we find that an absolute title was vested in the trustee for the use of the wife, which use, during her life, was to be applied to a particular purpose. There is no absolute repugnance between the premises and the habendum — at least the latter is susceptible of such a construction as to avoid a repugnance between them. He first conveyed the estate to the trustee for the use of the wife in general terms, the latter merely designated the manner in which the use was to be applied during the life of the cestui que use.

But it is contended that this is substantially an or-dinary deed of trust, conveying the legal title in the whole estate to the trustee, and vesting in the wife a ase in the property during her life and no longer. Conceding, for the sake of argument, that such is the legal effect of the deed, the question would then arise what becomes of the use after the death of the cestui que use. In an ordinary case, the purposes of the trust being accomplished, and no further use declared iu the deed, it would no doubt result to the grantor. 2 Story’s Equity, section 1200; 2 Atk., 499. It is the intent that generally regulates and governs the use, and the grantor having expressly limited the use to a life estate, the presumption would be that if he had intended to part with the residue of the estate, he would have declared that intention- also. As however the use in such a case results to the grantor, by a mere legal implication, that he did not intend to part with the whole use, inasmuch as a particular use only had been declared by him, this implication may be repelled by other parts of the deed which manifest a different intention, and even parol evidence is admissible for this purpose. 5 Fonbl. Eq. B. 2, chapter 5, section 3.

1. B.conveyed certain slaves and other prop, erty to a trustee, absolutely declaring a particular use, and then expressly gave up all his right, title, and interest, and bound himself and his heirs never to claim the property, or any of it, or the profits, at any time whatever: Held, that no implication can arise of any intention on the part of the grantor, that any use should result to himself after the particular use had been accomplished, and none did result.

In this case, construing the deed in the manner contended for, the grantor conveyed an absolute estate in the slaves to the trustee; he declared a particular use, and then expressly gave up all his right, title, and interest in the slaves forever, and bound himself and his heirs never to claim them, or any of them, or their profits, at any time whatever. Does not this language repel all implication of any intention on the part of the grantor that the use should result to himself after the death of his wife? Is it not inconsistent with the idea that the use was to be limited to a life esiate? The covenant that he would never claim them at any time whatever, is wholly incompatible with the existence of an intention on his part that the use should result to himself. So far then as this resulting use is a creature of intention, growing out of a legal presumption, it follows as an inevitable consequence, that •where no such presumption can arise no such use can result. It is no answer to this argument to say that these expressions refer merely to the estáte conveyed, and mean only that the grantor will not claim in opposition to that estate. It is evident they refer, not to the estate conveyed, but to the slaves themselves. The covenant is not that the grantor and his heirs shall never claim the estate or interest vested by the deed in the wife, but that he and his heirs shall never claim the slaves at any time whatever.

2. The fact of°property trust for the use lifebelieved that he I'ad^ therein for the property6 •when he had an did'mitcomiuee to show that he inteudud that a trust should re-W»4 beirs"after the death of the

Extrinsic circumstances are however relied upon, not only as explanatory of the language of the deed, but as having an important bearing on the question of intention. One of these circumstances is the belief of the parties that the grantor himself had only a life estate in the slaves, which terminated upon the death of his wife.

The husband, when he executed the deed, may have believed that the use for the life of the wife was coextensive with his whole interest in the property, and therefore did not intend, when he gave up all his right an£^ thde to the slaves forever, and bound himself never claim them, to give up or transfer any right or title of which he was ignorant. But if he acted under the that he had only a life estate to convey, the failure to declare a use beyond that interest could not create a presumption that he intended to reserve to himself the residue of the use; for if he believed the use he had declared divested him oí all his interest in ^ ProPerty> he would not have intended that any part of the use should result to himself. >So far then, as this circumstance has any bearing upon the question of intention, it cannot operate in favor of the grantor or his heirs. If he did not intend to part with anything but a life estate, in the use, because he believed that to be the only interest he had in the slaves, neither could he have intended to reserve any part of that estate to himself, because he had declared a use, which required the whole of the estate for its accomplishment. A resulting use can seldom arise otherwise than by a presumption of intention, and as there can be no such presumption where a grantor does not know that any part of the use remains undisposed of, but supposes that he has parted with it, the necessary consequence is, that no intention could have existed that a use should result in his favor in this case, if the grantor believed when he executed the deed that he had only a life estate in the slaves, and if the use could result to him under such circumstances, it would be by the mere operation of law, and not by the intention of the parties.

As it is evident, however, from the nature of the transaction, that Arnold, the trustee, was not to have a beneficial interest in the property, but was to hold it merely as trustee, it may be said that although the grantor conveyed the whole of the estate, yet as it was on a particular trust, and that trust has been accomplished, and still the whole estate has not been exhausted, that therfe arises from necessity, a resulting trust for the benefit ofthe grantor and his heirs, whether he intended’it or not. This however is an abandonment of the question of intention, and makes the rights of the parties depend upon the legal effect of the deed. Could however such an interest be claimed successfully, even against the trustee, in direct opposition to the covenant in the deed? The whole estate passed out of the grantor by the deed; the legal title to it vested in the trustee; the grantor gave up ail interest in the slaves for eve?-, and bound himself and his heirs never to claim them at any time whatever. This was a valid covenant, entered into with the trustee; it is violated by the claim now asserted, and unless it is to be disregarded presents an insuperable bar to a recovery by the plaintiffs. The only argument that can be urged why it should not be permitted to have its full effect must be, that it was not made for the benefit of the trustee, but for the benefit of the cestui que use, and as it can no longer operate in favor of the trust declared in the deed, its operatien must cease and determine altogether. Let us therefore consider this argument, and ascertain what deductions are necessarily drawn, from it.

3. A deed of trust by. tlie granting clause conveyed all the right, title, nml interest of the grantor in Certain slaves, to a trustee for the use and benefit of the cestui que use; by the habendum it is said to be held in trust for the use and benefit of tlie cestui que use, so long as she lives, and to appropriate the proceeds to her support during tiiat period. Held, that the terms of the habendum did not have the effect to limit the use to the life of the cestui que use, which, by the granting clause, was unlimited,but. was only a distinct appropriation of the peoo,eeds during the life of cestui que use to a particular purpose, and fora particular period'. % Black. 298.

We have thus far construed the deed and considered its legal effect, upon the assumption that it limited the use which it declared, to a life estate only; but the argument just adverted to, that the covenant it contains on the part of the grantor never to claim the slaves, was made for the benefit of the wife, creates a presumption that the use declared in her favor must have been of the whole estate, otherwise this covenant was not only inapplicable but nugatory, and makes it necessary that we should consider this question, an<j ascertain and determine the extent of the interest in the property, which actually vested in the wife under the deed.

By the premises, in which the granting clause in this deed is contained, the grantor*sold and delivered to the trustee, for the use and benefit of the cestui que use, all his right, title, interest, and estate in the property conveyed. If this had been the only declaration of the use set forth in the deed, it is evident that the use would have been equal, in point of duration, to the estate vested in the trustee, and that the wife would have had an estate in fee in it. But by the habendum it was declared, that the trustee vyas to hold the property in trust, for the use and benefit of the wdfe so long as she lived, and to appropriate the proceeds to her support during that period. Did this limit the trust to a life estate, and thereby diminish the duration of the use previously granted? It is obvious that it did not necessarily have this effect. The declaration contained in the habendum, is not that the use shall continue only during the life of the wife, and then cease and determine altogether, but that it shall be appropriated during that time for the accomplishment of a certain specified purpose. This appropriation of the use, until the expiration of a fixed period, is not at all inconsistent with its subsequent existence in the form in which it was at first created, by the granting clause in the deed. It does not import a limitation of the use previously declared, and as it evidently contemplated an entirely different object, it should be so construed as to make it consistent with the previous part of the deed. The grantor desired to secure himself from all liability for the support of his wife, and to effect that object he made it the duty of the trustee to apply the proceeds of the trust property to that purpose during her life, but made no disposition of the residue of the use, which had been previously granted.

4. The term heiis which at common law was necessary to pass an estate in fee in lands, has nevir been held necessary in a deed to pass the absolute title to slaves or any personal estate, nor is the term necessary in a conveyance of slaves in trust, to pass the entire right of the grantor to tho cestui que use.

The word “heirs,” which, at common law, was necessary in a conveyance of real estate to pass an estate in fee, never wus necessary to transfer the absolute right to slaves or any personal chattel. The whole estate in such property passes without the use of any words of inheritance, and by the granting clause in this deed, the legal title to the property in fee, passed to the trustee as fully and absolutely as if the conveyance bad been to him and his heirs forever; and by the same clause the use in the whole estate vested in the wife, without any restriction or limitation. The whole estate in the slaves having thus vested under the granting clause in the deed, in both the trustee and cestui que use, and it appearing by other clauses in the same instrument, that the whole estate thus granted was to continue jforater, and the property conveyed was never to be claimed by the grantor or his heirs, if the habendum were to receive the construction contended for on the part of the plaintiffs, it would be repugnant to this plain intent, and be therefore void, in analogy to the ancient rule of interpretation with respect to repugnant clauses in conveyances of real estate. “If a grant be in the premises to “him and his heirs, habendum to him for life,” the habendum would be utterly void, for an estate of inheritance is invested in him before the habendum comes, and shall not be divested by it. (2 Black. Com., 298.)

But according to our construction of the habendum, there is no inconsistency between it and the premises • — they can both stand together, and all the parts of the deed are made to harmonize. If by the premise» the estate had passed to the trustee only, without any declaration of a use, then, as the use declared in the habendum would have been the only one contained in the deed, there would have been an estate in fee vested in the trustee, and a use for life only in the cestui que use. Such, however, is not the case, but on the contrary the whole estate in the use, as well as the whole of the legal estate, is granted in the premises, and the habendum does not, nor was it intended, to reduce the use to a mere life estate. This construction is strongly fortified by the covenant, on the part of the grantor, already referred to, and by the language used in every part of the deed, evincing clearly an intention on his part to convey and surrender, ail his right and title in the property for the use and benefit of his wife.

The object of the parties in executing the deed was to consummate the compromise which had been made of the suit in chancery, in which the wife sought a divorce, and asserted a claim for alimony. The slaves were given up as alimony, and in satisfaction of ail claim which the wife had on the husband for a separate maintenance. This circumstance is relied upon as indicating conclusively that the intention of the parties was to give to the wife a life estate only in the slaves, and it is contended that such an intention is manifestly evident, from the whole scope and design of the transaction.

In support of this argument, great stress is laid, upon the word alimony, which is used several times in the deed. It is said that the use of this word denotes the intention of the parties to have been; to provide a support for the wife during her life, and nothing more. But the word alimony signifies, not a support for the wife during her life, but during the life of the husband only. At his death her right to alimony ceases, and she becomes entitled to a portion of his.estate, as one of his distributees, part of which belongs to her absolutely. It is obvious, therefore, that the word alimony was not used in this deed according to its correct legal signification, for the provision made for the wife was not limited to the life of the husband. Besides, the wife was never to claim any more of her husband’s estate than was given up by him in the deed. That part of his estate was received by her, not only as a support during his life, but also in full satisfaction of her right to a portion of his estate after his death; so that in reality the inference that jt was the intention of the parties that the wife should have a life estate only in the slaves, is a deduction unauthorized even by an abstract consideration of the object and design of the transaction, without any reference to the language of the deed.

While, however, we are trying to ascertain the intention of the parties, not only from the language of the deed, and the provisions it contains, but also by a reference to extrinsic circumstances, there is one fact entitled to great weight in this investigation, which has not yet been considered. These slaves came by the wife, and whatever right or title the husband had to them he acquired through her. What more natural, just, and proper then, w'here a separation had occurred, than that these slaves should be restored to the wife, and that whatever title the husband had to them, whether a life estate or an estate in fee, should re-invest in her, especially as she received them in full satisfaction of all claims against his estate, as well during his life as after his death. And if language had been sought after peculiarly expressive of such an intention, would any have been found more appropriate than that used in the deed, by which the husband “gave up all his right, title, and interest in the slaves forever, and bound himself and his heirs never to claim them, or any of them, at any time whatever.” It is perfectly evident that he intended to give up all the right which he had to them, and the apparent difficulty in reconciling the different clauses in the deed, may have been produced by the belief of the writer of it that the husband’s interest in them was only a life estate. But be this as it may, we think it is sufficiently manifest that the husband intended to convey all his right and title to thern, for the use and benefit of his wife, and that his intention was not influenced by the belief that his interest in them was only a life estate. But as he acquired them by his marriage with her, he was willing, inasmuch as a separation' had taken place, to restore them to her, and re-invest her, in the only way the law permitted it to be done, with-whatever title he had to them, whether that consisted of a ■ life estate merely, or an estate in fee. The provisions of the deed are, as we have shown, sufficient for the accomplishment of this object; and the construction we have put upon the instrument — is not only consonant with the intention of the parties, as developed by its language, and the extrinsic circumstances of the transaction, but also with the manifest and intrinsic justice of the case. Besides, it is the only construction by which full effect can be given to all the provisions 'of the instrument, and by which they can ail be made to harmonize together.

Wherefore, the judgment is affirmed.