Smith v. Clinkscales , 102 S.C. 227 ( 1915 )

August 12, 1915. The opinion of the Court was delivered by Omitting the description of the land, and the reservation to the grantor, the deed to be construed reads as follows:

"Know all men by these presents that I, Albert J. Clinkscales, of the county of Abbeville, of the State aforesaid, for and in consideration of the natural love and affection I have and bear for my two sons, James F. Clinkscales and John T. Clinkscales, of the said State and county, have granted, bargained, sold and released unto the ____ James F. Clinkscales and John T. Clinkscales, all that plantation or tract of land in said State and county of Abbeville, containing twenty-four hundred and twenty-six acres, more or less,in the following way and manner, and with the limitationsand reservations below expressed, namely, the western half or moiety of the said tract of land to James F. Clinkscales, and the eastern moiety or half to John T. Clinkscales, between whose parts or moities a division line will be run hereafter through the said land by the said Albert J. Clinkscales, dividing the said tract, and when so divided, the said moieties and part will be held in severalty by the said James F. Clinkscales and John T. Clinkscales, respectively, withthis limitation, if either the said James F. Clinkscales orJohn T. Clinkscales should die leaving no issue living at thetime of his death, the brothers and sisters of the said JamesF. Clinkscales and John T. Clinkscales, who may die withoutissue aforesaid, shall take, have and hold such lands, to them the said brothers and sisters, their heirs and assigns astenants in common in fee simple, the said Albert J. Clinkscales reserving, etc. (here follows the reservation to himself). Together with all and singular the rights, members, hereditaments and appurtenances to the premises belonging or in anywise incident or appertaining. To have and to hold all and singular, the said premises and the moieties when division is made as aforesaid to the said James F. Clinkscalesand John T. Clinkscales, respectively, and their heirsand assigns, respectively, subject to the limitation over totheir brothers and sisters as aforesaid, and reservation of interest and use to Albert J. Clinkscales as aforesaid. And I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend all and singular, the said premises to the said James F. Clinkscales and John T. Clinkscales, granted and released to them as aforesaid andto theirs heirs and assigns against me, the said Albert J. Clinkscales, my heirs and assigns, and against every person whomsoever lawfully claiming or to claim the same or any part thereof."

At the date of this deed (1876), the grantor had four children — the two sons named therein, and two daughters, Ellen and Elizabeth, both of whom predeceased him, intestate, each leaving one child as her only heir at law. Ellen left the plaintiff, Mrs. Smith, and Elizabeth, the defendant, Mrs. Thomson. One of the sons, John, died, in 1912, without issue, leaving a will wherein he devised his moiety of the land to his brother James. The grantor died, in 1895, and the plaintiff and defendants, James and Mrs. Thomson, are his only heirs at law. James is the only surviving child of the grantor.

The Circuit Court held that, under the deed, John took a fee simple absolute in his moiety, and, therefore, his devise to James was good; and, further, that, even if the limitation over, on the death of John without issue, should be held to be good, the same result would follow, because the gift over was to a class, and James was the only member of the class in existence at the time the gift took effect.

The purpose of all rules of construction is to ascertain the intention. When this is done, effect must be given to it, if it can be done without violating any settled rule of law. In ascertaining the intention, "it is necessary that the whole instrument should be considered, and effect must, if practicable, be given to every clause and word in it." Shaw v. Robinson, 42 S.C. 342, 20 S.E. 161. Another rule applied in the construction of deeds is, that of two irreconcilably repugnant clauses, the first shall prevail. But this is a rule of last resort to be applied only, "when all reasonable modes of reconciling the apparent repugnancy have failed." Bowman v. Loke, 35 S.C. Eq. (14 Rich. Eq.) 271. It is subject, too, to the paramount rule that the intention, as gathered from the whole instrument, shall prevail. 1 Dev. on Deeds, sec. 213, et seq.; Carl-Lee v. Ellsberry,82 Ark. 209, 101 S.W. 407, 12 L.R.A. (N.S.) 956, and note. These principles are elementary and are recognized and applied in all our decisions.

Let us, then, examine this deed, in the light of these principles, to ascertain the intention of the grantor. In the premises, he declares that the grant is made "in the followingway and manner, and with the limitationsand reservations below expressed," then, he declares that, after division, the sons shall hold their moieties in severalty, but "with this limitation, ifeither * * * should die, leaving no issue living at thetime of his death," his brothers and sisters shall take his moiety, "to them, their heir and assigns * * * infee simple." Thus far, as no words of inheritance are used in the grant to the sons, under our decisions, they would take only a life estate. But the deed must be construed as a whole, and, if possible, effect must be given to every word and clause in it. Therefore, looking to thehabendum, we find that it is to James and John, respectively, "and their heirs and assigns, respectively," not absolutely, but "subject to the limitation over to their brothers and sisters,as aforesaid." We cannot take this habendum in part, and use it to enlarge the estate previously given, without giving full effect, if practicable, to the condition therein expressly referred to upon which alone that estate may be enlarged. Therefore, the words "heirs" there found cannot be used to enlarge John's estate, except in so far as it may be done consistently with the previous limitation over, to which its enlargement is expressly made subject, that is, it must yield to the contingency therein expressed. If we couple the word "heirs" in the habendum to the granting clause so as to give John a fee simple absolute, we completely ignore both the limitation over in the granting clause, and also the express reference to that limitation in the habendum itself wherein the use of the word "heirs" is expressly qualified. This would violate the rule that the limitation over, being in the first part of the deed, should have preference, and also the rule that effect must be given, if practicable, to every word and clause in the deed, and it would defeat the clearly expressed intention of the grantor. Note, also, that even the warranty is not to James and John and their "heirs," without qualification, but it is of the estate granted, "asaforesaid."

Giving effect to all parts of the deed, the conclusion is irresistible that the grantor did not intend that John should take a fee simple absolute. It is equally clear that he did intend that he should take the entire estate, if he left issue; but, if not, that it should go to the grantor's other children and "their heirs and assigns, as tenants in common, in feesimple." Therefore, John took a defeasible fee, which was defeated on his death without issue.

The limitation over is not void, as supposed, because it violates the rule that a fee cannot be limited after a fee in a common law conveyance. This is not a fee mounted upon a fee, but a fee to take effect in place of, or by substitution for, another which depended upon a contingency. In Bowman v. Lobe, 35 S.C. Eq. (14 Rich. Eq.) 271, similar limitations in a deed were construed. There, the grantor gave to his six sons certain lands, "during their natural life," and added, in the granting clause, "if any of my sons die withoutan issue of the body, the lands mentioned above to beequally divided among my sons above mentioned that arethen living." Then, after reserving a life estate to himself, he said: "At my death, it (meaning the land) shall be immediatelytransferred to my sons * * * as above mentioned,to their heirs and assigns." After the death of the grantor, B, one of the sons, died without issue, leaving two brothers surviving him. Held, that B's estate did not descend to his heirs; that he took a fee, defeasible on his death without issue, and, that contingency having happened, the estate went over to the surviving brothers, under the limitation in the deed. The Court said: "There was not a fee mounted upon a fee, but a fee made subject to a contingency, whereby it was defeated. * * * That such contingent or conditional limitation may be made by deed, the authorities cited in the standard works, to which reference has just been made, will show." The Court referred to 4 Kent 210, where the author says: "The rule (in Shelley's case) does not operate so as absolutely to merge the particular estate of freehold, where the limitations intervening between the preceding freehold and the subsequent limitation to the heirs, are contingent, because that would destroy such intervening limitations. The two limitations are united, and executed in the ancestor, only until such time as the intervening limitations become vested, and then they open and become separate, in order to admit such limitations as there arise."

Fearne, Remainders, says, at page 273: "However, we are to remember, that although a fee cannot, in a conveyance at common law, be mounted on a fee; yet two or more several contingent fees may be limited merely as substitutes or alternatives one for the other, and not to interfere; but so that one only take effect, and every subsequent limitation be a disposition substituted in the room of the former, if the former should fail of effect. Thus in the above cited case of Loddington v. Kime, it was held, that the first remainder was a contingent remainder in fee to the issue of A, and the remainder to B was also a contingent fee, not contrary to, or in any degree derogatory from, the effect of the former, but by way of substitution for it. And this sort of alternative limitation, was termed a contingency with a double aspect. For if A had issue male, the remainder was to vest in that issue in fee; but if A had no issue male, then it was to vest in B in fee; and these were limitations of which the one was not expectant upon, and to take effect after, the other, but were contemporary; to commence from the same period, not indeed together, but the one to take effect in lieu of the other, if that failed." These authorities are directly in point and show that the limitation over in this deed does not violate the rule, for it was not to take effect after the limitation to John and his heirs, but in lieu of it, if it failed.

The limitation over being good, who shall take under it? That question is answered by the Court in McMeekin v.Brummet, 11 S.C. Eq. (2 Hill's Ch.) 638. There, the gift was by deed to the use of C.P. and if she died without issue, then, "to the sons of S.B. and D.B. and their heirs forever." C.P. died without issue. At date of the deed, S.B. and D. B. (the donors) had each one son living, and afterwards S.B. had other sons who died, and the son of D. B. died before C.P., at whose death the only living son of either of the donors was the son of S.B. who was living at the time of the gift. Held, that the limitation over was good; that it was to the sons of S.B. and D.B. living at the time of the gift, as if it had been to them by name, and the representative of the deceased son of D.B. was entitled to one-half the property, but the representatives of the deceased sons of S.B. who were born after the gift were excluded. It was argued there, as here, that the gift being to a class, none could take, except those who answered the description at the time the gift over took effect, and, therefore, as the son of S.B. was the only son of either of the donors in existence at the death of C.P. he alone could take under the limitation. But the Court said: "A deed or gift inter vivos, speaks at the time of its execution, and the grantee or beneficiary under it, must be such as answers the description atthat time. I do not mean to say, that a contingent future interest may not be given by deed, to a person not in existence,but that intention must be plainly expressed in theinstrument; and if there be a person to answer the descriptionat the time, it will never be applied to another comingafterwards into existence who may come within the termsof the description." (Italics added.) Again, after considering the difference between wills and deeds, the Court said: "In a conveyance, the words are taken to apply only to those living at the time of execution; and the Court will not extend it to others, unless it is absolutely impracticable togive it any other construction. An exception is made to the general rule in the case of a will; there is no such exception in the case of a deed." (Italics added.)

Answering the question whether, the interest being contingent, the representative of the deceased son of D.B. could take, it was held that he could, notwithstanding the remainder was contingent. The Court said: There is no doubt that such a remainder is transmissible, when the existence of the remainderman himself at the time of the event does not constitute the contingency; and, further, supposing the entire estate to be given to C.P., subject only to be divested in the event of her dying without issue, "the rule is * * * that a possibility coupled with an interest is assignable, descendible, or devisable." To the same effect is Pritchett v. Cannon, 31 S.C. Eq. (10 Rich. Eq.) 394, and numerous other cases in our reports.

We must conclude, therefore, that when the grantor limited the estate over, on the death of John without issue, to his "brothers and sisters, their heirs and assigns," his intention was to provide for his children then in existence and their heirs. The fact that the plural word "brothers" is used, when there was only one brother, does not warrant the inference that he intended to include after-born children. In the limitation over, he was speaking of his children collectively, and the use of the plural is not unnatural. The intention to provide for after-born children cannot, in a deed, under the rule stated in McMeekin v. Brummet, be predicted upon so slight a circumstance. If such intention had existed, surely it would not have been left to such a doubtful inference, when it could have been so easily expressed. In Holeman v. Fort, 21 S.C. Eq. (3 Strob. Eq.) 66, the deed of gift was to the "joint heirs" of the daughter and son-in-law of donor. They had two children living at date of the deed. Others were born afterwards. It was held that those living at the date of the deed took and the after-born were excluded.

In Kitchens v. Craig, 17 S.C.L. (1 Bail.) 119, there was a deed of gift to the "heirs" of Frances Kitchens, who was then alive, and had three children. Others were born afterwards. It was held that those in existence at date of the deed took to the exclusion of the after-born. As we have seen, the same rule was applied in McMeekin v. Brummet. Here, there are no after-born; but the use of the plural word "brothers" is laid hold of to raise by implication an intention to provide for the after-born, not to let them into the distribution, but solely for the purpose of making the existence of the remaindermen constitute the contingency upon which they are to take, and thereby destroy the transmissibility of the interests vested in them under the deed, and so defeat the clear intention of the grantor.

Having concluded that there was no intention to include the after-born, it is unnecessary to inquire what would have been the result, had they been included. It is not conceded, however, that it would have destroyed the transmissibility of their interests. For, in the case supposed, in the absence of words importing survivorship, could it be said that the existence of the remaindermen at the time of the event constituted the contingency upon which they were to take?

The foregoing construction of the deed and its limitations harmonizes and gives effect to all parts of it, and gives effect to the intention of the grantor, without violating any rule of law, and it is not at variance with any of the decisions of this Court which are relied upon to sustain the Circuit decree, as examination of the cases will show.

Adams v. Chaplin, 10 S.C. Eq. (1 Hill Ch.) 265, is not in point, for that was the construction of a will in which the limitation over was held to be void, because it was too remote, being after an indefinite failure of issue. Moore v.Sanders, 15 S.C. 440, was also a devise of a fee simple absolute — "to dispose of as he may think fit," but if he should die without leaving a will, over. The limitation over was held to depend upon a condition subsequent which was void, because repugnant to the estate devised. It was like the devise in McAlister v. Tate, 45 S.C.L. (11 Rich. L.) 509, which was "in fee simple for life." Edwards v. Edwards, 21 S.C. Eq. (2 Strob. Eq.) 101, was a deed to W. and T.,their heirs and assigns forever, under and subject to this proviso, that if the said W. or T. should die without lawful issue of their bodies, over. The proviso was clearly and irreconcilably repugnant to the absolute estate first granted, and, therefore, void. Besides, the limitation over was after an indefinite failure of issue, and void for remoteness.Allen v. Folger, 40 S.C.L. (6 Rich. L. 54), was a deed to A. "and the heirs of her body, and in case of her death before she has an heir," over. The limitation over was void as an attempt to limit a fee upon a fee conditional. Ex parte Yown, 17 S.C. was a deed to S., her heirs and assigns (for and during her natural life, should she die without issue).Habendum unto "S., her heirs and assigns, for and during her natural life, as aforesaid. Should she die without bodily issue the said tract of land to revert to the children of D. But should she have a child or children, then the said land to rest (vest?) in them absolutely forever." Held, that the estate first conveyed was a fee simple absolute, and that thesubsequent words were repugnant to that estate, and that the limitation over was an attempt to create an executory devise which could not be done by deed. Glenn v. Jamison, 48 S.C. 316,26 S.E. 677, was a deed to H., "her heirs and assignsforever * * * provided, nevertheless, these presents are upon the condition that should H. die leaving no lawful issue of her body, over. Habendum to H., her heirs andassigns forever, subject to the conditions and limitations hereinbefore expressed," followed by a general warranty to H., her heirs and assigns. Held, that H. took a fee simple absolute. The proviso was clearly and irreconcilably repugnant to the absolute estate first granted, and, therefore, void.Clinkscales v. Clinkscales, 91 S.C. 59, 74 S.E. 121, andEgan v. Touchberry, 93 S.C. 569, 77 S.E. 706, are both cases in which the grant of a fee simple absolute is followed by words imposing conditions and limitations clearly and irreconcilably repugnant to the grant. Chavis v. Chavis,57 S.C. 173, 35 S.E. 507, was a deed to S. upon condition that she hold and enjoy it for life, and "after her death, to go to all her children." Other conditions not pertinent to the construction followed. Habendum, unto S., "her heirsand assigns forever." Held, that by the granting clause, S. took a life estate, and her children took a life estate after her; that the habendum enlarged her life estate into a fee simple, the main intention as gathered from the whole deed, being to vest a fee simple in her; that the life estate to the children was a secondary intention and was repugnant to the main intention and to the fee thereby created. It will be seen at once that this deed is more nearly like the deed in this case than any of the others, — especially in that resort was had to the habendum to enlarge the estate previously given, and thereby destroy an estate intermediately given. But it is materially different in that there is no qualification of the use of the words "heirs and assigns" in the habendum, which are to "S., her heirs and assigns forever," while here those words are expressly made "subject to the limitationover as aforesaid." Another radical difference is that upon consideration of the whole deed in that case, the intention appeared to give S. a fee simple absolute, while a like consideration of the deed in this case shows no such intention, but, as has been shown, the intention that John's estate should determine on his death without issue.

Judgment reversed.

MESSRS. JUSTICES WATTS and GAGE concur in the opinion of the Court.