45 W. Va. 168 | W. Va. | 1898
On the 18th day of May, 1884, Charles S. Green conveyed, by deed of that date, to T. G. Vandike, upon consideration of the use and trust therein created, and the further consideration of one dollar, with general warranty, a certain tract of three acres of land, more or less, lying and being in the new addition to the town of Bath, in Morgan County, with proper description, “in trust, however, and upon this confidence, that the party of the second part hereby agrees and covenants that he will take, hold, and stand seised of the above-described real estate to and for the only, sole, and separate use, behoof, and benefit of Mary E. Green, wife of the said Charles S. Green, so that the said Charles S. Green will not sell, mortgage, charge, or incumber the same by way of anticipation or otherwise; that the said Mary E. Green shall receive the rents and profits arising from the said property, or such other person or persons as the said Mary E. Green shall by her order in writing direct and appoint to receive the. same, during the joint lives of the said Charles S. Green and Mary E. Green, his wife; and upon the decease of the said Chas. S. Green, in case his wife should survive him, then the said Mary E. Green, his wife, shall immediately take and hold the property hereinbefore described, to her and the heirs of herself forever; and upon this further trust and confidence, that the said Mary E. Green may devise and dispose of the above-described property by her last will and testament, or by a paper in the nature of a will, as if she were a feme sole, and that she may otherwise dispose of the same by the consent of her trustee, and joining with him and her said husband in the conveyance
Mary E. Green died October 3, 1889, intestate, leaving surviving her Nannie L. Green and John V. Green, her children, — the latter an infant, — without having in any way disposed of said property. At the June rules, 1897, the Bank of Berkeley Springs filed its bill in chancery in the clerk’s office of the circuit court of Morgan County, suing for itself and such other lien creditors of Charles S. Green as should come in, take part in and share the costs of the suit, alleging that upon the death of Mary E. Green the said real estate, by operation of a resulting trust, became the property of said Charles S. Green, and subject to the liens set out in the bill; that the rents and profits of the land would not satisfy the liens in five years; and praying for an account to ascertain the liens and their priorities, and for sale of the property to pay the same, and for general relief. Defendant Nannie L. Green demurred to the bill, in which plaintiff joined, and the demurrer was argued and submitted, when the court, on the 1st day of September, 1897, decreed as follows: “And the court, having maturely considered all the matters of law arising on such demurrer, is of opinion that on a proper construction of the deed dated May 19, 1884, made by Chas. S. Green to T. G. Vandike, trustee, for the use and benefit of M. E. Green, an office copy of which is filed, as Exhibit No. 2, with the plaintiffs’ bill, the said M. E. Green took an equitable estate in fee simple in the property thereby conveyed, which the plaintiffs are seeking by their bill to subject as the property of C. S. Green, and that on the death of said M. E. Green a life estate only, as tenant by the courtesy, vested in the said C. S. Green, her husband, and that the fee vested in the children of M. E. Green, ás her heirs at law; and the court being of the opinion, further, that on the death of C. S. Green all interest on his part in the real estate involved in this suit ceased and determined, the court, upon consideration thereof, and for these and other reasons appearing on the face of the plaintiff’s bill, doth adjudge, order, and decree that the demurrer to the said bill be, and the same is hereby, sustained. And, the plaintiff not asking leave to amend its bill, it is
Section 8, chapter 71, Code, provides: “Where any real estate is conveyed, devised, or granted to any person without any words of limitation, such devise, conveyance, or grant shall be construed to pass the fee simple or the whole estate or interest which the testator or grantor had power to dispose of in such real estate, unless a contrarjr intention shall appear by the will, conveyance, or grant.” In the light of this statute we must view the deed in controversy, and to which only can we look, together with the situation of the parties, and the motives inducing'the con
Appellant cites in its petition, as well as in its brief, the case of Humphrey v. Foster, 13 Grat., 653, as applicable to this case. In that case Judge Allen, in delivering the opinion of the court, said: “In the present case we perceive by the habendum that an estate for life was expressly limited; and as the object, under the statute, is to ascertain what estate was to be granted by the deed, if a less estate than a fee is limited by express words in any part of the deed it must control and qualify the general words used in the premises.” Here the estate for life was expressly limited in language that could not be misunderstood. Point 1 of the syllabus in that case reads: “A deed conveys land to the grantee forever, to hold for life. As the premises would onljr convey a fee by virtue of the statute, and by the statute the whole deed is to be looked to to ascertain what estate is intended to be passed, the habendum in this deed is not void, but only a life estate passed by the deed.” In the case at bar there is no clear-cut expression of limitation of estate, as in that case, nor such words nor expression as can reasonably be construed into such limi-. tation. We are told by appellant that “it is manifest that the construction of the statute in both the Humphrey Case and the one now under consideration is precisely the same.” In the sense that “the intention collected from the deed, will, or grant, governs and determines the question,” this is true; but in the one case we have the intention expressed in unequivocal language, susceptible of but one construction, while in the other a most ingenious and erudite argument is required and made on behalf of appellant to wrench from the provisions of the deed the semblance of an intention on the part of the grantor to limit the estate conveyed. It seems to be a well-settled rule, in case of doubt or ambiguity in a deed, that the same shall be construed most strongly against the grantor. In Car
Appellant insists that by reason of the law as laid down in point 1 of the syllabus in the case of Radford v. Carwile, 13 W. Va., 572, the clause in the deed, “that the said Mary E. Green shall receive the rents and profits arising from the said property, or such other person or persons as the said Mary E. Green shall by her order in writing direct and appoint to receive the same, during the joint lives of the said Charles S. Green and Mary E. Green, his wife, and upon the decease of the said Charles S. Green, in case his wife should survive him, then the said Mary E. Green, his wife, shall immediately take and hold the property hereinbefore described, to her and the heirs of herself forever,” could have no other meaning or intention “than to be a limitation or restriction upon her power of alienation, since, if there was no such purpose, but the intention was to give her an equitable fee simple, such a title necessarily, and as a legal consequence, carried with it and secured to Mary E. Green the right to the use and enjoyment of the rents and profits during coverture, and it was utterly needless and meaningless to provide specifically for the enjoyment of them by her during the joint lives of herself arid husband.” It is true that Mary E. Green might have enjoyed the rents and profits under the conveyance without the special provision therein referred to, but it must be remembered that, theretofore, to secure to a married woman in a conveyance the rights of a feme sole required great care; and the ordinary attorney, in preparing such a paper, felt much as he would walking on thin ice, and his main object was to get into the instrument sufficient provisions to accomplish his purpose in carrying out the intention of the grantor in making the conveyance. This provision was evidently intended to secure to Mrs. Green the coutrol and enjoyment of the rents and profits during the life of the grantor, which perhaps was unnec
In Walke v. Moore, 30 S. E. 374, Syl., point 1, the supreme court of appeals of Virginia held that “a deed conveying land in trust for the sole benefit of the grantor’s wife and her children, with power to the trustee, upon request of the wife, in writing, to sell the same, and reserving to the wife the right to dispose of the property by will, conveys to her an equitable estate in fee. to the exclusion of the children.” The trust created in that case was as follows: “To hold all of the said property, real and personal, * * * for the sole and exclusive benefit of Virginia Baughan [the wife of the grantor] and her children, with power to the said Alvis [trustee], at any time when he shall be so requested by the said Virginia in writing, deeming it for the benefit of the said Virginia and her children, to sell all or any part of the above-conveyed property, real or personal, on such terms as he may deem judicious, and reinvest the proceeds of sale in any other property selected by her, or deemed more profitable to her and her children by him, the said .VIvis; reserving to the said Virginia Baughan the right to dispose of all of the said property, both real and personal, by instrument of writing in the nature of a last will and testament.” See, also, Nixon v. Rose, 12 Grat., 425; May v. Jones, 20 Grat., 692. In Shermer v. Shermer's Ex'rs, 1 Wash., (Va.) 266, John Shermer by will devised to his wife the use and profits of his whole estate, both real and personal, during her natural life, and after that was ended, then the whole of
Affirmed,