3 Tenn. App. 439 | Tenn. Ct. App. | 1926
`"This conveyance is made to the said Helen C. Graves for the sole use and benefit of herself and her heirs at her death and not to be subject in any way to the debts of her husband. The right to control the same during my natural life is hereby retained."
The remainder of the deed is as follows:
"To have and to hold the aforesaid land with all and singular the rights, profits, emoluments, hereditaments and appurtenances of, in and to the same belonging, or in any way appertaining, to the only proper use, benefit and behoof of her, the said Helen C. Graves, her heirs and assigns forever. And the said Catherine Stump for herself, her heirs, executors, and administrators doth covenant, agree to and with the said Helen C. Graves, her heirs and assigns that the above recited land and bargained premises she will warrant and forever defent against the rights, title, interest of claim of all and every person or persons whomsoever."
It is insisted that the aforesaid clause written after the description of the land is repugnant to the printed portions of the deed and therefore must control. It is the general rule that if there is a conflict in a deed between what is written and what is printed the written part prevails. Devlin on Deeds, sec. 837; 8 R.C.L., 1043; 13 C.J., 536. It is insisted that the clause in question cannot be ignored; that the grantor was voluntarily giving the property to a *441 niece whom she had reared, who had recently married and had young children; that this clause is not an idle combination of words but is an expressed declaration of an intent to create an estate for life in the grantee, to her separate use, with remainder at her death to her children. In answer thereto, the appellees insist that even if this clause purported to create a life estate, the limitation over was by way of entail so that under section 3673, Shannon's Annotiated Code, the estate was converted into a fee simple in the first taker. We are unable to sustain this interpretation of this provision in the deed because, the language does not purport to limit any remainder to bodily heirs as in an estate tail. The use of such terms as "bodily heirs," or "heirs of the body," or their equivalent, would be necessary to create an estate tail. Such language imports perpetual succession with a limitation over to the grantor upon failure of issue of the particular heirs to whom the estate is granted and upon failure of such issue the estate would determine. We must upon other grounds determine whether or not the clause in question operated to cut down and limit the estate granted in the conveying clause.
We are of the opinion that there is no real repugnancy between this clause and the other parts of the deed. It may be conceded that this clause is not drafted with legal accuracy; but it seems to us to be simply the language of a layman seeking to observe the rule at common law, before the enactment of Chapter 33 of the Acts of 1851-52, Shannon's Annotated Code, sec. 2672 (but lately enacted when the deed was written), that a conveyance of land without words of inheritance vested only a life estate; that to create an absolute estate in fee simple it was indispensable that the land be conveyed to the grantee and his heirs. Hunter v. Brown, 5 Humph., 47; Cromwell v. Winchester, 2 Head, 389; Kirk v. Fergerson, 6 Cold., 482; Beecher v. Hicks, 7 Lea, 210; Teague v. Sowder,
In Evans v. Wells, 7 Humph., 568, and Clopton v. Clopton, 2 Heisk., 233, relied on by appellants, the language of the conveyances under construction imported an intention to vest only life estates in the first takers — so that these cases are not apposite to the case before us.
For these reasons we find no repugnancy between the clause in question and the remaining portions of the deed. Examining all parts of the deed together we find that the intention of the grantor was to vest in Helen C. Graves an absolute estate in fee simple in the land conveyed. This conclusion is all the more satisfactory when we consider the use of the word "assigns" in the granting clause and the habendum of the deed. Such use of the word "assigns" imports an intention to give the grantee the power to sell and dispose of the property, and therefore, creates a fee-simple estate in the grantee, especially under the aforesaid section 3672, Shannon's Code. Teague v. Sowder,
Faw, P.J., and Crownover, J., concur. *443