Graves v. Wheeler, 61 So. 341

61 So. 341 | Ala. | 1913

ANDERSON, J.

The instrument executed by Graves to his wife and children is unquestionably a deed and not a testamentary document. There is no effort to postpone the operation of same until the death of the grantor, arid the interest conveyed is not posthumous.—Mays v. Burleson, infra, 61 South. 75; Elmore v. Mustin, 28 Ala. 309; Sharp v. Hall, 86 Ala. 110, 5 South. 497, 11 Am St. Rep. 28; Trawick v. Davis, 85 Ala. 342, 5 South. 83; Hall v. Burkham, 59 Ala. 349.

In the construction of a deed the object is to carry out the intention of the parties, especially that of the grantor; but the intention must, if possible, be gathered from the language used in the instrument submitted for construction, and that, when it can in this way be ascertained, arbitrary rules are not to be sought. If, on the other hand, two conflicting intentions are expressed, there is no alternative but to construe the deed by these rules, even though they may be denominated arbitrary.—Dickson v. Van Hoose, 157 Ala. 465 47, South. 718, 19 L. R. A. (N. S.) 719.

One of the rules of construction is that the granting clause in a deed prevails over introductory statements in conflict therewith, and over the habendum also, if that clause is contradictory of, or repugnant to, said granting clause.—Head v. Hunnicutt, 172 Ala. 48, 55 South. 161; Webb v. Webb, 29 Ala. 588. Therefore, when the granting clause provides for a certain or specific estate, and the character or nature of said estate is changed or lessened by some interlocutory clause, or by the habendum, there would be a conflict or repugnancy, and the granting clause should prevail.

“Where an estate in fee simple is granted to a person, by proper and sufficient words, a clause in the deed which is in restraint of alienation is void and will be rejected.”—Hill v. Gray, 160 Ala. 273, 49 South. 676.

On the other hand, when the granting clause does n'ot expressly designate the estate conveyed, and there is nothing in the other parts of the deed to indicate the estate intended to be conveyed, it would no doubt be a fee-simple estate, under the terms of section 3396 of the Code of 1907; but, if the other clauses indicated the nature and character of the estate conveyed, there would be no room for the operation of the statute.

Applying these rules to the deed in question, the granting clause does not explain or define any particular estate granted, and, if the other parts of the' instrument did not do so, the statute would pronounce it a conveyance of a fee-simple estate; but the description is succeeded by the following parenthetic clause: “(It is also expressly understood that at the death of my said wife, all of the aforementioned property shall be equally divided between my lawful children).” This was a definition of the estate intended for the wife, and was not repugnant to the granting clause, which expressed no particular estate or interest granted to her, and plainly shows that the grantor intended that she should have only a life estate, with a remainder to his lawful children, and who took as purchasers under the deed. It is also manifest that the grantor intended a vested remainder in all of his lawful children, and did not make it contingent upon the survival of their mother, and the law favors vested, rather than contingent, remainders, where such a construction can be given an instrument without doing violence to the intention of ■the grantor.

The grantor reserved unto himself the right to manage and control the property during his life, which is permissible under the law, and which did not impair the validity of the instrument, or defeat the grant to his wife and children.—13 Cyc. 670; Planters’ Bank v. Davis, 31 Ala. 626. Nor did this reservation render the deed void as to subsequent purchasers under the terms of section 4287 of the Code of 1907, as that section protects only existing or subsequent creditors, and does not include purchasers, as do some of the other sections of the Code.

The trial court erred in rendering judgment for the defendant, and in not rendering a judgment for the plaintiff for his moiety in the land, which wonld be an undivided half interest, if the sister who died in 1873, or shortly afterwards, left no issue. If she was living when the deed Avas made, and left descendants, they Avould be entitled to one-third, and the plaintiff to one-third, and the two children of the other sister to one-third. If the first sister died before the deed was made, or left no heirs other than the plaintiff and the other sister, then the plaintiff was entitled to an undivided one half, and the children of the last sister to die, to the other half.

We do not think that the plaintiff: took the entire property, because he was the only child to survive the mother, under the influence of Smaw v. Young, 109 Ala. 528, 20 South. 370, as the remainder there was to the survivor of the expiration of the previously granted estate. Here there is no such limitation.

Reversed and remanded.

All the Justices concur.