119 Ky. 39 | Ky. Ct. App. | 1904
Opinion of the court by
Affirming.
On October 11, 1901, John Hunt and' wife, S. E. Hunt, signed and acknowledged a deed to their son, F. M. Hunt, for their home place, on which they resided. The deed was duly
The proof shows that the father has another son to whom he made a similar deed for another tract of land, and that he has not disturbed that son in his tract. It also.shows that the. father has two other tracts of land and some $5,000 in money, and that at the time the deed was made he contemplated turning over the place to the son. The son cleared some of the land after the deed was made, and cultivated it with the father’s acquiescence. The father also then declared that it was the son’s land. But as a matter of fact the father remained on the place all the time, andhis1 rights must be determined from the deed, which is in these words: “This deed of conveyance made and entered into this 11th day of October, 1901, between John Hunt and R. E. Hunt, parties of the first part, and F. M. Hunt, party of the second part, witnesseth: That the said parties of .the first part for and in consideration of the sum — of love and affection, this deed is not to take effect until the death of the said John Hunt and R. E. Hunt, do hereby sell and convey to the party of the second part, his heirs and assigns, the following described property, to wit: a certain parcel or tract of land (here follows description), to have and to hold the
It is insisted for appellant that by reason of the words, “this deed is not to take effect until the death of said John ' Hunt and R. E. Hunt,” the paper, though in form a deed, is testamentary in character, and revocable by the father in his lifetime. It is insisted for the son that these words, when taken in connection with the other parts of the deed, merely retain a life estate in the father and mother; in other words, that the land is conveyed to the son, and some effect must be given to the other clauses of the deed. The question is one upon which there is an irreconcilable conflict of authority. Thus in Lauck v. Logan, 45 W. Va., 251, 31 S. E., 980, the deed contained these words: “This deed shall take and be in full force and effect immediately after the said William Logan shall depart this life, and not sooner.” It was held a good deed, reserving a life estate in the grantor. Ro in Wilson v. Carrico, 140 Ind., 533, 40 N. E., 50, 49 Am. St. Rep., 213, the words of the deed were: “To be of no effect until after the death of grantor, and then to be in full force.” The instrument was held valid as a deed. The same ruling was made in Shackelton v. Sebree, 86 Ill., 616, where the words were: “This deed not to take effect until after my decease — not to be recorded until after my decease.” Ro in Wyman v. Brown, 50, Me., 139, where the words were: “Not to take effect during my lifetime, and to take effect and he in force after my death.” So in West v. Wright, 115 Ga., 277, 41 S. E., 602, where the words were: “This deed t-o take effect at my death.” Ro
In Phillips v. Thomas Lumber Company, 94 Ky., 445, 15 R., 219, 22 S. W., 652, 42 Am. St. Rep., 367, the deed, which was made by Jesse Phillips and his wife, Yicey E. Phillips, contained this clause: “This land is deeded to
The rule is that the court will, if possible, so construe an instrument as to give it effect, and that a construction of an instrument which would deprive it of any effect will not be adopted if it can reasonably be avoided. In the case before us the paper is authenticated as a deed. It is not authenticated as a will, and • therefore can not be probated as a testamentary paper. An instrument, to be good as' a will, must take effect at the maker’s death. But this paper, if we construe it literally, does not take effect until the death of both John Hunt and his wife, S. E. Hunt. If John Hunt had died, the estate, under the literal reading" of the words, “This deed is not to take effect until the death of said John Hunt and S. E. Hunt,” would not vest in F. M. Hunt until the death of S. E. Hunt. The paper, therefore, if we enforce-these words literally, can have no force as a deed because not taking effect in the lifetime of John Hunt, and no force as a testamentary paper because; not taking effect at his death. The title to the property was in John Hunt. If John Hunt had died, under the case of Reynolds v. McFarland, above cited, S. E. Hunt would have been entitled to a life estate in ihe land. It was the home place of the old people, and as to S. E. Hunt, plainly there was no purpose to invest in her a greater estate, but only to preserve to her use her old home as long as She lived. Only the enjoyment of the place by the grantee was postponed to her death. But the language of the deed as to her and her husband is exactly the same, and no greater effect can be adjudged the same words as to him than as to her. The object of all construction is to arrive at the intention of the maker of the instrument.' In doing this, all parts of the instrument must be considered, and in - a deed, in case of doubt, it must
Judgment affirmed.