Kaleialii v. Sullivan, 242 F. 446

Kaleialii v. Sullivan

242 F. 446 | 9th Cir. | 1917

HUNT, Circuit Judge

(after stating the facts as above). [1] The controlling question m the litigation is the construction of the deed from Alexander Adams, Jr., to his daughters, Peke and Maria. The plaintiffs in error contend that the proper construction is that Adams created in each one of his daughters an estate for the life of each one of them, with a remainder over to their children, if any such children should survive the mother or mothers. Defendants in error contend that the deed gave Peke and Maria each a fee simple in half of the land, and that Peke’s interest passed to Maria, and that the fee simple in both halves passed from Maria, through Robertson and Bolte, to the defendants in error.

[2, 3] The true principle is to construe the deed according to the intention of the parties as manifested by the entire instrument, even-though it may not comport with the language of a particular part of it. The recitals in the deed under examination, and which may be useful to aid us in arriving at the intent,' are a kind of explanation by the grantor. The first purpose disclosed by them is “to provide for” the daughters, so as to prevent inconvenience to them, and also to- provide the care of their persons with necessary things, and to provide also for their maintenance. The words used in the recitals are not a necessary part of the deed, but, being in the instrument, they afford a clue to the intention of the maker. Washburn on Real Property, § 2351. The second clause of the recital explains the wish of the father that his daughters may be benefited in the way there mentioned; that is, with the proceeds arising from the lands, together with the rentals, “to their children and their assigns, as well as the payments to be made for the real estate * * * to the end of their lives and forever to their heirs, independent of all restraint and interference of *450their husbands or those they may have hereafter, providing no conveyance is made to their husbands.” These words specially pertain to two things — one, rentals to come from the lands; and another, proceeds to come from payments to be made for the lands conveyed by the deed. Rentals might accrue while the real estate was rented and unsold by the grantees, but payments for the lands conveyed could only come, should those in whom the right to convey was vested thereafter sell and convey their title and ownership. And as the present conveyance was to the daughters, Peke and Maria, they alone could convey title to create proceeds.

[4] It is argued by defendants in error that by the words “to their children and assigns” those two classes are placed on an equality, and that inasmuch as there could be no assigns, except those to whom the daughters might convey, a reasonable construction is that by “children and assigns” are meant the heirs of the body of the grantor, Adams, and the assigns of the grantees. No cases are cited, however, to justify a construction which regards children as equivalent to heirs. The rule of the common law is that in a conveyance by deed the word “children” is not the equivalent of “heirs.” Adams v. Ross, 30 N. J. Law, 505, 82 Am. Dec. 237; 4 Kent’s Comm. 6. In construing wills the rule is much more liberal. But, notwithstanding the general common-law rule relating to1 the administration of the law of real estate, it is to be said that some confusion has been created in the deed under examination by the use of the word “heirs” in the additional language included in the premises, or recitals, that the daughters are to take “to the end of their lives and forever to their heirs,” independent of all restraint of their husbands. Considering the whole clause, there is room for contention that these latter words made an estate of inheritance, and that by them technical use of the word “children” was qualified.

[5] But we may concede that the preliminary parts of the deed are not sufficiently clear to tell us that a fee simple was intended to be conveyed, and with this concession in mind let us proceed to the operative words of grant as of special importance:

“This deed showeth that * * * Alexander Adams, Jr., * *! * m consideration of the statements «■ * » and of two dollars paid, * *- * which has been received, * * * by this deed do make, sell, give, convey, release, effectuate, and forever quitclaim to the parties of the second part here-inabove mentioned all those certain pieces of land. * * * ” etc.

Here, too, there is somewhat clumsy use of words and sentences, but that makes no difference, for the words, sell, give, convey, release, effectuate, and forever quitclaim are sufficient to show the clear intent of Adams to grant his interest or estate in the lands described in the deed. We are not losing thought that the word “grant” is omitted. But as the other words so plainly manifest that Adams intended that his estate should pass by the deed the formal word grant was not necessary. Shove v. Pincke, 5 T. R. 124; Lynch v. Livingston, 8 Barb. (N. Y) 463-485; Washburn on Real Property, § 2285.

Next taking up the habendum clause, and we have these words:

“To bave together with the things thereupon * * * rights and privileges * * * either in law or equity, to receive from said lands * * * *451together with, the interest and rights appertaining to the party of the first part shall belong to IJeke and Maria and to their representatives and heirs and assigns forever,”

In this part of the deed there are no words of limitation of the estate or extent of ownership which the daughters were to have in the lands conveyed, nor any declaration to what uses the daughters shall have the property granted.

We may therefore pass on to the next part of the deed wherein the grantor declares that until the death of the daughters they shall leave the lands and rights appurtenant to whomsoever they may' devise if it “be done in truth and honesty”; but if not made “in accordance with the above such as the conveyance and acknowledgment thereof,” then and in that event the lands should “revert” to Adams and his heirs, and the benefits shall only be the daughters, if the daughters have no children, but if they have children then all the rights shall “descend to them in the manner enjoyed by their parents,” provided, if one of the daughters should die without issue living, all the “rights” theretofore mentioned in the deed should “descend” to the' survivor. Now, by separating these somewhat intricate matters, we have these qualifying clauses: (1) The daughters until death had the right to leave the lands and rights appertaining to any one they pleased to devise them to, provided they should devise honestly as by deed and acknowlment. (2) Should they not devise honestly as by deed and acknowledgment. then reversion of the premises to the father and to his heirs would follow, and the daughters would have the benefits only provided they had no children. (3) But if the daughters had children all the rights should descend to the children in the manner enjoyed by their parents. (4) Should either daughter die without issue, all the rights mentioned in the preceding parts of the deed should descend to the survivor of the daughters.

This situation is the result: Until death of the daughters they could devise honestly to whomsoever they pleased. Should there be a devise dishonestly made, the lands and appurtenances would revert to the father. The contingency upon which reversion could arise was a dishonest devise by the daughters. But no issue on that point is presented. An estate for life only would have been somewhat incompatible with the lands reverting to the grantor and his heirs. Another contingency was the daughters having no children; but, as there were children, that contingency never arose, and all the rights were to descend to the children as such rights were enjoyed by the parents of such children. If one daughter should die childless, all rights by the deed conveyed should descend to the surviving daughter. We cannot gather that, if one of the daughters should die, with issue, the land would go to her children in remainder not by descent. The granting clatxse conveyed an estate in fee, and inasmuch as the grantor in subdivision 3 of the clause just hereinbefore referred to declares that, if his daughters have children, all the rights shall descend to them in the manner as enjoyed by tlieir parents, it follows that, unless there was disposition of *452the fee by will or deed by the parents, the children took in fee simple by descent.

[6] It is not easy to reconcile that part of clause 2 above stated wherein the reversion is provided for with clause 3. However, we are not called upon to enter upon an elaborate discussion of inconsistencies between the two sentences, because the grant itself is clear, and, as section 3 harmonizes with the grant, the construction which must prevail is that which is in conformity with the operative part of the deed. Huntington v. Havens, 5 Johns. Ch. (N. Y.) 23; Lamb v. Medsker, 35 Ind. App. 662, 74 N. E. 1012; Dunbar v. Aldrich, 79 Miss. 698, 31 South. 341; Pritchett v. Jackson, 103 Md. 696, 63 Atl. 965; Barnett v. Barnett, 104 Cal. 298, 37 Pac. 1049; Green et al. v. Sutton, 50 Mo. 186; Nightingale et al., Assignees, v. Hidden, 7 R. I. 115; Edwards v. Beall, 75 Ind. 402; Adams v. Ross, 30 N. J. Law, 505, 82 Am. Dec. 237; Young v. Smith, 1 Equity Cases, Law Reports, 180; Simerson, v. Simerson, 20 Hawaii, 57; Nahaolelua v. Heen, 20 Hawaii, 372; Lucas v. Lucas, 20 Hawaii, 433.

[7, 8] In thus reaching the conclusion that the deed conveyed an estate in fee simple to Peke and Maria, we have given no attention to the opening words of declaration in the instrument that the deed is an “absolute conveyance of. land,” because we thought it a safer rule of construction to get at the intent of tire grantor by relying upon the grant and habendum clauses and recitals, rather than upon the preliminary statement of the grantor. This declaration of the grantor is, however, not to be wholly ignored for it is part of the instrument. And when we regard the declaratory words used, they but add support to the opinion we have reached, for an absolute conveyance of land ordinarily means the transfer of an unrestricted or unconditional estate. Water Power Co. v. Street Railway Co., 172 U. S. 475, 19 Sup. Ct. 247, 43 L. Ed. 521; 2 Chitty’s Blackstone, 104; Fuller v. Missroon, 35 S. C. 314, 14 S. E. 714; Converse v. Kellogg, 7 Barb. (N. Y.) 590, 597.

The judgment is affirmed.