153 Iowa 234 | Iowa | 1911
On June 15, .1901, Helen Atkins, widow, and Eliza J. Leigh, widow, being the owners of certain lots in the town of Steamboat Rock, Iowa, executed and delivered a conveyance thereof to Theron W. Prindle, plaintiff herein, who is the son of the last-named grantor. The granting clause .of this deed runs “to Theron W. Prindle, his heirs and- assigns,” and the instrument contains the usual covenants of warranty. Following the description of the property are the words:
For the term of his natural life, subject, however, to a life estate therein expressly reserved to the grantors herein -and to the survivors of said grantors, so long as either may live. In case of the death of said T. W. Prindle, his wife, Margaret Prindle, shall have the right to continue to occupy and use said premises, so long as she shall live and remain his widow, after grantors’ death.
The grantor, Eliza Jane Leigh, died intestate, November 22, 1905, leaving the said Theron W. Prindle, Amanda •Wilson, and three other children, her only surviving heirs. On September 17, 1907, Helen Atkins, the other grantor in the conveyance above mentioned, quitclaimed the same property to the plaintiff, subject to her own life use, and declaring therein her intention to pass to the grantee “present interest” in the property. On February 18, 1908, the plaintiff, claiming under the conveyances to which we have referred, instituted this action in equity, asking that the title to said property be quieted in him as the absolute and unqualified owner thereof in fee.
Of the defendants named therein, none appear to contest the claim thus asserted, except the state, which is represented by counsel, who contend that the first-named deed creates a contingent or executory interest in the state, for the benefit of the orphans’ home, which it maintains at the city of Davenport. Amanda Wilson, sister of plain.tiff, intervenes, claiming that the said deed made by her mother, Eliza Jane Leigh, was testamentary in character; and therefore did not convey to or create in the plaintiff •any present estate or interest, and not being witnessed as a will it is ineffective for any purpose. •
It will be conceded that, if the premises or granting clause does not in any way define or limit the estate conveyed, or if the grant is in general terms only, from which, in the absence of other words, an estate in fee is to be inferred, the habendum may be given effect to qualify, restrict, or enlarge the estate and effectuate the intent of the grantor, as derived from a reading of the entire instrument. Beedy v. Finney, supra; Whetstone v. Hunt, 78 Ark. 230 (93 S. W. 50); 8 Am. & Eng. Ann. Cas. 443.
But cases not infrequently arise which are not to be thus easily disposed of. As we have already noted, the deed we have now to construe undertakes in express words to create an estate of inheritance in Theron W. Prindle. It is made to him “and his heirs.” The word “heirs,” as here used, is a technical term, and denotes the creation of a heritable estate. ’ The reservation of a life estate in the grantors is not repugnant thereto, and may be given effect; but the attempt in the subsequent clause to cut down
In Smith v. Smith, supra, decided by the Michigan court, the point here discussed was directly involved. The deed there in question contained a grant to Thomas J. Smith “and to his heirs,” followed by an habendum clause apparently restricting the interest conveyed to an estate for life. The court says, “The deed is in terms plainly contradictory. It can not be construed as an harmonious whole,” and because of such repugnancy the attempt to cut down the estate conveyed was held inoperative. In his work on real property, above ci’ted, Mr. Washburn says: “If there is a clear repugnance between the nature of the estate granted and that limitecl in the habendum, the latter yields to the former; but if they can be construed so as to stand together, by limiting the estate without contradicting the grant, the court always gives that construction in order to give the effect to both. If, therefore, a grant be to A. and to his heirs, habendum to him for years or for life, the restrictive clause is void.” The same rule is
Bor reasons stated, the decree of the district court is affirmed.